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Shimon v. Equifax Information Services LLC

United States District Court, E.D. New York

January 2, 2020

JACOB Y. SHIMON, Plaintiff,
v.
EEQUIFAX INFORMATION SERVICES LLC, Defendant.

          MEMORANDUM DECISION AND ORDER

          BRIAN M.COGAN U.S.D.J.

         In this FCRA action, plaintiff moves to amend his complaint for a third time as well as for partial summary judgment. Defendant cross-moves for summary judgment. For the reasons set forth below, the information about which plaintiff is complaining on his credit report was in fact accurate, and that holding requires dismissal of all of his claims. Plaintiff's motion to amend his complaint and for partial summary judgment is therefore denied, and defendant's motion for summary judgment is granted.

         BACKGROUND

         According to plaintiff's second amended complaint, in March 2013, a debt collection company obtained a default judgment against plaintiff in the Civil Court of New York, Kings County. Later that year, the Kings County Civil Court vacated the judgment. Nevertheless, defendant continued to list the judgment on plaintiff's credit report. Upon plaintiff disputing the statement, defendant began to list the judgment as “Satisfied.”

         Plaintiff, however, maintained that even the “Satisfied” notation was erroneous and misleading, and could negatively affect his credit. He therefore requested that defendant remove mention of the judgment altogether, believing that saying the judgment was “Satisfied” was inconsistent with a vacated judgment. Plaintiff's entreaties were unsuccessful.

         Plaintiff then requested that defendant disclose its method of verifying the judgment information, pursuant to 15 U.S.C. § 1681i, and that it provide a detailed report of the sources of defendant's information, pursuant to 15 U.S.C. § 1681g. Defendant sent plaintiff a reinvestigation response letter in addition to turning over his full credit file. The response letter represented that defendant received the judgment information from the public records of “local, state and federal courts.” It further stated that “we have reviewed the judgment information” and provided contact information for the Kings County Civil Court (the “Civil Court”).

         Plaintiff alleges, however, that defendant “obtains all its public records information from third party vendors/furnishers such as LexisNexis Risk Data Retrieval Services, LLC” (“Lexis”). According to plaintiff, defendant thus “misle[d] the consumer into believing that it has conducted a review with the courts.” Additionally, plaintiff claims that instead of investigating disputed information and substantively responding to the consumer, defendant “has created form letters which are specifically used to misinform consumers” as to where defendant gets its information and how it verifies that it is accurate.

         Plaintiff brings claims against defendant for (1) willfully and negligently failing to maintain and/or follow reasonably accurate credit reporting procedures, in violation of 15 U.S.C. § 1681e(b); (2) willfully and negligently failing to follow the proper procedures for communicating with the furnisher and plaintiff in response to a consumer dispute, in violation of 15 U.S.C. § 1681i; and (3) negligently[1] making false representations in responding to plaintiff's request for information, in violation of 15 U.S.C. § 1681g(a)(2).

         My October 9, 2018 Memorandum Decision and Order, issued prior to plaintiff filing his second amended complaint, dismissed plaintiff's third cause of action insofar as it alleged a willful violation of 15 U.S.C. § 1681g(a)(2). I held that because defendant's “interpretation of the term ‘sources' in § 1681g(a)(2) was sufficiently reasonable, albeit mistaken, to preclude a finding of willfulness, ” plaintiff did not state a claim for a willful violation.

         Plaintiff's instant motion to amend his complaint seeks leave to revive the willful violation claim on the heels of acquiring new information during discovery. Plaintiff also moves for partial summary judgment in favor of his § 1681i(a)(7) claim that defendant willfully failed to provide “the business name and address of any furnisher of information contacted” during the reinvestigation.

         Defendant cross moves for summary judgment on all claims.

         DISCUSSION

         Under Federal Rule of Civil Procedure 56, a court may grant summary judgment when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The moving party “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant successfully does this, the burden shifts to the opposing party to “offer some hard evidence showing that its version of the events is not wholly fanciful.” See D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998).

         “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted). However, “only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment.” Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997).

         A dispute as to a material fact is “‘genuine' . . . 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 opposing party must put forward some “concrete evidence from which a reasonable juror could return a verdict in his favor” to withstand a motion for summary judgment. Id. at 256. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.” Id. When deciding a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. (internal quotation mark omitted).

         I. Defendant's Motion for Summary Judgment

         A. Accuracy of Credit Report (15 U.S.C. § 1681e(b))

         Defendant moves for summary judgment against plaintiff's claims that defendant “negligently and willfully failed to maintain and/or follow reasonable procedures to assure maximum possible accuracy of the information it reported.” Defendant contends that it did not make any inaccurate statements in plaintiff's credit report when it noted that the default judgment was “satisfied.”

         In support of its position, defendant largely relies on an aspect of this case that was not at all apparent from plaintiff's complaint - that the Civil Court never actually vacated the default judgment. Rather, “the lawsuit in which Plaintiff's Judgment was entered was dismissed ‘with prejudice' following entry of a ‘Stipulation of Settlement.'” That the Civil Court judgment was not vacated upon entry of the stipulation is apparent from the submitted exhibits and admitted by plaintiff in his responsive 56.1 Statement, as well as conceded in his opposition papers. As plaintiff points out, the Clerk of the Civil Court entered the word “Settled” as the disposition of the case on the docket, and the court document effecting the disposition used the word “resolved” and noted that the case was “discontinued with prejudice.”

         It is axiomatic that “to maintain a cause of action under § 1681e(b), a plaintiff must show that . . . the information was inaccurate. See Okocha v. Trans Union LLC, No. 08-cv-3107, 2011 WL 2837594, at *5 (E.D.N.Y. Mar. 31, 2011) (internal citations omitted). A credit entry is inaccurate if it “is patently incorrect, or [if] it is misleading in such a way and to such an extent that it can be expected to adversely affect credit decisions.” See Kilpakis v. JPMorgan Chase Fin. Co., LLC, 229 F.Supp.3d 133, 141 (E.D.N.Y. 2017) (citing Sepulvado v. CSC Credit Serv., Inc., 158 F.3d 890, 895 (5th Cir. 1998). “However, even if the information is inaccurate, a plaintiff must still present some evidence from which ...


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