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Cowley v. Equifax Information Services, LLC

United States District Court, W.D. Tennessee, Western Division

November 7, 2019

RUVYE COWLEY, Plaintiff,
v.
EQUIFAX INFORMATION SERVICES, LLC; TRANS UNION, LLC; ROYAL FURNITURE COMPANY; AND UNITED CONSUMER FINANCIAL SERVICES COMPANY, Defendants.

          ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          THOMAS L. PARKER UNITED STATES DISTRICT JUDGE

         Defendant United Consumer Financial Services Company (“UFCSC”) moves for summary judgment on Plaintiff Ruvye Cowley's claims against it under the Fair Credit Reporting Act, 15 U.S.C. § 1861s-2(b). (ECF No. 71.) UCFSC also moves for summary judgment on its Counterclaim for breach of contract. (Id.) For the reasons below, this Court GRANTS UCFSC's motion for summary judgment on Plaintiff's claims and GRANTS UCFSC's motion for summary judgment as to only liability on its breach of contract claim. And the Court will decide the amount of damages owed to Defendant later.

         BACKGROUND

         I. Undisputed Facts and Procedural History

         Unless otherwise stated, these facts, taken from the Parties' statements of undisputed material facts, are undisputed. In March 2016, Plaintiff entered into a Retail Installment Contract/Security Agreement (“Agreement”) with UCFSC. (ECF Nos. 75 at PageID 502; 78 at PageID 530.) Under the Agreement, UCFSC provided Plaintiff with $1, 400.00 in consumer financing and, in return, Plaintiff agreed to make 24 monthly payments of $72.04 to repay the principal plus interest. (ECF Nos. 75 at PageID 503; 78 at PageID 531.)

         Yet Plaintiff failed to timely pay the amounts owed and UCFSC accelerated the debt under the Agreement. (ECF Nos. 75 at PageID 503; 78 at PageID 531.) UCFSC claims that Plaintiff owes a balance of $867.68, (ECF No. 75 at PageID 503), but Plaintiff is not so sure. She denies the amount, claiming she needs to obtain discovery to determine the amount of the balance. (ECF No. 78 at PageID 531.) That brings us to the credit report.

         Plaintiff later received an Equifax and Trans Union credit disclosure reporting a UCFSC trade line with a scheduled monthly payment of $72.00. (ECF No. 1 at PageID 4.) Plaintiff sent letters to Equifax and Trans Union disputing the $72.00 scheduled monthly payment. (ECF Nos. 78 at PageID 532; 77-1 at PageID 515; 77-2 at PageID 516.) Plaintiff claimed that UCFSC charged off and closed the account, therefore, the scheduled monthly payment should be $0.00. (ECF Nos. 78 at PageID 533; 77-1 at PageID 515; 77-2 at PageID 516.) Equifax and Trans Union notified UCFSC of the dispute through the Automated Consumer Dispute Verification (“ACDV”) system, but UCFSC continued to report the scheduled monthly payment as $72.00. (ECF Nos. 78 at PageID 533-34.; 73-2 at PageID 490 & 493.) UCFSC contends that the scheduled monthly payment amount was accurately reported. (ECF Nos. 75 at PageID 504; 73 at PageID 450.) But Plaintiff disputes that, arguing instead that because UCFSC accelerated the debt, the accurate scheduled monthly payment should be $0.00. (ECF No. 78 at PageID 532.)

         So Plaintiff sued, alleging that UCFSC violated the FCRA by reporting a scheduled monthly payment when the account was, in fact, charged off and closed. (ECF No. 1 at PageID 5.) Plaintiff also alleges that UCFSC did not adequately investigate her dispute notice. (Id. at 8- 9.) And Plaintiff claims these violations caused her damages, undue stress, anxiety, mental anguish, suffering, and embarrassment. (Id. at 8-10.)

         UCFSC answered and filed a Counterclaim against Plaintiff for breach of contract. (See ECF No. 55 at PageID 286-87.) UCFSC now asks this Court to grant summary judgment as to Plaintiff's FCRA claims and its Counterclaim for breach of contract. (ECF No. 71.)

         II. The Credit Reporting Resource Guide and Rule 56 of the Federal Rules of Civil Procedure

         Plaintiff relies on the Credit Reporting Resource Guide (“CRRG”) to argue that a genuine dispute of material fact exists about whether she owed the scheduled monthly payment of $72.00 when UCFSC reported it. (ECF No. 78 at PageID 532-33.) The CRRG is a report created by the Consumer Data Industry Association to “establish standards for the consumer reporting industry.” (Id.) According to Plaintiff, the CRRG requires a creditor who has charged-off an account balance-like UCFSC did here-to report a balance of $0.00 to the credit reporting services. (Id. at PageID 533.) So according to Plaintiff, when UCFSC listed $72.00 as the scheduled monthly payment amount here, it was inaccurate. (ECF No. 77 at PageID 511-12.)

         But the Court cannot consider the CRRG to determine whether the listed monthly payment of $72.00 was accurate because it is hearsay. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). Hearsay is inadmissible unless it falls under an exception provided by the Federal Rules of Evidence. Fed.R.Evid. 802.

         The cited guidelines of the CRRG are out-of-court statements by an industry group. These are industry guidelines, not legal authority like regulations, laws or cases. Plaintiff argues that she is only proffering the CRRG to show that UCFSC negligently failed to change the scheduled monthly payment amount. At the same time, however, Plaintiff seems to claim this industry guide shows that the monthly payment amount UCFSC reported was inaccurate. (ECF No. 77-3.) But without testimony (through declaration or deposition by an expert witness) authenticating the CRRG guidelines, they are inadmissible hearsay. This Court cannot consider such submissions.

         The Sixth Circuit has long recognized that a court may not consider hearsay when deciding a summary judgment motion. See, e.g., Tranter v. Orick, 460 Fed.Appx. 513, 514 (6th Cir. 2012) (citing to Alpert v. United States, 481 F.3d 404, 409 (6th Cir. 2007) (“[E]vidence submitted in opposition to a motion for summary judgment must be admissible. Hearsay evidence . . . must be disregarded.”) (internal citations omitted); Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 927 (6th Cir. 1999) (“Hearsay evidence ...


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