### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 10771

JULIANA JETT , Plaintiff

–

Appellant , versus AMERICAN HOME M ORTGAGE SERVICING, INCORPORATED , Defendant

– Appellee

.

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:12

- CV

- 2136

ON PETITION FOR PANEL REHEARING

Before SMITH, PRADO, and OWEN, Circuit Judges. PER CURIAM:
The petition for panel rehearing is DENIED. To address matters raised in the petition, the opinion is revised to read as follows: United States Court of Appeals Fifth Circuit 

### FILED June 10, 2015 Lyle W. Cayce Clerk Case: 14-10771 Document: 00513074134 Page: 1 Date Filed: 06/10/2015No. 14

- 10771

2 Before SMITH , PRADO , and OWEN , Circuit Judges

. JERRY E. SMITH, Circuit Judge : * Juliana Jett sued American Home Mortgage Servicing, Incorporated (“American Home”) , for allegedly negligently and willfully failing to update her credit inform ation in violation of 15 U.S.C. § 1681s

- 2(b). The district c ourt entered summary judgment for American Home on both claims

. Because there is a genuine dispute of material fact as to negligence, we vacate as to that claim but affirm on the willfulness cla im

. I. Jett fell behind on her mortgage payments and filed for bankruptcy. After she complet ed her Chapter 13 plan, her Experian Information Solutions, Incorporated (“Experian”) , credit report erroneously showed the mortgage as dis charged in bankruptcy with a $0 balance. She disputed the listing , and Exper ian sent an automatic credit dispute verification (“ACDV”) form to Amer

ican Home. 1 Although American Home attempted to report the loan as cur rent with $0 past due an d a principal balance of approx imately $35,000, Jett’s credit report was not updated despite that four ACDV forms were exchanged o ver two

- and

- one - half years
. Jett alleges that she was denied refinancing because American Home had negligent ly and wil l fully misreported the status of the mortgage

. Specifically, she maintains that it failed to update the Metro 2® Consumer

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

1 When a c redit reporting agency (“CRA”) receive s a dispute from a consumer, it send s an ACDV form to the furnisher of the credit information . The form contains the information that is being reported, what the consumer disputes, and blank fields for the furnisher to edit and return. Case: 14-10771 Document: 00513074134 Page: 2 Date Filed: 06/10/2015No. 14

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3 Infor mation Indicator (“CII”) field properly in the ACDV form s
. Instead of chang ing the CII code to “Q ” as instructed by the Consumer Data Industry Association ’s 201 2 Credit Reporting Guide , American Home left the field blank

. A blank CII field signals that the CRA should keep reporting the orig

inal information , so none of the corrected information was processed by Exp erian

. The district c ourt entered summary judgment on the negligence claim because “ Jett ha[d] failed to adduce any evidence concerning [American Home’s] policies and procedures in responding to [ the ACDV] requests ” and her “evidence that [American Home] knew about [Experian’s] policies a nd procedures [wa s ] insufficient to show that [American Home] had a duty to con

form to them.” The court entered summary judgment on the wil l fulness claim because Jett did not respond to that portion of the motion for summary judgment.

II. I f a CRA notifies a furnisher of credit information (a “furnisher”) that a consumer disputes the reported informa tion, the furnisher must “review all rel evant information provided by the [CRA],” “conduct an investi ga tion,” “report the results of the investigation,” and “modify . . . delete . . . or . . . per man ently block the reporting of [inaccurate or incomplete] information.” § 1681s

- 2(b)(1)(A )

– (E). The Fair Credit Re porting Act creates a private cause of action to enforce § 1681s

- 2(b) : “A ny person who is negligent in failing to

com ply with any requirement imposed under this subchapter with respect to any consumer is liable ” for actual damages and attorney’s fees. 2 Moreover,

2 See Smith v. Santander Consumer USA, Inc. , 703 F.3d 31 6, 317 (5th Cir . 2012) (per
cur iam) ; Young v. Equifax Credit Info. Servs., Inc. , 294 F.3d 631, 639 (5th Cir. 2002)

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4 “ [a]ny person who willfully fails to comply with any require ment imposed under this subchapter with respect to any consumer is liable to that consumer” for actual, statutory, and punitive damages and attorney’s fees. § 1681n(a). Relying on Chiang v. Verizon New England Inc. , 595 F.3d 26, 38

– 41 (1st Cir. 20 10) , American Home urges that summary judgment was proper because Jett failed to show that its policies and procedures were unreasonable. In Chiang , summary judgment was affirmed because, inter alia , the plaintiff

“ ha[d] presented no evidence that the procedures employed by [the furnisher] to investigate the reported disputes were unreasonable.” Id. at 38

. 3 But u nlike the furnisher in Chiang , A merican Home knew that Jett’s information was being reported inaccurately and attempted to correct it. Regardless of the poli

cies and procedures used to investigate the dispute , t he plain la nguage of § 1681s

- 2(b)(1)(C) and § 1681 o makes clear that a furnisher is liable if it negli

gently report s t he results of its investigation to the CRA

. 4
T here is a genuine issue of material fact as to whether American Home negligently failed to comply with the reporting requirements

. The first ACDV form told it to “[p]rovide complete ID and verify account information” and stated that Jett claimed the mortgage was current and should not be shown as foreclosed. The second form showed that the mortgage was still being reported inaccurately and instructed American Home to “[p]rovide complete ID and verify account information.” The third form directed American Home to

3 The court also noted that the plaintiff had “failed to show any actual inaccuracies that [the furnisher] could have found through a reasonable investigation

. ” Chiang , 595 F.3d at 38.

4 N othing in 12 C.F.R. § 1022.42 alters our understanding of § 1681s

- 2(b)(1)(C)

– (E). Although “[e]ach furnisher must establish and implement reasonable written policies and pro cedures regarding the accu racy and integrity of the information . . . that it furnishes to a [CRA],” § 1022.42, it is also required to “ provide to the [CRA] any correction

. . . that is nec

essary to make the information pro vided by the furnisher accurate,” § 1022.43 (e) (4)

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5 “[v]erify all amounts” and contained the annotation “Remove” in the CII field in the “Consumer Claims” column. In each instance, American Home trie d to correct the information but returned a blank CII field so Experian did not pro

cess the updates

. 5 Because there is a genuine dispute of material fact as to Amer ican Home’s negligence, summary judgment is not appropriate

. 6
III. For American Home willfully to have violated § 1681s

- 2(b) , it must have recklessly disregarded a statutory duty. See Safeco Ins. Co. of Am. v. Burr , 551 U.S. 47, 57

– 60 (2007)

. Recklessness is “generally understood [ ] in the sphere of civil liability as conduct violating an objecti ve standard: action entailing ‘an unjustifiably high risk of harm that is either known or so obvious that it should be known.’” Id. at 68 (quoting Farmer v. Brennan , 511 U.S. 825, 836 (1994)). Jett does not point to any evidence of willfulness ; r ather, she claims that Amer

i can Home’s motion for summary judgment “did not make any men tion of an absence of evidence regarding the issue of willfulness.” But Amer i can Home stated that “there are no genuine issues of material fact, and the sum mary judgmen t evidence establishes that [American Home] . . . did not will fully or negligently violate any provision o f 15 U.S.C [§] 1681s

- 2(b) ” (empha sis added). Further, Jett’s factual allegations would not support a finding that American Home acted willfully. The judgment is VACATED as to the negligence claim, AFFIRMED as to the willfulness claim, and REMANDED for further proceedings as needed.

5 The fourth form was sent after Jett’s refinancing application was denied.

6 American Home avers th at it was not negligent because the ACDV instructions did not provide notice that it needed to ente r a new code and another CRA was able to report the status of th e mortgage correctly

. Those are issues to be resolved at trial. See Cousin v. Trans Union Corp. , 246 F.3d 359, 368 (5th Cir. 2001) (“The adequacy of [a CRA’s] procedures is judged according to what a reasonably prudent person would do under the cir cumstances. In the majority of cases, reasonableness is a question for the jury.” (citation omitted))

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