The opinion of the court was delivered by: Judge Smith Magistrate Judge Abel
Plaintiff Robert L. Garrett ("Plaintiff") brings this action against Defendants Citifinancial Mortgage Co., Inc. ("Citifinancial") and Trans Union, L.L.C. ("Trans Union") (collectively "Defendants"). Plaintiff claims that Defendants have violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq. Defendant Cititfinancial has moved for summary judgment. (Doc. 51). Plaintiff has filed an amended motion to strike requesting this Court to strike the Affidavit of Joseph Barbone. (Doc. 66). Defendant Citifinancial has filed a motion to strike requesting this Court to strike portions of the Affidavit of Plaintiff Robert L. Garrett. (Doc. 61). Defendant Trans Union has moved for summary judgment. (Doc. 52). For the reasons that follow, the Court GRANTS the Defendant Citifinancial's Motion for Summary Judgment, DENIES Plaintiff's Amended Motion to Strike, GRANTS in part and DENIES in part the Defendant Citifinancial's Motion to Strike the Affidavit of Plaintiff Robert Garrett, and GRANTS the Defendant Trans Union's Motion for Summary Judgment.
Plaintiff is an individual resident of the State of Ohio. Plaintiff filed this action on July 7, 2004 seeking damages based on Defendants' alleged violations of the FCRA.
In May or June of 2000, Plaintiff took out a mortgage loan on his house for approximately $100,000 in exchange for a mortgage on his property. In June, 2001, Plaintiff and his wife filed a Chapter 7 bankruptcy. Prior to the bankruptcy, Plaintiff was already 120 days past due on his payments to Citifinancial. During the bankruptcy, Plaintiff reached an agreement with Citifinancial regarding a deed in lieu of foreclosure instead of putting the mortgage in bankruptcy. Under this agreement, Citifinancial agreed not to pursue collection of the monies owed by Plaintiff in exchange for the deed from Plaintiff's property. Plaintiff continued to reside in the house for an additional year until October or November of 2002. In November, 2002, Plaintiff signed and delivered to Citifinancial a Deed in Lieu of Foreclosure which was subsequently signed and filed by Citifinancial in November, 2002.
Citifinancial sold Plaintiff's house pursuant to the deed provided by Plaintiff. The sale price was $32,445 short of the amount Plaintiff would have owed Citifinancial on the promissory note, absent the deed in lieu of foreclosure agreement. Because of the deed in lieu of foreclosure agreement, Citifinancial did not attempt to collect the deficiency.
Plaintiff, following the bankruptcy, was unable to obtain a mortgage for another house and consequently put the loan for his next house in his father's name. Plaintiff admits the reason he could not get a loan at that time was because of his bankruptcy. In November, 2003, Plaintiff claims that he was denied credit for the purchase of a car and was told that it was because of Citifinancial's entry on his credit report. Plaintiff then called Citifinancial and talked to a Greg Reed. Mr. Reed confirmed that Plaintiff owed nothing and faxed a letter that same day which stated that Citifinancial accepted a deed in lieu of foreclosure and Plaintiff had no further obligation in regards to this account.
Plaintiff claims he was subsequently denied credit by Bank One in February of 2004 and Provident Bank in March of 2004. At that point in time, Plaintiff had still not disputed the entry on the credit report to any credit reporting agency ("CRA"). Defendant Trans Union is a "consumer reporting agency" as defined by the FCRA, 15 U.S.C. §§ 1681a-1681v. Plaintiff then submitted the Citifinancial letter to Doug Spiker at Bank One, but was still denied credit. Plaintiff also sent this Citifinancial letter to Defendant Trans Union, but Trans Union informed Plaintiff it would not accept the Citifinancial letter.
On March 29, 2004, Plaintiff formally notified Trans Union that he was disputing the Citifinancial tradeline on his credit report. On April 6, 2004, Trans Union sent Plaintiff a letter advising that it was "unable to accept the documentation [he] sent" because Trans Union needed a "current letter from Citifinancial stating that the balance was zero." Trans Union further advised Plaintiff in this letter that "Trans Union will contact the source of the disputed information to advise them of your dispute. We will ask them to verify the accuracy of the reported information. When the investigation is completed, you will receive written response and/or copy of your updated report to notify you of the results." Trans Union sent Citifinancial notice of the dispute on April 7, 2004. The next day, Citifinancial reported the results of its investigation to Trans Union with an automated consumer dispute verification ("ACDV"). The ACDV submitted by Citifinancial reported that the remaining "amount owed" was $32,400, but that the entry should read "Profit Loss Write Off" for that amount. Trans Union then reported that the $32,400 was "Charged Off As Bad Debt." On April 8, 2004, Trans Union forwarded Plaintiff the results of its investigation. Trans Union also sent Plaintiff a current copy of his Trans Union credit file, evidencing the confirmations of balance due and updates. Trans Union also advised Plaintiff of his right to add a consumer statement to his file and to have revised reports sent to those who had received reports prior to changes or the inclusion of the consumer statement. In July of 2004, the Citifinancial Account was updated by Citifinancial to reflect a zero balance.
On July 7, 2004, Plaintiff filed this lawsuit against Citifinancial and Trans Union. Essentially, Plaintiff alleged that Citifinancial violated the FCRA when, in April of 2004, Citifinancial reported to Trans Union the amount owed as a "Profit Loss Write Off." Plaintiff alleges Citifinancial was required to report a "zero" amount owed. Plaintiff alleges that Trans Union violated the FCRA when it negligently and willfully failed to conduct a proper reinvestigation of his dispute of the Citifinancial account and by failing to follow reasonable procedures to assure maximum possible accuracy of the information it reported on him as required by the FCRA.
It is uncontroverted that following Plaintiff's dispute letter to Trans Union dated March 29, 2004, and Citifinancial's investigation, Plaintiff was never denied credit based upon the alleged inaccurate report in April, 2004. Between April 2, 2004 and July, 2004, Trans Union did not distribute Plaintiff's credit report to any third party. In fact, Plaintiff did not apply for credit until after March 29, 2005, when Plaintiff applied for and was approved for financing for his house and a credit card.
II. SUMMARY JUDGMENT STANDARD
The standard governing summary judgment is set forth in Fed. R. Civ. P. 56(c), which provides:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Summary judgment will not lie if the dispute about a material fact is genuine; "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is appropriate, however, if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).
When reviewing a summary judgment motion, the Court must draw all reasonable inferences in favor of the nonmoving party, and must refrain from making credibility determinations or weighing the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000).*fn1 The Court disregards all evidence favorable to the moving party that the jury would not be not required to believe. Id. Stated otherwise, the Court must credit evidence favoring the nonmoving party as well as evidence favorable to the moving party that is uncontroverted or unimpeached, if it comes from disinterested witnesses. Id.
The Sixth Circuit Court of Appeals has recognized that Liberty Lobby, Celotex, and Matsushita have effected "a decided change in summary judgment practice," ushering in a "new era" in summary judgments. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir. 1989). The court in Street identified a number of important principles applicable in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479.
Additionally, in responding to a summary judgment motion, the nonmoving party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must 'present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Id. (quoting Liberty Lobby, 477 U.S. at 257). The nonmoving party must adduce more than a scintilla of evidence to overcome the summary judgment motion. Id. It is not sufficient for the nonmoving party to merely "'show that there is some metaphysical doubt as to the material facts.'" Id. (quoting Matsushita, 475 U.S. at 586).
Moreover, "[t]he trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Id. at 1479-80. That is, the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact. In re Morris, 260 F.3d 654, 665 (6th Cir. 2001).
As a preliminary matter, this Court will first address the pending motions to strike. Next, the Court will consider Defendant Citifinancial's motion for summary judgment. Finally, the Court will consider Defendant Trans Union's motion for summary judgment.
Federal Rule of Civil Procedure 56(e) sets forth three mandatory requirements for affidavits that are used in support of, or in opposition to, a motion for summary judgment. The rule requires that such affidavits "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P.56(e). "An affidavit that does not satisfy the requirements of Rule 56(e) is subject to a motion to strike." Reddy v. Good Samaritan Hosp. & Health Ctr., 137 F.Supp. 2d 948, 954 (S.D.Ohio 2000); quoting Collazos Cruz v. United States, No. 96-5452, 1997 U.S. App. LEXIS 17196, 1997 WL 377037 at *2 (6th Cir. July 3, 1997). The Court, utilizing the foregoing standards as guidance, now turns to the pending motions to strike.
1. Citifinancial's Motion to Strike Affidavit of Robert Garrett (Doc. 61)
Defendant Citifinancial argues that the Court should not consider various portions of the affidavit Plaintiff filed in response to the motion for summary judgment because said portions of the affidavit: (1) directly contradict the sworn statements Plaintiff gave in his deposition about the circumstances surrounding the transfer of the deed; (2) contain inadmissible hearsay; and (3) constitute inadmissible legal conclusions and expert opinion.
a. Contradicts Deposition Testimony
Citifinancial asserts that this Court should not consider the portions of Plaintiff's affidavit that directly contradict his deposition testimony. Specifically, Citifinancial references statements 12, 13, 17, 24 and 37 of the affidavit which essentially assert that the at-issue Citifinancial account was included in the September 21, 2001 bankruptcy discharge, and therefore, the account should have been reported as "Included in Bankruptcy." In contrast, Citifinancial points out that several portions of Plaintiff's deposition testimony make clear that Plaintiff chose to grant a Deed in Lieu of Foreclosure to Citifinancial instead of surrendering the property in the bankruptcy. Based upon prevailing Sixth Circuit precedent, the Court agrees that these contradictory statements should be stricken.
The Sixth Circuit has consistently found that "[a] party cannot create a genuine issue of material fact by filing an affidavit, after a motion for summary judgment has been made, that essentially contradicts his earlier deposition testimony." Penny v. Untied Parcel Service, 128 F.3d 408, 415 (6th Cir. 1997); and Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986); accord Aereal, S.R.I. v. PCC Airfoils, LLC,448 F.3d 899 (6th Cir. 2006); Lockard v. Generals Motors Corp., 52 F. Appx. 782, 788-89 (6th Cir. 2002); Smith v. Consilidated Rail Corp., 1996 WL 366283, at *4 (6th Cir. 1996); and Rosinski v. Electronic Data Systems Corp., 1991 WL 105747, at *6 (6th Cir.1991).
Plaintiff argues that there is no contradiction and first cites to a portion of his deposition testimony where Plaintiff states that, to his knowledge, he understood the mortgage was discharged. (Pl.'s Depo. at 56) Plaintiff's reliance, however, is misplaced because Plaintiff corrected and clarified his testimony:
Q: So is your testimony today that the mortgage account was discharged in bankruptcy correct?
A: My understanding would be . . . if I couldn't make arrangements with Citifinancial, if we couldn't come to an agreement, it would be discharged. The agreement that we came to was do a deed in lieu. (Id. at 57-58). Plaintiff later reinforced his deposition testimony that the mortgage was not included in the bankruptcy:
A: . . . I don't know what their [Citifinancial's] thinking was okay? But I know that they knew what my options were. I could do a deed in lieu and them have something to sell and get money, or I could go bankruptcy and the house would be mine and they got nothing. . . . If I had to put it in bankruptcy, I could have walked away with the house free and clear and they'd have got nothing. But I didn't want that. I said, look, we can do this. If this is what you want to do, I'm willing to do this.
(Id. at 222-23) (emphasis added).
Next, Plaintiff seeks to rely on the fact that Plaintiff filed his intention to surrender his real estate encumbered by the Citifinancial mortgage. The Court finds that such reliance is misplaced and that Plaintiff has failed to offer any evidence that the property was actually surrendered to the trustee within thirty days which was required under 11 U.S.C. § 521 (2001). To the contrary, Plaintiff's testimony reveals that Plaintiff did not surrender the property, but instead continued to possess the property for another year following the bankruptcy, and then, after discharge, he negotiated a Deed in Lieu of Foreclosure with Citifinancial.
Based upon the foregoing, this Court finds that statements in Plaintiff's affidavit are in direct contradiction to Plaintiff's deposition testimony and also inconsistent with Plaintiff's admission that he continued to live in the property for over a year after the bankruptcy was discharged, until the Deed in Lieu of Foreclosure was finally granted. Accordingly, this Court will not permit Plaintiff to create an issue of fact as to whether the subject mortgage was discharged in bankruptcy or should have been reported as "Included in Bankruptcy." Thus, the statements in paragraphs 12, 13, 17, 24 and 37 of Plaintiff's Affidavit are stricken.
Citifinancial claims that portions of Plaintiff's affidavit contain inadmissible hearsay and such portions should be stricken from the record. Specifically, Citifinancial claims the following statements are inadmissible because they qualify as "statements" which are either oral or written assertions offered into evidence to prove the truth of the matter asserted:
22. When I applied for financing at McHugh Jeep at Zanesville Chevrolet I learned that there was an unpaid account being reported by Citifinancial.
23. One of the dealers called me at home to ask why I had a mortgage at a 9 different address. He said I owed money on a mortgage to Citifinancial and I ...