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Anderson v. Equifax Information Services, LLC

United States District Court, D. Kansas

November 13, 2017

ANGELA ANDERSON, Plaintiff,
v.
EQUIFAX INFORMATION SERVICES LLC, Defendant.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE.

         Plaintiff Angela Anderson filed suit against Defendant Equifax Information Services LLC alleging violations of the Fair Credit Report Act (“FCRA”).[1] This matter comes before the Court on Plaintiff's Motion to Alter or Amend Judgment Pursuant to Fed.R.Civ.P. 59(e) (Doc. 52), in which she asks the Court to reconsider its Memorandum and Order granting Defendant's Motion for Summary Judgment.[2] The motion is fully briefed, and the Court is prepared to rule. For the reasons explained more fully below, Plaintiff's motion to alter or amend is granted in part and denied in part.

         I. The Court's Summary Judgment Rulings

         Plaintiff alleged in this matter that Defendant erroneously mixed her credit file with that of another consumer, Angela Bierman-Bogart, sold consumer credit reports that included false accounts and information belonging to that other consumer, and failed to those remove false accounts and information from her credit file in response to Plaintiff's numerous requests. Each of the two counts in the Complaint allege Defendant violated three separate provisions of the FCRA relating to the investigative and reporting duties for credit reporting agencies (“CRAs”). Specifically, § 1681e(b) requires a credit reporting agency to follow reasonable procedures to ensure maximum accuracy, § 1681i requires a credit reporting agency to comply with certain reinvestigation requirements, and § 1681b requires a credit reporting agency to provide a consumer's credit file to companies only if it has determined there is a permissible purpose. Count I alleged negligent violations and Count II alleged willful violations of all three provisions.

         On August 3, 2017, this Court granted Defendant's motion for summary judgment on all three FCRA violations asserted in the Complaint. First, the Court concluded that the § 1681e(b) “maximum possible accuracy” and § 1681i(a) “reasonable reinvestigation” claims were time-barred. Second, the Court determined that summary judgment on Plaintiff's § 1681b “permissible purpose” violation must be granted in Defendant's favor because Defendant did not provide a “consumer report” within the meaning of the statute.

         First, the Court construed the statute of limitations provision in § 1681p:

         An action to enforce any liability created under this subchapter may be brought . . . not later than the earlier of-

(1) 2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability; or
(2) 5 years after the date on which the violation that is the basis for such liability occurs.[3]

         The Court acknowledged a split of authority among the federal courts as to whether the limitations period accrues upon the discovery of each issuance of a credit report that violates the Act, or instead whether the clock begins to run upon the discovery of the first instance of a repeated violation.[4] There is no Tenth Circuit authority on this issue. The Court therefore followed the line of cases holding that the statute begins to accrue upon discovery of the first violation that forms the basis of the plaintiff's claims. Accordingly, the Court determined that Plaintiff's claims for maximum possible accuracy and reasonable reinvestigation are time-barred because Plaintiff first discovered her file was mixed with Bogart's file in 2005, first disputed the file in March 2005, and Defendant allegedly failed to conduct a reasonable reinvestigation in 2005. The Court concluded that Plaintiff had two years from March 2005 to bring her action, and her limitations period therefore ran in March 2007, many years before she filed this action in 2016.

         Plaintiff's third alleged FCRA violation was that the inquiry section of her August 31, 2015 credit report showed Defendant provided information to Chase Home Lending for an “account review” on August 18, 2015, in violation of the FCRA's permissible purpose provision. The Court found that this claim was timely, however, there was no genuine issue of material fact that the information provided to Chase Home Lending was not a “consumer report” under the FCRA. The Court determined, based on the uncontroverted facts in the record, that the only information provided to Chase Home Lending on the inquiry dated August 18, 2015, was the consumer's name and address, and that Defendant's customer made a mortgage inquiry on her file on August 17, 2015. This information was not used or expected to be used to determine eligibility for credit, therefore as a matter of law the Court found there could be no permissible purpose violation.

         II. Legal Standard

         Under Rule 59(e), grounds warranting a motion to alter or amend judgment include: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error or prevent manifest injustice.[5] “Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law.”[6] Such a motion does not permit a losing party to rehash arguments previously addressed or to present new legal theories or facts that could have been raised earlier.[7] A party's failure to present its strongest case in the first instance does not entitle it to a second chance in the form of a motion to reconsider.[8] Whether to grant a motion to reconsider is left to the Court's discretion.[9]

         III. Discussion

         Plaintiff moves to alter or amend on two grounds: (1) manifest injustice; and (2) the availability of new evidence. As to manifest injustice, Plaintiff challenges both of the Court's summary judgment rulings-that the statute of limitations bars her maximum possible accuracy and reasonable reinvestigation claims, and that there was no permissible purpose violation because the information Defendant provided to Chase Home Lending in August 2015 was not a consumer report within the meaning of the statute. Additionally, Plaintiff submits her credit file dated August 24, 2017, obtained after the Court's summary judgment order, in support of her arguments that both of the Court's rulings were erroneous, and argues that her new credit report demonstrates fresh violations of the FCRA. The Court first considers whether the new evidence submitted by Plaintiff with the motion to alter or amend should be considered by the Court. Then, the Court takes Plaintiff's claims in reverse order, addressing first the permissible purpose violation, and then the maximum possible accuracy and reasonable reinvestigation claims.

         A. New Evidence

         Plaintiff asks the Court to consider new evidence of FCRA violations that she first discovered after the Court's summary judgment ruling, when she requested and obtained an updated credit report dated August 24, 2017, reflecting false accounts and information that did not appear on her August 31, 2015 credit report. “When supplementing a Rule 59(e) motion with additional evidence, the movant must show . . . that the evidence is newly discovered [and] if the evidence was available at the time of the decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence.”[10]

         Plaintiff asserts in her attached affidavit that after September 2015, Defendant would not provide her with copies of her credit report. But her original affidavit makes no mention of this fact. Her new affidavit references the fact that her lawyers attempted to identify false accounts and information so that Defendant could correct her file during the pendency of this lawsuit. Both in Plaintiff's affidavit, and in the reply brief, she asserts that defense counsel misrepresented that the disputed false information had been corrected. While this may be true, it does not explain why Plaintiff would not seek, at least through discovery, a copy of her credit report during the pendency of this case. The Court is puzzled as to why Plaintiff could not and did not obtain a copy of Defendant's credit report between the dates of August 31, 2015, before this case was filed, and August 24, 2017, after the Court's summary judgment ruling. Plaintiff's assertions in her affidavit are insufficient to convince the Court that Plaintiff's counsel made diligent yet unsuccessful efforts to discover an updated credit report for Plaintiff during the pendency of this case. Accordingly, the Court declines to consider this evidence in support of Plaintiff's motion to alter or amend.[11] The Court proceeds to review its summary judgment rulings on the basis of the previously-stated uncontroverted facts, which this Court incorporates by reference.[12]

         B. Permissible Purpose Violation

         Plaintiff challenges this Court's ruling that the Chase Home Lending inquiry on Plaintiff's August 31, 2015 credit report was not a “consumer report” under the statute. In its August 3 Order, the Court found no evidence that the entry on Plaintiff's credit report, “AR-Chase Home Lending 08/18/2015, ” was a “consumer report” as that term is defined by the FCRA. The uncontroverted facts demonstrate that this item was only listed in the “soft inquiry” section of Plaintiff's credit report, and Defendant submitted evidence that the only information provided by Defendant to Chase Home Lending was the consumer's name, address, and the fact that Defendant's customer made a mortgage inquiry on her file on August 17, 2015. Plaintiff argues that the Court misconstrued the statutory definition of “consumer report, ” and that newly discovered evidence shows Defendant continues to violate § 1681b.

         Under § 1681b(a)(3)(A), a CRA “may furnish a consumer report” only under certain circumstances. Under § 1681a(d)(1), “consumer report” is defined as

any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for--
(A) credit or insurance to be used primarily for personal, family, or household purposes;
(B) employment purposes; or
(C) any other purpose authorized under section 1681b of this title.

         Section 1681b, referenced in subsection (d)(1)(C) of the consumer report definition, includes a list of circumstances under which a CRA may furnish a consumer report, including “[t]o a person which it has reason to believe . . . (F) otherwise has a legitimate business need for the information . . . (ii) to review an ...


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