United States District Court, N.D. Illinois, Eastern Division
August 25, 2005.
NATHANIEL BENSON, Plaintiff,
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.
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
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
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
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.
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
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 actual damages and (4)
that those damages were caused by inclusion of the inaccurate
entry (Philbin v. Trans Union Corp., 101 F.3d 957
, 963 (3d Cir.
As to the first element of inaccurate information, Benson
"vehemently denies that he opened the [Peoples Account]" and
argues that Trans Union "has produced no documentation showing
anything to the contrary" (B. Mem. 8). Benson contends that the
credit reports attributing that account to him were consequently
inaccurate. Trans Union counters that Peoples Gas' records show,
and Benson himself admits, that the Peoples Account was opened
using his name, social security number and birth date. According
to Trans Union, then, its reporting of that account and the
related CBC Account was accurate and cannot form a basis for
liability under Section 1681e(b). Even though Benson acknowledges that the Peoples Account was
opened using his name, address and social security number, he
nonetheless claims that the information in his credit report was
incorrect because the account "belonged to his father for his
place of business" (B. Mem. 8). He also provides an IRS document
that he says shows that his father "is the sole owner of the
business" at which utility service was provided (P. Mem. 8). But
while there is no dispute that Benson's father owned the business
at which the utility service was provided, Benson's father
testified that his son opened the Peoples Account for that
business (T. Ex. G at 6, 15):
A: At that time he was only about 20, 21 so I was
trying to establish his business . . . So I had him
go down to People's [sic] Gas and apply for the gas
bill . . .
* * *
Q: I think then you said that your son you asked
your son to open the People's [sic] account for the
8329 South Cottage Grove?
A: Yes, I had.
Q: Kind of build up the credit and help him come
along in business?
A: Well, you know, he was going to run the location
there, so he was establishing the business out there.
Q: Do you know if he opened any other accounts for
A: I would think so. I think he opened also [sic] the
Benson flatly contradicts his father's testimony (T. Ex. C at
Q: Have you ever had an account with People's [sic]
Energy or People's [sic] Gas?
A: Never. Q: You never filled out an application for People's
[sic] Gas or People's [sic] Energy?
A: I don't believe, no.
* * *
Q: Do you know how People's [sic] Gas got your Social
A: No, I do not.
Q: Do you know how People's [sic] Gas got your date
A: No, I do not.
Q: Do you know how People's [sic] Gas got your name?
A: No, I don't. Me and my dad had the same name.
Q: Do you have a belief as to how People's [sic] Gas
got your personal information?
A: Yes, maybe through my dad. Maybe, I don't know.
In sum, there is no dispute that the Peoples Account was opened
using Benson's name, address and social security number. Instead
what is controverted is the identity of the person who used
Benson's personal information to open it: Benson or his father.
Because the record must be viewed in Benson's favor for
purposes of Trans Union's motion, credulity must be suspended by
assuming for now that his father opened the account using
Benson's personal information. But even in those terms this is
not a run-of-the-mill case of identity theft, in which one party
"steals" the personal identifying information of another and then
"profits by using his victim's personal information to take funds
from her bank accounts, take over her very identity, run up vast
debts, or commit crimes" (Holly Towle, Identity Theft: Myths,
Methods, and New Law, 30 Rutgers Computer & Tech. L.J. 237, 241
(2004))). In such cases the reporting of an account can be considered "inaccurate" even though the account contains a
victim's true personal information because there is no question
that it is the thief rather than the victim who is responsible
for the account.
Here in contrast the claimed inaccuracy of Trans Union's
reporting of the Peoples Account and later the CBC Account is far
from clear. Benson stops short of saying his father stole his
identity, and indeed there is no question that he was employed by
his father's business. Trans Union thus argues strenuously that
Benson is responsible for the accounts, presenting the
earlier-quoted testimony by his father as evidence. But because
Benson's own sworn testimony contradicts his father's, that
suffices to create a genuine issue of material fact as to whether
there was inaccurate information on his consumer credit report.
But Benson still falls at the second Section 1681e(b) hurdle,
which requires a showing of a genuine issue of material fact as
to whether that inaccuracy was due to Trans Union's failure to
follow reasonable procedures to assure accuracy. On that score
Benson's claim cannot survive summary judgment, because Trans
Union's procedure for assuring accuracy in the credit report at
issue here is reasonable as a matter of law.
As a general matter, it is undisputed that Trans Union's normal
procedures for processing consumer credit information mirror
those recently held reasonable in Sarver v. Experian Info. Solutions, 390 F.3d 969, 972 (7th Cir. 2004). Those procedures
include collecting and storing individuals' names, addresses,
social security numbers and birthdates, and then linking that
information to individual "trade lines of credit," which are in
turn compiled to generate credit reports (T. St. ¶¶ 83-89).
Because of the vast scale on which those procedures are conducted
Trans Union itself gathers information from some 85,000 sources
and processes over 22 billion updates to the information it
reports each day Sarver, 390 F.3d at 972 made clear that a
credit reporting agency is not liable under Section 1681e(b) for
reporting inaccurate information concerning a line of credit
where that information is "received from a source that it
reasonably believes is reputable . . . unless the agency receives
notice of systemic problems with its procedures."
Benson does not contend that Trans Union received notice of
systemic problems with its procedures. Instead he claims that
Peoples Gas was not a reputable source of credit information, so
that Trans Union unreasonably relied upon it as to both the
Peoples Account and the CBC Account. According to Benson, when
Peoples Gas failed to respond to Trans Union's verification
request in October 2003, Trans Union was put on notice that
Peoples Gas was an unreliable source of information. As a result,
as he would have it, Trans Union should have doubted the validity
of the Peoples Account and later the CBC Account, and it should have undertaken a more extensive investigation before
placing those accounts on his credit report. But that argument is
Just to state that proposition that Trans Union could not
reasonably believe Peoples Gas was a reputable source of credit
information simply because it failed to respond to one
verification request demonstrates why it is wholly
unconvincing. On that premise, whenever a credit furnisher failed
to respond to any verification request, all of the information
supplied by that credit furnisher would be called into question,
and the reporting of any of that information by a credit
reporting agency could lead to liability on the agency's part.
That would be an absurd reading of Section 1681e(b). Instead,
because of the "enormous volume of information" credit agencies
such as Trans Union process on a daily basis, deviation from
standard procedures is not required "[i]n the absence of notice
of prevalent unreliable information from a reporting lender"
(Sarver, 390 F.3d at 972). Trans Union received no such notice,
and its adherence to the normal procedures it uses to process
consumer information was therefore reasonable as a matter of law.
Hence Benson's Section 1681e(b) claim fails, and it is
unnecessary to discuss the remaining elements of causation and
damages set out in Philbin.
Reinvestigation of Dispute
Section 1681i(a) (1) (A) states: If the completeness or accuracy of any item of
information 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 reinvestigate free of
charge 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.
Again the standard is reasonableness the agency must "make
reasonable efforts to investigate and correct inaccurate or
incomplete information brought to its attention by the consumer"
(Cahlin v. General Motors Acceptance Corp., 936 F.2d 1151
(11th Cir. 1991)). So a claim under Section 1681i(a) is thus
properly raised (id. (emphasis in original)):
when a particular credit report contains a factual
deficiency or error that could have been remedied by
uncovering additional facts that provide a more
accurate representation about a particular entry.
Benson claims that Trans Union violated its duties under
Section 1681i(a) when it continued to report the CBC Account
after he notified Trans Union that it was not his.*fn5
it must be assumed for purposes of this motion that Trans Union's
inclusion of the CBC Account on his credit report was inaccurate,
Benson has failed to show that such inaccuracy stemmed from Trans Union's failure to perform a reasonable reinvestigation of his
Trans Union's investigations of both of Benson's communications
disputing the CBC account his February 5 and March 1 telephone
calls involved its transmission of ACDV forms containing
Benson's name, address and social security number to CBC. In each
instance CBC responded to the ACDV by verifying that Benson was
responsible for the CBC Account. Benson claims that the ACDV was
insufficient under Section 1681i(a) because the information he
provided in connection with his dispute put Trans Union on notice
that the sources of information concerning the CBC Account (CBC
and Peoples Gas) were unreliable. So, he says, Trans Union had an
obligation to conduct a more extensive investigation.*fn6
But even if that argument were to be accepted at face value,
Benson has not explained what other investigatory measures Trans
Union should reasonably have undertaken and, more importantly,
what information a more extensive investigation would have
revealed. It is true that to comply with Section 1681i(a) a credit
reporting agency's investigation "must consist of something more
than merely parroting information received from other sources"
(Cushman v. Trans Union Corp., 115 F.3d 220, 225 (3d Cir.
1997)). Indeed, "a credit reporting agency may be required, in
certain circumstances, to verify the accuracy of its initial
source of information" (Henson v. CSC Credit Servs.,
29 F.3d 280, 287 (7th Cir. 1994)).
But Benson can draw no comfort from those principles. Here
Trans Union had no reason to doubt the reliability of either
Peoples Gas or CBC as sources of information, and the discovery
in this litigation has only confirmed that such is the case. It
must be remembered that the only support for the arguendo
assumption that Benson is not responsible for the Peoples Account
(or by extension the CBC account) is Benson's own deposition
testimony. But on the other side of the coin, the records of
Peoples Gas and CBC clearly indicate, and Benson's father's
testimony expressly states, that Benson was responsible for
Section 1681i(a)'s requirement of a reasonable reinvestigation
cannot be read to demand a more extensive investigation than has
been undertaken in connection with this lawsuit. And because the
extensive investigation undertaken for purposes of this lawsuit
has failed to "uncover? additional facts that provide a more accurate representation" (Cahlin,
936 F.2d at 1160) of the Peoples Account or the CBC Account, it
follows that any reasonable reinvestigation required by Section
1681i(a) would have had a similar result. Benson's Section
1681i(a) claim also fails as a matter of law.
Inclusion of Statement of Dispute
Finally, Section 1681i(c) reads:
Whenever a statement of a dispute is filed, unless
there is reasonable grounds to believe that it is
frivolous or irrelevant, the consumer reporting
agency shall, in any subsequent consumer reporting
containing the information in question, clearly note
that it is disputed by the consumer and provide
either the customer's statement or a clear and
accurate codification or summary thereof.
While Benson's Amended Complaint alleges that Trans Union
violated the duties imposed by that section, Trans Union's
initial brief in support of its motion points out that Benson
never submitted a statement of dispute, so that his claim that
Trans Union failed to include such a statement in his credit
report must fail as a matter of law. Sure enough, Benson admits
that he never sent Trans Union a statement of dispute as defined
by Section 1681i(b) (B. Resp. ¶¶ 73-75). In short, Trans Union is
also entitled to summary judgment as to Benson's Section 1681i(c)
Section 1681h makes consumer reporting agencies qualifiedly
immune from state law defamation claims unless a plaintiff can show that the credit reporting agency acted with malice or
willful intent to injure. Though Benson admits he has no evidence
of any intent to injure him on Trans Union's part (B. Resp. ¶¶
32-33), he nonetheless claims that Trans Union's failure "to deal
with a straight forward detailed dispute which included
supporting documentation" shows malice because it "demonstrates
at the very least a reckless disregard for the truth and a
willful intent to injure" (B. Mem. 17).
It is an understatement to say that the record is completely
devoid of evidence that any claimed error in Trans Union's credit
report resulted from malice on Trans Union's part. Far from it:
On the uncontroverted evidence, both the procedures Trans Union
employs as a general matter and the actions it took as to
Benson's particular dispute were calculated to assure accuracy in
the credit reports it produced. Like his other claims, Benson's
common law defamation claim fails as a matter of law.
Up to now this opinion has been careful to avoid the obvious
fact that the discussion here has given Benson and his counsel
more than their due. While Benson's self-serving deposition
testimony has been considered for analytical purposes as creating
a genuine issue of material fact as to whether he or his father
opened the account in question, that matter can be and should
have been handled between the two of them. For Benson to have dragged Trans Union into that dispute in an attempt to dip into
its deep pocket was at best ill-conceived, for nothing he has
produced in opposition to Trans Union's motion has called into
question its fulfillment of the duties imposed on it by the Act.
Trans Union's Rule 56 motion is granted in full, and this action
is dismissed with prejudice.
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