George Jemison v. Experian Information Solutions, Inc. ( 2024 )

Opinion issued April 9, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00741-CV
———————————
GEORGE JEMISON, Appellant
V.
EXPERIAN INFORMATION SOLUTIONS, INC., Appellee
On Appeal from the 125th District Court
Harris County, Texas
Trial Court Case No. 2018-44130
MEMORANDUM OPINION
In this case involving claims under the Fair Credit Reporting Act (“FCRA”),
appellant George Jemison sued appellee Experian Information Solutions, Inc.
(“Experian”) after Experian included an obligation for overdue child support on
Jemison’s consumer credit report. Jemison asserted state-law tort claims against
Experian and claims that Experian violated the FCRA. The trial court granted
Experian’s motion for traditional and no-evidence summary judgment and dismissed
Jemison’s claims with prejudice.
On appeal, Jemison, who is acting pro se, argues that: (1) an administrative
child support order is not equivalent to a child support order signed by a judge in a
judicial proceeding; (2) the Illinois Department of Healthcare and Family Services
does not have authority equivalent to district courts to issue administrative child
support orders; (3) the trial court erred in “excluding competent evidence, facts as
they apply to the FCRA, federal law and Illinois state law, that was disclosed to, did
not prejudice, and did not surprise the defendant”; (4) the trial court erred “in its
application of court rules and procedures”; (5) the trial court did not “make its ruling
in accordance with law”; and (6) the trial court did not rule on all issues presented
to it before ruling on Experian’s summary judgment motion.1
1
Although Jemison lists six issues in the “Issues Presented” section of his appellate
brief, he only presents argument relating to his first, second, and fifth issues.
Jemison does not present argument concerning the exclusion of any evidence,
specific rules and procedures that the trial court allegedly did not follow, or the
court’s failure to rule on any particular matters prior to rendering summary
judgment. An appellant’s brief “must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.” TEX.
R. APP. P. 38.1(i); McCoy v. Rogers, 240 S.W.3d 267, 272 (Tex. App.—Houston
[1st Dist.] 2007, pet. denied) (stating that party challenging summary judgment
order must “present those arguments and supporting authority in order to merit
reversal”). Although we construe briefs filed by pro se appellants liberally and with
patience, parties proceeding pro se “must comply with all applicable procedural
2
We affirm.
Background
George Jemison married in Cook County, Illinois, in 1985, and he and his
wife had two daughters who are now adults. At some point, Jemison and his wife
separated. In January 1998, the Illinois Department of Public Aid issued a default
“Administrative Support Order” against Jemison, requiring him to pay $527 per
month in child support beginning in March 1998 until a further order or until his
youngest daughter turned 18 in 2006. According to a certified “Support Calculation
Worksheet” prepared by the State of Illinois Child Support Services, Jemison made
regular support payments from 1998 to 2002. Jemison made sporadic payments in
2003, 2013, 2014, 2015, 2016, 2017, and 2018. Jemison and his wife divorced in
Cook County, Illinois, in 2010.
In January 2014, Experian, a consumer reporting agency, prepared a copy of
Jemison’s consumer credit report and provided it to him. Under a section entitled
“Your accounts that may be considered negative,” Jemison’s consumer report listed
an alleged debt to the Illinois Department of Healthcare and Family Services (“the
Department”). This item stated that the type of debt was “Child Support,” that the
rules,” which “include proper presentation of a case on appeal as is similarly
required in the trial court.” Smart v. Prime Mortg. & Escrow, LLC, 659 S.W.3d 155,
160 (Tex. App.—El Paso 2022, pet. denied). Because Jemison did not present any
argument relating to his third, fourth, and sixth issues, we hold that these issues have
not been adequately briefed and are waived. See TEX. R. APP. P. 38.1(i).
3
“Date Opened” was March 1998, and that the debt was “First Reported” in January
2014. The terms of the debt, including the monthly payment amount, were not
reported, but the consumer report stated: “Collection account. $42,356 past due as
of Jan 2014. This account is scheduled to continue on record until Jul 2020.” Several
months later, in September 2014, Experian resolved a dispute initiated by Jemison
by updating Jemison’s address and removing spousal information. Jemison was
aware of the presence of the child support debt on his consumer report, and he “may
have called” Experian directly to see how that debt could be removed.
In August 2017, Jemison sent a letter to Experian stating, in all capitals and
bold font:
The undersigned is disputing the alleged child support debt information
that appears on his credit report, and this false information is
substantially affecting his credit score, and he requires verification of
debt, that this credit reporting agency is relied upon before posting debt
information[.]
Jemison also argued that a provision of the United States Code required consumer
reporting agencies to “provide a court ordered debt complete with seal of the court
and signed by [the] clerk,” and without such an order, no valid debt existed. In
response, Experian conducted a reinvestigation of the dispute and prepared another
consumer report for Jemison. Experian informed Jemison of several actions he could
take if he did not believe Experian had satisfactorily resolved his dispute, including
adding a short statement to his consumer report or directly contacting the creditor.
4
The August 2017 consumer report continued to list the debt to the Department, with
an outstanding balance of $49,112.
In May 2018, Jemison inquired with the Department about his alleged child
support debt and demanded that the debt be terminated. The Department responded
that it was “enforcing [his] case” under an “Administrative child support order” and
stated:
Research of your case finds the Administrative child support
order . . . for current support ended on November 26, 2006 when your
youngest child . . . turned eighteen years old. The terms on the current
support order were $527.00 per month. As of May 25, 2018, our system
indicates the total remaining balance due to unpaid support on this case
is $50,707.59. A portion of the total balance ($10,435.02) is owed to
the State of Illinois because there were times when support was not paid
and services were provided by the State. The accrued interest portion
of the total balance is $27,072.55. No review was completed. These
balances are not certified.
The letter provided information on how interest was calculated and on how Jemison
could make payments.
Several months after the Department sent Jemison this letter, Chase Bank
informed Jemison that it had placed a hold on his account because it had received
notice from the Department of a lien against Jemison for unpaid child support.
Around this same time, Jemison applied for a business loan from Seek Capital, LLC.
Jemison was not approved for this loan, and the funding advisor confirmed that “the
only delinquency on file is the child support collection” and everything else in
Jemison’s credit history was “in good standing.”
5
Jemison filed suit against Experian in July 2018. He alleged that the child
support debt was not valid because no lawsuit for child support was ever initiated
and therefore no court order existed requiring him to pay child support. He also
alleged that Experian “made no reasonable effort to abide by its duty to validate the
existence of a valid judgment” before it included the child support debt on his
consumer report. He further alleged that after he disputed this debt, Experian still
made no reasonable effort to validate the debt and “did not use reasonable procedures
regarding this matter to assure maximum possible accuracy in files maintained on
[Jemison].” Jemison asserted claims for “breach of duty,” tortious interference with
prospective contracts, “[v]iolations of the Fair Credit Reporting Act 15 U.S.C.
§ 1681,” emotional distress, defamation, and negligence. Jemison requested removal
of the child support debt from his consumer report and compensatory damages.
Experian moved for traditional and no-evidence summary judgment. With
respect to Jemison’s claim under the FCRA, Experian argued that an essential
element of such a claim is that Experian reported an inaccuracy about Jemison, but
undisputed evidence showed that information about the child support debt that
Experian reported was accurate. The FCRA mandates that Experian, as a consumer
reporting agency, report overdue child support when that information is provided to
Experian by a state child enforcement agency such as the Department. Moreover,
even if no court order established Jemison’s child support obligation, the FCRA
6
required reporting of overdue child support if the obligation had been established
through an administrative process mandated by state law, which is what occurred in
Jemison’s case. Experian argued that Jemison could not use his lawsuit against
Experian to challenge the substantive or procedural validity of the Department’s
administrative support order. Experian further argued that, as a matter of law, its
procedures were reasonable and the Department was a presumptively reliable source
of information.
With respect to Jemison’s state-law claims, Experian argued that the FCRA
preempted Jemison’s claims for defamation and negligence because the FCRA
required evidence of “malice or willful intent to injure” a plaintiff, and Jemison
could produce no evidence to satisfy this intent requirement. Experian also argued
that Jemison could produce no evidence to support any elements of a claim for
tortious interference with prospective relations. Experian further argued that neither
“breach of duty” nor “emotional distress” was a standalone cause of action in Texas.
Instead, breach of duty is an element of a negligence claim, and emotional distress
is a measure of damages.2 Experian requested that the trial court dismiss Jemison’s
claims.
2
Experian also argued that to the extent Jemison asserted a claim for intentional
infliction of emotional distress, Jemison could produce no evidence to support any
elements of that claim.
7
Jemison filed a combined response to Experian’s summary judgment motion
and his own no-evidence and traditional summary judgment motion.3 He argued that
Experian had produced no evidence of an award or judgment relating to child
support. Instead, Experian could only point to an administrative decision that,
Jemison argued, had violated his due process rights. He also argued that Experian
had a duty to ensure that a furnisher of credit information, such as the Department,
certifies the existence of a debt, but Experian presented no evidence that the
Department certified the existence of a child support order or award. Jemison further
argued that Experian presented no evidence that it had used reasonable procedures
to ensure the accuracy of the information that it reported, contending that reasonable
procedures would have revealed an “[a]ctual court case number” and “[d]etails of an
award, judgment or agreement.” Jemison also argued that once he disputed the
accuracy of the child support debt, Experian did not properly reinvestigate the
dispute, pointing to an interrogatory response from Experian stating that it had not
contacted the Department to validate the debt because the investigating agent
3
Jemison’s summary judgment evidence included his August 2017 dispute letter to
Experian; his January 2014, September 2014, August 2017, March 2018, and
September 2018 consumer reports from Experian; the loan denial emails from Seek
Capital; documents relating to his divorce; the letter from Chase Bank concerning
the hold on his bank account; Experian’s discovery responses; the May 2018 letter
from the Department concerning his child support obligation; March 2018 consumer
reports from TransUnion and Equifax; and two contracts between Experian and the
Department.
8
“believed that the item disputed was not on file and promptly returned dispute results
to the consumer.”
Although Experian filed its motion for summary judgment in February 2020
and set the motion for hearing in April 2020, the motion remained pending into 2022.
In May 2022, Experian moved for leave to file additional summary judgment
evidence: the January 1998 default “Administrative Support Order” completed by
the Illinois Department of Public Aid, and the “Support Calculation Worksheet”
prepared by the State of Illinois Child Support Services in July 2021. Experian
alleged that it discovered these documents in “a separate federal case involving”
Jemison, and Jemison had failed to produce these documents during discovery in the
underlying proceeding. Experian argued that these two documents—in addition to
the exhibits it had already attached to its summary judgment motion—established
that its credit file on Jemison was accurate, and therefore Jemison could not recover
on any of his claims. Jemison objected to Experian’s request to supplement the
summary judgment record.
The trial court granted Experian’s summary judgment motion and dismissed
Jemison’s claims with prejudice. The trial court’s order stated that it considered
Experian’s motion for leave to file additional evidence and granted that motion.
Jemison filed a motion to modify, correct, or reform the final judgment, which was
overruled by operation of law. This appeal followed.
9
Summary Judgment
In his first issue, Jemison argues that administrative child support orders are
not equivalent to child support orders issued by courts and therefore obligations
arising out of administrative orders should not be included in consumer reports under
the FCRA. In his second issue, Jemison argues that the Department lacks authority
equivalent to that of district courts to issue child support orders that must be
furnished to consumer reporting agencies under the FCRA. In his fifth issue, Jemison
argues that the trial court’s summary judgment ruling was not made “in accordance
with law.” We address these three issues together.
A. Standard of Review
We review a trial court’s summary judgment ruling de novo. Helena Chem.
Co. v. Cox, 664 S.W.3d 66, 72 (Tex. 2023). If a party moves for summary judgment
on both traditional and no-evidence grounds, as Experian did here, we generally
consider the no-evidence portion of the motion first. Lightning Oil Co. v. Anadarko
E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017). If the nonmovant does not
overcome his no-evidence burden “on any claim, we need not address the traditional
motion to the extent it addresses the same claim.” Id.After an adequate time for discovery, a party may move for summary
judgment on the ground that there is no evidence of one or more essential elements
of a claim on which an adverse party would bear the burden of proof at trial. TEX.
10
R. CIV. P. 166a(i). The trial court must grant the motion unless the nonmovant
produces summary judgment evidence raising a genuine issue of material fact on the
challenged elements. Id.; Lightning Oil, 520 S.W.3d at 45. A party moving for
traditional summary judgment must demonstrate that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law on the issues
expressly set out in the motion. See TEX. R. CIV. P. 166a(c); JLB Builders, L.L.C. v.
Hernandez, 622 S.W.3d 860, 864 (Tex. 2021). If the movant satisfies this burden,
the burden shifts to the nonmovant to raise a fact issue precluding summary
judgment. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018).
A fact issue exists if more than a scintilla of evidence establishes the existence
of the challenged element. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.
2004). More than a scintilla of evidence exists when the evidence rises to a level that
would enable reasonable and fair-minded people to differ in their conclusions. Id. at
601 (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.
1997)). The evidence is less than a scintilla if it is so weak that it does no more than
create a mere surmise or suspicion of the fact’s existence. Id. (quoting Kindred v.
Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
In reviewing a summary judgment ruling, we examine the evidence in the light
most favorable to the non-moving party, indulging reasonable inferences and
resolving doubts against the party seeking summary judgment. Helena Chem. Co.,
11
664 S.W.3d at 73. When the trial court does not specify the grounds it relied upon
in making its determination, we must affirm the summary judgment ruling if any of
the grounds asserted are meritorious. Lightning Oil, 520 S.W.3d at 45. Thus, in this
situation, the appealing party must demonstrate on appeal that none of the proposed
grounds is sufficient to support the judgment. McCoy v. Rogers, 240 S.W.3d 267,
271 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). “If summary judgment may
have been rendered, properly or improperly, on a ground not challenged on appeal,
the judgment must be affirmed.” Id.B. Governing Law: The Fair Credit Reporting Act and Relevant Illinois
Statutes and Administrative Regulations
Consumer reporting agencies such as Experian “have assumed a vital role in
assembling and evaluating consumer credit and other information on consumers.”
See 15 U.S.C. § 1681(a)(3). Congress has recognized that the banking system is
“dependent upon fair and accurate credit reporting.” Id. § 1681(a)(1). Inaccurate
credit reports “directly impair the efficiency” of the system, and “unfair credit
reporting methods undermine the public confidence” in the system. Id. Congress
enacted the FCRA “to require that consumer reporting agencies adopt reasonable
procedures for meeting the needs of commerce for consumer credit, personnel,
insurance, and other information in a manner which is fair and equitable to the
consumer, with regard to the confidentiality, accuracy, relevancy, and proper
utilization of such information . . . .” Id. § 1681(b); Washington v. CSC Credit Servs.
12
Inc., 199 F.3d 263, 265 (5th Cir. 2000); Pinner v. Schmidt, 805 F.2d 1258, 1261 (5th
Cir. 1986) (stating that purpose of FCRA is to protect individuals from use of
inaccurate or arbitrary information in consumer reports).
Under the FCRA, a “consumer reporting agency” is “any person
which . . . regularly engages in whole or in part in the practice of assembling or
evaluating consumer credit information or other information on consumers for the
purpose of furnishing consumer reports to third parties . . . .” 15 U.S.C. § 1681a(f);
see id. § 1681a(c) (defining “consumer” as “an individual”). “Consumer report”
means “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” to serve as a factor in establishing the consumer’s eligibility for credit
or insurance “to be used primarily for personal, family, or household purposes,”
employment purposes, or any other statutorily authorized purpose. Id. § 1681a(d)(1).
The FCRA expressly excludes certain information from consumer reports, see id.
§ 1681c(a), and it outlines permissible circumstances in which a consumer reporting
agency can furnish a consumer report. See id. § 1681b.
The FCRA contains a provision specifically addressing information relating
to overdue child support obligations. See id. § 1681s-1. Section 1681s-1 provides:
Notwithstanding any other provision of this subchapter, a consumer
reporting agency shall include in any consumer report furnished by the
13
agency in accordance with section 1681b of this title, any information
on the failure of the consumer to pay overdue support which—
(1) is provided—
(A) to the consumer reporting agency by a State or local
child support enforcement agency; or
(B) to the consumer reporting agency and verified by
any local, State or Federal Government agency; and
(2) antedates the report by 7 years or less.
Id. In defining “overdue support,” the FCRA refers to a provision of the Social
Security Act, which defines the term as “the amount of a delinquency pursuant to an
obligation determined under a court order, or an order of an administrative process
established under State law, for support and maintenance of a minor child which is
owed to or on behalf of such child . . . .” Id. § 1681a(j)(1) (referring to definition of
“overdue support” contained in 42 U.S.C. § 666(e)); see also id. § 1681a(j)(2)
(defining “State or local child support enforcement agency” as “a State or local
agency which administers a State or local program for establishing and enforcing
child support obligations”).
In Illinois, the Department is the entity responsible for establishing,
modifying, enforcing, and collecting “child and spouse support obligations from
responsible relatives.” ILL. ADMIN. CODE tit. 89, § 160.10(a). The Illinois
Administrative Code sets out an administrative process in which the Department can
establish an obligor’s child support obligation through an administrative support
14
order. See id. tit. 89, § 160.60. An aggrieved party may petition the Department for
release from the order if certain criteria are met. Id. tit. 89, § 160.60(g); see id. tit.
89, § 104.101(a); see also 305 ILL. COMP. STAT. 5/10-11 (providing that if
“responsible relative” fails to timely petition Department for release from or
modification of administrative order, “the order shall become final and there shall
be no further administrative or judicial remedy”). “Any new or existing support
order entered by the Illinois Department under this Section shall be deemed to be a
series of judgments against the person obligated to pay support thereunder,” and
“[e]ach such judgment shall have the full force, effect and attributes of any other
judgment of [Illinois], including the ability to be enforced.” 305 ILL. COMP. STAT.
5/10-11.
Every consumer reporting agency “shall maintain reasonable procedures
designed” (1) to avoid violations of the section of the FCRA excluding information
from consumer reports and (2) to “limit the furnishing of consumer reports” to the
permissible purposes listed in the FCRA. 15 U.S.C. § 1681e(a). “Whenever a
consumer reporting agency prepares a consumer report it shall follow reasonable
procedures to assure maximum possible accuracy of the information concerning the
individual about whom the report relates.” Id. § 1681e(b). Section 1681e(b)
“imposes a duty of reasonable care in the preparation of a consumer report.” Pinner,
805 F.2d at 1262.
15
The FCRA outlines a procedure for when a consumer disputes the accuracy
of information in a consumer report. See 15 U.S.C. § 1681i. If the consumer disputes
the completeness or accuracy of any item of information contained in the consumer’s
file and notifies the consumer reporting agency about the dispute, the agency shall
“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” within 30 days of receiving the notice of dispute. Id.
§ 1681i(a)(1)(A); see also id. § 1681a(g) (defining “file,” when “used in connection
with information on any consumer,” to mean “all of the information on that
consumer recorded and retained by a consumer reporting agency regardless of how
the information is stored”); Pinner, 805 F.2d at 1262 (“[T]he FCRA imposes a duty
upon reporting agencies to reinvestigate and to delete information found to be
inaccurate or no longer verifiable once the consumer has protested the inclusion of
the material.”).
The consumer reporting agency shall, within 5 business days of receiving
notice of a dispute, “provide notification of the dispute to any person who provided
any item of information in dispute,” and the notification “shall include all relevant
information regarding the dispute that the agency has received from the consumer.”
15 U.S.C. § 1681i(a)(2)(A). The consumer reporting agency may terminate a
reinvestigation if the agency “reasonably determines that the dispute by the
16
consumer is frivolous or irrelevant, including by reason of a failure by a consumer
to provide sufficient information to investigate the disputed information.” Id.
§ 1681i(a)(3)(A).
Any person who willfully fails to comply with any requirement imposed by
the FCRA with respect to any consumer is liable to that consumer for any actual
damages sustained by the consumer as a result of the failure, punitive damages,
costs, and reasonable attorney’s fees. Id. § 1681n(a)(1)(A). A person may also be
liable to a consumer for actual damages, costs, and reasonable attorney’s fees if the
person is negligent in failing to comply with any requirement imposed by the FCRA.
Id. § 1681o(a); see Hammer v. Equifax Info. Servs., L.L.C., 974 F.3d 564, 567 (5th
Cir. 2020) (stating that FCRA “authorizes consumers to bring a private cause of
action in response to negligent or willful violations” of Act).
C. Whether Jemison Raised a Fact Issue on His FCRA Claims
In his original petition, Jemison asserted a claim against Experian for
“[v]iolations of the Fair Credit Reporting Act 15 U.S.C. § 1681 (‘FCRA’).”
Although he did not specify the provisions of the FCRA under which he was
asserting claims, Jemison alleged that Experian “did not use reasonable procedures
regarding this matter to assure maximum possible accuracy in files maintained on
[Jemison].” See 15 U.S.C. § 1681e(b). He also alleged that after he disputed the child
support order, Experian “made no reasonable effort to abide by its duty to validate
17
the existence of a valid debt . . . .” We construe this allegation as a claim that
Experian violated the reinvestigation provision of the FCRA. See id. § 1681i.
To prevail in a suit alleging that a consumer reporting agency either
negligently or willfully violated section 1681e(b), the plaintiff must establish that:
(1) the consumer reporting agency failed to follow reasonable procedures to assure
the accuracy of its reports; (2) the report in question was, in fact, inaccurate; (3) the
plaintiff suffered injury; and (4) the consumer reporting agency’s failure caused the
injury. Wright v. Experian Info. Sols., Inc., 805 F.3d 1232, 1239 (10th Cir. 2015);
see Denan v. Trans Union LLC, 959 F.3d 290, 294 (7th Cir. 2020) (requiring plaintiff
to show that “a consumer reporting agency prepared a report containing ‘inaccurate’
information” to prevail under section 1681e(b)). “A credit entry may be ‘inaccurate’
within the meaning of the statute either because it is patently incorrect, or because it
is misleading in such a way and to such an extent that it can be expected to adversely
affect credit decisions.” Sepulvado v. CSC Credit Servs., Inc., 158 F.3d 890, 895 (5th
Cir. 1998).
A claim that a consumer reporting agency violated its reinvestigation duties
under section 1681i(a) requires that the plaintiff prove “essentially the same
elements as those” for a claim under section 1681e(b). Wright, 805 F.3d at 1242.
The plaintiff must prove that (1) he informed the consumer reporting agency about
the inaccuracy; (2) the agency used unreasonable procedures in reinvestigating the
18
credit report; (3) the report was inaccurate; (4) the plaintiff suffered an injury; and
(5) the agency’s failure to reinvestigate caused the plaintiff’s injury. Id.; see, e.g.,
DeAndrade v. Trans Union LLC, 523 F.3d 61, 65–67 (1st Cir. 2008) (examining case
law from other federal circuits and concluding that “the weight of authority in other
circuits indicates that without a showing that the reported information was in fact
inaccurate, a claim brought under § 1681i must fail”); Shaw v. Experian Info. Sols.,
Inc., 891 F.3d 749, 756 (9th Cir. 2018) (requiring plaintiff to make “prima facie
showing of inaccurate reporting” under both sections 1681e and 1681i) (quotations
omitted); Estrada v. Experian Info. Sols., Inc., 670 F. Supp. 3d 412, 419 (W.D. Tex.
2023) (“[B]efore considering whether Defendant followed reasonable reporting
procedures, reasonably investigated Plaintiff’s disputes, or caused Plaintiff harm, the
court must determine whether Plaintiff’s credit report was inaccurate.”).
To trigger the reinvestigation requirement, the inaccuracy must be a factual
inaccuracy. See DeAndrade, 523 F.3d at 68. The “decisive inquiry” is whether the
consumer reporting agency could have uncovered the inaccuracy if it had reasonably
reinvestigated the matter. Id. (quoting Cushman v. Trans Union Corp., 115 F.3d 220,
226 (3d Cir. 1997)). If the question is one that can only be resolved by a court of
law—such as whether a mortgage reported on a credit report is valid—that is not a
factual inaccuracy that could have been uncovered by a reasonable reinvestigation;
rather, it is a legal issue that a credit reporting agency is “neither qualified nor
19
obligated to resolve under the FCRA.” Id. Consumers cannot use an FCRA suit
against a consumer reporting agency as a vehicle to collaterally attack a debt
included on a consumer report. Id.We agree with Experian that Jemison has failed to raise a fact issue that his
consumer credit report prepared by Experian was inaccurate, an essential element of
his claim that Experian failed to use reasonable procedures to assure maximum
possible accuracy of the information in his credit report and his claim that Experian
failed to conduct a reasonable reinvestigation of the disputed information.
The summary judgment record includes a default administrative support order
prepared and signed by an authorized representative of the Illinois Department of
Public Aid on January 13, 1998. This order included a finding that Jemison had the
legal obligation to support his two daughters. The order required Jemison to pay
$527 per month in current child support beginning on March 1, 1998, until further
order or until his youngest daughter reached the age of 18, in 2006. According to a
“Support Calculation Worksheet” prepared by the State of Illinois Child Support
Services in July 2021, payments were consistently made from May 1998 through
May 2002 and sporadic payments were made in 2003 and between 2013 and 2018.
This worksheet stated that Jemison owed $23,279.39 in outstanding child support.
The summary judgment record also includes a letter that the Illinois
Department of Healthcare and Family Services sent to Jemison in May 2018. In this
20
letter, the Department stated that it was enforcing an administrative child support
order against Jemison. The letter stated that the order “for current support” ended in
November 2006, when Jemison’s youngest daughter turned 18, but Jemison had an
outstanding balance for “unpaid support” in the amount of $50,707.59. Jemison
owed approximately $10,400 of that balance to the State of Illinois “because there
were times when support was not paid and services were provided by the State.”
Accrued interest constituted approximately $27,000 of the outstanding balance. In
connection with this unpaid debt, the Department notified Chase Bank in August
2018 and asserted a lien on Jemison’s checking account. Chase Bank placed a hold
on Jemison’s account in response.
In the summary judgment proceedings and on appeal, Jemison does not argue
that the amount of overdue child support furnished to Experian by the Department
and included on Jemison’s consumer report is inaccurate. Instead, he argues that the
administrative child support order did not establish a valid legal obligation to pay
child support because it was not signed by a judge as part of a judicial proceeding.
This, however, does not render Experian’s inclusion of the child support debt on
Jemison’s consumer report inaccurate. The FCRA requires that certain information
be included and certain information be excluded from consumer reports. See 15
U.S.C. § 1681c. The Act also provides:
Notwithstanding any other provision of this subchapter, a consumer
reporting agency shall include in any consumer report furnished by the
21
agency in accordance with section 1681b of this title, any information
on the failure of the consumer to pay overdue support which—
(1) is provided—
(A) to the consumer reporting agency by a State or local
child support enforcement agency; or
(B) to the consumer reporting agency and verified by
any local, State or Federal Government agency; and
(2) antedates the report by 7 years or less.
Id. § 1681s-1. The FCRA defines “overdue support” by referring to a definition in
the Social Security Act: “For purposes of this section, the term ‘overdue support’
means the amount of a delinquency pursuant to an obligation determined under a
court order, or an order of an administrative process established under State law,
for support and maintenance of a minor child which is owed to or on behalf of such
child . . . .” 42 U.S.C. § 666(e) (emphasis added); 15 U.S.C. § 1681a(j)(1) (“The
term ‘overdue support’ has the meaning given to such term in section 666(e) of Title
42.”).
The definition of “overdue support” contained in the Social Security Act—
and incorporated into the FCRA—is not limited to a delinquent support obligation
determined under a court order. Instead, “overdue support” also includes the amount
of a child support delinquency pursuant to an obligation determined under “an order
of an administrative process established under State law.” 42 U.S.C. § 666(e). The
administrative process used by the Illinois Department of Public Aid to establish
22
Jemison’s child support obligation in an administrative support order in 1998 is such
a process. See ILL. ADMIN. CODE tit. 89, § 160.60; see also 305 ILL. COMP. STAT.
5/10-1–10-28 (setting out statutory scheme for, among other things, enforcing
parent’s legal obligation to support children). Because Jemison’s overdue child
support obligation is a delinquency pursuant to an obligation determined under an
order of an administrative process established under State law and provided to
Experian by the Department, Experian was required to include information
concerning Jemison’s failure to pay this obligation in his consumer report. See 15
U.S.C. § 1681s-1; Johnson v. Trans Union, LLC, 524 F. App’x 268, 271 (7th Cir.
2013) (concluding that Department became responsible for enforcing plaintiff’s
child support obligation following divorce decree ordering plaintiff to pay child
support, Department was required to report delinquency to consumer reporting
agencies, and consumer reporting agencies were required by FCRA to include that
information on plaintiff’s credit report).4
4
Jemison attempts to distinguish the Seventh Circuit’s opinion in Johnson v. Trans
Union, LLC by arguing that the child support obligation in that case was pursuant
to a court-ordered divorce decree, while the obligation in this case was only
established through an administrative support order and not a court order. See
Johnson v. Trans Union, LLC, 524 F. App’x 268, 269 (7th Cir. 2013). However,
Illinois law provides that the Department can issue administrative orders concerning
child support obligations under a process set out by statute and administrative
regulations “[i]n lieu of actions for court enforcement of support.” 305 ILL. COMP.
STAT. 5/10-11. Any “new or existing support order” entered by the Department
pursuant to section 10-11 “shall be deemed to be a series of judgments against the
person obligated to pay support thereunder,” and “[e]ach such judgment shall have
the full force, effect and attributes of any other judgment of [Illinois], including the
23
We conclude that Jemison has not raised a fact issue on whether the consumer
report prepared by Experian contained an inaccuracy with respect to his child
support obligation. See Wright, 805 F.3d at 1242 (stating that inaccuracy in
consumer report is element of claim under both sections 1681e(b) and 1681i(a) of
FCRA). To the extent Jemison argues that the Illinois Department of Public Aid
erroneously entered the January 1998 administrative support order against him, did
not follow proper procedures in entering this order, violated the separation of powers
doctrine in entering the order, and violated his due process rights in entering the
order, we note that these are legal challenges to the underlying child support debt
that cannot be raised in this suit against Experian under the FCRA. See DeAndrade,
523 F.3d at 68 (stating that suit against consumer reporting agency under FCRA
cannot be used as vehicle to collaterally attack debt included on consumer report).
The Department reported to Experian that Jemison had a debt for overdue
child support. Jemison presented no summary judgment evidence establishing that
he had successfully challenged the administrative support order through the
administrative process or in court. See ILL. ADMIN. CODE tit. 89, § 160.60(g); see
also 305 ILL. COMP. STAT. 5/10-11 (providing that if “responsible relative” fails to
ability to be enforced.” Id. Thus, under Illinois law, the administrative support order
issued against Jemison can be enforced like a judgment signed by a judge in a
judicial proceeding. We conclude that Johnson is not factually distinguishable from
this case.
24
timely petition Department for release from or modification of administrative order,
“the order shall become final and there shall be no further administrative or judicial
remedy”). Under the circumstances of this case, Experian was not required to engage
in legal analysis to determine whether Jemison was correct in his belief that the
administrative support order was invalid. See Denan, 959 F.3d at 297 (“No amount
of resources could empower Trans Union to assume the role of a tribunal.”);
DeAndrade, 523 F.3d at 68 (“If a court had ruled the mortgage invalid and Trans
Union had continued to report it as a valid debt, then DeAndrade would have grounds
for a potential FCRA claim. In essence, DeAndrade has crossed the line between
alleging a factual deficiency that Trans Union was obliged to investigate pursuant to
the FCRA and launching an impermissible collateral attack against a lender by
bringing an FCRA claim against a consumer reporting agency.”). A “more thorough
investigation” of the matter would not have uncovered an inaccuracy in the reporting
of the child support debt. See Denan, 959 F.3d at 297.
We hold that the trial court properly granted summary judgment in favor of
Experian on Jemison’s claims under the FCRA. See 15 U.S.C. §§ 1681e(b),
1681i(a); Wright, 805 F.3d at 1242. We therefore overrule Jemison’s first, second,
25
and fifth issues challenging the trial court’s summary judgment order on the FCRA
claims.5
In addition to his claims under the FCRA, Jemison asserted several state-law
tort claims against Experian: claims for “breach of duty,” tortious interference with
prospective relations, intentional infliction of emotional distress, defamation, and
negligence. Experian challenged each of these causes of action in its summary
judgment motions. The trial court granted summary judgment in favor of Experian
without stating its reasoning and dismissed Jemison’s claims with prejudice.
On appeal, Jemison does not raise appellate issues specifically challenging the
trial court’s grant of summary judgment on his state law claims. When the trial court
does not specify the grounds on which it granted summary judgment, the appealing
5
Jemison argues that Experian did not use his consumer report to enforce a child
support order, as authorized by FCRA section 1681b(a)(4)(A), but it instead used it
for an impermissible purpose “in connection with” an administrative proceeding.
See 15 U.S.C. § 1681b(a)(4)(C). Section 1681b(a) sets out specific circumstances
under which a consumer reporting agency may furnish a consumer report. See 15
U.S.C. § 1681b(a). One circumstance is “[i]n response to a request by the head of a
State or local child support enforcement agency . . . if the person making the request
certifies to the consumer reporting agency that . . . the consumer report is needed
for the purpose of . . . enforcing a child support order, award, agreement, or
judgment” if the person making the request also certified that the report will be kept
confidential and “will not be used in connection with any other civil, administrative,
or criminal proceeding, or for any other purpose.” 15 U.S.C. § 1681a(4)(A), (C).
Jemison, however, asserted no claim in his original petition that Experian had
provided his consumer report to an improper third-party or for an impermissible
purpose. Instead, his asserted FCRA claims against Experian concern what
information was included in his consumer report, not the purposes for which the
report was used. Section 1681b(a)(4) is therefore not relevant to our resolution of
Jemison’s issues on appeal.
26
party must demonstrate that “none of the proposed grounds is sufficient to support
the judgment.” See McCoy, 240 S.W.3d at 271. “If summary judgment may have
been rendered, properly or improperly, on a ground not challenged on appeal, the
judgment must be affirmed.” Id.; see Lightning Oil, 520 S.W.3d at 45 (stating that
when trial court does not specify grounds it relied upon in making summary
judgment ruling, we must affirm if any asserted grounds are meritorious). Because
Jemison does not challenge the trial court’s ruling granting summary judgment in
favor of Experian on Jemison’s state-law tort claims, we must affirm the summary
judgment ruling on these claims. See McCoy, 240 S.W.3d at 271.
Conclusion
We affirm the judgment of the trial court.
April L. Farris
Justice
Panel consists of Justices Goodman, Countiss, and Farris.
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