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Hogue v. Allied Collection Service, Inc.

United States District Court, D. Nevada

February 7, 2018

RICHARD B. HOGUE, Plaintiffs,
v.
ALLIED COLLECTION SERVICE, INC., Defendants.

          ORDER

         Presently before the court is defendant Silver State Schools Credit Union's (“Silver State”) motion for summary judgment. (ECF No. 43). Plaintiff Richard B. Hogue (“Hogue” or “plaintiff”) filed a response (ECF No. 46), to which Silver State replied (ECF No. 57).

         Plaintiff also filed a motion to supplement its response to Silver State's motion for summary judgment. (ECF No. 61). Silver State filed a response (ECF No. 62), to which plaintiff replied (ECF No. 65).

         Also before the court is plaintiff's motion for summary judgment. (ECF No. 42). Silver State filed a response (ECF No. 50), to which plaintiff replied (ECF No. 57).

         I. Facts

         The instant dispute involves allegations that Silver State erroneously reported plaintiff's derogatory credit information to Experian in violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (the “FCRA”). Plaintiff alleges Silver State failed to investigate properly a credit dispute involving the reporting of an auto loan discharged through bankruptcy. (ECF No. 42).

         Silver State furnishes information to consumer credit reporting agencies (“CRAs”) like Experian Information Solution, Inc. (“Experian”) (also named in the suit). (ECF No. 43). Defendant Experian is a consumer reporting agency that assembles and/or evaluates consumer credit information for the purpose of furnishing consumer reports to third parties.[1] (ECF No. 43).

         Plaintiff filed for Chapter 13 bankruptcy pursuant to 11 U.S.C. § 1301 et seq. on January 31, 2009. (ECF No. 43). Plaintiff completed the bankruptcy on May 30, 2014 and received a discharge from all of his debts, including Silver State's auto account. (ECF No. 43). Plaintiff asserts that Silver State's report contradicts itself. Silver State reported that the account had been discharged in the bankruptcy, that he still owed over $14, 000 on the auto loan and had not made payments in years, but also that the account balance was $0. (ECF No. 42). Plaintiff contends this conflicting reporting resulted in the “re-aging” of plaintiff's debt, causing his account to report negatively for longer than the seven-year period legally permissible under the FCRA. Id. Further, plaintiff alleges Silver State violated its obligation under 15 U.S.C. § 1681s-2(b) to report account information accurately and violated industry standards regarding the reporting of accounts included in bankruptcy. Id. Included accounts should be reported as having a balance of $0 and as being current according to plaintiff.

         Plaintiff disputed the Silver State account information with Experian, as required under 15 U.S.C. §§ 1681i and 1681s-2(b), but claims Silver State failed to correct the information. Id. Plaintiff contends that the erroneous reporting was the result of Silver State's Automated Credit Dispute Verification (“ACDV”) to Experian in response to plaintiff's dispute. Id.

         In the instant motions, defendant Silver State moves for summary judgment as to all of plaintiff's claims (ECF No. 43), while plaintiff moves for partial summary judgment on the issue of liability based on Silver State's reporting of inaccurate information on his credit report. (ECF No. 42). . . . . . .

         II. Legal Standards

         The Federal Rules of Civil Procedure allow summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A principal purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

         For purposes of summary judgment, disputed factual issues should be construed in favor of the nonmoving party. Lujan v. Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990). However, to withstand summary judgment, the nonmoving party must “set forth specific facts showing that there is a genuine issue for trial.” Id.

         In determining summary judgment, a court applies a burden-shifting analysis. “When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted).

         By contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159- 60 (1970).

         If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party need not establish a dispute of material fact conclusively in its favor. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). It is sufficient that “the claimed ...


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