IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

RICHARD T. FARREN ) 

 ) 

 Plaintiff, ) 

 vs. ) 

 ) Civil Action No. 04-995 

EXPERIAN INFORMATION ) 

SOLUTIONS, INC. ) 

 and ) 

TRANSUNION, LLC ) 

and ) 

ANDERSON FINANCIAL NETWORK, INC. ) 

and ) 

GMAC ) 

 and ) 

RJM ACQUISITIONS FUNDING, LLC ) 

 ) 

 Defendants. ) 

 )

 

PLAINTIFF RICHARD T. FARREN’S MEMORANDUM OF LAW IN OPPOSITION TO 

DEFENDANT RJM ACQUISITIONS FUNDING, LLC’S MOTION FOR 

RECONSIDERATION IN PART OF THE COURT’S JULY 29, 2005 ORDER

 Plaintiff Richard T. Farren, through undersigned counsel, respectfully submits this 

Opposition to Defendant RJM Acquisitions Funding, LLC’s (“RJM”) Motion for 

Reconsideration in Part of the Court’s July 29, 2005 Order (the “Motion for Reconsideration”). 

This Court granted in part and denied in part RJM’s motion for summary judgment. See Farren 

v. RJM Acquisitions Funding, LLC, Civ. No. 04-995, 2005 WL 1799413 (E.D. Pa. July 26, 2005) 

(“Memorandum and Opinion”). 

 For the reasons set forth below, RLM’s Motion for Reconsideration should be denied.

I. INTRODUCTION

 RJM’s Motion for Reconsideration is nothing more than a masked and bald attempt to get 

another bite at the proverbial apple. Unsatisfied that it obtained summary judgment only in part 

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in this consumer protection case, RJM now boldly moves this Court to reverse itself and also 

grant summary judgment with respect to Plaintiff’s remaining claims under section 1681s-2(b) of 

the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq., as amended, and under 

section 1692e(8) of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq.

(“FDCPA”); a request that this Court already rejected in its Memorandum and Opinion. 

 In so moving, RJM completely ignores the standard for a motion for reconsideration 

within this Circuit – which is to correct “manifest errors of law or fact” or to present “newly 

discovered evidence.” Indeed, RJM presents no new evidence whatsoever. Further, RJM does 

not even argue that this Court made an error of law, much less a “manifest error of law.” Rather, 

RJM simply assumes that this Court did not read the parties’ papers carefully enough the first 

time or listen to their positions at oral argument. Ignoring the cannon of stare decisis, RJM now, 

in essence, moves for summary judgment a second time with respect to the claims on which it 

did not prevail the first time around. 

 Nor does RJM’s attempt to say anything different in essence than what RJM already 

argued to this Court in its summary judgment papers and at oral argument on June 1, 2005. 

Indeed, there is no change in the facts and the only augmentation in the law within this Circuit is 

yet another decision denying summary judgment to a credit furnisher under FCRA, and allowing 

even willful claims and punitive damages to go to the jury. See DiPrinzio v. MBNA America 

Bank, NA, Civ. No. 04-872, 2004 WL 2039175 (E.D. Pa. Aug. 24, 2005). The DiPrinzio court 

denied summary judgment for essentially the same reasons that this Court denied summary 

judgment in part – because the credit furnisher failed to conduct a reasonable investigation and 

also failed to consistently update all of the credit bureaus to which it was reporting credit 

information. Id. 

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 RJM’s Motion for Reconsideration, therefore, is an unjustified and improper attempt to 

re-litigate decided claims, and should be denied. 

II. STANDARD FOR MOTION FOR RECONSIDERATION

 The standards controlling a motion for reconsideration are set forth in Federal Rule of 

Civil Procedure 59(e) and Local Rule of Civil Procedure 7.1. Vaidya v. Xerox Corp., Civ. No. 

97-547, 1997 WL 732464, at *1 (E.D. Pa. Nov. 25, 1997). “The purpose of a motion for 

reconsideration is to correct manifest errors of law or fact or to present newly discovered 

evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985); see also Drake v. 

Steamfitters Local Union, No. 420, Civ. No. 97-585, 1998 WL 564886, at *3 (E.D. Pa. Sept. 3, 

1998). “Courts should grant these motions sparingly, reserving them for instances when (1) there 

has been an intervening change in controlling law, (2) new evidence has become available, or (3) 

there is a need to correct a clear error of law or fact or to prevent manifest injustice.” James v. 

Interstate Credit and Collection, Inc., Civ. No. 03-1037, 2005 WL 1806501 at *1 (E.D. Pa. July 

29, 2005) (citing Gen. Instrument Corp. v. Nu-Tek Elecs., 3 F.Supp.2d 602, 606 (E.D. Pa. 1998), 

aff'd, 197 F.3d 83 (3d Cir.1999)). 

Here, there is no newly discovered evidence and the Court has not made any manifest 

errors of fact or law that would justify the granting of RJM’s Motion. 

III. ARGUMENT

A. There Is No Newly Discovered Evidence 

RJM does not present any “newly discovered evidence” to this Court. In fact, it admits 

that its Motion for Reconsideration is based exactly on the evidence that it presented in support 

of its motion for summary judgment. (See RJM’s Mem. of Law at 4, n.2). This evidence was 

considered by the Court and is part of the record in this case. 

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RJM continues to contend that all of the evidence in this case is “uncontroverted.” (See

RJM’s Mem. of Law at 1). That is false. For the sake of brevity, Plaintiff will not recast here 

the factual record, which was already presented to this Court with Plaintiff’s briefing in 

opposition to RJM’s motion for summary judgment. (See Plaintiff’s Mem. of Law in Opp. to 

RJM Mt. for Sum. Jud. at 3-15, 19-25, filed with this Court on May 20, 2005). In its 

Memorandum and Opinion, this Court pointed to several contested issues of material fact that 

preclude summary judgment. Farren v. RJM Acquisitions Funding, LLC, Civ. No. 04-995, 2005 

WL 1799413 ay * 1-2, 7, 10 (E.D. Pa. July 26, 2005). In any event, no facts in this case 

(whether contested or not) are “newly discovered.” 

Accordingly, there is no basis in fact to reverse the denial, in part, of RJM’s motion for 

summary judgment. 

B. RJM Does Not Even Argue That The Court Made A “Manifest Error Of 

Law or Fact” 

 

In addition to failing to bring any new evidence to this Court that may warrant the 

extraordinary measure of reconsideration of its decision to deny, in part, RJM’s motion for 

summary judgment, RJM also does not establish that this Court made a “manifest error of law or 

fact.” Indeed, RJM does not even make that argument. 

1. FCRA Section 1681s-2(b) 

 With respect to the portions of Plaintiff’s FCRA claim that are going to trial, RJM 

continues to cite and rely upon the single cursory (approximately one page in length) Seventh 

Circuit decision that it relied upon for the first time at oral argument. Westra v. Credit Control of 

Pinellas, 409 F.3d 825 (7th Cir. 2005). Westra was considered by this Court and cited in its 

Memorandum and Opinion. Contrary to RJM’s contentions, Westra does not stand for the broad 

proposition that the FCRA permits credit furnishers to escape any liability in an identity theft 

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case so long as they fill out – whether correctly or incorrectly, partially or fully – the forms that 

they choose to use in communicating with the credit bureaus. Moreover, the facts in this case are 

contested as to whether RJM followed its own procedures, completed its own forms properly and 

consistently, whether it was reasonable in investigating the missing date of birth and the false 

address, and whether it updated both the Trans Union and the Experian credit bureaus 

consistently and at the same time, among other things. See Farren v. RJM Acquisitions Funding, 

LLC, Civ. No. 04-995, 2005 WL 1799413 at * 1-2, 7, 10 (E.D. Pa. July 26, 2005). This Court 

made no manifest error of law or fact in denying RJM motion for summary judgment despite the 

Westra decision. 

 Importantly, Westra is simply not the end-all and be-all in FCRA litigation. The FCRA 

requires a credit furnisher, such as RJM, to (1) conduct a reasonable investigation into consumer 

disputes received from the credit bureaus (15 U.S.C. § 1681s-2(b)(1)(A)) and (2) if the credit 

furnisher makes any change to the reporting of the information disputed by the consumer 

because the investigation finds that the information is inaccurate or incomplete, it must make that 

change to all consumer reporting agencies to which it reports – not only one or two of those 

agencies (15 U.S.C. § 1681s-2(b)(1)(D)). This is precisely what Plaintiff argued in his 

opposition to RJM’s motion for summary judgment. (See Plaintiff’s Mem. of Law in Opp. to 

RJM Mt. for Sum. Jud. at 19, 24, filed with this Court on May 20, 2005). 

Numerous circuit and district court decisions have held that the type of cursory and 

superficial “investigation” that was performed in this case simply does not meet the standards set 

forth under FCRA section 1681s-2(b). Johnson v. MBNA America Bank, NA, 357 F.3d 426, 431 

(4th Cir. 2004); see Richardson v. Fleet Bank of Mass., 190 F. Supp.2d 81, 88 (D. Mass. 2001); 

Agosta v. Inovision, Inc., Civ. No. 02-806, 2003 WL 22999213 (E.D. Pa. Dec. 16, 2003); 

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Evantash v. G.E. Capital Mortg. Servs., Inc., 2003 WL 22844198 (E.D. Pa. Nov. 25, 2003); 

Sheffer v. Experian Info. Solutions, Inc., Civ. No. 02-7407, 2003 WL 21710573 (E.D. Pa. July 

24, 2003); see also DiPrinzio v. MBNA America Bank, NA, Civ. No. 04-872, 2004 WL 2039175 

(E.D. Pa. Aug. 24, 2005). All of these cases render decisions against credit furnishers such as 

RJM for failing to dig deeper in their investigations, rather than simply looking at their computer 

screens and completing one page forms (called CDVs or ACDVs). 

In fact, the very recent decision in DiPrinzio within this District allows willfulness claims 

and punitive damages to go forward to the jury against a credit furnisher, MBNA, which did 

nothing more than complete a CDV form based exclusively on information from its computer 

database, without any further investigation. DiPrinzio v. MBNA America Bank, NA, Civ. No. 04-

872, 2004 WL 2039175 (E.D. Pa. Aug. 24, 2005). 

 Nor does RJM pay any attention to this Circuit’s mandates for a reasonable investigation 

under the FCRA. See Cushman v. Trans Union Corp., 115 F. 3d 220, 225-27 (3d. Cir. 1997). 

Although the Cushman case is against a consumer reporting agency (“CRA”) and not a credit 

furnisher, the FCRA requires both CRAs and credit furnishers to conduct investigations or 

reinvestigations into consumer disputes. See 15 U.S.C. § 1681i(a)(1)(A) and 15 U.S.C. § 1681s2(b)(1)(A). In a recent well-reasoned and comprehensive decision, the Fourth Circuit relied 

upon Cushman in explaining the similar investigation duties of credit furnishers in a section 

1681s-2(b) case. Johnson v. MBNA America Bank, NA, 357 F.3d 426, 432 (4th Cir. 2004) (citing 

Cushman and Henson v. CSC Credit Servs., 29 F.3d 280, 287 (7th Cir. 1994) for proposition that 

credit furnishers must conduct a reasonable investigation). Many courts within this District have 

also followed the Cushman standard in credit furnisher cases brought under FCRA section 

1681s-2(b). See Evantash, Agosta, Sheffer, DiPrinzio, supra. Plaintiff is not aware of any court 

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with this District, other that this Court, to have departed from the Cushman standard in assessing 

the investigation duties of credit furnishers under the FCRA. 

 Moreover, a recent district court decision in the Eastern District of Pennsylvania has 

rejected the notion that this Circuit would adopt a lower standard for CRA investigations that 

was espoused in another recent Seventh Circuit decision. See O’Brien v. Equifax Info. Servs., 

Civ. No. 03-6583, 2005 WL 1941650 at *5 (E.D. Pa. Aug.11, 2005) (rejecting notion that Third 

Circuit would follow Seventh Circuit’s Sarver decision in consumer reporting agency FCRA 

case). 

 Given the above-cited case law, it simply would be specious for RJM to argue that this 

Court made a manifest error of law or fact in denying Defendant’s motion for summary 

judgment, in part, as to the FCRA section 1681s-2(b) claim. There is no basis either in law or 

fact for reversal of this Court’s decision in that regard. Certainly, RJM does not establish that 

reversal is necessary to “prevent manifest injustice.” James v. Interstate Credit and Collection, 

Inc., Civ. No. 03-1037, 2005 WL 1806501 at *1 (E.D. Pa. July 29, 2005). Accordingly, RJM’s 

motion for reconsideration should be denied. 

2. FDCPA Section 1692e(8) 

 RJM also seeks this Court to reverse itself with respect to its decision to allow Plaintiff to 

proceed to trial with his FDCPA section 1692e(8) claim that RJM failed to communicate to the 

credit bureaus that the disputed debt was in fact disputed. FDCPA section 1692e(8) provides: “A 

debt collector may not use any false, deceptive, or misleading representation or means in 

connection with the collection of any debt. Without limiting the general application of the 

foregoing, the following conduct is a violation of this section . . . Communicating or threatening 

to communicate to any person credit information which is known or which should be known to 

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be false, including the failure to communicate that a disputed debt is disputed.” 15 U.S.C. § 

1692e(8) (emphasis added). 

 This Court made no manifest error of law or fact in denying RJM’s summary judgment as 

to the FDCPA section 1692e(8) claim. There is a clear factual record in this case that (1) 

Plaintiff disputed the RJM collection account through Experian and Experian advised RJM of the 

dispute; (2) Plaintiff disputed the RJM collection account through Trans Union and Trans Union 

advised RJM of the dispute; and (3) Plaintiff disputed the RJM collection account directly with 

RJM over the telephone. (See Plaintiff’s Mem. of Law in Opp. to RJM Mt. for Sum. Jud. at 

facts ¶¶ 28-36, 38-41, and exhibits attached in support thereof, filed with this Court on May 20, 

2005). 

 Despite knowing of these disputes, RJM communicated credit information back to 

Experian and Trans Union (in the form of CDV responses on July 25 and July 29, 2005 

respectively) and never marked the debt as disputed. It simply verified this false collection 

account’s accuracy. RJM also failed to mark the debt as disputed after Plaintiff’s telephone 

dispute in August 2003, when it allegedly “updated” the credit bureaus, according to its own 

records on August 24, 2003. (See Plaintiff’s Mem. of Law in Opp. to RJM Mt. for Sum. Jud. at 

facts ¶¶ 28-36, 38-41, and exhibits attached in support thereof, filed with this Court on May 20, 

2005). 

 These are multiple communications of credit information to third parties that fail to mark 

a disputed debt as disputed. Such communications violate FDCPA section 1692e(8). At least 

one other court within this District has found that issues of material fact existed and allowed an 

FDCPA section 1692e(8) claim to proceed to a jury trial under similar circumstances. See 

Agosta v. Inovision, Inc., Civ. No. 02-806, 2003 WL 22999213 at *7 (E.D. Pa. Dec. 16, 2003). 

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 In its Motion for Reconsideration, RJM cites (for the first time) certain FTC commentary 

that provides that debt collectors are required to mark a debt as disputed during the 

communication to the credit bureaus, not afterwards. (See RJM’s Mem. of Law at 10 (citing 53 

Fed. Reg. 50097-50110 (Dec. 13, 1988)). 

 As a threshold matter, such an argument is waived because RJM failed to raise it in its 

original motion for summary judgment. See Prousi v. Cruisers Division of KCS Inter., Civ. No. 

95-6652, 1997 WL 793000 at * 3 (E.D. Pa. Dec. 8, 1997) (argument waived when not raised in 

original motion for summary judgment). 

 Moreover, FTC commentary is not biding upon this or any court. See Fischl v. General 

Motors Acceptance Corp., 708 F.2d 143, 149 n.4 (5th Cir. 1983). 

 Finally, and perhaps most importantly, this argument also fails squarely on its merits 

because the part of the FTC commentary that RJM focuses upon is not applicable to this case. 

Plaintiff is not claiming that RJM should have marked the disputed collection account as 

disputed before it knew of the dispute or that RJM should have updated a previous 

communication due to a post-report dispute. He is claiming that FDCPA section 1692e(8) 

required that the debt be marked as disputed during the communications in July and August 2003 

when it communicated with the credit bureaus via CDV and “update” and never marked the debt 

as disputed. There can be no doubt that RJM “knew or should have known” of Plaintiff’s 

disputes on July 25 and 29 and August 24, 2003 (and, of course, later), before it communicated 

with the credit bureaus via CDV and update. Indeed, the “CDV” and “update” communications 

in July and August 2003 were in response to Plaintiff’s disputes that had been already received. 

Thus the FTC commentary regarding “post-report disputes” is not applicable here; indeed, it is 

the “disputed debt” portion of that same commentary that applies to the facts of this case. 

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 In sum, RJM has presented no evidence that this Court made a “manifest error of law or 

fact” with respect to denying summary judgment as to Plaintiff’s FDCPA section 1692e(8) 

claim. Accordingly, RJM’s Motion for Reconsideration must be denied. 

C. RJM Misrepresentations And Gratuitous Comments Should Be Ignored 

Although completely irrelevant to its Motion for Reconsideration, in its brief RJM makes 

several gratuitous comments concerning other claims in this case and other parties (which have 

settled) that are misleading and improper, and should thus be ignored by this Court. For 

example, RJM states that other defendants have already compensated Plaintiff for his harm. 

(See, e.g., RJM’s Mem. of Law at 11 n.6). RJM has no basis in law or fact to make such a 

statement. 

Plaintiff had many disputes regarding many fraudulent accounts, not just his disputes 

with RJM. The history of disputes with other parties, the origin of the accounts, the chronology 

of the reporting or re-insertions of these other accounts on Plaintiff’s credit reports, the different 

theories or liability (state and federal) and damages as to different defendants, and other 

important matters are completely ignored by RJM. This identity theft case was not exclusively 

about RJM. All other defendants have settled. RJM never even bothered to take any discovery 

from them when they were still in the case in order to find our how their conduct related to this 

case. 

RJM is also mistaken in assuming that settlements with other parties has any bearing on 

Plaintiff’s individual statutory claims under the FCRA and FDCPA as to RJM, as there is no setoff, joint tortfeasor liability, or right to indemnity or contribution under the federal statutes at 

issue. See Texas Instruments Inc. v. Radcliff Material, Inc., 451 U.S. 630, 638 (1981) (in cases 

alleging a violation of a federal statute, there exists no right to off-set unless the statute itself or 

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federal common law so provides). Indeed, settlement agreements between plaintiff and other 

defendants in an FCRA case are not discoverable or relevant in limiting the liability of another 

defendant. Betts v. Equifax Credit Information Servs., 245 F. Supp. 2d 1130, 1136 (W.D. Wash. 

2003); see also Kerr v. Wanderor & Wanderor, 211 F.R.D. 625, 632 (D. Nev. 2002) (no right to 

off-set under the FDCPA). 

RJM’s statements regarding other parties or settlements are simply an unjustified and 

misleading attempt to prejudice Plaintiff, and must be summarily discounted. 

IV. CONCLUSION 

 For the reasons stated above, as well as the reasons set forth in Plaintiff’s Opposition to 

Defendant’s motion for summary judgment dated May 20, 2005, which are incorporated by 

reference herein, Defendant RJM Acquisitions Funding, LLC’s Motion for Reconsideration 

should be denied. 

Respectfully submitted, 

 FRANCIS & MAILMAN, P.C.

 BY: ____________________________ 

 JAMES A. FRANCIS, ESQUIRE 

MARK D. MAILMAN, ESQUIRE 

JOHN SOUMILAS, ESQUIRE 

 Attorneys for Plaintiff 

 Land Title Building, 19th Floor 

 100 South Broad Street 

Philadelphia, PA 19110 

 (215) 735-8600 

Date: September 1, 2005 

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