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Selvam v. Experian Information Solutions, Inc.

United States District Court, E.D. New York

March 30, 2018

KAMALADOSS V. SELVAM, pro se, Plaintiff,



         Pro se plaintiff Kamaladoss V. Selvam (“Plaintiff”) commenced this action against consumer reporting agency defendant Experian Information Solutions, Inc. (“Defendant”) alleging violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA”) and New York Fair Credit Reporting Act, N.Y. Gen. Bus. L. § 380, et seq. (“NY FCRA”). Defendant moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff opposed. This Court granted Defendant's motion in its entirety. See Selvam v. Experian Info. Sols., Inc., No. 12-cv-1828 (DLI) (JO), 2015 WL 1321615 (E.D.N.Y. Mar. 24, 2015) (“Selvam I”). Plaintiff appealed to the Second Circuit Court of Appeals. See Notice of Appeal, Dkt. Entry No. 92. The Circuit Court affirmed in part, vacated in part, and remanded for further proceedings. See Dkt. Entry No. 93.

         Plaintiff's sole remaining claim after the Circuit Court's decision is that Defendant failed to disclose clearly and accurately to Plaintiff all of the information in Plaintiff's credit file as required by FCRA § 1681g.[1] See Selvam v. Experian Info. Sols., Inc., 651 F. App'x 29 (2d Cir. 2016). On remand, this Court granted Defendant leave to move for summary judgment based on issues of damages and timeliness. See Min. Entry, Jan. 9, 2017. Defendant so moved on March 21, 2017. See Def.'s Mot. for Summ. J., Dkt. Entry No. 109; Def.'s Mem. of Law in Supp. of Def.'s Mot. for Summ. J. (“Def.'s Mem. of Law”), Dkt. Entry No. 110. For the reasons that follow, Defendant's motion is granted in part and denied in part.


         Plaintiff's claim stems from erroneous consumer credit reports that were furnished to him by Defendant in 2011. On February 24, 2011, Defendant was notified by another consumer reporting agency that Plaintiff had contacted it to dispute inaccurate items on his credit report due to possible fraudulent activity. Decl. of Jason Scott dated Jan. 31, 2014 (“Scott Decl. 1”) ¶¶ 30, 33, 35, Ex. 2 to Decl. of Andrew S. Kleinfeld in Supp. of Def.'s Mot. for Summ. J. (“Kleinfeld Decl.”), Dkt. Entry No. 113-1. Also on February 24, 2011, Defendant sent Plaintiff a letter explaining that a security alert had been added to his file, and enclosing a copy of Plaintiff's consumer credit report. Id. ¶¶ 31, 33, 36; Security Alert Letter, Ex. D to Scott Decl. 1, Dkt. Entry No. 113-1. Plaintiff acknowledges receiving the letter and consumer credit report. Excerpts from Dep. of Kamaladoss V. Selvam (“Selvam Dep.”) at 110:22-25, Ex. 1 to Kleinfeld Decl., Dkt. Entry No. 113. However, the February 24, 2011 credit report did not contain any credit account information because Defendant had mistakenly assigned Plaintiff two personal identification numbers (PINs) and one of the numbers did not contain credit information for Plaintiff.[3] Decl. of Kimberly Hughes (“Hughes Decl.”) ¶¶ 15-18, 25-28, Ex. 5 to Kleinfeld Decl.; Scott Decl. 1 ¶¶ 28, 32, 34, 37; Security Alert Letter. As a result, Plaintiff did not contact Defendant to dispute any credit information because “[the report] [did] not have anything that [he] thought could be damaging towards [him][.]” Selvam Dep. at 163:8-9. This issue was not remedied until March 31, 2011, or thereabouts, when Defendant discovered the two PINs during the ordinary course of business and deleted the PIN that was missing Plaintiff's credit information. Hughes Decl. ¶ 31. However, as discussed infra, Defendant did not inform Plaintiff of the issue, and Plaintiff did not learn of it until June 2011.

         Plaintiff applied for a car loan for approximately $25, 000-$30, 000 from the Municipal Credit Union (“MCU”) in or about January 2011 (“the car loan”). Am. Compl. ¶ 34; Selvam Dep. at 371:21-22. In April 2011, Plaintiff received a denial letter from MCU. Letter dated April 28, 2011 from MCU, Ex. W to Pl.'s Opp. to Def.'s Mot. for Summ. J. in Selvam I (“Pl.'s Selvam I Opp.”), [4] Dkt. Entry No. 78-19.[5] Plaintiff does not know if MCU received a credit report from Defendant in connection with the application process, Selvam Dep. at 96:10-19, but the letter refers to information provided by Defendant. See Ex. W to Pl.'s Selvam I Opp.

         Plaintiff applied for a home loan for approximately $500, 000-$600, 000 from Wells Fargo Bank in or about May or June 2011 (“the home loan”). Am. Compl. ¶ 54; Selvam Dep. at 298:7-11. The home loan was denied orally because there were too many delinquencies on Plaintiff's credit report. Selvam Dep. at 313:24-25. The credit report in question was provided by Rels Credit, which Defendant concedes included information from Defendant. See Rels Report, Ex. 8 to Kleinfeld Decl., Dkt. Entry No. 113-7; Def.'s Mem. of Law at 8-9.[6] After that denial, Plaintiff contacted Defendant in June 2011 to dispute items on his report. Local Civ. R. 56.1 Statement of Material Facts in Supp. of Def.'s Mot. for Summ. J. (“Def.'s 56.1 Statement”) ¶ 39, Dkt. Entry No. 111. Only then did Plaintiff receive corrected disclosures from Defendant that contained credit account information. Id. ¶ 9.


         I. Legal Standards

         Pro se pleadings are held “to less stringent standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (citation omitted). Courts should “interpret [such papers] to raise the strongest arguments that they suggest.” Forsyth v. Fed'n Emp't & Guidance Serv., 409 F.3d 565, 569 (2d Cir. 2005) (citation and internal quotation marks omitted).

         Summary judgment is appropriate where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The court must view all facts in the light most favorable to the nonmoving party, but “only if there is a ‘genuine' dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Id. A genuine issue of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmoving party, however, may not rely on “[c]onclusory allegations, conjecture, and speculation, ” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998), but must affirmatively “set out specific facts showing a genuine issue for trial, ” Fed.R.Civ.P. 56(e). “When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994) (citing Dister v. Cont'l Grp., Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)).

         Local Civil Rule 56.1 requires that a party moving for summary judgment include with the motion a “separate, short, and concise statement of the material facts to which the moving party contends there is no genuine issue to be tried.” Local Civ. R. 56.1(a). “When a party has moved for summary judgment . . . and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party.” Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992). In cases involving a pro se litigant, Local Civil Rule 56.2 requires that: “[a]ny represented party moving for summary judgment against a party proceeding pro se shall serve and file as a separate document, together with the papers in support of the motion, a ‘Notice to Pro Se Litigant Who Opposes a Motion for Summary Judgment' with the full texts of Fed.R.Civ.P. 56 and Local Civil Rule 56.1 attached.” Local Civ. R. 56.2. “The notice referred to in the rule advises the pro se litigant of the possibility that the complaint may be dismissed and informs the litigant that she must submit evidence countering the facts asserted by the defendant and raising issues of fact for trial.” Arum v. Miller, 304 F.Supp.2d 344, 349 (E.D.N.Y. 2003). In the instant case, Defendant submitted a Rule 56.1 statement and Rule 56.2 notice. Thus, Defendant's motion is properly before this Court.

         II. FCRA § 1681g

         The FCRA requires that a consumer reporting agency, upon request, clearly and accurately disclose to a consumer all information in a consumer's file. 15 U.S.C. § 1681g(a)(1). It also grants a consumer “a right…to obtain a copy of a consumer report.” 15 U.S.C. § 1681g(c). A claim arising under the FCRA must be brought “not later than the earlier of: (1) 2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability; or (2) 5 years after the date on which the violation that is the basis for such liability occurs.” 15 U.S.C. § 1681p. To sue a consumer reporting agency under this section, a violation may be willful or negligent. See 15 U.S.C. §§ 1681n & 1681o; Ritchie v. N. Leasing Sys., Inc., 14 F.Supp.3d 229, 233-34 (S.D.N.Y. 2014) (“In general, the FCRA provides a cause of action against any person who willfully fails to comply or who is negligent in failing to comply with an FCRA requirement”) (internal quotations omitted). If ...

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