Jeffrey Brill v. TransUnion LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1091
JEFFREY BRILL,
Plaintiff-Appellant,
v.
TRANSUNION LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:15-cv-00300-slc — Stephen L. Crocker, Magistrate Judge.
____________________
ARGUED SEPTEMBER 9, 2016 — DECIDED OCTOBER 4, 2016
____________________
Before POSNER, MANION, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. Credit reporting agencies prepare
reports that provide information about a person’s finances—
such things as bill-payment history, loans, current debt, and
other information (such as where the person lives and works
and, in some cases, whether he or she has been sued or ar-
rested). The information is intended to help lenders decide
whether to extend credit or approve a loan and what interest
rate to charge. Prospective employers, insurers, and owners
2 No. 16-1091
of rental property can obtain the credit reports from the
agency.
It’s important to debtors that they check their credit re-
ports regularly, to ensure that the information in them is cor-
rect and that no fraudulent accounts have been opened in
their name. A debtor who finds an inaccuracy can take steps
to have it corrected. See “Credit Reports and Scores,”
www.usa.gov/credit-reports (visited October 4, 2016, as
were the other websites cited in this opinion).
TransUnion, one of the three major American credit re-
porting agencies, prepared a credit report which revealed,
on the basis of information that TransUnion had obtained
from Toyota, that a man named Jeffrey Brill was in arrears
on a 2013 extension of the lease of a car from Toyota. Brill
told TransUnion that his signature on the lease extension
had been forged by a former girlfriend named Kelly Pfeifer;
that upon her signing the extension it had become her lease,
not his; and that he therefore owed nothing to the lessor,
Toyota. Invoking the Fair Credit Reporting Act he demand-
ed that TransUnion “conduct a reasonable reinvestigation”
to determine whose lease it was, Brill’s or Pfeifer’s. See 15
U.S.C. § 1681i(a)(1)(A). TransUnion responded by asking
Toyota to confirm the accuracy of its report. Toyota did so,
though apparently just by noting that the name of the lessee
on the lease extension was Brill; it did not try, and was not
asked by TransUnion to try, to determine whether the signa-
ture was a forgery.
Brill claims that TransUnion’s investigation of whether
he or Pfeifer had leased the car was not “reasonable” within
the meaning of the section of the Fair Credit Reporting Act
just cited, which provides (in the section cited in the previ-
No. 16-1091 3
ous paragraph and here amplified) that “if the completeness
or accuracy of any item of information contained in a con-
sumer’s [e.g., Brill’s] file at a consumer reporting agency is
disputed by the consumer and the consumer notifies the
agency directly, or indirectly through a reseller, of such dis-
pute, the agency shall, free of charge, conduct a reasonable
reinvestigation to determine whether the disputed infor-
mation is inaccurate and record the current status of the dis-
puted information.”
Brill contends that TransUnion did not conduct an ade-
quate reinvestigation, which would (he argues) have re-
quired it to do more than just ask Toyota (as it had done) to
confirm the accuracy of its report to TransUnion. The
“more” might be for TransUnion to hire a handwriting ex-
pert to determine whether the signature on the lease exten-
sion was Brill’s or Pfeifer’s, or maybe for TransUnion to dis-
pense with the expert and just ask the Toyota employees
who had been involved in the negotiation of the lease exten-
sion to advise whether the signatures (the signature on the
original lease and the signature on the extension) were of
different persons or the same person. Brill contends that the
signatures were obviously of different persons, but the con-
tention cannot be evaluated because he hasn’t submitted the
signatures in the litigation.
He claims to have suffered adverse financial consequenc-
es from TransUnion’s credit report, which showed him as a
delinquent debtor on the car lease and—after he settled with
Toyota, which he had also sued—added that his obligation
had been written off as a bad debt, implying that Brill had
limited financial resources.
4 No. 16-1091
His suit against TransUnion is based on the civil liability
provisions of the Fair Credit Reporting Act, 15 U.S.C.
§§ 1681n(a), o(a), and p(a). The district court dismissed the
suit (precipitating this appeal) for failure to state a claim, on
the ground that TransUnion had no duty to verify the accu-
racy of Brill’s signature on the Toyota lease, because Toyota,
as the lessor, was in a better position to determine the validi-
ty of its own lease. That’s to put it mildly. The lease exten-
sion that may have been signed by Pfeifer rather than Brill
was a document created by Toyota. TransUnion had had
nothing to do with it, which is why upon receiving Brill’s
challenge to the accuracy of its credit report it had asked
Toyota to confirm (or deny) the accuracy of the lease pur-
portedly signed by Brill. That was an appropriate procedure,
especially as TransUnion couldn’t readily locate any other
document that might have resolved the issue. Cf. Henson v.
CSC Credit Services, 29 F.3d 280, 287 (7th Cir. 1994).
But believing not without reason that Toyota’s response
confirming that he was the lessee was too perfunctory to
hold up, Brill had sued Toyota; the parties had settled; and
the terms of the settlement were to be confidential and have
remained so. We not only have no idea of what those terms
might be and therefore no idea whether Brill has succeeded
in clearing the cloud on his credit (which if so would vitiate
the present suit); we haven’t seen the signatures on the lease
extension, which are not in the record. It’s odd for a party to
withhold from the court evidence that it contends is conclu-
sive in its favor, but that’s what Brill has done.
A further problem with his suit is the difficulty, even
with the aid of a handwriting expert, of determining wheth-
er two signatures are by the same person. Brill insists that
No. 16-1091 5
his signatures always include a middle initial, D, and the
signature on the lease extension omitted the D. But of course
if Brill signed the lease extension but wanted to “frame”
Pfeifer as the signer, he had only to omit his middle initial
and cry forgery. It happens also that handwriting analysis is
expensive, see, e.g., DocExaminer: Forensic Document Laborato-
ry, http://docexaminer.com/pages/faq.html; Forensic Docu-
ment Analysis: Fee Schedule: How Much Does it Cost?,
http://expertdocumentexaminer.com/cost.html–and often
inconclusive when one of the signatures isn’t genuine, for
then the similarities or differences between them may be at-
tributable to fraud or some other contrivance. Forcing a
credit reporting agency to hire a handwriting expert in every
case of alleged forgery would impose an expense dispropor-
tionate to the likelihood of an accurate resolution of the dis-
pute over whether it was indeed forgery. And so the Fair
Credit Reporting Act’s provisions for identity theft, 15 U.S.C.
§§ 1681c-1, c-2, sensibly ask persons who believe they are or
may be victims of credit fraud to report to the police before
turning to the credit reporting agency. As far as we know,
Brill didn’t do that.
A similar puzzle concerns another related suit brought
by Brill—against Pfeifer for defrauding him by using a
forged signature to “steal” the Toyota lease from him. But all
that we’re told about the suit is that Brill obtained a default
judgment. In other words, Pfeifer didn’t fight—and that is
not a confession of forgery.
Nor has Brill indicated how he could prove forgery in the
present suit, against TransUnion. As the plaintiff he has the
burden of proof, but rather than bear that burden he invokes
the statutory duty of reinvestigation by the credit reporting
6 No. 16-1091
agency to shift the burden of proof to TransUnion, insisting
that TransUnion should have done more than check with
Toyota, as it did: should have hired a handwriting expert, or
analyzed the handwriting without bothering to hire a
handwriting expert, or evaluated Toyota’s procedures for
verifying the identity of customers, or interviewed the Toyo-
ta employees who had been involved in the extension of the
lease. As to the first suggestion, handwriting experts are ex-
pensive and often produce inconclusive results. See Saul
Bienenfeld, “Handwriting Analysis: Science or Art Form? A
New York Federal Judge Weighs in,”
https://www.linkedin.com/pulse/handwriting-analysis-scien
ce-art-form-new-york-judge-saul-bienenfeld.
The second suggestion, discussed and rejected earlier in
this opinion–using untrained people in lieu of a handwriting
expert–is undeveloped and unsupported. And the last two
points are particularly weak because once he sued Toyota,
Brill was in a superior position to TransUnion to evaluate
Toyota’s procedures for verifying customers’ identity and to
interview (as by deposing) Toyota employees in order to de-
termine whether they had followed the prescribed proce-
dures in Brill’s case. And it might well be unduly burden-
some for TransUnion to ask Toyota to identify, and put
TransUnion in touch with, the employees. In any event
TransUnion could not expect Toyota to accede to such a re-
quest. No company willingly tells another company: “you
want to interview my employees in order to see whether
they violated rights of someone [Brill] who sued me? No
problem.” Instead it says: “Forget it.” Brill’s suit against
Toyota was his chance to use discovery to interview Toyota
employees. It's too late now. It was his decision to settle his
No. 16-1091 7
suit against Toyota rather than use discovery procedures to
explore the issue of forgery in depth.
As for Brill’s argument that TransUnion should have
forwarded the documents he sent to Toyota (he sent
TransUnion a copy of his signature from 2009 and a list of
ways in which it differed from the signature on the lease)
he’s provided no evidence for his claim that the signatures
clearly differ, and therefore no reason to think that sending
the signature to Toyota would have helped.
Further on Brill’s strident claim that the two signatures
are obviously of different people: neither signature is in the
record, though Brill had both documents as well as other
samples of his signature. Again we find him refusing to pre-
sent a case, instead insisting that he need provide no evi-
dence to support any of his allegations.
And last, supposing that the signature on the lease exten-
sion was determined to be forged (presumably by Pfeifer),
what next? Because of the secrecy surrounding Brill’s settle-
ment with Toyota, we know none of its terms, though we
can surmise that Brill obtained some money. Toyota has re-
ported that it has treated the $8,795 owed it by Brill under
the lease extension (if indeed he was the signatory of that
document) as “bad debt,” implying forgiveness. It would not
be right to award him damages against TransUnion that du-
plicated relief he’d obtained from Toyota, but that is some-
thing we can’t determine because he will not reveal the
terms of the settlement nor, as far as we’re aware, has he
asked Toyota to do so.
8 No. 16-1091
We agree with the district judge that Brill has failed to
make a plausible claim against TransUnion. The dismissal of
his suit is therefore
AFFIRMED.