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BENSON v. TRANS UNION

August 25, 2005.

NATHANIEL BENSON, Plaintiff,
v.
TRANS UNION, LLC, Defendant.



The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge

MEMORANDUM OPINION AND ORDER

Nathaniel Benson ("Benson") has sued consumer reporting agency Trans Union, LLC ("Trans Union"), asserting violations of the Fair Credit Reporting Act ("Act," 15 U.S.C. §§ 1681-1681u)*fn1 as well as advancing a common law defamation claim.*fn2 Trans Union has moved for summary judgment as to all claims under Fed.R.Civ.P. ("Rule") 56. Because Trans Union has demonstrated the nonexistence of any genuine issue of material fact, its Rule 56 motion is granted and this action is dismissed with prejudice.

Summary Judgment Standard

  Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts consider the evidentiary record in the light most favorable to nonmovants and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But to avoid summary judgment a nonmovant must produce "more than a scintilla of evidence to support his position" that a genuine issue of material fact exists (Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001)) and "must set forth specific facts that demonstrate a genuine issue of triable fact" (id.). Ultimately, summary judgment is warranted only if a reasonable jury could not return a verdict for the nonmovant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). What follows is a summary of the facts viewed of course in the light most favorable to nonmovant Benson — but within the limitations created by the extent of his compliance (or noncompliance) with the strictures of LR 56.

  Facts*fn3

  On September 16, 2003 Trans Union received a communication from Benson via its website disputing an account that had been reflected as delinquent on his Trans-Union-generated credit report (T. St. ¶ 34). Benson's correspondence explained that the account in question, identified as Peoples' Energy #5500003681294 ("Peoples Account"), was inaccurately reflected on his credit report as past due in the amount of $2,270.60 because, as he wrote (T. Ex. B-1):
The bill was for my father's business address Nate's Grove Meat. He has the exact same name as mine. I had no involvement with the address of 8357 S. Cottage Grove. This item belongs to Nathaniel Benson, Sr.
In response Trans Union began an investigation into the Peoples Account by transmitting a verification request to Peoples Gas (T. St. ¶ 38). After Peoples Gas did not respond to that request, Trans Union deleted the Peoples Account from Benson's credit file on October 14, 2003 so that it no longer appeared on his credit report (T. St. ¶ 39). Discovery in this case, however, has revealed that Benson worked at his father's business and that the Peoples Account was opened using Benson's name, social security number and birth date (T. St. ¶¶ 19, 20, 21, 24).
  In January 2004*fn4 Benson applied to Citibank, F.S.B. ("Citibank") for a home equity loan (T. St. ¶ 107). Citibank accessed Benson's credit report on January 22 and sent Benson a letter on January 27 denying his application (T. St. ¶¶ 106, 108). That letter reads in pertinent part (T. Ex. C-1):
We regret to inform you that we are unable to approve your request for the following reasons:
— SERIOUSLY DELINQUENT CREDIT OBLIGATIONS (PAID/UNPAID) ON CREDIT BUREAU
— DELINQUENT CREDIT OBLIGATIONS (PAID/UNPAID) ON CREDIT BUREAU
Citibank's decision was based in part on information, not necessarily of a derogatory nature, from the consumer reporting agency(s) listed below . . .: TRANS UNION CORPORATION.
On January 31 Benson ordered and received a copy of his Trans Union credit report, which now showed a delinquent account with CBC in the amount of $2270.60 ("CBC Account") (B. St. ¶ 9). As reflected in a letter that Benson had received on August 23, 2003, Peoples Gas had then placed the Peoples Account with CBC for collection (B. St. ¶ 2; B. Ex. A). Benson telephoned Trans Union to dispute his credit report on February 5 (B. St. ¶ 10).
  On February 6 Trans Union began an immediate investigation of Benson's dispute by sending CBC an Automatic Consumer Dispute Verification form ("ACDV") (T. St. ¶ 48), which referred to Benson's dispute this way (T. Ex. B-6):
Customer states belongs to another individual with same/similar name. Provide complete ID (incld. SSN, DOB, Generation Code, etc.).
CBC responded on February 19, confirming that the name, social security number and address on the ACDV matched the information it had received from Peoples Gas when the account was placed for collection (T. St. ¶ 49, 50). On February 25 Trans Union then sent Benson an updated copy of his credit report, which still reflected the CBC Account (T. St. ¶ 55).
  Benson telephoned Trans Union again on March 1 to complain about his credit report (T. St. ¶ 57). On March 2 Trans Union sent CBC another ACDV (T. St. ¶ 59), which characterized Benson's dispute in these terms (B. St. ¶ 16):
Consumer states inaccurate information. Did not provide specific dispute. Verify complete ID and Acct Information.
Before it received a response from CBC, Trans Union received a letter from Benson that said as to the CBC account (T. Ex. B-10):
This item is inaccurate, because this account was opened by my father, Nathaniel Benson, Sr., SS#429-68-7251 (who also sometimes uses the suffix Jr.) who owned the property located at 8329 S. Cottage Grove, Chicago, IL 60619. The debt in question could not belong to me due to the fact that location [sic] that the services were provided for was his place of business; which was formerly known as Nate Grove Meats. There may be some confusion as to whose [sic] this item belongs to since my father and I have the same name and now temporarily use my mailing address.
Benson's letter included copies of (1) his credit report, with the CBC account circled, and (2) a document from the Internal Revenue Service ("IRS") addressed to (T. Ex. B-10):
Nate Grove Meats Nate Benson Sr. 8329 S. Cottage Grove Chicago, IL 60619-5905298
  On March 24 Trans Union responded to Benson with a letter of its own (T. St. ¶ 67), explaining that it was investigating Benson's dispute and would respond in writing once its investigation was complete (T. Ex. B-12). But even before it sent that letter, on March 20 it had received CBC's response to the ACDV, confirming that Benson's name, address and social security number — not that of his father — were associated with the CBC Account (T. St. ¶ 69). So on March 29 Trans Union sent Benson an updated copy of his credit report, still reflecting the CBC Account as delinquent (T. St. ¶ 72).
  Before he received that latest credit report Benson had applied for a line of credit for the purchase of a car, this time with Bank of America, N.A. ("Bank of America") (T. St. ¶ 101). Benson's application, submitted on March 27, was denied by Bank Of America on April 17 in a letter reading (T. St. ¶ 100; T. Ex. B-17):
If you would like a statement of specific reasons why your application was denied, please call us or write to us at our number and address below within 60 days of the date of this letter . . .
Our decision was based in whole or in part on information we obtained from [Trans Union]. The agency . . . played no part in our decision other than providing us with information about you and are unable to provided specific reasons why we have denied credit to you.
Benson did not communicate further with Bank of America after receiving that letter (T. St. ¶ 104). Instead he filed suit on June 7. After receiving the Complaint Trans Union sent CBC yet another ACDV about the CBC Account (T. St. ¶ 76). On June 17 CBC again verified that the CBC Account contained Benson's name, address and social security number (T. St. ¶ 77). Trans Union then telephoned CBC on June 22 (T. St. ¶ 78). CBC again verified Benson's identifying information, but it informed Trans Union that the CBC Account had been transferred back to Peoples Gas, the original creditor (T. St. ¶ 79). On that same day Trans Union deleted the CBC Account from Benson's file.

  Claims Under the Act

  It is undisputed that Trans Union is a "consumer reporting agency" within the meaning of Section 1681a(f), that the credit reports at issue are "credit reports" within the meaning of Section 1681a(d) and that Benson is a "consumer" for purposes of Section 1681a(c). Sections 1681n and 1681o respectively provide private rights of action for willful and negligent noncompliance with any duty imposed by the Act and allow recovery for actual damages and attorney's fees and costs, as well as punitive damages for willful noncompliance (see Casella v. Equifax Credit Info. Servs., 56 F.3d 469, 473 (2d Cir. 1995)).

  Benson claims Trans Union failed to fulfill its duties under the Act (1) by not following reasonable procedures to assure the accuracy of his credit report as required by Section 1681e(b), (2) by failing to conduct an adequate reinvestigation as required by Section 1681i(a) when he disputed his credit report and (3) by failing to include a statement of dispute on his credit report as required by Section 1681i(c). This opinion addresses those claims in turn. Reasonable Procedures for Assuring Accuracy

  Section 1681e(b) reads:
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.
To avoid summary judgment on his claim under that provision, Benson must raise a genuine issue of material fact as to each of four elements: (1) that there was inaccurate information in his consumer credit report, (2) that the inaccuracy was due to Trans Union's failure to follow reasonable procedures to assure maximum possible accuracy, (3) that he suffered ...

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