Grigoryan v. Experian Information Solutions, Inc.
Gevork GRIGORYAN, an individual v. EXPERIAN INFORMATION SOLUTIONS, INC., an Ohio corporation Equifax Information Services, LLC, a Georgia limited liability company and Trans Union, LLC, a Delaware limited liability company
Attorneys
Gevork Grigoryan, Van Nuys, CA, pro se., Aidan W. Butler, Aidan W. Butler Law Offices, Los Angeles, CA, for Plaintiff., Angela M. Taylor, Katherine A. Klim-kowski, Jones Day, Irvine, CA, Sabrina M. Fernandes, Jones Day, Los Angeles, CA, Thomas P. Quinn, Jr., Nokes and Quinn APC, Laguna Beach, CA, Brian J. Olson, Lewis P. Perling, King and Spalding LLP, Atlanta, GA, Donald E. Bradley, Musick Peeler and Garrett LLP, Costa Mesa, CA, Paul W. Sheldon, Strasburger and Price LLP, Frisco, TX, for Defendants.
Full Opinion (html_with_citations)
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTSâ MOTION FOR SUMMARY JUDGMENT
On October 8, 2013, Gevork Grigoryan filed this action against Experian Information Solutions, Inc. (âExperianâ), Equifax Information Services, LLC (âEquifaxâ), and Trans Union, LLC (âTrans Unionâ) (collectively, âdefendantsâ), alleging violations of the Fair Credit Reporting Act (âFCRAâ), 15 U.S.C. § 1681 et seq., and the California Consumer Credit Reporting Agencies Act (âCCRAAâ), California Civil Code § 1785.1 et seq.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
The facts are, for the most part, undisputed.
The creditor on two of the accounts was Bank of America (âBOAâ).
On May 6, 2010, Experian received a letter from Grigoryan dated May 3, 2010, disputing the reporting of his BOA mortgage account.
Experian personnel reviewed the May 3, 2010 letter, its attachments, and Grigor-yanâs credit report, and determined that it was reporting the BOA mortgage account in good standing and not delinquent.
On' November 4, 2011, Experian received an April 4, 2011 letter from Grigor-yap disputing the reporting of a BOA account.
In response to the letter, Experian reviewed Grigoryanâs credit file and found that his BOA HELOC account was in negative standing and being reported â30[ ] day[s] late.â
Experian then received a letter from Renatus Credit (âRenatusâ) dated December 15, 2011, which was purportedly sent on Grigoryanâs behalf.
On April 30, 2012, Grigoryan contacted Experian via telephone and asked that the consumer dispute comment be removed from his BOA HELOC.
2. Grigoryanâs Reporting Disputes with Equifax
Grigoryan first contacted Equifax regarding his BOA mortgage on May 3, 2010, when he faxed a letter stating that BOA had reported erroneous late payments for the period from December 2009 to 2010.
On October 30, 2011, Equifax received a letter from Grigoryan in which he disputed another BOA account. This letter, like a
On December 18, 2011, Equifax received a letter from Renatus dated December 15, 2011; the letter is identical to the one received by Experian.
Grigoryan next contacted Equifax by telephone on April 30, 2012.
On June 4, 2012, Equifax received a âRapid Resolveâ request concerning the BOA HELOC account,
3. Grigoryanâs Reporting Disputes with Trans Union
a. The BOA Accounts
On May 5, 2010, Trans Union received correspondence from Grigoryan dated May 3, 2010, which disputed the accuracy of the BOA mortgage trade line, and enclosed the same letters he had sent to ExperiĂĄn and Equifax concerning â credit reporting adjustments by BOA.
On October 31, 2011, Trans Union received correspondence from Grigoryan disputing the reporting of the BOA HELOC as past due with a $12 balance.
On December 19, 2011, Trans Union received a letter from Renatus; the letter included a document that purported to be a limited power of attorney.
On June 4, 2012, Trans Union received a âQuick Checkâ from Informative Research regarding Grigoryanâs BOA HELOC; enclosed was a signed statement by Grigor-yan, which indicated that he no longer disputed any reporting related to the account.
b. The CBA, Sequoia, and CNH Accounts
On June 28, 2011, Trans Union received a call from Grigoryan disputing that the CBA account was his.
On November 21, 2011, Trans Union received a call from Grigoryan in which he disputed that the Sequoia account was his.
On May 7, 2012, Trans Union received a telephone call from Grigoryan disputing that the CMI account was his.
On June 1, 2012, Trans Union received a telephone call from Grigoryan in which he again disputed that the CMI account was his.
B. Procedural Posture
This is the second time Grigoryan has challenged the reporting of his BOA accounts. On February 15, 2012, he filed an action against BOA.
Grigoryan filed this action against defendants on October 8, 2013.
II. DISCUSSION
A. Legal Standard Governing Motions for Summary Judgment
A motion for summary judgment must be granted when âthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affida
In judging the evidence presented in support of or opposition to summary judgment, the court does not make credibility determinations or weigh conflicting evidence. Rather, it draws all inferences in the light most favorable to the nonmoving party. See T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Assân, 809 F.2d 626, 630-31 (9th Cir.1987). Nonetheless, conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49, 56 (2d Cir.1985); Thornhill, 594 F.2d at 738.
B. Whether Grigoryanâs Claims are Barred by the Statute of Limitations
Defendants first contend that certain of Grigoryanâs claims are barred by the statute of limitations. Section 1681p(l) of the FCRA âsets the statute of limitations at â2 years after the date of discovery [or constructive discovery] by the plaintiff of the violation that is the basis for such liability.â â Drew v. Equifax Info. Servs., LLC, 690 F.3d 1100, 1109 (9th Cir.2012) (citing 15 U.S.C. § 1681p; Merck & Co., Inc. v. Reynolds, 559 U.S. 633, 653, 130 S.Ct. 1784, 176 L.Ed.2d 582 (2010) (constructive discovery is generally read into discovery statutes) (alterations original)).
â[T]he ultimate burden is on the defendant to demonstrate that a reasonably diligent plaintiff would have discovered the facts constituting the violation.... [Defendants must] demonstrate how a reasonably diligent plaintiff ... would have discovered the violations.â Drew, 690 F.3d at 1110 (quoting Strategic Diversity, Inc. v. Alchemix Corp., 666 F.3d 1197, 1206 (9th Cir.2012)). Thus, â[s]ummary judgment [must be denied] if [defendants] fail[] to meet this burden and material issues of fact remain as to âwhether [Grigoryan] knew or had reason to know of the specificâ violation.â Id. (quoting Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1266 (9th Cir.1998)).
Grigoryan filed this action on October 8, 2013; defendants contend that any § 1681e(b) and § 1785.14(b) claims concerning reports issued prior to October 8, 2011, and any § 1681i claims involving reinvestigation requests that should have, been answered prior to October 8, 2011, are barred.
The same is true of claims based on defendantsâ reinvestigation of the alleged BOA mortgage inaccuracies under § 1681i and § 1785.16. There is no dispute that Grigoryan sent reinvestigation requests to each defendant on May 3, 2010, and that the requests contained documents from BOA that Grigoryan contended (as he contends now) demonstrated that the reporting was inaccurate.
Grigoryanâs claims concerning the CBA account are also time-barred. Grigoryan discovered the CBA account on a June 2011 credit report generated by Trans Union
For these reasons, the court grants summary judgment in favor of defendants on Grigoryanâs § 1681e(b), § 1785.14(b), § 1681i, and § 1785.16 claims insofar as they are premised on inaccurate reporting and unreasonable reinvestigation of his BOA mortgage and the CBA account. The parties do not dispute that the remaining claims â the BOA HELOC, Sequoia account, and CMI account â involve allegedly inaccurate reporting and reinvestigation that occurred after October 8, 2011. These claims are timely, therefore, and the court addresses them on the merits below.
C. Whether Triable Issues of Fact Preclude the Entry of Summary Judgment in Defendantsâ Favor on Grigoryanâs § 1681e(b) and § 1785.14(b) Claims
1. Whether Grigoryan Has Identified Any Credit Report Inaccuracies
Defendants contend that Grigoryan has failed to identify any inaccuracies in his credit reports, and hence that his § 1681e(b) and § 1785.14(b) claims fail as a matter of law.
âWhenever 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.â 15 U.S.C. § 1681e(b).
Section 1785.14(b) states:
âWhenever a consumer credit reporting agency prepares a consumer credit report, it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates .... â Cal. Civ.Code § 1785.14(b).
âLiability under § 1681e(b) [and § 1785.14(b) ] is predicated on the reasonableness of the credit reporting agencyâs
The Ninth Circuit held in Carvalho v. Equifax Information Services, LLC that âan item on a credit report can be âincomplete or inaccurateâ within the meaning of the FCRAâs furnisher investigation provision, [either] âbecause it is patently incorrect, or because it is misleading in such a way and to such an extent that it can be expected to adversely affect credit decisions.â â 629 F.3d 876, 890 (9th Cir.2010) (citing Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1163 (9th Cir.2009)). Courts have applied the âpatently incorrect or materially misleadingâ standard indiscriminately to claims arising under provisions of the FCRA and CCRAA that involve the accuracy of information. See id. (applying the standard to reinvestigation claims under § 1785.16); Prianto v. Experian Info. Solutions, Inc., No. CV 13-03461-TEH, 2014 WL 3381578, *3 (N.D.Cal.'July 10, 2014) (âThus, Plaintiff must allege facts sufficient to state a claim that a CRA published a report containing patently inaccurate or materially misleading-information in order to state a prima facie case for relief under section[ ] 1681e(b),â citing Chiang v. Verizon New England, Inc., 595 F.3d 26, 37 (1st Cir.2010) (deeming the term âinaccurateâ as used in § 1681i(a) to be âessentially the sameâ as the term âincomplete or inaccurateâ in § 1681s â 2(b))); Cisneros, 39 Cal.App.4th at 579, 46 Cal.Rptr.2d 233 (âa report violates [§§ 1785.14 and 1785.16] when it is misleading or incomplete, even if it is technically accurateâ). ' The court must therefore decide whether Grigoryan has raised triable issues concerning the fact that defendants reported patently incorrect or materially misleading information.
Trans Union does not cite any evidence that the Sequoia or CMI accounts actually belonged to Grigoryan, i.e., that they were accurately placed on his credit
With respect to the BOA HELOC, defendants argue that there is evidence Gri-goryan missed a payment on September 9, 2010, and incurred late fees in September and October 2011.
The court has located three documents, however, that appear to support defendantsâ position. These are Exhibits 12, 13 and 14 to the declaration of Sabrina Fernandes. Exhibit 12 is an October 18, 2011 letter from BOA to Grigoryan that states Grigoryanâs recent payment was âless than the amount needed to bring [his] loan up to date.â
Grigoryan objects to this evidence, arguing that it is unauthenticated.
Exhibits 12, 13, and 14 are not authenticated because defendants failed to submit the declaration or deposition testimony of a BOA custodian of records, or someone else with personal knowledge of the contents of the documents, stating that they are what defendants represent them to be. Because defendants have attached the documents to Fernandesâ declaration, Rule 56(e) requires that she have personal knowledge of them. Fernandes is not a BOA employee, nor does her declaration contain any information suggesting she otherwise has personal knowledge of the documents or their contents. The evidence is therefore unauthenticated and inadmissible. Orr, 285 F.3d at 777-78 (âExhibit M purports to be a letter from Walshaw to Bourdeau, permitting Tahoe Bank to âtransact business preliminary to its organization.â It is not authenticated because Orr has failed to submit an affidavit or deposition testimony from Wal-shaw stating that he wrote the letter. Because Orr attempted to introduce Exhibit M by attaching it to Mirchâs affidavit, Federal Rule of Civil Procedure 56(e) requires that Mirch have personal knowledge of the letter.... The district courtâs exclusion of Exhibit M was therefore properâ).
Even were it to consider the exhibits, moreover, the court would find triable issues of fact regarding the accuracy of defendantsâ reporting of the BOA HELOC account. Grigoryan disputes the late pĂĄy
Defendants dispute this conclusion. Citing Garni v. Citi Mortgage, No. CV 1101387 ODW, 2012 WL 1535654 (C.D.Cal. Apr. 30, 2012), they maintain that the Ninth Circuit deems credit reports accurate under the FCRA if a credit reporting agency correctly reports information furnished by the creditor.
In Carvalho, plaintiffs credit reports reflected a collection account that was $118 past due; plaintiff did not contend that the account was not hers, that the amount past due was too high or low, or that any of the listed dates were wrong. Carvalho, 629 F.3d at 891. In fact, she conceded that the data was correct on its face. The Ninth Circuit held that â[bjecause all of the relevant facts were correctly reported, there was no patent error in Carvalhoâs credit report.â Id. (emphasis original). Carvalho asserted, however, that there was a latent error in the reports. She contended that she was not legally obligated to pay the creditor because it had not properly billed her insurer as allegedly required by an underlying agreement between the parties. Id. Carvalho argued that the credit reporting agencies had to undertake âa'searching inquiryâ to determine the validity of her defenses to payment. As the Ninth Circuit described her argument, it was that âconsumers should be deemed innocent until proven guilty by a proper reinvestigation under the FCRA and CCRAA.â Id. The court rejected this argument, stating:
âThe fundamental flaw in Carvalhoâs conception of the reinvestigation duty is that credit reporting agencies are not tribunals. They simply collect and report information furnished by others. Because [credit reporting agencies] are ill equipped to adjudicate contract disputes, courts have been loath to allow consumers to mount collateral attacks on the legal validity of their debts in the*1065 guise of FCRA reinvestigation claims.â Id. (citing Saunders v. Branch Banking & Trust Co. of Va., 526 F.3d 142, 150 (4th Cir.2008)).
The court noted in this regard the First Circuitâs decision in DeAndrade v. Trans Union LLC, 523 F.3d 61 (1st Cir.2008). There, the dispute centered on whether DeAndrade had ratified an allegedly fraudulent mortgage, such that his § 1681i claim was barred. Id. at 68. The First Circuit found it unnecessary to resolve this issue, deciding instead that â[w]hether the mortgage is valid turns on questions that can only be resolved by a court of lawâ and is âa legal issue that a credit agency such as Trans Union is neither qualified nor obligated to resolve under the FCRA.â Id. The proper recourse for DeAndrade, the court stated, was to file suit against the creditor; DeAndrade had in fact already done so.
After discussing DeAndrade, the Ninth Circuit
âagree[d] [with the First Circuit] that reinvestigation claims are not the proper vehicle for collaterally attacking the legal validity of consumer debts. âWith respect to the accuracy of disputed information, the CRA is a third party, lacking any direct relationship with the consumer, and its responsibility is to âre investigateâ a matter once already investigated in the first place.â Hence, a consumer disputing the legal validity of a debt that appears on her credit report should first attempt to resolve the matter directly with the creditor or furnish-er, which âstands in a far better position to make a thorough investigation of a disputed debt than the CRA does on reinvestigation.â ACRA is not required as part of its reinvestigation duties to , provide a legal opinion on the merits. Indeed, determining whether the consumer has a valid defense âis a question for a court to resolve in a suit against the [creditor,] not a job imposed upon consumer reporting agencies by the FCRA.â Nor is a CRA obligated not to report any information about the disputed item simply because the consumer asserts a legal defense. â[T]he very economic purpose for credit reporting companies would be significantly vitiated if they shaded every credit history in their files in the best possible light for the consumer.â â Carvalho, 629 F.3d at 892.
In Gaud, plaintiff sued various credit reporting agencies based on their reporting of late payments on her mortgage. Like the plaintiff in Carvalho, she disputed the validity of the increased mortgage payments. The court found that Carvalho âclearly settled that, under the FCRA, a credit reporting agencyâs job is to correctly report information furnished by the creditorf;] ... credit reporting agencies are not supposed to adjudicate a consumer-creditor dispute in order to issue credit reports.â Id. at *6 (citing Carvalho, 629
Defendants seize on this language in Gauci, and assert as a general proposition that if a credit reporting agency accurately reports information furnished by a creditor â even if that information is inaccurate â the consumer cannot show that the credit reporting agency prepared a report containing inaccurate information and make out prima facie violation of § 1681e(b). Carvalho and Gauci do not support such a rule; in both cases, it was undisputed that the report of the debt was not inaccurate. Rather, in both cases, plaintiffs disputed the validity of the underlying debt. Short of acting as a court of law, something they were ill-suited to do, the credit reporting agencies could do nothing to resolve the dispute. Here, by contrast, Grigoryan does not dispute the âvalidityâ of the BOA HELOC, the Sequoia account, or the CMI account. Instead, he challenges the accuracy of the information furnished by BOA, Sequoia, and CMI to defendants. Although, as discussed infra, credit reporting agencies are entitled to rely on information provided to them by furnishers for purposes of avoiding liability under § 1681e(b) and § 1785.14(b), this does not preclude a consumer such as Gri-goryan from making a prima facie showing that information contained on a credit report is factually inaccurate.
This is born out by case law interpreting Carvalho. In Starkey v. Experian Info. Solutions, Inc., 32 F.Supp.3d 1105, 1109-10 (C.D.Cal.2014), for example, plaintiff disputed whether certain items on her credit report pertained to her. Experian contended that Carvalho foreclosed recovery, because the furnisher had reported the accounts and Experian. had merely reflected information received from the fur-nisher in its report. Id. The court disagreed. Like Grigoryan, Starkey did ânot argu[e] that her report eontain[ed] a latent inaccuracy, but [ ] instead raised a genuine factual dispute as to whether' her credit report included âpatent error[s]â because certain items in the report did not even âpertain to her.â â Id. Accordingly, the court found Carvalho distinguishable and found that Starkey had raised trial issues concerning the inaccuracy of the report. Id. at 1109-11.
The court reached the same result in Bradshaw v. BAG Home Loans Servicing, LB, 816 F.Supp.2d 1066, 1071-72 (D.Or.2011). It found that plaintiff had made a prima facie showing of inaccuracy and rejected defendantâs contention that Carval-ho barred such a finding. It observed: âUnlike the consumer in Carvalho, [the Bradshaw ] plaintiffs [raise] several factual disputes concerning [their] [BOA] account.â Id. at 1072. Specifically, as Gri-goryan does with respect to the BOA HE-LOC, plaintiffs alleged âthat they paid their mortgage on time, in contrast to the multiple listings of late payments, and that the reported monthly payment amount and amount past due are too high.â Id. Consequently, the court found Carvalho, which did not concern a patent inaccuracy, inap-posite.
Numerous other courts have reached the same conclusion. See Nelson v. Ocwen Loan Servicing, LLC, No. CV 14-00419 HZ, 2014 WL 2866841, *3 (D.Or. June 23, 2014) (âNelson argues that his report was factually inaccurate and patently misleading because he never owed the amount shown. Accordingly, his case is more analogous to cases such as Bradshaw, 816 F.Supp.2d at 1072, where the court found the plaintiffs established prima facie inac
Unlike the plaintiffs in Carvalho and Gaud, and like the plaintiffs in cases distinguishing Carvalho, Grigoryan has made a prima facie showing that his credit report contained patent errors. He does not assail the validity of the BOA HELOC or his obligation to pay it; he simply argues that he did pay all outstanding sums, and that, because defendants reported the account as past due, his payments were inaccurately reflected in their reports. See Bradshaw, 816 F.Supp.2d at 1072 (finding that there was a triable issue of fact as to inaccuracy where plaintiffs alleged they paid on time and defendant reported âmultiple ... late paymentsâ).
Similarly, Grigoryan contends that the Sequoia and CMI accounts are not his accounts; the Carvalho court expressly disclaimed any intent to address such a situation. See Carvalho, 629 F.3d at 891 (âCarvalho does not contend that the CCS collection account does not pertain to her, that the amount past due is too high or low, or that any of the listed dates are wrong. Indeed, she concedes that â[a]ll the data that shows in my credit report is correctâ on its face. Because all of the relevant facts were correctly reported, there was no patent error in Carvalhoâs credit reportâ); Starkey, 32 F.Supp.3d at 1110 (â[Plaintiff] has [] raised a genuine factual dispute as to whether her credit report included âpatent error[s]â because certain items in the report did not even âpertain to herââ). Thus, the court finds that Carvalho and Gaud do not bar a finding of inaccuracy here.
2. Whether Defendants Were Entitled to Rely on the Information Reported by BOA, Sequoia, and CMI and Whether Defendantsâ Procedures for Ensuring Accuracy Were Reasonable
Although triable issues of fact remain concerning the accuracy of defendantsâ BOA HELOC reporting and Trans Unionâs Sequoia and CMI account reporting, summary judgment is nonetheless properly entered in defendantsâ favor on Grigoryanâs § 1681e(b) and § 1785.14(b) claims. A credit reporting agency does not violate § 1681e(b) or § 1785.14(b) âsimply by reporting information that may be inaccurate.â Darrin, 2014 WL 1922819 at *6 (citing Saenz, 621 F.Supp.2d at 1081). âIf a consumer reporting agency accurately transcribes, stores and communicates consumer information received from a source that it reasonably believes to be reputable, and which is credible on its face, the agency does not violate [§ 1681e(b) or § 1785.14(b) ] simply by reporting an item of information that turns out to be inaccurate.â Id. (quoting Saenz, 621 F.Supp.2d at 1081 (in turn quoting 16 C.F.R. Pt. 600, App., § 607.3(A))); see also Garrison v. Equifax Info. Servs., LLC, No. CV 10-13990, 2012 WL 1278044, *7 (E.D.Mich. Apr. 16, 2012) (âa consumer reporting agency receiving a facially credible report from a source which it believes to be reputable is not liable merely because the report contains inaccurate informationâ); Elsady v. Rapid Global Bus. Solutions, Inc., No. CV 09-11659, 2010 WL 742852, *4
Based on the undisputed evidence, the court concludes there are no triable issues of fact as to whether defendants violated § 1681e(b) and § 1785.14(b) by reporting the BOA HELOC as late in September 2011. It reaches the same conclusion with respect to Trans Unionâs reporting that the Sequoia and CMI accounts belonged to Grigoryan. Assuming these reports were erroneous, there is no evidence that raises triable issues of fact concerning the reasonableness of defendantsâ § 1681e(b) and § 1785.14(b) procedures to ensure accuracy. Grigoryan adduces no evidence, and does not argue, that defendants had reason to believe that BOA, Sequoia, and CMI were not reputable sources of information. Thus, before Gri-goryan disputed the thirty day late status of the BOA HELOC account and his ownership of the Sequoia and CMI accounts, thereby placing defendants on notice that the reported information might be inaccurate, defendants were entitled to rely on facially credible information received from BOA, Sequoia, and CMI. See Darrin, 2014 WL 1922819 at *6 (quoting Saenz, 621 F.Supp.2d at 1081 (in turn quoting 16 C.F.R. Pt. 600, App., § 607.3(A))); Garrison, 2012 WL 1278044 at *7; Elsady, 2010 WL 742852 at *4.
Grigoryan proffers no evidence that defendants reported anything other than the information furnished to them by BOA, Sequoia, and CMI. While Grigoryan, for example, argues that Trans Union reported accounts that did not belong to him, he does not dispute that Sequoia and CMI reported the accounts to Trans Union as his, nor that Trans Union simply reported the information that these furnishers provided to it.
The same is true of all defendantsâ reporting of the status of the BOA HELOC. Grigoryan asserts that reporting that he was thirty days late in making
The May 30, 2012 letter, moreover, is irrelevant. It states that â[ajccording to [BOAâs] records, [Grigoryanâs] 10/2011 mortgage installment for the [HELOC] was never late,â and that corrected information was sent to the credit reporting agencies on May 30, 2012.
Finally, to the extent Grigoryan adduces evidence of defendantsâ procedures, his proof relates exclusively to their reinvestigation procedures. Specifically, he contends that after being alerted to inaccuracies in the credit reports, defendants did not âreach out to [him] to seek more information .... or additional supporting documentsâ; did not âdemand more detailed informationâ from BOA; and, âconfronted with directly contradictory ... assertions made by the consumer and their furnisher/subscriber, simply sided with the latter.â
Accordingly, evidence of inadequacies in defendantsâ reinvestigation procedures under § 1681i or § 1785.16 is not probative of the fact that defendants have violated § 1681e(b) and § 1785.14(b). See Darrin, 2014 WL 1922819 at *6 (â[CJompliance with § 1681e(b) and § 1681i are distinct inquiries, since § 1681e(b) allows for a credit reporting agency to rely on information received from a source that it reasonably believes to be reputableâ); Elsady, 2010 WL 742852 at *5 (âWhile Elsadyâs subsequent dispute may have triggered a duty to reinvestigate under § 1681i, it is not relevant to CARCOâs investigative procedures under § 1681e(b)â); Saenz, 621 F.Supp.2d at 1081 (âSaenz further argues that the reasonableness of Trans Unionâs reinvestigations following Saenzâ two disputes of the NCO balance is material to the Section 1681e(b) inquiry. Again, this court disagreesâ); Cairns v. GMAC Mortgage Corp., No. CV 04-1840-PHX-SMM, 2007 WL 735564, *5-6 (DAriz. Mar. 5, 2007) (noting the difference between § 1681e(b) and § 1681i); see also Henson v. CSC Credit Servs., 29 F.3d 280, 286-87 (7th Cir.1994) (affirming the dismissal of a § 1681e(b) claim on the ground that âa credit reporting agency may initially rely on public court documents, because to require otherwise would be burdensome and inefficient,â but reversing dismissal of a § 1681i claim because âsuch exclusive reliance may not be justified once the credit reporting agency receives notice that the consumer disputes information contained in his credit report. When a credit reporting agency receives such notice, it can target its resources in a more efficient manner and conduct a more thorough investigationâ). Since Grigoryan proffers no evidence of inadequacies in defendantsâ internal databases, he has failed to raise triable issues of fact concerning his § 1681e(b) and § 1785.14(b) claims.
D. Whether Triable Issues Preclude Granting Summary Judgment on Grigoryanâs § 1681i and § 1785.16 Claims
Sections 1681i and 1785.16 obligate credit reporting agencies to reinvestigate disputes when the completeness or accuracy of information has been challenged. Section 1681i(l)(A) provides:
â[I]f the completeness or accuracy of any item of information contained in a consumerâs file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly, or indirectly through a reseller, of such dispute, the [CRA] 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 in accordance with paragraph .(5), 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 or reseller.â 15 U.S.C. § 1681i(l)(A).
Section 1785.16 is substantially identical. It states:
âIf the completeness or accuracy of any item of information contained in his or her file is disputed by a consumer, and the dispute is conveyed directly to the consumer credit reporting agency by the consumer or user on behalf of the consumer, the consumer credit reporting agency shall within a reasonable period of time and without charge, reinvesti-gate and record the current status of the disputed information before the end of the 30-business-day period beginning on the date the agency receives notice of the dispute from the consumer or user, unless the consumer credit reporting agency has reasonable grounds to believe and determines that the dispute by the consumer is frivolous or irrelevant, including by reason of a failure of the consumer to provide sufficient information, as requested by the consumer credit reporting agency, to investigate the dispute.â Cal. Civ. Code § 1785.16(a).
As with claims under § 1681e(b) and § 1785.14(b), a consumer suing under § 1681i and § 1785.16 must make a âprima facie showing of inaccurate reporting.â Dennis, 520 F.3d at 1069; see also Carvalho, 629 F.3d at 890 (âBecause we believe California courts would find Dennis persuasive, we conclude that unless Carvalho has raised a genuine issue as to whether the disputed item was inaccurate, her CCRAA section 1785.16 claims fail as a matter of lawâ); see also Cisneros, 39 Cal.App.4th at 575, 46 Cal.Rptr.2d 233 (âUnder [§ 1785.14(b) and § 1785.16], a credit reporting agency must have in place reasonable procedures to ensure maximum possible accuracy and follow them. If it does, then the fact that it erroneously reported unfavorable information does not subject it to liabilityâ (emphasis original)). As noted, there are triable issues as to whether defendantsâ reporting of the status of the BOA HELOC was inaccurate, and whether Trans Unionâs reporting of the CMI and Sequoia accounts was inaccurate. Grigoryan has thus adequately
1. Whether Defendantsâ Reinvestigation Procedures Were Reasonable
Defendants argue that Grigoryan has failed to identify any inadequacies in their reinvestigation procedures, and thus that summary judgment should be granted in their favor on his § 1681i and § 1785.16 claims.
a. The BOA HELOC
Defendants argue that their reinvestigation procedures concerning the BOA HELOC were reasonable because they promptly initiated reinvestigations following receipt of Grigoryanâs disputes. Trans Union contends that it received disputes on October 31, 2011 and June 4, 2012, and that in each instance it promptly conducted a reinvestigation.
Experian received a letter from Grigor-yan on November 4, 2011, disputing its reporting of the BOA HELOC as âPast due 30 daysâ with a balance of $12.
Equifax received a letter from Grigor-yan on October 80, 2011, which it concluded disputed the accuracy of its reporting of the BOA HELOC.
Based on the undisputed evidence, defendants contend their procedures were reasonable; they assert that Grigoryan has failed to adduce evidence that any of the procedures were unreasonable. Gri-goryan counters that reasonableness is a question of fact best suited for a jury, and that he need not identify specific inadequacies to raise triable issues.
It is well settled that exclusive reliance on ACDV procedures does not suffice, as a matter of law, to establish that a âreasonable investigationâ took place once a consumer disputes the accuracy of the fur-nisherâs information. See Bradshaw v. BAC Home Loans Servicing, LP, 816 F.Supp.2d 1066, 1073-74 (D.Or.2011) (âMany courts, including this one, have concluded that where a CRA is affirmatively on notice that information received from a creditor may be suspect, it is unreasonable as a matter of law for the agency to simply verify the creditorâs information through the ACDV process without additional investigationâ); White v. Trans
Thus, there are triable issues of fact with respect to the reasonableness of Trans Unionâs investigations of October 31, 2011 and June 4, 2012; Experianâs investigations of November 4, 2011, April 30, 2012, and June 6, 2012; and Equifaxâs investigation of October 30, 2011.
As respects Trans Unionâs June 4, 2012 reinvestigation, the court cannot find thai Trans Union was permitted, as a matter of law, simply to rely on the ACDV system after having received complaints from Gri-goryan regarding the accuracy of the reporting. See Bradshaw, 816 F.Supp.2d at 1073-74 (âwhere a CRA is affirmatively on notice that information received from a creditor may be suspect, it is unreasonable as a matter of law for the agency to simply verify the creditorâs information through the ACDV process without additional investigationâ); see also Cushman, 115 F.3d at 225 (âThe âgrave responsibilityâ imposed by § 1681i(a) must consist of something more than merely parroting information received from other sourcesâ); Apodaca, 417 F.Supp.2d at 1230-31 (credit reporting agencies cannot rely on automated procedures that make only superficial inquiries once the consumer has notified it that information is disputed).
The court reaches the same conclusion with respect to Experianâs April 30 and June 6, 2012 reinvestigations. Although the reports Grigoryan disputed were removed the same day he requested that Experian remove them, Experian admits it used only the ACDV process to verify the reporting. A reasonable jury could thus find that Experianâs procedures were unreasonable.
The court therefore declines to enter summary judgment in defendantsâ favor on Grigoryanâs § 1681i and § 1785.16 claims pertaining to reinvestigation of the BOA HELOC. The jury will have to determine whether the information reported was inaccurate and whether defendantsâ reinvestigation procedures were reasonable,
b. The Sequoia Account
Trans Union argues that its handling of the Sequoia account was reasonable as a matter of law, because it immediately initiated a reinvestigation of the account and advised Sequoia that Grigoryan disputed the account was his, and because it deleted the account on December 19, 2011, after Sequoia failed to respond to its reinvestigation.
Trans Union argues that its reinvestigation of the CMI account was also reasonable as a matter of law. The court cannot agree. Grigoryan contacted Trans Union by telephone on May 7, 2012, and by mail on May 9, 2012, disputing that the CMI account was his.
The court concludes that triable issues of fact exist as to whether Trans Unionâs reinvestigation procedures were reasonable. Viewing the evidence in the light most favorable to Grigoryan, a jury could conclude that Trans Union simply accepted CMIâs version of the facts as true. Trans Union does not suggest that CMI was asked (or able) to verify Grigoryanâs social security number on' May 7, 2012, the date of the initial reinvestigation. Nor does it explain why neglecting to do so â -if it didâ was reasonable under the circumstances. Verifying the social security number associated with an account would appear to be one of the most straightforward (albeit not foolproof), methods of determining whether an account actually belongs to a specific consumer. Yet the record reflects that Trans Union waited more than a month, after multiple requests by Grigoryan, to request such verification. A jury will have to decide whether this conduct was reasonable. Trans Unionâs motion for summary judgment on Grigoryanâs § 1681i and § 1785.16 claims based on reporting of the CMI account is therefore denied.
2. Whether Grigoryan Can Prove Damages Supporting His Negligence-Based FCRA and CCRAA Claims
To establish a negligent violation of § 1681i and § 1785.16, a plaintiff must prove that he incurred actual damages caused by the alleged violations. See Ban-ga v. Experian Information Solutions, Inc., 473 Fed.Appx. 699, 700 (9th Cir.2012) (âThe district court properly granted summary judgment on Bangaâs claims for negligent violations under § 1681o of the Act because she failed to raise a triable dispute as to whether defendantsâ conduct resulted in actual damagesâ); Banga v. First USA NA 29 F.Supp.3d 1270, 1280 (N.D.Cal.2014) (âTo the extent this claim alleges a negligent violation of the FCRA, summary judgment in favor of Chase is warranted because Plaintiff has failed to adduce evidence raising a genuine issue for trial as to whether she has suffered any actualâ damages caused by Chaseâ); see also Wagner v. BellSouth Telecom., Inc., 520 Fed.Appx. 295, 298 (5th Cir.2013) (Unpub. Disp.) (affirming summary judgment where plaintiff âfailed to establish actual damages that were proximately caused by Equifaxâ); Crabill v. Trans Union, LLC, 259 F.3d 662, 664 (7th Cir.2001) (âWithout a causal relationship between the violation of the
Defendants contend that Grigoryan cannot prove actual damages, because the business-related damages he seeks are not recoverable under the FCRA or CCRAA, and because he has failed to demonstrate that his emotional distress was caused by their alleged FCRA and CCRAA violations.
a. The Sequoia Account
Trans Union asserts the Grigor-yan cannot recover damages for any purportedly unreasonable reinvestigation of the Sequoia account, because its reinvestigation resulted in removal of the Sequoia account within the 30-day period prescribed by the statutes. The court agrees. See Acton v. Bank One Corp., 293 F.Supp.2d 1092, 1100 (D.Ariz.2003) (âEqui-fax further argues that Plaintiff cannot recover for the injury under § 1681i because Plaintiff cancelled the Coventry Home contract on May 19,1999, more than two weeks before Equifaxâs 30-day reinvestigation period expired on June 5, 1999. The Court agrees. Plaintiff could not have been damaged by Equifaxâs failure to comply with § 1681i until the 30-day reinvestigation period expired. By that time he had cancelled the Coventry Home purchase. Equifaxâs failure to reinvestigate did not cause the cancellationâ). Because Grigoryan requested reinvestigation on November 21, 2011,
b. The BOA HELOC and CMI Accounts
(1) Business-Related Damages
In deposition testimony, Grigoryan did not dispute that the only economic damages he alleges concern a real estate investment business he operates with âą his brother Aram Grigoryan, and two other investors, George Halajyan and Hovhannes Azaryan, through a limited liability company, Graz Group LLC (âGraz Groupâ).
As an initial matter, the court notes that Grigoryan cannot recover losses allegedly sustained prior to the October/November 2011 reinvestigation requests he sent concerning the BOA HELOC, because such losses do not relate to defendantsâ BOA HELOC or CMI account reporting, and thus cannot have been caused by their alleged FCRA and CCRAA violations.
To the extent Grigoryan seeks damages based on lost real estate purchase opportunities or the inability to purchase a Dickies Barbecue franchise, moreover, the court agrees with defendants that these losses are not recoverable under the FCRA or CCPAA. The FCRA permits a âconsumerâ to obtain damages for violations, 15 U.S.C. §§ 1681n, 1681o, and defines a consumer as âan individual.â See id., § 1681a(c). Similarly, the CCRAA permits âany consumerâ to recover damages, Cal. Civ.Code § 1785.31(a)(l)-(2), and defines a consumer as âa natural person.â See id., § 1785.3(b).
Defendants contend that losses sustained by limited liability companies of which Grigoryan was a member are not recoverable under either the FCRA or CCRAA. See Cal. Corp.Code § 17701.04(a) (âA limited liability company is an entity distinct from its membersâ); Denevi v. LGCC, LLC, 121 Cal.App.4th 1211, 1214 n. 1, 18 Cal.Rptr.3d 276 (2004) (âLike corporate shareholders, members of a limited liability company hold no direct ownership interest in the companyâs assetsâ). The court agrees. The limited liability companies Grigoryan formed with his partners are neither parties to the dispute nor are they âconsumersâ under the FCRA or CCRAA. For that reason, any alleged damages they suffered cannot be recovered in this action. See Wisdom v. Wells Fargo Bank NA, No. CV 10-2400 PHX-GMS, 2012 WL 170900, *2 (D.Ariz. Jan. 20, 2012) (âLosses suffered by Stand World Inc. or any other business entity predicated upon the fact that Plaintiffs could not supply them with credit are simply not Plaintiffsâ losses, and cannot be recovered in this lawsuit. Nor can Plaintiffs claim personal damages predicated upon the losses of an independent corporation which it was their custom to supply with personal credit. Therefore, to the extent losses described in the complaint as âlost business and profits,â or attributed to âMr. Wisdomâs businessâ are in fact the losses of a non-party corporation, they cannot be recovered in this action regardless of their root causeâ).
Defendants also argue that any business damages sustained by Grigoryan as an individual are not recoverable under the FCRA or CCRAA. In Johnson v. Wells Fargo Home Mortgage, Inc., 558 F.Supp.2d 1114, 1125 (D.Nev.2008), the court engaged in an extensive analysis of this issue. It focused on the FCRAâs definition of a âconsumer report.â Section 1681a(d)(l) defines a consumer report as:
â[A]ny written, oral, or other communication of any information by a consumer reporting agency bearing on a consumerâs credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be*1080 used or collected in whole or in part for the purpose of serving as a factor in â establishing the consumerâs eligibility forâ
(A) credit or insurance to be used primarily for personal, family, or household purposes;
(B) employment purposes; or
(C) any other purpose authorized under section 1681b of this title.â 15 U.S.C. § 1681a(d)(l).175
The plaintiff in Johnson argued that § 1681b(a)(3)(F),
In Mone v. Dranow, 945 F.2d 306, 308 (9th Cir.1991), the Ninth Circuit interpreted the language of § 1681b(3)(E) â the predecessor to § 1681b(a)(3)(F)
Even before the Ninth Circuit held that consumer credit reports âused for business, commercial, or professional purposes are not within the purview of the [FCRA],â Mone, 945 F.2d at 308, it held that reports used to extend credit to businesses were not consumer credit reports within the meaning of the CCRAA. See Mende v. Dun & Bradstreet, Inc., 670 F.2d 129, 132 (9th Cir.1982). The Federal Trade Commission, moreover, âhas interpreted the FCRA to deny protection for credit reports requested for commercial purposes, writing that â[a] report on a consumer for credit or insurance in connection with a business operated by the consumer is not a consumer report and the [FCRA] does not apply to it.â â See Wisdom, 2012 WL 170900, at *2 (quoting 16 C.F.R. Pt. 600, App. § 603 cmt. (6)(B)).
Finally, the vast majority courts considering the issue have reached the same conclusion as Mone and Mende â i.e., that the FCRA and CCRAA do not apply where a consumer report is used for business purposes. See, e.g.,' Matthews v. Worthen & Trust Co., 741 F.2d 217, 219 (8th Cir.1984) (âWe find that this particular transaction was exempt from the" FCRA because the credit report was used solely for a commercial transactionâ); Stick v. BAC Home Loans Servicing, LP, No. CV 10-01106 CMA MEH, 2011 WL 1135456, *4 (D.Colo. Mar. 29, 2011) (âWhere an individualâs credit information is used to obtain credit for business purposes, as opposed to personal purposes, courts have determined that the credit report does not fall within the realm of the FCRA, which was implemented to protect consumersâ); George v. Equifax Mortgage Servs., No. 06-CV-971 DLI LB, 2010 WL 3937308, *2 (E.D.N.Y. Oct. 5, 2010) (âIt is well established that the FCRA does not apply to business or commercial transactions, even when a consumerâs credit report impact[s] such transactions.... Accordingly, Plaintiffs claim for damages due to lost business opportunities is not actionable under the FCRAâ); Lucchesi v. Experian Info. Solutions, Inc., 226 F.R.D. 172, 174 (S.D.N.Y.2005) (âBut even assuming that it, like the April 5 report, was a report about the Plaintiff, it too was issued in connection with a business operated by the consumer, and thus cannot form the basis of liability under the FCRAâ); Natale v. TRW, Inc., No. C 97-3661, 1999 WL 179678, *3 (N.D.Cal. Mar. 30, 1999) (âAs a result, several courts have held that where the purpose of a plaintiffs credit application was to secure credit for business purposes, as opposed to personal, family or
The court therefore concludes that Gri-goryan cannot recover damages resulting from lost real estate investment ventures because either those damages were suffered by non-party, non-consumer limited liability companies, or reflect the use of a credit report for business or commercial purposes, outside the purview of the FCRA and CCRAA.
Grigoryan disputes this conclusion. He contends that the Ninth Circuitâs decisions in Dennis, 520 F.3d 1066, and Gorman, 584 F.3d 1147, support the recovery of âbusiness damages.â
To the extent Grigoryan wished â like the plaintiff in Dennis â to recover for damages to his credit rating, his inability to obtain credit, or his inability to obtain credit at desirable rates, he was of course free to do so. That is not what Grigoryan seeks, however. He admitted at his deposition that he was âclaiming ... damages to the real estate investment business that [he] and [his] brother started together.â
Finally, even were business damages recoverable, the court notes that Gri-goryan has not demonstrated that defendantsâ alleged violations of the FCRA and CCRAA proximately caused any purported business damages, whether allegedly suffered directly by him or by his business. In his declaration in opposition to defendantsâ motion for summary judgment, Gri-goryan confirms that it was his inability to access the equity in his home that led to the alleged business damages.
(2) Emotional Distress Damages
Defendants also contend that Gri-goryan cannot prove he suffered emotional distress caused by an alleged FCRA or CCRAA violation.
Defendants contend that Grigoryan has no corroborating medical or psychological evidence to support an award of damages for emotional distress or mental anguish, and that such evidence is required.
Thus, district courts in the Ninth Circuit do not require objective evidence of emotional distress, but instead allow a plaintiffs testimony alone to support an award of emotional distress damages. See
Nor do California courts require the specificity that defendants demand. See Cisneros, 39 Cal.App.4th 548, 580, 46 Cal.Rptr.2d 233 (âDefendants contend that the trial court wrongly awarded Ms. Cisne-ros and Ms. Pettus a total of $350 for âpain and sufferingâ when there was no evidence to indicate that their âemotional distressâ was severe. We infer from the amount of the awards that the distress was not severe. Ms. Cisneros and Ms. Pettus were clearly wronged by UDR, and the minimal amount awarded by the trial court can be justified as nominal damagesâ). As a result, defendantsâ argument that Grigoryan cannot recover emotional distress damages because he has adduced no corroborating testimony or medical or psychological evidence is unpersuasive.
Defendants next contend that Grigoryan has failed to establish that any emotional distress he suffered was caused by the alleged FCRA and CCRAA violations. Citing his deposition testimony, they maintain that the only pain and suffering Grigoryan has identified is distress he suffered as a result of his inability to access the equity in his home. Grigoryan testified that he was stressed because he was â[u]nable to access the equity in [his] property to be able to invest in more propertiesâ and âin other business ventures.â
âthe whole experience with the credit reporting agencies has been an on-going nightmare.... The fact that I was constantly being portrayed in my credit reports as delinquent when I was not delinquent was outrageous to me. It caused me stress and anxiety, frustration and occasionally hopelessness. The on-going struggle with the Defendants distracted me from the ordinary joys of life, and the stress of having to deal with the situation made me moody and ill-tempered with my family, and no doubt I treated them worse than they deserved â a fact that sill causes me guilt. The additional stress caused me to lose sleep, and being deprived of sleep in turn made me more agitated â it was a vicious cycle.â199
He contends he suffered these damages as a result of defendantsâ inaccurate reporting of the BOA HELOC and Trans Unionâs inaccurate reporting of the CMI account.
âWhile [Grigoryan] certainly has not offered overwhelming evidence of emotional distress damages, the evidence is sufficient to create a question for the jury, particularly when all factual disputes and possible inferences are resolved in [his] favor.â See Acton, 293 F.Supp.2d at 1100 (concluding that the evidence was sufficient to create a jury question where plaintiff claimed âthat Equifaxâs failure to correct his credit report and the continuing hassle to correct the error âdevastatedâ him and his wifeâ; that âhe had to take unpaid leave from work so he could deal with the stress of the credit situation, had difficulty sleeping, and was required to take large amounts of Tylenolâ; and âthat he was embarrassed by the fact that others in the community unjustifiably perceived him and his wife as bankruptâ); see also Nelson,
Accordingly, the court denies defendantsâ motion for summary judgment on the issue of emotional distress damages to the extent such damages are based on Grigoryanâs struggle to correct defendantsâ alleged FCRA and CCRAA violations, and to the extent the damages were suffered on or after November 29 and 30, 2011 and December 3, 2011, the dates on which the only viable FCRA and CCRAA claims Gri-goryan has alleged accrued. The court grants summary judgment in favor of defendants, however, on emotional distress damages arising out of the denial or suspension of credit, because Grigoryan proffers no evidence that such credit denials or suspensions, or the emotional distress they caused, were caused by defendantsâ alleged failure to conduct reasonable reinvestiga-tions under § 1681i and § 1785.16.
3. Whether Grigoryan Has Raised Triable Issues Regarding the Willfulness of Defendantsâ Conduct
Finally, defendants argue that Grigoryan cannot demonstrate that their failure to conduct reasonable reinvestiga-tions of the BOA HELOC and CMI accounts
â[A] company subject to FCRA does not act in reckless disregard of it unless the action is not only a violation under a reasonable reading of the statuteâs terms, but shows that the company ran a risk of violating the law substantially greater than the risk associated with a reading that was merely careless.â Id. at 69,127 S.Ct. 2201.
There are no reported decisions addressing willfulness under the CCRAA, but California courts, like federal courts, routinely hold that reckless disregard of the rights or safety of another constitutes willful conduct. See Dziura v. California Aviation Serv., Inc., 4 Cal.App.3d 191, 198, 84 Cal.Rptr. 191 (1970) (âTo constitute a defense to wilful misconduct, the action of the plaintiff must be as reprehensible as that of defendant, i.e., conduct which shows a wilful or reckless disregard of his own safetyâ); Olea v. S. Pac. Co., 272 Cal.App.2d 261, 264, 77 Cal.Rptr. 332 (1969) (âWilful misconduct means intentional wrongful conduct, done either with knowledge that serious injury to (another) probably will result or with a wanton and reckless disregard of the possible resultsâ); cf. New v. Consol. Rock Products Co., 171 Cal.App.3d 681, 689-90, 217 Cal.Rptr. 522 (1985) (âThree essential elements must be present to raise a negligent act to the level of wilful misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.â). The court therefore applies Safe-coâs âreckless disregardâ standard to both the FCRA and CCRAA claims.
As noted, whether defendantsâ exclusive reliance on the ACDV process in connection with reinvestigations of the BOA HELOC and CMI account under § 1681i and § 1785.16 was reasonable is an issue of fact that must be decided by the jury. âIf any possible resolution of [this] issue[ ] could support a jury finding that the lack of a reasonable reinvestigation was willful, summary judgment is barred.â Valentine v. First Advantage Saferent, Inc., No. CV 08-142 VAP (OPX), 2009 WL 4349694, *12 (C.D.Cal. Nov. 23, 2009). âHere, [defendants] knowingly and intentionally elected to rely exclusively on automated procedures in attempting to satisfy [their] [§ ] 1681i obligations. In light of numerous court decisions finding such automated procedures unreasonable where, as here, a consumer reporting agency was on notice of the possible inaccuracy of the automated responses the creditor would provide, a jury could find that [defendants] did so in reckless disregard of the possibility that [they] would thereby violate of the law.â Saenz, 621 F.Supp.2d at 1088; Valentine, 2009 WL 4349694 at *13 (âValen
Defendants disputed this conclusion at the hearing, asserting they were entitled to reach cohclusions based on information obtained from âreliableâ furnishers. The court cannot agree. A furnisherâs reliability, as noted, is relevant in assessing whether a credit reporting agency can rely on information furnished, in the first instance, under § 1681e(b) and § 1785.14(b). As the Third Circuit held in Cushman v. Trans Union Corp., 115 F.3d 220, 225 (3d Cir.1997), however, â[t]he âgrave responsibilityâ imposed by § 1681i(a) must consist of something more than merely parroting information received from other sources.â Thus, âa âreinvestigationâ that merely shifts the burden back to the consumer and the credit grantor cannot fulfill the obligations contemplated by the statute.â Id. Defendantsâ reliability argument shifts the entire burden of reinvestigation back to the consumer and credit furnisher. Reliability alone is therefore not sufficient to evade a finding of willfulness.
Even were defendants permitted to rely on the reliability of the furnisher to avoid a finding of willfulness, the record lacks any evidence indicating that Sequoia is a âreliableâ furnisher of credit; thus, Trans Unionâs argument concerning Sequoia fails for that reason alone. With respect to the BOA HELOC account, there is no doubt that Bank of America is a well-established bank. Defendants argue that this, coupled with'the fact that the bank twice confirmed the accuracy of its reporting through the ACDV process, supports the conclusion as a matter of law that they did not act willfully. Again, the court cannot agree. As noted, whether defendants received payment receipts from Grigoryan, and failed to forward them to the bank as part of their reinvestigation, is disputed. If the jury credits Grigoryanâs testimony that he â attached the receipts to his reinvestigation requests, defendantsâ failure to forward them to the bank would permit the jury reasonably to conclude that defendants acted in reckless disregard of their § 1681i and § 1785.16 obligations, which require âconsider[ation of] all relevant information submitted by the consumer.â See 15 U.S.C. § 1681i(a)(4); see also Cushman, 115 F.3d at 225 (âThe âgrave responsibilityâ imposed by § 1681i(a) must consist of something more than merely parroting information received from other sources.
The court therefore denies defendantsâ motion for summary judgment as to willfulness. A jury will first have to decide whether their reinvestigations of the BOA HELOC and CMI account were unreasonable, and, if so, whether they were undertaken in âreckless disregardâ of Grigor-yanâs rights under the FCRA and CCRAA.
III. CONCLUSION
For the reasons stated, the court grants defendantsâ motion for summary judgment on Grigoryanâs § 1681e(b) and § 1785.14(b) claims. The court also grants summary judgment 'in favor of Trans Union on Grigoryanâs § 1681i and § 1785.16 claims to the extent they are based on allegations that Trans Union failed reasonably to reinvestigate the Sequoia account. It denies the motion for summary judgment on Grigoryanâs § 1681i and § 1785.16 claims as to all defendants to the extent premised on unreasonable reinvestigation of Grigoryanâs BOA HELOC account, and the CMI account.
Because business-related damages are not recoverable under the FCRA and CCRAA, and because Grigoryan proffers no 'evidence that defendantsâ alleged violations proximately caused any business damages in any event, the court grants summary judgment in defendantsâ favor on Grigoryanâs prayer for damages sustained in connection with his real estate investment business, as well as his purported inability to invest in a Dickies Barbecue franchise. The court also grants summary judgment in defendantsâ favor on Grigor-yanâs prayer for emotional distress damages to the extent such damages are premised on the denial or suspension of credit and/or the corresponding impact on his business because he adduced no evidence of credit denials or suspensions subsequent to November 29 and 30, 2011 and December 3, 2011, the dates on which his viable FCRA and CCRRA claims accrued. The court denies defendantsâ motion for summary judgment on Grigoryanâs prayer for emotional distress damages arising from his efforts to correct defendantsâ violations, however. Finally, the court denies defendantsâ motion for summary judgment on the issue of the willfulness of their purported § 1681i and § 1785.16 violations.
. Complaint, Docket No. 1 (Oct. 8, 2014).
. Motion for Summary Judgment ("Motionâ), Docket No. 69 (Nov. 7, 2014). See also Reply
. Opposition to Motion for Summary Judgment ("Oppositionâ), Docket No. 73 (Nov. 17, 2014).
. Defendants filed a statement of uncontro-verted facts setting forth 216 purportedly un-controverted facts. (See Defendants' Separate Statement of Uncontroverted Facts ("SUFâ), Docket No. 70-1 (Nov. 7, 2014).) Grigoryan filed a statement of genuine disputes contesting only six of defendants' facts. (See Statement of Genuine Dispute ("SGIâ), Docket No. 75 (Nov. 17, 2014).) The facts Grigoryan disputes are those numbered 12, 201, 205, 206, 207, and 208 in defendants' statement of uncontroverted facts. (Id. at 1.) The court does not rely on these facts. Accordingly, all citations to defendants' statement of uncontroverted facts are to undisputed facts.
. SUF, ¶ 52.
. SUF, ¶ 53.
. Id., ¶¶ 54-55. The mortgage account number ends in 4658, while the HELOC account ends in 4666. Both begin with the same five digits. (SUF, ¶ 66.) For uniformity and clarity, the court refers to the accounts simply as the BOA mortgage and BOA HELOC.
. Id., ¶ 53.
. Id., ¶ 57.
. Declaration of Gevork Grigoryan ("Grigor-yan DecLâ), Docket No: 74 (Nov. 17, 2014), ¶ 21 (CBA account), ¶ 47 (CMI account).
. Id., ¶34.
. SUF, ¶ 59.
. Declaration of Sabrina Fernandes ("Fer-nandes Decl.â), Docket No. 69-2 (Nov. 7, 2014), Exh. 1 ("May 3, 2010 Letter and Attachmentsâ) at 1.
. Id., ¶ 60; ("May 3, 2010 Letter and Attachmentsâ) at 1.
. ("May 3, 2010 Letter and Attachmentsâ) at 1.
. Id. at 2.
. Id.
. Id. at 3.
. Id.
. Id.
. SUF, ¶ 61; Declaration of Jason Scott ("Scott Decl.â), Docket No. 71 (Nov. 7, 2014), ¶ 14 ("Experian personnel reviewed the May 3, 2010 letter, its attachments and Plaintiff's credit file and determined that the [BOA mortgage account] was reporting in good standing and not delinquentâ).
. SUF, ¶ 62; Scott Decl., ¶ 15.
. Fernandes Decl., Exh. 2 (May 11, 2010 Letter to Grigoryan) at 3-5.
. SUF, ¶ 63.
. SUF, ¶ 64; Fernandes Decl., Exh. 3 ("April 4, 2011 Letter to Experianâ) at 1. The date of
. April 4, 2011 Letter to Experian at 1.
. Id. Reinvestigations are governed by 15 U.S.C. §§ 1681i and 1785.16. Section 1681i(l)(A) states: "[I]f the completeness or accuracy of any item of information contained in a consumerâs file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly, or indirectly through a reseller, of such dispute, the [CRA] 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 in accordance with paragraph (5), 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 or reseller.â 15 U.S.C. § 1681i(l)(A).
Section 1785.16(a) provides: âIf the completeness or accuracy of any item of information contained in his or her file is disputed by a consumer, and the dispute is conveyed directly to the consumer credit reporting agency by the consumer or user on behalf of the consumer, the consumer credit reporting agency shall within a reasonable period of time and without charge, reinvestigate and record the current status of the disputed information before the end of the 30-business-day period beginning on the date the agency receives notice of the dispute from the consumer or user, unless the consumer credit reporting agency has reasonable grounds to believe and determines that the dispute by the consumer is frivolous or irrelevant, including by reason of a failure of the consumer to provide sufficient information, as requested by the consumer credit reporting agency, to investigate the dispute.â Cal. Civ. Code § 1785.16(a).
. SUF, ¶ 68; Scott Decl., ¶ 19.
. SUF, ¶ 69; Scott Decl., ¶ 18.
. SUF, ¶ 70; Scott Deck, ¶¶ 19-20; Fer-nandes Deck, Exh. 4 (November 14, 2011 Consumer Disclosure re: BOA HELOC).
. SUF, ¶ 72.
. Fernandes Deck, Exh. 5 (December 15, 2011 Letter from Renatus) at 1-2.
. SUF, ¶¶ 73-74. See also Fernandes Deck, Exh. 6 (December 29, 2011 Request for Verification of Address by Experian) at 1.
. SUF, ¶ 75.
. Fernandes Decl., Exh. 7 (January 10, 2012 Letter from Renatus) at 1.
. SUF, ¶ 76; Scott Decl., ¶ 25.
. SUF, ¶ 77.
. Id., ¶ 78; Scott Deck, 1126.
. SUF, ¶ 79; Fernandes Deck, Exh. 9 ("June 4, 2012 Experian Express Requestâ) at 1.
. June 4, 2012 Experian Express Request at 3.
. SUF, ¶ 80; Scott Deck, ¶ 27.
. SUF, ¶¶ 86-87.
. Id., ¶ 88. See also Declaration of Vicki Banks (âBanks Deckâ), Docket No. 69-6 (Nov. 7, 2014), Exh. 1 (May 3, 2010 Letter to Equifax) at 1-3.
. Banks Deck, Exh. 2 (Equifax ACDV dated May 4, 2010) at 1.
. SUF, ¶ 92; Banks Deck, ¶ 42.
. SUF, ¶ 93.
.Id., ¶ 94.
. SUF, ¶¶ 95-98; Banks Decl., Exh. 3 (April 4, 2011 Letter to Equifax) at 1.
. SUF, ¶¶ 99-101; Banks Decl. Exh. 4 ("Equifax ACDV dated November 2, 2011â) at 1.
. SUF, ¶ 102; Equifax ACDV dated November 2, 2011 at 1.
. SUF, ¶ 103; Banks Decl., V 53.
. SUF, ¶ 104; Banks Decl., ¶ 54.
. SUF, ¶ 105; Banks.Decl., ¶ 55.
. SUF, ¶ 106; Banks Deck, ¶ 56.
. SUF, ¶ 108; Banks Decl., Exh. 5 ("December 15, 2011 Letter from Renatus to Equifaxâ) at 1-2.
.SUF, ¶ 112; Banks Decl., Exh. 6 ("December 20, 2011 Equifax ACDVsâ) at 1-2.
. SUF, ¶¶ 113-14; December 20, 2011 Equi-fax ACDVs at 1-2.
. SUF, ¶ 116; Banks Decl., ¶ 66.
. SUF, ¶ 117; Banks Decl., ¶ 67. Compliance condition codes are used by information furnishers such as BOA to provide comments about accounts. (Banks Decl., ¶ 68.)
. Banks Decl., Exh. 7 (April 30, 2012 Equi-fax ACDVs) at 1-2.
. Id. See also SUF, ¶ 121; Banks Decl., ¶ 71.
. SUF, ¶ 122; Banks Decl., ¶ 72.
. SUF, ¶ 123; Banks Decl., ¶ 73.
- SUF> ¶ 125¥ Banks DecL' ¶ 7S-
. SUF, ¶ 126; Banks Deck, ¶ 76.
. SUF, ¶ 127; Banks Deck, ¶ 77.
. Banks Deck, Exh. 8 (July 23, 2012 Equifax ACDV) at 1.
. Id. See also Banks Deck, ¶ 79.
. SUF, ¶ 130; Banks Deck,.¶ 80.
. SUF, ¶ 131; Banks Deck, ¶ 81.
. SUF, ¶ 132; Declaration of Steven Reger ("Reger Deckâ), Docket No. 69-4 (Nov. 7, 2014), Exh. 1 (May 3, 2010 Letter to Trans Union) at 1-3.
. SUF, ¶¶ 133-34; Reger Deck, ¶¶ 17-18.
. FAC ¶ 73; Reger Deck, ¶ 18-19. An identical process ensued with respect to an identical correspondence received the same day. (See SUF, ¶¶ 137-140.)
. SUF, ¶ 142; Reger Deck, Exh. 9 (April 4, 2011 Letter to Trans Union) at 1. This is the same erroneously dated letter sent to Equifax and Experiån.
. SUF, ¶ 143; Reger Deck, Exh. 10 (Trans Union ACDV dated November 4, 2011) at 1-3..
. SUF, ¶ 144-45; Reger Deck, ¶¶ 27-28.
. SUF, ¶ 148; Reger Deck, ¶ 31.
. SUF, ¶ 149; Reger Deck, ¶ 32.
. SUF, ¶¶ 150-151; Reger Deck, ¶¶ 33-34.
. SUF, ¶ 152; Reger Decl., ¶ 35.
. Reger Decl., ¶ 35.
. SUF, ¶ 158; Reger Decl., Exh. 27 (June 4, 2012 Quick Check Request).
. SUF, ¶¶ 159, 162; Reger Decl., ¶¶ 42, 45.
. SUF, 141; Reger Deck, ¶ 24.
. Reger Decl., ¶ 24.
. Id., ¶ 24.
. SUF, ¶ 146; Reger Deck, ¶ 29.
. SUF, ¶ 146; Reger Deck, ¶ 29.
. SUF, ¶ 147; Reger Deck, ¶ 30.
. SUF, ¶ 153; Reger Deck, ¶ 36.
. Reger Deck, ¶ 36.
. SUF, ¶ 154; Reger Deck, ¶ 37.
. SUF, ¶¶ 155-56; Reger Deck, ¶ 38-39.
. SUF, ¶ 157; Reger Deck, ¶ 40.
. Reger Deck, ¶ 40.
. SUF, ¶ 160; Reger Decl., ¶ 43.
. SUF, ¶ 161; Reger Decl., Exh. 28 (June 14, 2012 Fax to Trans Union).
. SUF, ¶ 163; Reger Decl, ¶ 46.
. SUF, ¶ 164; Reger Decl., ¶ 47.
. Complaint, Case No. 12-01219 MMM (PLAx), Docket No. 4 (Feb. 15, 2012) at 1.
. First Amended Complaint ("FACâ), Case No. 12-01219 MMM (PLAx), Docket No. 14 (June 7, 2012) at 1.
. I'd. ¶ 1.
. Motion to Dismiss, Case No. 12-01219 MMM (PLAx), Docket No. 21 (June 29, 2012).
. Order Granting in Part and Denying in Part Defendantâs Motion to Dismiss, Case No. 12-01219 MMM (PLAx),. Docket No. 39 (Dec. 31, 2012).
. Notice of Settlement, Case No. 12-01219 MMM (PLAx), Docket No. 49 (Feb. 25, 2013).
. Order Dismissing Civil Action, Case No. 12-01219 MMM (PLAx), Docket No. 50 (Feb. 27, 2013).
. Complaint at 1.
. Order Regarding Transfer Pursuant to General Order 08-05, Docket No. 42 (Jan. 9, 2014).
. Motion at 1.
. The statute of limitations was amended on December 4, 2003, with the amendment effective March 31, 2004. See P.L. 108-159 § 156; Sweitzer v. Am. Express Centurion Bank, 554 F.Supp.2d 788, 795 (S.D.Ohio 2008) (observing same). The prior FCRA statute of limitations required that actions be commenced âwithin two years from the date on which the liability arises.â See 15 U.S.C. § 1681p (1998); Williams v. Colonial Bank, 826 F.Supp. 415, 418 (M.D.Ala.1993) (citing the previous statute). The Supreme Court held that the prior version of § 1681p did not incorporate a discovery rule. See TRW Inc. v. Andrews, 534 U.S. 19, 28, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (âWe conclude that the text and structure of § 1681p evince Congress' intent to preclude judicial implication of a discovery ruleâ). The amendment explicitly recognizes that the statute begins to run on discovery.
. Although the statute expressly provides for application of the discovery rule in situations of willful misrepresentation, Grigoryan does not contend, and has adduced no.facts suggesting, that defendants wilfully misrepresented any information necessary to bring his CCRAA claims.
. Motion at 4-8.
. Grigoryan effectively concedes that his claims arising out of the BOA mortgage and CBA accounts are time barred. Most certainly, he does not argue otherwise. (See Opposition at 3 (arguing only that "the statute of limitations would not bar the [FCRA] claims relating to the BOA [HELOC].... Nor would .the statute of limitations bar [Grigoryanâs] claim against TRANS UNION relating to the CMI credit reporting.")).
.Grigoryan Decl., ¶ 3 (âIn or around February 2010, ... I found inaccurate and unjust delinquency claims on my BOA [mortgage].â),
.Grigoryan Decl., 11 3 (âIn or around February 2010, through review of my credit reports maintained by Defendants, I found inaccurate information"); id., ¶ 13 (âIn or around July 22, 2010, I obtained updated copies of my credit reports. My EXPERIAN credit report revealed that the inaccurate late payments. ..â).
. Grigoryan Decl., ¶ 11. See also id., Exh. G (May 3, 2010 Letters). Grigoryan also asserts he "contactedâ defendants in February 2010. It is not clear whether defendants dispute this; however, any' claim based on this contact is time-barred for the same reasons.
. Fernandes Decl., Exh. 2 (May 11, 2010 Consumer Disclosure).
. Reger Decl., ¶¶ 19, 23
. Banks Decl., ¶ 44.
. Grigoryan DecL, ¶ 21.
. Reger DecL, ¶ 24.
.Motion at 8-11.
.Grigoryan Decl., ¶ 36 ("On or about November 21, 2011, I telephonically disputed the [Sequoia] collection account with TRAN-SUNION as not belonging to meâ), ¶ 48 ("I did not owe any debt to CMI or [Time Warner Cable]â). Defendants object to Grigoryan's statement that he did not owe any debt to CMI as unauthenticated and lacking in foundation. They also contend it is hearsay. (Defendants' Objections to Plaintiff's Declaration ("Defendants' Objectionsâ), Docket No. 78 (Nov. 24, 2014), ¶ 15.) Defendants raise these objections repeatedly with respect to various portions of Grigoryan's declaration. Grigor-yan's statement is plainly based on personal knowledge, and hence does not lack foundation. The various exhibits to the declaration appear to be communications sent or received by Grigoryan or copies of his credit reports. Consequently, Grigoryan can testify that they are what they are claimed to be. This adequately authenticates the exhibits under Rule 901(b)(1) of the Federal Rules of Evidence. While the declaration, in its current form, is technically hearsay, it is clear that these are matters to which Grigoryan can testify at trial. See Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 846 (9th Cir.2004) (concluding that hearsay evidence "could be presented in admissible form at trialâ and thus should have been considered in deciding a motion for summary judgment); Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir.2003) (same). The objections are therefore overruled.
. Opposition at 9-10.
. Fernandes Deck, Exh. 12 (October 18, 2011 Letter from BOA) at 1.
. Id.
. Id., Exh. 13 (January 15, 2013 Detailed Account Summary) at 1.
. Id. at 3-5.
. Id. at 5.
. Id., Exh. 14 (Schedule of Payments) at 1.
. Opposition at 3.
. Had the documents not been attached to Fernandesâ ' declaration, defendants could have attempted to authenticate them through the alternate means permitted by Rule 901(b) and 902. Because they were not attached to an exhibit list, but to the declaration of a person lacking personal knowledge sufficient to authenticate them, however, the documents must be excluded. See Orr, 285 F.3d at 777-78 (âHad Orr submitted the letter by attaching it to an exhibit list (rather than to Mirchâs affidavit), the alternative means to authentication permitted by Federal Rule of Evidence 901(b) and 902 would have to be considered. Orr did not do so. The district courtâs exclusion of Exhibit M was therefore properâ).
. Grigoryan Decl., ¶ 29 (âI also sent copies of my payment receipts from BOA, proving timely payments made on my BOA [HELOC] for the months of July, August, and September 2011. True and correct copies of my customer receipts dated July 15, 2011, August 15, 2011, and September 15, 2011 are attached hereto as EXHIBIT âPâ "). See also id., Exh. P ("Receipts for BOA HELOC Payments) at 1-3. There appears to be some dispute as to whether defendants (at least Experian) actually received these payment receipts. (See Scott Decl., ¶ 21 ("Experian never received the ... receipts attached to the Complaint as Exhibit Pâ).) This is immaterial in determining whether Grigoryan has raised triable issues of fact concerning the accuracy of the credit reporting, however.
Defendants object to the receipts as unauthenticated hearsay. (Defendantsâ Objections, ¶ 9.) Grigoryan states in his declaration that he has personal knowledge of the documents; this suffices to authenticate the documents, although the exhibits are hearsay where offered for their truth, they can be considered as circumstantial evidence that payment was remitted. Defendantsâ objections are therefore overruled.
. Motion at 9â.
. DeAndrade filed a declaratory relief suit in Rhode Island Superior Court concerning the validity of the mortgage. "In that complaint, DeAndrade alleged that he and his wife never signed any documents granting a mortgage on their home to KeyBank and never authorized NESCOR to do so on their behalf.â DeAndrade, 523 F.3d at 63-64. The First Circuit does not discuss the status or outcome of the state court action.
. Opposition at 6-8.
. Id. at 3-4; Grigoryan DecL, Exhs. BB, CC.
. Reply at 3 n. 1. As noted, "[i]n a summary judgment motion, documents authenticated through personal knowledge must be âattached to an affidavit that meets the requirements of [Rule] 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence.â â Orr, 285 F.3d at 773. Here, the letters identify BOA as the sender and Grigoryan as the recipient, and bear numerous indicia that they were sent by BOA. The letters are attached to Gri-goryanâs sworn declaration, who asserts he has personal knowledge of them. This is sufficient to authenticate and lay a foundation for the letters. See Logan v. City of Pullman, 392 F.Supp.2d 1246, 1253 (E.D.Wash.2005) ("However, because Plaintiffs attempted to introduce Exhibit C by attaching it to Mr. Cochran's declaration, Rule 56(e) requires Mr. Cochran have personal knowledge of the documents,â citing Orr, 285 F.3d at 777).
Nonetheless, the letters are hearsay because Grigoryan is offering them for the truth of statements contained in them.. See Fed. R.Evid. 801(c) (defining hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter assertedâ). In the absence of a procedural rule or statute, hearsay is inadmissible unless it is defined as non-hearsay under Rule 801(d) of the Federal Rules of Evidence or falls within a hearsay exception under Rules 803, 804 or 807. See Fed.R.Evid. 802; Orr, 285 F.3d at 778 (citing 30B K. & M. Graham, Federal Practice & Procedure: Evidence § 7031 at 279). Grigoryan offers the BOA letters to prove the truth of the matters asserted therein, i.e., to prove that there were inaccuracies in his credit report that were corrected and to prove that his HELOC payments were "never late.â (See Grigoryan Deck, Exhs. BB and CC (May 23 and May 30, 2012 letters).) Consequently, the letters are inadmissible hearsay. See Giacalone v. Experian PLC, No. CV 12-1192, 2013 WL 3199982, *2 (N.D.Ill. June 24, 2013) ("Giacalone has provided the consumer disclosure that he received and several letters of rejection that denied his requests for credit. On April 23, 2013, however, this Court granted Experian's motion to strike these letters as inadmissible hearsay. Giacalone has attempted to insert these letters back into play through his affidavit in support of his reply to the instant motion; however, the affidavit also constitutes in admissible hearsay. As the letters and affidavit are inadmissible hearsay, this Court cannot consider them, and Giacal-one has offered no other evidence that would lead the Court to conclude that there exists a consumer credit report containing the inaccurate debt information, much less that third parties have seen such a report and have denied Giacalone credit because of itâ).
Had Grigoryan ârelied [on the letters only as evidence of what was said or reported to [him], not as evidence of the truth of any statement or record made,â they would not be hearsay. See Spector v. Experian Info. Servs. Inc., 321 F.Supp.2d 348, 353-54 (D.Conn.2004). That however, is not what Grigoryan has done.
.Grigoryan Deck, Exh. BB (May 23, 2012 letter from BOA) at 1-2.
. Id., Exh. CC (May 30, 2012 letter from BOA) at 1.
. See, e.g., Complaint, ¶ 38 ("On or about October 26, 2011, immediately upon discovery of the inaccurate late payment reporting of September 2011, Plaintiff submitted disputes of this inaccurate reporting with Defendantsâ); id., ¶¶ 42-43, 48, 55 (disputing the September 2011 late payment report). The complaint does not reference an October 2011 late payment, nor has Grigoryan proffered any evidence that defendants reported that payment as late.
. Opposition at 4.
. See Grigoryan DecL, Exhs. BB and CC (May 23, 2012 and May 30, 2012 letters from BOA).
. Opposition at 7.
. The court is mindful of the fact that reasonableness is a jury question in a overwhelming majority of cases. Guimond, 45 F.3d at 1333 ("The reasonableness of the procedures and whether the agency followed them will be jury questions in the overwhelming majority of casesâ). This is not one of those cases, however. Grigoryan adduces no evidence, and fails even to argue, that defendantsâ procedures for maintaining and operating their internal databases were not reasonable. Thus, there is no question to send to the jury, the claims fail, and judgment as a matter of law is properly entered in defendantsâ favor. See Darrin, 2014 WL 1922819 at *7 ("Because reporting information that may be inaccurate does not violate § 1681e(b) if such information is received via accuracy-assuring procedures, and because there are no allegations in the record that the CRA Defendantsâ procedures were unreasonable under § 1681e(b), Plaintiff's § 1681e(b) claim against the CRA Defendants failsâ); Saenz, 621 F.Supp.2d at 1081 (âBecause there is no evidence in the record from which a reasonable jury could infer that Trans Unionâs accuracy-assuring procedures were unreasonable, this court recommends granting Trans Unionâs motion in part, [and] dismissing Saenzâ claims to the extent premised on violation of Section 168 le(b)â).
. Motion at 11-18.
. Reger Decl., ¶¶ 25-28 (October 31, 2011 dispute and investigation), ¶¶ 41-42, 45 (June 4, 2012 dispute and reinvestigation). Trans Union contends it received a request on April 30, 2012 as well, and immediately corrected the information disputed. (Id., ¶ 35 ("On April 30, 2012, Trans Union received a telephone call from Plaintiff regarding [the BOA HELOC]. In response to Plaintiffâs telephone call, Trans Union promptly initiated reinvestigation using the ACDV process to confirm the accuracy of the information being reported. On the same day, the remark code indicating the account information was disputed by the consumer was removed per Plaintiff's request and the investigation results were forwarded to plaintiff for his review").) âą Grigoryan does not allege that he made such a request in his complaint, however, and does not suggest in his opposition that he intended to do so. For that reason, the court need not address this request in deciding the motion.
. Id., ¶ 26 ("On November 4, 2011, in response to Plaintiff's October 31, 2011 dispute request, Trans Union promptly initiated a reinvestigation into [the BOA HELOC account] using the ACDV process to confirm the accuracy of the information being reportedâ); id., ¶ 41 ("On June 6, 2012, in response to the June 4, 2012 Quick Check received from Informative Research, Trans Union promptly initiated a reinvestigation into [the BOA HE-LOC account] to confirm the accuracy of the information being reportedâ).
. Scott Deck, ¶ 17 ("On November 4, 2011, Experian received a letter from Plaintiff dated April 4, 2011, disputing his [BOA] account as inaccurately reportingâ).
. Id., ¶ 18 ("In response to the letter received on November 4, 2011, ... Experian sent an [ACDV] to [BOA] ... asking for verification of the account status and payment history of the accountâ); id., ¶¶ 19-20 (BOA verified the account and Experian mailed results on November 14, 2011).'
. Id., ¶ 26 ("On April 30, 2012, Plaintiff contacted Experian via telephone and requested that his consumer dispute comment be removed from his [BOA HELOC account] .... That same day, Experian removed Plaintiffâs consumer dispute statement from the account and provided confirmation to Plaintiffâ).
. Id., ¶ 27 ("On June 6, 2012, Experian received a four page fax requesting that the [BOA HELOC account] be updated to current and including a statement by the Plaintiff that he. was no longer disputing the accuracy of the account. Per the request, Ăxperian updated the [BOA HELOC] to current, never late, and no longer disputed").
. Banks Deck, ¶45. See also id., Exh. 3 (April 4, 2011 letter to Equifax).
. Id., ¶ 51 ("Equifax sent an ACDV to BOA regarding the account.â). See also id., Exh. 4 (November 2, 2014 Equifax ACDV to BOA).
. Id., ¶¶ 52-54 (noting that BOA verified the accuracy of the reported information, that Equifax made no. changes to its reporting, and that it sent the results to Grigoryan on November 7, 2011).
. Id., ¶ 55 ("Prior to December 18, 2011, BOA updated the [HELOC account] so that it no longer reported a past-due status or a past-due balance of $12 (or any other amount).â).
. Opposition at 7.
. Id.
. Id.
. Defendants did not completely fail to investigate the dispute, or ignore an unambiguous public record. There is therefore a jury question on whether their procedures were reasonable. Cf. Dennis, 520 F.3d at 1070-71 (granting summary judgment for the consumer where a credit reporting agency failed to perform a simple search and overlooked an unambiguous document in a court file showing that no adverse judgment had been entered against the consumer).
. Grigoryan Decl., ¶ 29 ("I also sent copies of my payment receipts from BOA, proving timely payments made on my BOA [HELOC] for the months ofâJuly, August, and September 2011. True and correct copies of my customer receipts dated July 15, 2011, August 15, 2011, and September 15, 2011 are attached hereto as EXHIBIT 'P' "). See also id., Exh. P (âReceipts for BOA HELOC Paymentsâ) at 1-3. As noted, Experian disputes receiving the receipts. There is thus a triable issue of fact as to which party's evidence to credit; a jury will have to decide whether Grigoryan or the Experian representative is the more credible witness.
. Reger Decl., ¶¶ 29-30.
. As discussed infra, however, the court concludes that the claim fails as a matter of law because Grigoryan cannot prove cognizable damages related to the reinvestigation of the Sequoia account.
. Id., ¶¶ 36-38.
. Id., ¶ 40.
. Id.
.Reger Decl., V 46 ("Trans Union removed the [CMI] account from Plaintiff's credit file because Plaintiff's social security number was not verified by the furnisherâ).
. Id. at 27-31, 34-35.
. SUF, ¶ 146; Reger Decl., ¶ 29.
. SUF, ¶ 147; Reger Dec!., ¶ 30.
. See SUF, V 170; Fernandes Decl., Exh. 17 (âDeposition of Aram Grigoryan ("A. Gri-goryan Depo.ââ)) at 14:18-22 (âQ... My question now is the partners in Graz Group. A. Graz Group. Q. So the partners are Hovhannes, you, and yoqr brother Gevork. Correct? A. Yes.... [and] George, ... is another partner we have, Halajyanâ).
.Id. at 14:23-15:15.
. Fernandes Decl., Exh. 16 (Deposition of Gevork Grigoryan ("Grigoryan Depo.")) at 214:14-18 ("Q. Okay. And how long of a period of time did [the inability to acquire investment properties] last? A. Close to three years. Q. So from 2009 to 2012 that was ongoing? A. Yesâ); id. at 235:11-25 ("Q. So do you have a quantification of what your real estate losses are based on this negative reporting by [BOA]? A.... I would say at least â at least [a] million to million and a half dollars ... â I would say. Q. Just the real estate losses? A. Just the real estateâ).
. As relevant here, the CCRAA definition of a consumer credit âą report is identical. See Cal. Civ.Code § 1785.3(c) (" âConsumer credit reportâ means any written, oral, or other communication of any information by a consumer credit reporting agency bearing on a consumerâs credit worthiness, credit standing, or credit capacity, which is used or is expected to be used, or collected in whole or in part, for the purpose of serving as a factor in establishing the consumerâs eligibility for: (1) credit to be used primarily for personal, family, or household purposes, or (2) employment purposes, or (3) hiring of a dwelling unit, as defined in subdivision (c) of Section 1940, or (4) other purposes authorized in Section 1785.11â).
. Section 1681b(a)(3)(F) permits a credit reporting agency to furnish a credit report to any person which it has reason to believe "has a legitimate business need for the information â (i) in connection with a business transaction that is initiated by the consumer; or (ii) to' review an account to determine whether the consumer continues to meet the terms of the account.â 15 U.S.C. § 1681b(a)(3)(F) (emphasis added). Section 1785.11(a)(3)(F) of the CCRAA is substantially the same. See Cal. Civ.Code § 1785.11(a)(3)(F) (permitting a credit reporting agency to furnishing a credit report to any person it has reason to believe "has a legitimate business need for the information in connection with a business transaction involving the consumerâ).
."On September 30, 1997, § 1681b(3)(E), which read âotherwise has a legitimate business need for the information in connection with a business transaction involving a consumer,â was amended to § 1681b(a)(3)(F).â Johnson, 558 F.Supp.2d at 1125 n. 5.
. Motion at 8.
. The Dennis court did not 'discuss the specific transactions at issue. The court is constrained to assume that the court did not find that business damages were recoverable, because the Dennis panel was not at liberty to abrogate the prior holding in Mone that reports obtained for business purposes are not protected by the FCRA. See Rodriguez v. AT & T Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir.2013) ("As a three-judge panel of this circuit, we are bound by prior panel decisions ... and can only reexamine them when the[ ] âreasoning or theoryâ of that authority is âclearly irreconcilableâ with the reasoning or theory of intervening higher authority,â quoting Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.2003) (en banc)); see also Mone, 945 F.2d at 308 ("Reports used for business, commercial, or professional purposesâ are not within the purview of the statuteâ).
.See Appellantâs Opening Brief, Dennis v. BEH-1, LLC, 520 F.3d 1066 (2008) (No. 0456230), 2004 WL 3021004 at *12-13 (âAs a direct and proximate result of the derogatory information furnished and reported by Expe-rian, Dennis sustained actual damages including emotional distress, an invasion of his privacy, humiliation, embarrassment, pain and suffering, damages to his credit rating, his ability to obtain credit, and his ability to obtain credit at an interest rate or at ... terms he would have been able to obtain had defendants not so acted. He has abstained from applying for credit, had adverse action taken on existing credit accounts and was denied creditâ).
. Grigoryan Depo. at 133:3-6.
. Id. at 41:16-18.
. Id. at 30:23-31:3.
. Id. at 42:2-8 ("So once my credit is not there, and I was the main person that it was purchased under, once my name was not there, then these investors â which we lost in my family, friend, investor like that, where after the Palmdale deals my credit was no good and we told him, [he] said if you canât use your credit, why would I invest with you?â).
. Grigoryan Decl., ¶ 51 ("Since I was unable to refinance the family house ... I was unable to make use of the equity in the house...
. Id. at 1.
. Grigoryan makes a passing reference in his declaration to the fact that "around the time that the BOA [HELOC] was being reported late, [he] wanted to invest in a Dickies Barbecue franchiseâ but âwas unable to do [so] with the equity [in his home] being tied up as a result of the inaccurate reporting. Grigoryan contends that, after the credit issues were resolved, he "was able to buy the franchise, and now [makes] a profit every month from that business.â (Grigoryan Deck, ¶ 52.) To the extent Grigoryan seeks to recover damages based on his inability to invest in a Dickies Barbecue franchise at an earlier point in time, the court cannot agree for a number of reasons. Initially, this is the first time that Grigoryan has claimed damages arising out of inability to invest in a Dickies Barbecue franchise. At his deposition, he stated that the only economic damages he sought concerned-his real estate investment business. (See Grigoryan Depo. at 133:12-18 ("Q. Any other category of damages that doesn't fall into those that youâre claiming as you sit,here today? And let me recap them. All right? Emotional distress related type damages, the business related investment work that you and your brother do with real estate. Correct? A. Yes. Q. The limits on some of your credit accounts, credit cards, equity lines of credit, those types of things. Correct? A. Correct. Q. Attorneys' fees â A. Yesâ).) Because Grigoryan did not disclose the fact that he allegedly suffered damage due to his inability to acquire a Dick-ies Barbecue franchise, defendants could seek to have the evidence excluded. See Fed.R.Civ. Proc. 37(c)(1) ("If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmlessâ); Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.2001) ("Rule 37(c)(1) gives teeth to these requirements by forbidding the use at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosedâ). Defendants have not moved to exclude the evidence under Rule 37, however, and the court will not exclude it on that basis for purposes of this motion.
Further, although Grigoryan references the Dickies Barbecue franchise in his declaration, the subject is not addressed in his opposition, despite the fact that it is clear from their moving papers that defendants believe the only economic damages at issue are those associated with Grigoryanâs real estate investment business. As the court earlier noted, it "need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found." See Carmen, 237 F.3d at 1031; see Keenan, 91 F.3d at 1279 (the district court has no responsibility on summary judgment to "scour the record in search of a genuine issue of triable factâ). Because Grigoryan makes no reference to this evidence in his opposition, the court could conclude that he abandoned any claim to such damages. .See Keenan, 91 F.3d at 1279 ('TThe nonmoving partyâs] burden to respond is really an opportunity to assist the court in understanding the facts. But if the nonmov-ing party fails to discharge that burden â for example, by remaining silent â its opportunity is waived and its case wagered,â quoting Guarino v. Brookfield Township Trustees, 980 F.2d 399, 405 (6th Cir.1992)).
There is a more fundamental reason why the reference does not raise triable issues of fact, however. Although he states that he was seeking to invest in the franchise "around the time that the BOA [HELOC] was being reported late,â he proffers no evidence that he actually sought and was denied credit, or that he submitted a franchise application that was denied because of poor credit. There is thus no evidence of causation. Grigoryan asserts that he was unable to obtain the franchise because he was unable to access the equity in his home. As the court has already explained, however, the only evidence Grigor-yan has adduced shows that he sought to refinance his home in December 2009. This was more than a year before defendantsâ alleged FCRA and CCRAA violations. Grigor-yan thus cannot prove that the purported violations proximately caused any damage he might have suffered in connection with his
. Because business damages are not recoverable, the court need not address defendantsâ contention that Grigoryanâs alleged business damages cannot be recovered because they are too speculative. (Motion at 31-34.)
. Motion at 34-35.
. Id. at 35.
. See Grigoryan Depo. at 197:13-14, 197:22-23.
. Id. at 199:2-12 (âItâs like you set yourself a reputation with investors or people in the industry, and all of a sudden your reputation is down the drain because of the fact that a mistake that you haven't even done, a mistake that credit reporting agencies are doing [is] causing you to seem like a dead beat, like they think that, hey, this guy canât afford to pay his bills on time or so and so, and that's not the case. Iâm here doing everything correctlyâ).
. Grigoryan Decl., ¶ 19.
. Defendants' Objections, ¶¶ 5, 16. The documents are adequately authenticated, however, because Grigoryan testifies to their contents, and has personal knowledge of them.
. Grigoryan Decl., Exh. M (Letters from Citibank and New Wave Reality Group) at 2.
. Id. at 1.
.. Id., Exh. GG (October 20, 2011 and November 9, 2011 letters from Citibank) at 2.
. Id. atl.
. Grigoryan Decl., ¶ 53. Defendants object to this statement, arguing that it constitutes inadmissible expert testimony and lacks foundation. (Defendantsâ Objections, ¶ 20.) Clearly, Grigoryanâs statements do not constitute expert testimony; he merely relates firsthand how defendantsâ alleged violations made him feel. Nor do the statements lack foundation, as they are based on Grigoryanâs personal knowledge and experience. Defendantsâ objections are therefore overruled.
. Id., ¶ 54 ("What was especially troubling was the fact that the Defendant seemed to automatically trust BOAâs reporting on [the HELOC] even though BOA had earlier corrected its error on the first account. And, even after I sent payment receipts from BOA, the Defendants ignored them. Similarly TRANS UNION allowed the [CMI account] to resurface from a new collector.... It just seemed impossible to win; nothing I said seemed to make a differenceâ). Defendants object to this evidence; they contend that it is unauthenticated, lacks foundation, is speculative, and constitutes hearsay. (Defendantsâ Objections, ¶ 21.) For reasons already stated throughout this order, the court finds no merit to defendants' objections, and thus overrules them.
. Defendants also appear to assert that Gri-goryan cannot recover emotional distress damages because he stated at his deposition that the fact he was unable to have children caused him ââ[t]he biggest stress.â (Grigoryan Depo. at 201:17-21 ("Have you been, since being diagnosed in â well, even prior to being diagnosed and noticing that you're unable to father a child with your wife, has that you any stress in your life? A. The biggest stressâ).) There are two components to this argument. Initially, the court agrees that, to the extent Grigoryan claims defendantsâ caused his infertility, summary judgment in defendants' favor is required, because Grigoryan has not adduced the testimony of any medical expert establishing causation. See Pelzer v. Lockformer Co., No. CV 01-06485 JBZ, 2005 WL 1651729, *3 (N.D.Ill. July 6, 2005) ("Plaintiff Pepping also fails to offer any expert, medical testimony in support of her claim that her infertility is the result of her exposure to TCE.... Like her brother, Pepping cannot withstand Defendant's Motion for Summary Judgment on her claim of infertility due to TCE exposure because she fails to present competent, admissible testimony regarding the proximate cause of her injury. Summary judgment on her claim is appropriate, and granted.â).
Defendants also appear to assert that any emotional distress Grigoryan suffered was caused entirely by his inability to have children, and not by their alleged FCRA and CCRAA violations. Given the statements in Grigoryan's sworn declaration, a rational trier of fact could conclude that defendants too caused Grigoryan emotional distress. The court cannot weigh the competing inferences that arise from his declaration and deposition testimony, and conclude as a matter of law that Grigoryan's stress was caused solely by his inability to have children. Rather, the jury will have to assess the evidence and make an appropriate finding as the trier of fact.
. These are the only accounts as to which Grigoryan has raised triable issues of fact concerning his ability to prove recoverable damages.
. Because Grigoryan has failed to raise triable issues of fact concerning his ability to prove damages resulting from Trans Union's reinvestigation of the Sequoia account, the court need not decide whether there are triable issues of fact regarding the willfulness of Trans Unionâs conduct.