United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
Lucretia Stewart brings this lawsuit against defendants
Equifax Information Services, LLC (“Equifax”) and
Credit One Bank, N.A. (“Credit One”), alleging
that defendants violated the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681 et seq.
All parties have filed motions for summary judgment.
Plaintiff has filed Motions for Partial Summary Judgment
against defendant Credit One (Doc. 66) and defendant Equifax
(Doc. 68). Both motions seek summary judgment in
plaintiff's favor on defendants' liability on her
FCRA claims. Defendant Equifax has filed a Motion for Summary
Judgment (Doc. 61), as has defendant Credit One (Doc. 64).
Defendants' motions seek summary judgment against
plaintiff's FCRA claims.
considering the parties' arguments, the court concludes
that the summary judgment facts, even when viewed in
plaintiff's favor, establish no genuine issue whether
defendants violated the FCRA. The court thus grants
defendants' summary judgment motions and denies
plaintiff's motions seeking partial summary judgment.
following facts are either stipulated facts taken from the
Pretrial Order (Doc. 71), uncontroverted, or, where
controverted, stated in the light most favorable to the party
opposing summary judgment. Scott v. Harris, 550 U.S.
372, 378 (2007).
Credit One is a national bank engaged in the business of
extending consumer credit in the State of Kansas and
elsewhere. Credit One also is a furnisher of consumer credit
information. Defendant Equifax is a limited liability company
and a consumer reporting agency. Equifax is engaged in the
business of credit reporting in the State of Kansas.
Business, Policies, and Procedures
business, Equifax gathers information about consumers from
various sources, including banks, collection agencies, and
court records. It then uses that information to create credit
files for more than 200 million consumers in the United
States. Equifax uses those files to prepare consumer reports
that its subscribers can purchase and use to evaluate the
consumer's potential credit risk as well as other
accepts credit information from sources who it has determined
are reasonably reliable based upon Equifax's own
investigation, the source's reputation in the community,
or Equifax's longstanding business relationships with the
source. When Equifax receives a request from a company to
become a data furnisher, it generally conducts an
investigation to ensure that the company is reliable. Equifax
typically requires each company to complete a detailed
application and sign a subscriber agreement. The subscriber
agreement requires the company to certify that it will
acquire consumer reports only for permissible purposes under
the FCRA and that it otherwise will comply with all FCRA
requirements. They include the requirement that the data
furnisher investigate consumer disputes. The subscriber
agreement also requires data furnishers to supply only
accurate, up-to-date information.
Equifax receives an application, subscriber agreement, and
valid business license, Equifax's new-accounts department
conducts an investigation of the company. This investigation
may include an onsite visit to determine the company's
legitimacy and reliability.
furnishers provide consumer credit information to Equifax in
a standardized electronic format. After receiving this data,
Equifax conducts a series of computerized quality checks
before it adds that data to its consumer database. These
checks are designed to determine whether the data is in the
proper format and whether the data as a whole deviates from
expected norms (based on past experience with that particular
Ex-Husband Opens a Credit One Account
resides in Kansas. In 2005, plaintiff divorced her husband.
Although they had divorced, plaintiff's ex-husband lived
with her for some time during 2013, because he recently had
been released from jail and was facing financial issues.
Around the end of September 2015, plaintiff's ex-husband
moved out of plaintiff's home after she asked him to
January 2016, plaintiff's ex-husband opened a Credit One
credit card account (“the Account”). The credit
application for this Account states that the applicant is
plaintiff's ex-husband, lists an address that is
plaintiff's address, and adds plaintiff as an authorized
user. The application also provides plaintiff's date of
birth and it states that she, as an authorized user, is the
applicant's current spouse. Plaintiff testified that she
did not know that her ex-husband had applied for the card and
identified her as an authorized user.
ex-husband defaulted on his obligation for the credit card,
and the Account became delinquent. Credit One made a report
to Equifax that the Account was delinquent, and identified
plaintiff as an “authorized user” on the Account.
After Credit One made the report to Equifax, the account
appeared in the “Adverse Accounts” section of
plaintiff's Equifax credit report. It was her only
Adverse Account. Also, Equifax's credit file for
plaintiff shows her status for the Account as: “Account
Owner: Authorized User.”
testified that she first learned that she was identified as
an authorized user on the Account when she checked her credit
score and noticed that it had declined. But plaintiff has
produced no documents showing that her credit score ever
declined. Instead, the summary judgment record contains
several records showing that plaintiff's credit score
never declined during the relevant time period. Also,
plaintiff agrees that authorized users are not responsible to
make payment on balances due.
30, 2016, plaintiff submitted an online dispute about the
Account to nonparty Trans Union LLC. In response to
plaintiff's online dispute, Trans Union deleted the
Account from her Trans Union credit report.
same day, plaintiff submitted an online dispute of the
Account to Equifax. Plaintiff identified the “dispute
code” on the “Automated Credit Dispute
Verification” (“ACDV”) form as
“001.” The dispute code “001” means
“not his account/her account.” Doc. 75-1 at 1.
The ACDV form offers many different dispute codes for
consumers to choose to explain the nature of the dispute.
There are separate dispute codes for identity theft (003) and
exact words that plaintiff used to describe her dispute were
transcribed into the FCRA relevant information field on the
ACDV form. Plaintiff described her dispute in this fashion:
THIS IS NOT MY ACCOUNT SO I CAN ONLY ASSUME IT WAS OPENED
FRAUDULENTLY OR WAS POSTED TO MY BUREAU IN ERROR. I PULLED MY
BUREAU AFTER SEEING MY FICO SCORE HAD DROPPED FOR LATE PAYS I
SEE FOR FREE ON MY CITIBANK CARD.
Id. Plaintiff submitted no documents to support her
dispute. Plaintiff also did not use the phrase
“authorized user” in her dispute. Plaintiff never
explained to Equifax that her concern was that the Account
listed her as an authorized user. And plaintiff never
identified her ex-husband as the Account holder who had
designated her as an authorized user without her permission.
Procedures For Reinvestigating Consumer
maintains detailed policies and procedures designed to assure
that it conducts reasonable reinvestigations of information
that consumers dispute as inaccurate. Equifax has adopted
several different, furnisher-specific procedures for
authorized users to use when they dispute ownership of an
account. Equifax has no furnisher-specific procedure for a
report by a Credit One authorized user account who disputes
ownership of the account.
provides three different avenues for a consumer to dispute
information contained on an Equifax credit report. Those
three avenues are: (1) telephone dispute; (2) written and
mailed dispute; and (3) online disputes received through an
Internet portal on Equifax's website. When Equifax
receives a dispute, it locates the consumer's credit file
and opens an Automated Consumer Interview System
(“ACIS”) case that tracks the
reinvestigation's process. Equifax then reviews and
considers all relevant information (including documentation,
if any, provided by the consumer) and reviews the contents of
the consumer's credit file. If further investigation is
required, Equifax notifies the source of the account
information (the “data furnisher”) about the
consumer's dispute, identifies the nature of the
consumer's dispute, and includes the consumer's
account information as it then appears in Equifax's
Equifax receives a consumer dispute by phone or mail, a
person charged with ensuring that the dispute is accurately
categorized and coded reviews the dispute. But when Equifax
receives a dispute through its website via its online dispute
portal, no one reviews the submission. When a consumer
submits a dispute to Equifax through its website via its
online dispute portal, the consumer codes the dispute
according to the consumer's perception of the alleged
inaccuracy. No one at Equifax reviews the coding chosen by
consumers to describe disputes when submitted through
Equifax's website via its online dispute portal. Instead,
an automated process accepts the information the consumer
provides and sends it to the data furnisher.
generally makes these communications to data furnishers by
transmitting the ACDV form. If the consumer provides PDF
documents to support a dispute, Equifax also includes the
documents with the ACDV form that it provides to the
furnisher. When the data furnisher receives the dispute from
Equifax, it generally is required, both by its contract with
Equifax and by the FCRA, to conduct its own investigation and
report the results back to Equifax. If the data furnisher
advises Equifax to delete or otherwise update the account
information, then Equifax takes the necessary action and
notifies the consumer. After the reinvestigation is
completed, Equifax sends the consumer the results along with
a summary of the consumer's rights under the FCRA,
additional steps the consumer may take, and a description of
the procedures used to reinvestigate the dispute.
Equifax, the individuals who handle consumer disputes must
complete training. This process includes training about
Equifax's reinvestigation policies and procedures. The
individuals first must participate in classroom instruction.
After completing the classroom instruction, Equifax requires
each participant to pass a competency test. If the
participant achieves a passing grade, Equifax provides more
One's Procedures For Investigating Consumer
Credit One receives a consumer dispute from a credit
reporting agency, it is obligated to investigate
“reasonably” how the information it is providing
should appear. So, Credit One employs extensive procedures
for handling ACDV disputes. Credit One has as many as 150
employees who handle ACDV disputes. About five to eight of
these Credit One employees process ACDV disputes every shift.
These employees earn about $15 an hour or an annual salary in
the range of $32, 000 to $33, 000.
One also uses overseas vendors who employ about 200 people
working around the clock to investigate ACDV disputes.
Although Credit One does not supervise the payroll and
timesheets for these employees, it does provide performance
feedback, constant communication about quality, and joint
training. These vendors also conduct reviews of these
employees. In addition to the employees handling ACDV
disputes, Credit One also employs fraud investigators as
members of its customer service team.
One processes more than 110, 000 FCRA disputes each month.
Credit One spends, on average, about five to six minutes
investigating a ACDV dispute. But the amount of time spent
investigating a dispute also depends on the nature of the
documents provided by the credit reporting agency.
and Credit One's Response to Plaintiff's Online
created a ACDV form based on the dispute plaintiff submitted
online in June 2016. On July 1, 2016, Equifax sent that ACDV
form to Credit One. The ACDV form used the same language that
plaintiff had used when she submitted the dispute to Equifax.
It also identified the same dispute code that plaintiff had
2, 2016, Credit One received the ACDV form from Equifax about
the Account plaintiff was disputing. After receiving the ACDV
form, Credit One began a dispute review process. The review
process is not automated; instead, a person reviews the
dispute on Credit One's behalf. The reviewer views the
ACDV dispute form on one screen while reviewing Credit
One's information about the consumer on another screen.
After conducting this review, the reviewer inputs Credit
One's response into the ACDV form and sends it back to
the credit reporting agency who generated the ACDV form.
case, Angela Andreas reviewed plaintiff's dispute. Ms.
Andreas is employed by a vendor who contracts with Credit One
to investigate ACDV disputes. When Credit One investigates a
dispute, it relies on the dispute code selected by the
consumer. Plaintiff's selected dispute code of
“001” did not correlate to the narrative that she
provided on the form.
4, 2016, Credit One submitted a response to the ACDV to
Equifax. Credit One's response to Equifax verified and
affirmed its reporting of the Account. Credit One confirmed
plaintiff's identification and listed her as an
authorized user of the Account. Credit One's July 4, 2016
response concluded its investigation of the dispute. That
same day, Equifax provided its reinvestigation results to
One never investigated plaintiff's dispute for fraud. But
when she submitted her dispute, plaintiff never coded her
dispute as one involving fraud. Instead, plaintiff had coded
the dispute as “not his account/her account.” And
plaintiff recited that the Account was not her account so she
“can only assume it was opened fraudulently or posted
to my bureau in error.” Doc. 75-1 at 1.
2016, plaintiff called Credit One several times to ask about
the reported delinquent Account. Plaintiff first called
Credit One on July 7, 2016. After this phone call, Credit One
removed plaintiff as an authorized user on the Account. Yet,
the Account still appeared on plaintiff's credit report
after that date.
21, 2016, plaintiff again called Credit One. She again asked
Credit One to remove her as an authorized user on the
Account. During that telephone call, plaintiff asked Credit
One for a letter confirming that it had reported the Account
inaccurately and that it was removing her as an authorized
August 2016, Credit One drafted an AUD (“automated
universal data”) removing plaintiff as an authorized
user on the Account. Credit One was supposed to send the AUD
to all three credit bureaus. But mistakenly, it never sent
the AUD. On August 24, 2016, plaintiff mailed a letter to
Credit One again disputing its report that plaintiff was an
authorized user of the Account. Plaintiff's August 24,
2016 letter to Credit One again asserted that she had no
knowledge that her ex-husband had made her an authorized user
on the Account. On August 26, 2016, Credit One charged off
September 3, 2016, Credit One sent a letter addressed to
plaintiff's ex-husband at plaintiff's address. The
letter informed plaintiff's ex-husband that Credit One
had received a request for account information from
plaintiff. The letter recited that Credit One would not
release account information to any third party without a
signed and notarized power of attorney.
Account remained on plaintiff's Equifax credit report
until at least March 13, 2017. The Account was identified as
the only negative account on plaintiff's Equifax credit
report. But Equifax never issued a consumer credit report
about plaintiff in the two years before she filed this
records include a single dispute about the Account-the one
made by plaintiff. Credit One received no other disputes from
plaintiff about the ...