United States District Court, M.D. Florida, Tampa Division
MICHELE MALVERTY, as successor-in-interest of JAMES C. RENNICK, Sr., Plaintiff,
EQUIFAX INFORMATION SERVICES, LLC, Defendant.
D. WHITTEMORE UNITED STATES DISTRICT JUDGE.
THE COURT are Defendant Equifax Information
Services, LLC's Motion for Summary Judgment (Dkt. 112),
and Plaintiff Michele Malverty's Opposition (Dkt. 122).
Upon consideration, Defendant's motion is GRANTED
in part and DENIED in part.
BACKGROUND AND UNDISPUTED FACTS
is the daughter of James Rennick, Sr. and
successor-in-interest to his estate (Dkt. 84 ¶ 5).
Equifax is a consumer reporting agency (CRA) as defined by
the Fair Credit Reporting Act (FCRA). (Dkt. 112-1 at 3).
Equifax gathers information about consumers to prepare
consumer reports and has maintained a credit file for Rennick
since 1972. (Id.; Dkt. 112-2 at 5). In 2006, a
mortgage lender mistakenly reported the social security
number of another individual, James Palmer, in relation to
Rennick's mortgage account. (Dkt. 112-2 at 5). The lender
transferred the mortgage to another entity after updating
Rennick's social security number in its reporting.
(Id. at 6). Additionally, Rennick's address
appeared on Palmer's credit file. (Id.). This
overlapping information caused Equifax's system to
combine the two files in November 2008, and accounts for
Rennick and Palmer appeared in a single file. (Id.)
became aware of the incorrect information in his Equifax
credit file when he applied for a mortgage loan in January
2017. (Dkt. 84 ¶ 14; Dkt. 122-1). He applied to
refinance a property his wife inherited from her cousin, John
Selvaggio, although the title was in Selvaggio's name.
(Dkt. 122-15). He submitted a loan application with a
mortgage broker, Lightning Funding. (Dkt. 112-14). The broker
pulled Rennick's Equifax consumer report, which included
a WebBank account indicating he was deceased. (Id.
at 47). Rennick was unable to obtain the loan. (Dkt. 122-5 at
5). The principal of Lightning Funding, Scott Fessler,
testified that without the deceased notation, the application
would have been approved. (Id.).
and Malverty contacted Equifax to dispute the deceased
notation. The first phone dispute documented in
Equifax records was in April 2017. (Dkt. 112-1 at 6).
Following that call, Equifax changed the name on the file
from Palmer's to Rennick's, and removed the deceased
code from the WebBank account's “ECOA” field,
but did not remove the “consumer deceased”
narrative or the WebBank account until October 19, 2017.
(Dkt. 112-1 at 7, 15).
point, Rennick discovered that Equifax was also incorrectly
reporting that he owed a mortgage to M&T Bank. (Dkt. 84
¶ 22). Malverty called and mailed documents (including
copies of Rennick's identification and social security
cards) to Equifax to dispute the mortgage. (Dkt. 112-1
¶¶ 6-15). M&T Bank also notified Equifax of the
error. (Dkt. 122-2 at 2).
declaration, Celestina Gobin, an employee of Equifax, avers
that Equifax removed the M&T mortgage in June 2017. (Dkt.
112-1 ¶ 86). She also avers that Equifax updated the
social security number in Rennick's file in May 2017 (id.
¶ 82), but Palmer's number nonetheless appeared in
Rennick's file from September through December 2017,
(Dkt. 125-1 at 2; Dkt. 127-1 at 2).
September 2017, Rennick attempted to finance the purchase of
a car through a dealership. (Dkt. 112-18). Through CoreLogic
Credco, LLC, the dealership received an Equifax report
reflecting that Rennick was deceased and which included
Palmer's name and social security number. (Dkt. 122-7 at
2). Capital One, N.A. was contacted about funding the loan
and obtained Rennick's consumer reports from three CRAs.
(Dkt. 122-8 at 1). Experian and Trans Union reported that
Rennick's social security number began with 088, while
Equifax reported the number began with 086. (Id. at
1-2). Because of the discrepancy, Capital One conditioned its
counteroffer for the loan on verification of Rennick's
social security number with a LexisNexis fraud report.
(Id. at 2). The report reflected a “Potential
High Risk/Deceased” designation. (Id. at 3).
And Capital One did not fund the loan because of the
designation. (Id.). Three additional loan
applications submitted by the dealership underwent the same
review process and were denied. (Id. at 3-4). The
dealership repossessed the car. (Dkt. 84 ¶ 29).
2017, Mrs. Rennick passed away. (Id. ¶ 33).
During the pendency of this case, Rennick passed away.
(Id. ¶¶ 37-40). In June or July 2018,
Equifax added a “Do Not Combine” notation in
Rennick's file. (Dkt. 112-27 at 3).
Malverty's individual claims and her claims as
successor-in-interest to Rennick's estate for intentional
infliction of emotional distress (Count II), intrusion upon
seclusion (Count III), and negligent infliction of emotional
distress (Count V) have been dismissed. (Dkt. 135).
Rennick's claim for punitive damages under the FCRA was
also dismissed. This leaves Rennick's claims for actual
and statutory damages under the FCRA (Count I), negligence
(Count IV), defamation (Count VI), gross negligence (Count
VII), slander of credit (Count VIII), and a claim for
punitive damages under state law. (Dkt. 84). Equifax moves
for summary judgment, contending the FCRA claims fail because
Malverty cannot prove Equifax acted willfully or caused
Rennick's damages and that the state law claims are
preempted and unsupported by record evidence. (Dkt. 112 at
judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
“A genuine factual dispute exists only if a reasonable
fact-finder ‘could find by a preponderance of the
evidence that the [non-movant] is entitled to a
verdict.'” Kernel Records Oy v. Mosley,
694 F.3d 1294, 1300 (11th Cir. 2012) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact
is material if it may affect the outcome of the suit under
the governing law. Allen v. Tyson Foods, Inc., 121
F.3d 642, 646 (11th Cir. 1997).
moving party bears the initial burden of showing, by
reference to materials on file, that there are no genuine
disputes of material fact. Hickson Corp. v. N. Crossarm
Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
If the movant adequately supports its motion, the burden
shifts to the nonmoving party to show specific facts that
raise a genuine issue for trial. Dietz v. Smithkline
Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010). The
evidence presented must be viewed in the light most favorable
to the nonmoving party. Ross v. Jefferson Cty. Dep't
of Health, 701 F.3d 655, 658 (11th Cir. 2012).
“Although all justifiable inferences are to be drawn in
favor of the nonmoving party, ” Baldwin Cty. v.
Purcell, 971 F.2d 1558, 1563-64 (11th Cir. 1992),
“inferences based upon speculation are not reasonable,
” Marshall v. City of Cape Coral, 797 F.2d
1555, 1559 (11th Cir. 1986).
Complaint, Malverty alleges that “Equifax negligently
and willfully failed to maintain and/or follow reasonable
procedures to assure maximum possible accuracy of the
information it reported to one or more third parties
pertaining to [Rennick], in violation of 15 U.S.C. §
1681e(b), ” and that “Equifax negligently and
willfully failed to investigate Rennick's dispute in
violation of 15 U.S.C. § 1681i.” (Dkt. 84
1681e(b) of the FCRA provides that “[w]henever a [CRA]
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.” Additionally, if the
accuracy of any item of information contained in a
consumer's file at a [CRA] is disputed by the consumer
and the consumer notifies the agency directly . . . the
agency shall, free of charge, 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 . . . before
the end of the 30-day period beginning on the date on which
the agency receives the notice of the dispute from the
§ 1681i(a)(1)(A). And the CRA shall “maintain
reasonable procedures designed to prevent the reappearance in
a consumer's file, and in consumer reports on the
consumer, of information that ...