United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE.
the Court are cross-motions for summary judgment filed by
Plaintiff (Doc. No. 20) and Defendant (Doc. No. 26) and the
responses thereto. Upon consideration of the parties'
motions, the Court finds as follows.
outset, the Court notes the parties' failure to comply
with the Federal Rules of Civil Procedure and the Court's
Local Civil Rules. Specifically, Defendant's Motion for
Summary Judgment sets forth seven individual facts which it
contends are undisputed and entitle it to summary
judgment. (Doc. No. 26, pp. 3-5). In response
thereto, Plaintiff sets forth six numbered paragraphs, none
of which cite to any evidence, and indicates with regard to
the first six of those paragraphs that the fact asserted by
Defendant is “Disputed.” Plaintiff's response
to paragraph 6 is “Undisputed”; she does not
address paragraph 7.Local Civil Rule 56.1(d) provides that
“[e]ach individual statement by the . . . nonmovant
pursuant to subparagraph . . . (c) of this rule shall be
followed by citation, with particularity, to any evidentiary
material that the party presents in support of its position
pursuant to Fed.R.Civ.P. 56(c). In her response, Plaintiff
cited no authority in the numbered paragraphs. She did,
however, include her own affidavit in an effort to
authenticate the evidence she submitted in support of her
motion for summary judgment. Similarly, in Defendant's
response to Plaintiff's motion any disputed fact was
supported by reference to “Defendant's exhibits
1-6” or by failing to cite to any evidence.
Court also notes that the affidavits executed by Scott Clift,
submitted and relied upon by Defendant, reference exhibits
that are either not presented to the Court or are
misidentified. Despite the numerous shortcomings in the
parties' filings, the Court has considered the
submissions, all of which are designed to answer a single
question: whether Defendant violated the Fair Debt Collection
Practices Act (“FDCPA”) by failing to report a
debt associated with Plaintiff as disputed to Equifax and
TransUnion, two credit reporting agencies, after Plaintiff
reported to the agencies that she believed she did not owe
Court should grant summary judgment when “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). “An issue is ‘genuine' if there is
sufficient evidence on each side so that a rational trier of
fact could resolve the issue either way.” Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.
1998). “An issue of fact is ‘material' if
under the substantive law it is essential to the proper
disposition of the claim.” Id.
FDCPA prohibits “[c]ommunicating or threatening to
communicate to any person credit information which is known
or which should be known to be false, including the failure
to communicate that a disputed debt is disputed.” 15
U.S.C. § 1692e(8). Under the FDCPA, Defendant has an
obligation to report as disputed any accounts which it knew
or should have known Plaintiff disputed. Defendant contends
it fulfilled its obligation once made aware of
Plaintiff's dispute via communication from Equifax and
TransUnion. Plaintiff disagrees, providing the Court with
redacted reports she allegedly received after the
investigations were allegedly completed.
5, 2017, Plaintiff applied for and was denied a mortgage.
(Doc. No. 29-3, Graham Affidavit, ¶ 3). She asserts that
she wrote two letters, one to Equifax and one to TransUnion,
on June 7, 2017, disputing the accuracy of the debt. (Graham
Affidavit, ¶ 6). Defendant admits it received a dispute
related to Plaintiff from Equifax on July 6, 2017. (Doc. No.
26-2, Clift February 1, 2019 Affidavit, ¶ 8). On behalf
of Defendant, Mr. Clift avers that CAC verified the debt on
July 6, 2017, asserting that “all data furnished by
CAC, to Equifax, contains a Dispute indicator.” (Clift
February 1, 2019 Affidavit, ¶ 9). CAC admits it received
a dispute from TransUnion related to Plaintiff's account
on July 26, 2017, and that it verified the debt on that same
CAC's account notes further document that upon completion
of this investigation, CAC re-verified the information and
reported it back to TransUnion that the debt
was verified on July 26, 2017. As a result of the dispute and
verification request, all data furnished by CAC, to
Equifax, contains a Dispute indicator.
(Clift Affidavit, ¶ 12)(emphasis added). Paragraphs 14
and 15 of Clift's Affidavit report a second dispute from
Equifax on July 27, 2017, which was allegedly verified to
TransUnion on July 26, 2017. It would of course be impossible
for CAC to verify the debt before the dispute was received
from the credit reporting agency. Mr. Clift also avers:
I am experienced in reading these reports from Equifax and
TransUnion that are found in Plaintiff's Exhibit A. Upon
review of these reports and for the purposes of investigation
into Ms. Graham's allegations, I contacted a
representative for the credit bureaus to confirm my
interpretation of these reports that Ms. Graham's report
was reported as disputed.
(Clift Affidavit, ¶ 17). This paragraph contradicts Mr.
Clift's prior representations in the Affidavit that
Plaintiff's Exhibit A was a report furnished by CAC to
Equifax and TransUnion.
should be apparent that as a result of the shortcomings in
the parties' submissions the Court cannot grant summary
judgment for either Plaintiff or Defendant on the issue of
Defendant's liability under the FDCPA. Plaintiff has
submitted select pages of a copy of an updated credit report
she allegedly received from Equifax on July 7, 2017, after
Defendant allegedly reported the dispute to Equifax. From the
pages she submitted, the Court is unable to discern that the
account was reported as disputed despite Mr. Clift's
representations. Additionally, Plaintiff presents portions
of a July 7, 2017 letter from TransUnion regarding a recent
dispute that includes reference to the CAC debt. Although it
is not clear from the two pages, out of an apparent twelve,
that the dispute was the present one, the Court must consider
the evidence in the light most favorable to Plaintiff. In
short, the parties' failure to properly and clearly
support their motions prevent the Court from discerning that
no genuine issues of material fact remain for resolution at
trial, and accordingly, the parties' cross-motions for
summary judgment are DENIED. The Court finds, however, that,
in light of Plaintiff's failure to challenge
Defendant's assertion that she lacks evidence to support
her claim for actual damages, Plaintiff will be limited to
its motion for summary judgment Defendant sought sanctions
under 28 U.S.C. § 1927, and this request is DENIED.
Although Plaintiff failed to respond to the arguments,
Defendant failed to establish that sanctions were appropriate
and conveniently omits its own transgressions in reciting why
the Court should impose sanctions against Ms. Graham.
Plaintiffs Motion to Strike (Doc. No. 31) is GRANTED,
Defendant having filed its Reply out ...