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Malverty v. Equifax Information Services, LLC

United States District Court, M.D. Florida, Tampa Division

October 18, 2019

MICHELE MALVERTY, as successor-in-interest of JAMES C. RENNICK, Sr., Plaintiff,



         BEFORE 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.


         Malverty 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.)

         Rennick 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.).

         Rennick and Malverty contacted Equifax to dispute the deceased notation.[1] 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).

         At some 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.[2] (Dkt. 112-1 ¶¶ 6-15). M&T Bank also notified Equifax of the error. (Dkt. 122-2 at 2).

         In her 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).

         In 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.).[3] 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).

         In June 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).

         Pending Claims

         All of 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 2-3).

         II. STANDARD

         Summary 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).

         The 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).


         In her 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 ¶¶ 50-51).

         Section 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 consumer.

§ 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 ...

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