United States District Court, E.D. New York
JACOB Y. SHIMON, Plaintiff,
EEQUIFAX INFORMATION SERVICES LLC, Defendant.
MEMORANDUM DECISION AND ORDER
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.
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
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.
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”).
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.
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 making false representations in responding
to plaintiff's request for information, in violation of
15 U.S.C. § 1681g(a)(2).
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.
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.
cross moves for summary judgment on all claims.
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).
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).
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).
Defendant's Motion for Summary Judgment
Accuracy of Credit Report (15 U.S.C. §
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
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.”
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 ...