United States District Court, N.D. Illinois
February 2, 2004.
LLOYD SARVER, Plaintiff
EXPERIAN INFORMATION SOLUTIONS, INC., Defendant
The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Lloyd Sarver alleges that defendant Experian Information
Solutions, Inc. ("Experian") violated the Fair Credit Reporting Act
("FCRA"), 15 U.S.C. § 1681 et seq., by reporting inaccurate
information in his credit report. Experian moves for summary judgment,
claiming it had no notice of Mr. Sarver's dispute and that Mr. Sarver was
in any case not injured by the information. I grant that motion.
On August 2, 2002, Monogram Bank of Georgia denied Mr. Sarver credit,
citing his credit report and specifically a bankruptcy that appeared
therein. Mr. Sarver contacted Experian twice, on July 18 and August 26,
2002, obtaining a copy of his credit report each time. On both reports,
accounts with Cross Country Bank were listed as having been discharged in
bankruptcy. No other accounts had this designation on Mr. Sarver's
reports. On August 29, 2002, Mr. Sarver wrote Experian, stating that the
was inaccurate and asking that it be removed from his
report. Mr. Sarver provided his full name and address, but no other
identifying information. On September 11, 2002, Experian sent Mr. Sarver
a letter requesting further information, including his Social Security
number, before it could begin an investigation. On October 30, 2002, Mr.
Sarver filed the present lawsuit against Experian, making claims under
15 U.S.C. § 1681i(a), 1681i(c), and 1681e(b).
Summary judgment is appropriate where the record and affidavits, if
any, show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. Lexington
Ins. Co. v. Rugg & Knopp, 165 F.3d 1087, 1090 (7th Cir. 1999);
Fed.R.Civ.P. 56(c). I construe all facts in the light most favorable
to the non-moving party and draw all reasonable and justifiable
inferences in favor of that party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
In order to avoid summary judgment, Mr. Sarver must raise a question of
material fact on each of four elements: "(1) that there was inaccurate
information in his consumer credit report, (2) that the inaccuracy was
due to Experian's failure to follow reasonable procedures to assure
accuracy, (3) that he suffered actual damages, and (4) that those damages
were caused by the inaccuracy." Lee v. Experian Info, Solutions,
No. 02-C8424, 2003 WL 22287351 at *2 (N.D. Ill. Oct. 2, 2003) (citing
Philbin v. Trans Union Corp.,
101 F.3d 957, 963 (3d Cir. 1996). Experian argues that Mr.
Sarver cannot establish that Experian did not follow reasonable
procedures or that he suffered actual damages.
FCRA requires that reporting agencies use "reasonable procedures to
assure maximum possible accuracy" of the information reported.
15 U.S.C. § 1681e(b). Reporting agencies must also investigate once
a consumer has notified the agency of a potential error.
15 U.S.C. § 1681i(a).*fn1 The reporting agency may terminate an
investigation if the consumer fails "to provide sufficient information to
reinvestigate the disputed information." 15 U.S.C. § 1681i(a)(3)(A).
Experian argues that it was under no duty to conduct an investigation
because Mr. Sarver did not sufficiently identify himself or his dispute.
The reasonableness of a reporting agency's procedures is normally a
question for the jury. Crabill v. Trans Union, L.L.C., 259 F.3d 662,
664 (7th Cir. 2001). However, the procedures may be reasonable as a
matter of law "where the reasonableness of the procedures used . . . is
beyond question." Lee, 2003 WL 22287351 at *3.
Mr. Sarver's August 29 letter was enough to notify Experian that he
wished to dispute something about his credit report.
Experian responded by sending Mr. Sarver a letter
requesting more specific information about both him and his dispute,
information necessary for Experian to ensure investigation of the correct
information on the correct report. Mr. Sarver chose not to respond to
this letter, instead filing this lawsuit. Mr. Sarver's distaste for
Experian's process does not make that process unreasonable. The
information requested before attempting to investigate the dispute was
Mr. Sarver is also unable to show any actual injury caused by the
incorrect information appearing on his credit report. Assuming his August
29 letter served as notice, Experian could only potentially be liable for
injury occurring after that date. No credit granting agency requested Mr.
Sarver's credit report between August 29, 2002 and at least February 20,
2003.*fn2 Mr. Sarver claims that he suffered emotional and mental
distress as a result of the incorrect information. While emotional
distress could potentially constitute actual damages, the distress must
result from the publication of the inaccurate information to a third
party. See, e.g., Field v. Trans Union LLC, No. 01-C6398, 2002
WL 849589 at *5 (N.D. Ill. May 3, 2002). Mr. Sarver presents no evidence
that his credit report was published to any third party in the time
between his letter to Experian and the filing of this
lawsuit. Without an injury, Mr. Sarver cannot sustain his claims under
Mr. Sarver also alleges that Experian violated FCRA by failing to note
the dispute of his inaccurate information. 15 U.S.C. § 1681i(c). Mr.
Sarver makes no attempt to defend this claim on summary judgement, and so
it fails. Oak Brook Hotel Co. v. Teachers Ins. and Annuity
Ass'n, 846 F. Supp. 641 (N.D. Ill. 1994).
Finally, Mr. Sarver alleges that Experian has willfully violated FCRA
and therefore he is entitled to both attorney's fees and punitive
damages. 15 U.S.C. § 1681 n. Mr. Sarver is unable to establish a
violation of FCRA, as explained above, let alone a willful violation.
This claim fails.