Ruffin-Thompkins, Ma v. Experian Info ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1127
MARY RUFFIN-THOMPKINS,
Plaintiff-Appellant,
v.
EXPERIAN INFORMATION SOLUTIONS, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 0683—Harry D. Leinenweber, Judge.
____________
ARGUED NOVEMBER 8, 2004—DECIDED SEPTEMBER 7, 2005
____________
Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Mary Ruffin-Thompkins filed suit
against Experian Information Solutions, Inc., alleging
violations of the Fair Credit Reporting Act (“FCRA”), 15
U.S.C. §§ 1681, et seq. The district court granted summary
judgment in favor of Experian. We affirm.
I. Background
This claim arose because of a dispute between Ruffin-
Thompkins and Grossinger City Toyota. Ruffin-Thompkins
filed a lawsuit against Grossinger alleging violations of the
Illinois Consumer Fraud Act and the Deceptive Business
2 No. 04-1127
Practices Act relating to Grossinger’s sale of a car to Ruffin-
Thompkins. The parties settled. According to the July 2002
settlement agreement, Grossinger agreed to pay off any
remaining loan balance, to void Ruffin-Thompkins’s obliga-
tion to buy the car, and to pay Ruffin-Thompkins $5000. In
spite of this settlement, the lender that issued the automo-
bile loan, US Bank, incorrectly reported to Experian that
the US Bank account in Ruffin-Thompkins’s credit report
should read: “Repossession/Past Due 30 Days.”
In early October 2002, Ruffin-Thompkins requested a
credit report from Experian and discovered the US Bank
notation. She sent a dispute letter to Experian on October
3 which stated:
I am requesting that repossession of an automobile be
deleted immediately from my credit report. The
Grossinger City Toyota, Inc. was sued because they
presented a contract with fraudulent signatures to a
bank, therefore I never had an account with this
company, as a result o[f] their action Grossinger City
Toyota was sued . . . . The case was settled in our favor
on July 8, 2002. A copy of the disposition is [inclosed].
Included with the letter was an incomplete Credit Report
Dispute Form with the “Creditor Information” and “Dis-
pute/Comments” lines left blank. Ruffin-Thompkins also
included a letter from her attorneys to Grossinger City
Toyota stating their intent to represent her in the lawsuit
against Grossinger. None of these documents mentioned US
Bank or specified which account she was disputing.
Experian therefore issued a response on October 14, 2002,
stating, “[u]sing the information provided the following item
was not found: Grossinger City Toyota.”
Ruffin-Thompkins contends that she sent another letter
on October 21 to US Bank and Experian requesting that the
repossession notation be removed from her account.
Experian claims that it never received the letter, and
No. 04-1127 3
Ruffin-Thompkins was unable to produce the document
during discovery.
On December 10, 2002, Ruffin-Thompkins sent another
letter to Experian, this time specifying that she was
“disputing the US Bank’s report to your Credit Bureau,”
and including a letter from her attorney informing her of
the settlement with Grossinger and another copy of the
same letter from her attorney to Grossinger that she sent
with the October 3 dispute letter. Experian received this
information on December 23.
Now on notice of the dispute, an Experian customer
service representative reviewed the materials sent by
Ruffin-Thompkins and generated a Consumer Dispute
Verification form (“CDV”). The CDV, briefly explaining the
nature of Ruffin-Thompkins’s dispute and asking the bank
to verify or amend the reported information, was sent to US
Bank on January 2, 2003. In the CDV, Experian described
the nature of the dispute as “Claims Company Will Change
or Delete.” Experian gave no additional explanation, nor did
it send the documents that Ruffin-Thompkins provided.
US Bank’s response, received by Experian on January 9,
stated, “Account Closed at Consumer’s Request” and “Acct
Closed Zero Balance.” US Bank did not request that Ruffin-
Thompkins’s account be deleted; instead, the account was
updated. On January 16, Experian sent confirmation of the
reinvestigation to Ruffin-Thompkins. The reinvestigation
summary explained that the US Bank account would still
be reported in the credit report as “Paid/Was a reposses-
sion,” but that a comment had been added stating, “Account
closed at consumer’s request.” The summary also provided
that if Ruffin-Thompkins disagreed with this outcome, she
could contact the creditor directly or, according to the
FCRA, she could “add a statement [to the credit file]
disputing the accuracy or completeness of the information.”
Instead of using one of the proposed remedies, Ruffin-
4 No. 04-1127
Thompkins filed this FCRA claim against Experian on
January 30, 2003. On April 5, 2003, pursuant to US Bank’s
instructions, Experian deleted the US Bank account from
Ruffin-Thompkins’s credit file.
II. Analysis
We review de novo the district court’s grant of summary
judgment. See Lamers Dairy Inc. v. USDA, 379 F.3d 466,
472 (7th Cir. 2004) (citation omitted). Summary judgment
is properly granted when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Material facts are those that “might affect the outcome of
the suit” under the applicable substantive law. See Ander-
son v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We view
the facts in the light most favorable to Ruffin-Thompkins,
the nonmoving party. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Experian has the burden of showing that there is no
genuine issue of material fact and that it is entitled to
judgment as a matter of law. However, Ruffin-Thompkins
retains the burden of producing enough evidence to support
a reasonable jury verdict in her favor. See Anderson, 477
U.S. at 256. “[A] party who bears the burden of proof on a
particular issue may not rest on its pleading, but must
affirmatively demonstrate, by specific factual allegations,
that there is a genuine issue of material fact which requires
trial.” Beard v. Whitley County REMC, 840 F.2d 405, 410
(7th Cir. 1988) (emphasis in original). “[T]he mere existence
of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue
No. 04-1127 5
of material fact.” Anderson, 477 U.S. at 247-48 (emphasis in
original).
Ruffin-Thompkins argues that Experian willfully and
negligently failed to conduct a reasonable reinvestigation of
her dispute and failed to delete the inaccurate information
from her file after investigation in violation of § 1681i(a).1
The parties agree that Experian is the type of “consumer
reporting agency” that is regulated by the FCRA. See 15
U.S.C. § 1681a(f).
The FCRA provides that, “[w]henever a consumer report-
ing agency prepares a consumer report it shall follow
reasonable procedures to assure maximum possible accu-
racy of the information concerning the individual about
whom the report relates.” 15 U.S.C. § 1681e(b). “Once a
consumer report exists, [the FCRA] triggers various duties
on the part of a reporting agency, including the obligation
to reinvestigate when a consumer contends that [her]
consumer report is inaccurate or incomplete[.]” Wantz v.
Experian Info. Solutions, 386 F.3d 829, 832 (7th Cir. 2004)
(citing 15 U.S.C. § 1681i(a)). If Experian negligently
violated any duty imposed by the statute, Ruffin-Thompkins
may collect “actual damages,” costs, and fees. See 15 U.S.C.
§§ 1681n, 1681o. If there was a willful violation, punitive
damages are also available. See 15 U.S.C. § 1681n.
Ruffin-Thompkins alleges that Experian did not perform
a reasonable reinvestigation of her dispute under § 1681i,
1
Because she did not develop arguments relating to these
claims in her appellate brief, Ruffin-Thompkins has abandoned
her claims that (1) Experian willfully and negligently failed to
maintain reasonable procedures to assure maximum possible
accuracy in its credit report in violation of § 1681e(b), and (2)
Experian willfully and negligently failed to note her dispute
on her report in violation of § 1681i(c). See, e.g., Hershinow v.
Bonamarte, 735 F.2d 264, 266 (7th Cir. 1984).
6 No. 04-1127
which states:
[I]f the completeness or accuracy of any item of infor-
mation contained in a consumer’s file at a consumer
reporting agency is disputed by the consumer and the
consumer notifies the agency directly . . . of such
dispute, the agency shall, free of charge, conduct a
reasonable reinvestigation to determine whether the
disputed information is inaccurate and record the
current status of the disputed information, or delete the
item from the file . . . before the end of the 30-day
period beginning on the date on which the agency
receives the notice of the dispute from the consumer[.]
15 U.S.C. § 1681i(a)(1)(A). Before any discussion of the
reasonableness of the reinvestigation is necessary, however,
Ruffin-Thompkins must show that she “suffered damages
as a result of the inaccurate information.” Sarver v.
Experian Info. Solutions, 390 F.3d 969, 971 (7th Cir. 2004);
see also Wantz, 386 F.3d at 833 (“It is the plaintiff’s burden
to establish that [s]he is entitled to damages.”) (citation
omitted). “Without a causal relation between the violation
of the statute and the loss of credit, or some other harm, a
plaintiff cannot obtain an award of ‘actual damages[.]’ ”
Crabill v. Trans Union, L.L.C., 259 F.3d 662, 664 (7th Cir.
2001) (citations omitted). Our analysis, therefore, begins
with a discussion of damages.
The district court found that Ruffin-Thompkins did not
show that she suffered any damages because of the inaccu-
racy in her credit report during Experian’s period of
liability. “Experian must be notified of an error before it is
required to reinvestigate. As we have made clear, the FCRA
is not a strict liability statute.” Sarver, 390 F.3d at 971(citation omitted); see also 15 U.S.C. § 1681i(a)(1)(A)
(requiring the consumer to notify the agency before the duty
to reinvestigate arises). No reinvestigation is required until
the credit reporting agency is notified of an error because
No. 04-1127 7
“to require otherwise would be burdensome and inefficient,”
and “[t]he consumer is in a better position than the credit
reporting agency to detect errors[.]” Henson v. CSC Credit
Servs., 29 F.3d 280, 286 (7th Cir. 1994). The test set forth
in Henson provides:
Whether the credit reporting agency has a duty to
go beyond the original source will depend, in part, on
whether the consumer has alerted the reporting agency
to the possibility that the source may be unreliable or
the reporting agency itself knows or should know that
the source is unreliable. The credit reporting agency’s
duty will also depend on the cost of verifying the
accuracy of the source versus the possible harm inaccu-
rately reported information may cause the consumer.
Id. at 287.
Because Experian had no reason to believe that US Bank
was an unreliable source, Experian’s period of liability did
not begin until December 23, 2002, when it received notice
of Ruffin-Thompkins’s dispute. Ruffin-Thompkins argues
here that Experian was aware of her dispute in October.
The October 3 letter did not prompt a full reinvestigation by
Experian because the notice was incomplete, and the FCRA
permits the termination of a reinvestigation if the credit
reporting agency determines that the complaint is frivolous,
“including by reason of a failure by a consumer to provide
sufficient information to investigate the disputed informa-
tion.” 15 U.S.C. § 1681i(a)(3).
There is no evidence that Experian received the letter
that Ruffin-Thompkins purportedly sent on October 21.
Regardless, Ruffin-Thompkins did not mention either of the
October letters in her response to Experian’s summary
judgment motion and did not argue to the district court that
these letters put Experian on notice of her dispute. There-
fore, any arguments to that effect have been waived. See,
e.g., Laborers’ Int’l Union of N. Am. v. Caruso, 197 F.3d
8 No. 04-1127
1195, 1197 (7th Cir. 1999) (finding that arguments not
presented to the district court in response to a summary
judgment motion are deemed waived on appeal).
In an attempt to show damages, Ruffin-Thompkins claims
that she was denied credit from CarMax, Amcore Bank,
Premier Bankcard, Providian Financial, and Capital One
Finance. It is true that inquiries from some of these
companies appeared in her credit file (there is no reference
to Amcore Bank), but, as noted by the district court, “[a]ll
but one of the requests for her credit history . . . took place
well before December 2002, when Experian’s period of
potential liability began.”2
Premier Bankcard did request a credit report in January
2003, during Experian’s period of liability, but it was not in
response to a credit application submitted by Ruffin-
Thompkins. The request by Premier Bankcard appears
on her credit report under the heading, “Requests viewed
only by you.” As explained on the report, “You may not have
initiated the following requests for your credit history, so
you may not recognize each source. We offer credit informa-
tion about you to those with a permissible purpose, for
example, to: other creditors who want to offer you
preapproved credit . . . .” Experian provided evidence that
Premier Bank has no record of active or closed accounts for
Ruffin-Thompkins and no record of active or closed credit
cards or credit applications that were denied.
2
One category of the credit report, “Requests viewed by others,”
lists those companies that review a consumer’s credit history
as a result of the completion of a credit application, loan ap-
plication, or something similar. On Ruffin-Thompkins’s credit
report there are several inquiries listed in this category, including
those from CarMax (request on 9/28/02) and Capital One Finance
(request on 10/18/02). Providian Financial appeared in the
“Requests viewed only by you” category (requests in October and
November 2000).
No. 04-1127 9
Ruffin-Thompkins did not show that she suffered any
pecuniary damages or that she was denied credit because of
the inaccuracy in her credit report; therefore, even if
she could prove that Experian violated a duty it owed to her
under the FCRA, she cannot establish “a causal relation
between the violation of the statute and the loss of
credit . . . .” Crabill, 259 F.3d at 664.
She next argues that she is entitled to damages for
emotional distress. She insists that in FCRA cases, the
plaintiff need not produce evidence of emotional damages
with a high degree of specificity. See Philbin v. Trans Union
Corp., 101 F.3d 957, 963 n.3 (3d Cir. 1996). Philbin, how-
ever, is not the law of this circuit. This court has “main-
tained a strict standard for a finding of emotional damage
because they are so easy to manufacture.” Sarver, 390 F.3d
at 971 (quotation omitted). We require that “when the
injured party’s own testimony is the only proof of emotional
damages, [s]he must explain the circumstances of [her]
injury in reasonable detail; [s]he cannot rely on mere
conclusory statements.” Id. (quotation omitted).
On appeal, Ruffin-Thompkins points to an interrogatory
answer stating that she suffered from hypertension:
“Plaintiff’s pressure was 190 over 210 to which Plaintiff was
told she was stroke level.” Ruffin-Thompkins, however,
made no mention to the district court of her hypertension in
response to Experian’s motion for summary judgment. The
interrogatory answer was included in the record before the
district court—it was attached as an exhibit to Experian’s
motion for summary judgment—but Ruffin-Thompkins had
the burden to point to this information to show that a
genuine issue of fact existed; the district court “need not
scour the record” to find such evidence. See L.S. Heath &
Son, Inc. v. AT&T Info. Sys., Inc., 9 F.3d 561, 567 (7th Cir.
1993). The appellate stage “is too late to specify portions of
the record which may create an issue of material fact.” Doe
v. Cunningham, 30 F.3d 879, 885 (7th Cir. 1994) (citation
10 No. 04-1127
omitted).
Other than this allegation of hypertension that was not
properly before the district court and, therefore, will not
be considered here, Ruffin-Thompkins provided, at most,
conclusory statements about her emotional distress. She
describes the emotional distress felt by plaintiffs in other
FCRA cases and states that “[i]n similar predicaments,
others have described their anguish.” But, Ruffin-Thomp-
kins does not explain her injury in any reasonable detail.
Quoting caselaw, she argues instead that because
Experian’s actions were “inherently degrading or humiliat-
ing,” it is reasonable “to infer that a person would suffer
humiliation or distress from that action; consequently,
somewhat more conclusory evidence of emotional distress
[should] be acceptable to support an award for emotional
distress.” United States v. Balistrieri, 981 F.2d 916, 932 (7th
Cir. 1992).
Despite Ruffin-Thompkins’s insistence that a jury should
decide whether Experian’s actions were inherently degrad-
ing or humiliating, she simply does not raise any genuine
issue of material fact on that point. See Wantz, 386 F.3d
at 834 (finding that plaintiff’s testimony that he was
“humiliated and embarrassed” and that dealing with credit
reporting agencies is “mentally and emotionally distressful”
was “not one of the few cases in which the facts are so
inherently degrading that a jury could infer the existence of
emotional distress.”).
The FCRA does not presume damages; instead, as
discussed above, the consumer must affirmatively prove
that she is entitled to damages. See id. at 833. Therefore,
the violation of a duty imposed by the statute, without
more, is not “inherently degrading or humiliating.” Ruffin-
Thompkins did not meet our “high threshold for proof of
damages for emotional distress.” Aiello v. Providian Fin.
Corp., 239 F.3d 876, 880 (7th Cir. 2001). Because she also
No. 04-1127 11
did not demonstrate “actual damages,” her § 1681i claim
fails. Summary judgment was properly granted in favor
of Experian.
We are left with Ruffin-Thompkins’s argument that she
is entitled to “statutory and punitive damages” because
Experian “willfully fail[ed] to comply with” the FCRA. 15
U.S.C. § 1681n. “To act willfully, a defendant must know-
ingly and intentionally violate [the FCRA], and it must also
be conscious that [its] act impinges on the rights of others.”
Wantz, 386 F.3d at 834 (quotation omitted). The district
court correctly found that “[b]ecause Ruffin-Thompkins’s
claim under the FCRA cannot survive, it follows, a fortiori,
that the Court must deny her claim for punitive or statu-
tory damages.”
We conclude by noting that we sympathize with Ruffin-
Thompkins’s frustration. It seems that Experian has a
systemic problem in its limited categorization of the
inquiries it receives and its cryptic notices and responses.
For example, there is the meaningless communication
Ruffin-Thompkins received from Experian in response to
her notice of dispute: “Using the information provided the
following item was not found: Grossinger City Toyota.”
Another example is the opaque notice of dispute sent by
Experian to US Bank: “Claims Company Will Change or
Delete.” Moreover, in what appears to be an unresponsive
form letter rather than the report of an adequate investiga-
tion into her claim, Ruffin-Thompkins was notified that the
“Paid/Was a repossession” notation would remain in her
report and the only change would be the addition of:
“Account closed at consumer’s request.” It may be that
Experian should consider including additional categories on
its CDV forms or requiring its investigators to explain more
completely the nature of the dispute in the comment
section. Today, however, we need not determine whether
this potential problem with Experian’s reinvestigation
procedures led to a violation of the duty imposed by the
12 No. 04-1127
FCRA because Ruffin-Thompkins’s inability to
show damages dooms her claim.
III. Conclusion
For the foregoing reasons, we AFFIRM the grant of sum-
mary judgment in favor of Experian.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-7-05