Wantz, Brian v. Experian Info Solut ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1272
BRIAN WANTZ,
Plaintiff-Appellant,
v.
EXPERIAN INFORMATION SOLUTIONS,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 8224—Blanche M. Manning, Judge.
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ARGUED JUNE 17, 2004—DECIDED OCTOBER 21, 2004
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Before FLAUM, Chief Judge, and MANION and WILLIAMS,
Circuit Judges.
MANION, Circuit Judge. Brian Wantz alleged that Experian
Information Solutions, Incorporated, violated the Fair Credit
Reporting Act, 15 U.S.C. §§ 1681, et seq. (“the Act”), by fail-
ing to reinvestigate adequately an entry on his credit report
as required by 15 U.S.C. § 1681i(a). The district court en-
tered summary judgment on behalf of Experian, reasoning
that Wantz put forth no competent evidence that he was
entitled to damages. We affirm on the same ground.
2 No. 04-1272
I.
Because this case comes to us after summary judgment in
Experian’s favor, we review the record in the light most
favorable to Wantz. See Cowan v. Prudential Ins. Co. of Am.,
141 F.3d 751, 755 (7th Cir. 1998). In August 2000, a state
court in Virginia entered a civil judgment against Wantz,
which Wantz satisfied on September 14, 2000. Experian and
at least one other consumer reporting agency nonetheless
continued to report that the judgment was not paid
In June 2002, when Wantz found out that one consumer
reporting agency was reporting the judgment as unpaid, he
called Experian, as well as several other consumer reporting
agencies, and stated that he had paid the judgment.
Experian investigated by sending a dispute verification form
to a third-party vendor, Superior Information Services.
Superior was contractually obligated to verify information
by going to the courthouse and looking at the judgment, or
by reviewing electronic court records. Superior investigated
and then reported back to Experian that the judgment against
Wantz had not been satisfied.
In September 2002, Wantz again contacted Experian and
stated that he had satisfied the Virginia judgment. Experian
once again asked Superior to investigate. Because Superior
did not respond within the 30 days that the Act generally
allows for a reinvestigation, see 15 U.S.C. § 1681i(a), Experian
updated the status of the Virginia judgment to “satisfied”
and notified Wantz of the change.
Unappeased, Wantz filed a complaint against Experian in
the district court, asserting that Experian had failed to
conduct an adequate reinvestigation under the Act. The dis-
trict court granted summary judgment in favor of Experian,
reasoning that Wantz had no competent evidence that he
was entitled to damages.
No. 04-1272 3
II.
Our review of the district court’s grant of summary judg-
ment is de novo, construing all facts in favor of Wantz, the
nonmoving party. Commercial Underwriters Ins. Co. v. Aires
Envtl. Servs., Ltd., 259 F.3d 792, 795 (7th Cir. 2001). Summary
judgment is proper when the “pleadings, depositions, an-
swers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine is-
sue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). Thus, “[s]ummary judgment is appropriate if, on the
record as a whole, a rational trier of fact could not find for
the non-moving party.” Commercial Underwriters, 259 F.3d at
795.
The Act regulates a consumer reporting agency, which is
“any person which . . . regularly engages in whole or in part
in the practice of assembling or evaluating consumer credit
information or other information on consumers for the pur-
pose of furnishing consumer reports to third parties. . . .” 15
U.S.C. § 1681a(f). It requires a consumer reporting agency to
follow “reasonable procedures to assure maximum possible
accuracy of the information concerning the individual about
whom the report relates.” 15 U.S.C. § 1681e(b). Once a
consumer report exists, the Act triggers various duties on
the part of a reporting agency, including the obligation to
reinvestigate when a consumer contends that his consumer
report is inaccurate or incomplete:
If the completeness or accuracy of any item of informa-
tion contained in a consumer’s file at a consumer reporting
agency is disputed by the consumer and the consumer
notifies the agency directly of such dispute, the agency
shall reinvestigate free of charge and record the current
status of the disputed information, or delete the item
from the file in accordance with paragraph (5), before
4 No. 04-1272
the end of the 30-day period beginning on the date on
which the agency receives the notice of the dispute from
the consumer.
15 U.S.C. § 1681i(a).
The Act creates a private right of action against a con-
sumer reporting agency for the negligent, see id. § 1681o, or
willful, see id. § 1681n, violation of any duty imposed under
the statute, including the duty to reinvestigate under
§ 1681i(a). For either a negligent or willful violation of a
duty under the Act, the consumer reporting agency is liable
for the consumer’s “actual damages” and the costs of the
action together with reasonable attorney’s fees. 15 U.S.C.
§§ 1681n, 1681o. Where the agency acts willfully, punitive
damages are also available. Id. at § 1681n. It is the plaintiff’s
burden to establish that he is entitled to damages. See Casella
v. Equifax Credit Info. Servs., 56 F.3d 469, 473 (2d Cir. 1995).
The district court, as noted above, concluded that Wantz
presented no competent evidence that he could meet that
burden and therefore entered summary judgment for
Experian.
Although Wantz asked for several types of damages be-
fore the district court, on appeal he limits his argument to
the assertion that a jury could find that he is entitled to both
actual and “statutory” damages. We begin with actual
damages. As the district court observed, the record is devoid
of any indication that a potential creditor denied Wantz
credit because of what Experian reported. Wantz nonethe-
less maintains that a jury could award him actual damages
for his emotional distress. Emotional distress can, in certain
circumstances, give rise to actual damages under the Act—
even where there has been no denial of credit. Id. at 474;
Thompson v. San Antonio Retail Merchants Ass’n, 682 F.2d 509,
513 (5th Cir. 1982); Field v. Trans Union LLC, No. 01 C 6398,
2002 WL 849589, at *5 (N.D. Ill. May 3, 2002). The only evi-
No. 04-1272 5
dence regarding emotional damages to which Wantz pointed
before the district court, however, was his testimony to the
effect that: (1) he was “ ‘humiliated and embarrassed’ every
time he was rejected for credit”; (2) it is “mentally and
emotionally distressful when dealing with credit reporting
agencies”; and (3) it is “embarrassing to go somewhere and
have them check your credit report and see all that stuff on
there.” This evidence is deficient on two levels.
First, it would not allow a jury to conclude that Experian,
as opposed to another consumer reporting agency, ever
disclosed any damaging information about Wantz to a third
party. To understand the significance of this fact, we must
consider the framework of the statute. As noted above, the
Act requires consumer reporting agencies to follow “rea-
sonable procedures to assure maximum possible accuracy
of the information concerning the individual about whom
the [consumer] report relates.” 15 U.S.C. § 1681e(b). Thus,
without a consumer report, there is no duty under the Act
to follow reasonable procedures. See Smith v. First Nat’l Bank
of Atlanta, 837 F.2d 1575, 1578 (11th Cir. 1988) (reasoning
that there can be no liability where there is no consumer
report); Field, 2002 WL 849589, at *5. There is no consumer
report unless there is a “communication . . . for the purpose
of serving as a factor in establishing the consumer’s eligi-
bility for” credit or other statutorily enumerated purposes,
15 U.S.C. § 1681a(d)(1); i.e., there cannot be a consumer
report without disclosure to a third party. Renninger v.
Chexsystems, No. 98 C 669, 1998 WL 295497, at **4-5 (N.D.
Ill. May 22, 1998).
In short, where there is no evidence of disclosure to a
third party, the plaintiff cannot establish the existence of a
consumer report. Without such a report, there could be no
duty to follow reasonable procedures regarding the report,
nor could damages flow from a breach of that duty. See
6 No. 04-1272
Washington v. CSC Credit Servs., Inc., 199 F.3d 263, 267 (5th
Cir. 2000) (reasoning that the actionable harm that the Act
“envisions is improper disclosure, not the mere risk of
improper disclosure”); Field, 2002 WL 849589, at *5. Wantz
has put forth no evidence that Experian disclosed his credit
1
information to a third party. We therefore conclude that
Wantz has failed to put forth sufficient evidence of actual
damages for emotional distress.
A second reason that Wantz fails to create an issue of fact
as to actual damages is that he relies solely on his own con-
clusory statements of emotional distress. Where, as here, the
plaintiff’s own testimony is his only evidence of emotional
damages, “he must explain the circumstances of his injury
in reasonable detail” and not rely on conclusory statements,
unless the “facts underlying the case are so inherently
degrading that it would be reasonable to infer that a person
would suffer emotional distress from the defendant’s
action.” Denius v. Dunlop, 330 F.3d 919, 929 (7th Cir. 2003).
As noted above, Wantz’s only evidence as to emotional
damages was his testimony that: (1) he was “ ‘humiliated and
embarrassed’ every time he was rejected for credit”; (2) it is
“mentally and emotionally distressful when dealing with
credit reporting agencies”; and (3) it is “embarrassing to go
somewhere and have them check your credit report and see
all that stuff on there.” This is not one of the few cases in
which the facts are so inherently degrading that a jury could
infer the existence of emotional distress. See id. (reasoning
that the plaintiff’s assertion that he was “embarrassed and
humiliated” did not fall into the inherently degrading
1
Wantz does have evidence that he was denied credit because
of the report of another consumer reporting agency, but that
agency is not a defendant here.
No. 04-1272 7
category). Without further evidence to buttress those
assertions, Wantz’s case could not go forward. See id.; Cousin
v. Trans Union Corp., 246 F.3d 359, 371 (5th Cir. 2001)
(reasoning that the plaintiff’s conclusory assertions about
being “very upset” and “angry” were insufficient).
That leaves us with Wantz’s argument that he is entitled
to what he calls “statutory damages” because of Experian’s
willful misconduct. The first problem with Wantz’s position
is that “statutory damages” are unavailable under the Act.
Crabill v. Trans Union, LLC, 259 F.3d 662, 666 (7th Cir. 2001).
To the extent that Wantz is really trying to argue that he is
entitled to punitive damages, such relief is available under
the Act where the defendant violates the statute willfully. 15
U.S.C. § 1681n. To act willfully, a defendant must know-
ingly and intentionally violate the Act, and it “must also be
conscious that [its] act impinges on the rights of others.”
Phillips v. Grendahl, 312 F.3d 357, 368 (8th Cir. 2002) (collect-
ing cases). In the absence of evidence that Experian dis-
closed incorrect information about the Virginia judgment to
a third party, Wantz cannot even show that it violated the
Act’s reinvestigation requirement, much less that it con-
sciously impinged on his rights by knowingly and intention-
ally violating his rights. We therefore conclude that, as a
matter of law, Wantz was not entitled to punitive damages.
III.
No reasonable jury could award Wantz actual damages
for emotional distress (1) because Wantz presents no evi-
dence that Experian published his credit information to a
third party, and (2) because his evidence of emotional dis-
tress is limited to his own conclusory assertions, assertions
that, even if true, would not lead to the conclusion that his
treatment was inherently degrading. Wantz may not reach
8 No. 04-1272
a jury with his theory of punitive damages because, in the
absence of evidence that Experian shared information about
Wantz’s credit with a third party, he has no evidence that
Experian was conscious that it was impinging on his rights
under the Act.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-21-04