United States District Court, D. Nevada
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY
JUDGMENT [ECF NOS. 29, 30]
P. GORDON UNITED STATES DISTRICT JUDGE.
2016, plaintiff Christopher Abernathy hired Credit Research
of Nevada (CRN) to help him with some credit issues. On
Abernathy's behalf, CRN disputed several of his accounts
as reported on his credit report by defendant Experian
Information Solutions, Inc. (Experian), including a debt
assigned to Continental Service Group, Inc. (ConServe).
with the results of multiple disputes, Abernathy sued
Experian and ConServe for violating the Federal Credit
Reporting Act (FCRA), Fair Debt Collection Practices Act
(FDCPA), and Nevada Deceptive Trade Practices Act (DTPA).
Both defendants move for summary judgment and I grant both
owed the College of Southern Nevada (CSN) $1, 158.50 for
unpaid tuition, which CSN assigned to ConServe to collect.
ECF No. 41-28 at 45-46. Abernathy paid this debt in full
directly to CSN on August 26, 2016. Id. at 46.
in July 2016, Abernathy hired CRN to help him address credit
issues. ECF No. 29-2 at 68-69, 71. CRN sent a dispute letter
to Experian on August 12, 2016 disputing all the negative
accounts on Abernathy's credit report. ECF No. 29-1 at
15-16. With respect to the ConServe account, the letter
stated that the account was “not familiar.”
Id. at 15. No supporting documentation was attached
to the letter. Experian sent an automatic consumer dispute
verification (ACDV) form to ConServe with the dispute reason
listed as “001- Not his/hers. Provide complete
ID.” Id. at 22.
receiving the ACDV, ConServe requested documents validating
the debt from CSN. ECF No. 31-1 at 36. ConServe received an
itemized account statement and screenshot from the
college's record system showing the account was valid and
the debt was paid in full. Id. at 37-38.
ConServe's ACDV response confirmed the validity of the
account and reported the account was a valid, paid collection
account. Id. at 22, 38; ECF No. 29-1 at 22.
Thereafter, Experian updated its reporting to show the
ConServe account, identified as a “Collection”
account, with status of “Paid, Closed” and no
balance as of September 2016, the “Date of
Status.” ECF No. 29-1 at 29; ECF No. 29-2 at 117. The
comment section noted that the account was “disputed by
consumer.” ECF No. 29-1 at 29. In the payment history
section, only the month of September 2016 is listed, with a
“C” notation meaning “Collection.”
Id. Also in response to this dispute, ConServe sent
Abernathy a letter confirming the debt had been paid and
including supporting documentation from CRN. ECF No. 31-2 at
September 14, CRN sent Experian another letter disputing
Abernathy's negative accounts and stating the ConServe
account “was paid and [he] would like it
removed.” ECF No. 29-1 at 97. The letter did not
include any supporting documentation. Experian responded by
sending a copy of Abernathy's report showing the account
reported as paid and closed. ECF No. 29-2 at 8.
October 5, CRN submitted an online dispute on behalf of
Abernathy asking Experian to confirm the negative notation in
September on the ConServe account. That day, Experian sent a
second ACDV to ConServe. Id. at 27. The dispute
reason stated: “112 - Claims inaccurate information.
Did not provide specific dispute. Provide complete ID and
verify account information. PLEASE CONFIRM THE NEGATIVE
NOTATION IN SEPTEMBER IS CORRECT. I BELIEVE THIS ACCOUNT IS
MARKED IN THE WRONG MONTH.” Id.
verified the account information and updated Abernathy's
address. ECF No. 31-1 at 40. It responded to the ACDV on
October 6, reporting the account should be marked as a paid
collection account with zero balance as of that day.
Id.; ECF No. 29-2 at 27. That same day, Experian
sent Abernathy a new version of his report in response to his
dispute. Id. at 31. The report showed the ConServe
account as a collection account that was paid and closed,
with a status date of October 2016 and the payment history
showing a “C” notation in October 2016.
November 2, CRN sent a third dispute letter to Experian. ECF
No. 41-22. The letter again stated the ConServe account had
been paid and requested its removal. Id. In
response, Experian sent Abernathy a copy of his credit
report, which showed the account was closed and paid. ECF No.
29-2 at 46. On December 16, 2016, ConServe sent Abernathy a
letter confirming it had sent him documentation validating
the debt. ECF No. 31-2 at 31.
judgment is appropriate if the pleadings, discovery
responses, and affidavits demonstrate “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a), (c). A fact is material if it “might affect the
outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue is genuine if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id.
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and
identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden
then shifts to the non-moving party to set forth specific
facts demonstrating there is a genuine issue of material fact
for trial. Fairbank v. Wunderman Cato Johnson, 212
F.3d 528, 531 (9th Cir. 2000). I view the evidence and draw
reasonable inferences in the light most favorable to the
non-moving party. James River Ins. Co. v. Hebert Schenck,
P.C., 523 F.3d 915, 920 (9th Cir. 2008).
Experian's Motion for Summary Judgment
brings two claims against Experian. The first is for
negligently and willfully violating the FCRA. The second is
for violating the DTPA. Experian moves for summary judgment
on both claims.
alleges Experian violated sections 1681e(b) and 1681i(a) of
the FCRA by failing to maintain reasonable procedures to
ensure accuracy in its credit reports and failing to conduct
a sufficient reinvestigation of the ConServe account.
Experian argues it followed reasonable procedures and its
investigation was adequate. It also contends Abernathy has no
evidence of actual damages to support his negligence claim,
and cannot show Experian acted willfully to support his claim
for statutory damages. Abernathy responds that Experian's
reports inaccurately showed his account as a paid collection
account and included a notation of collection in September or
October, when the debt was paid in August. He contends
Experian's reliance on ACDVs was unreasonable and a
willful violation of the FCRA.
negligent violations, the FCRA permits recovery of “any
actual damages sustained by the consumer as a result of the
failure.” 15 U.S.C. § 1681o. “The FCRA does
not presume actual damages for a negligent . . . failure to
comply with any of its requirements.” Johnson v.
Wells Fargo Home Mortg., Inc., 558 F.Supp.2d 1114, 1122
(D. Nev. 2008). The plaintiff “bears the burden of
proving that his damages were, in fact, caused by” the
defendant's violation. Id.
argues Abernathy's claim for negligent FCRA violations
must fail because he has produced no evidence of any
cognizable actual damages. It contends Abernathy admitted in
his deposition that he had no damages and never provided
evidence of damages in written discovery. Abernathy responds
that his deposition testimony should be excluded because he
was asked sarcastic, leading questions and the testimony is
either irrelevant or prejudicial, and that his statements