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. ) 

 )

TRIAL MEMORANDUM 

OF PLAINTIFF RICHARD T. FARREN

Plaintiff Richard T. Farren, by and through his undersigned counsel, submits this Trial 

Memorandum in accordance with this Court’s procedures and instructions provided at the final 

pre-trial conference in this matter, held in chambers on September 19, 2005. 

I. LEGAL STANDARDS

The are two straightforward legal issues remaining in this case for trial: (1) Whether 

Defendant negligently violated section 1681s-2(b) of the Fair Credit Reporting Act (“FCRA”), 

15 U.S.C. §§ 1681 et seq., as amended; and (2) Whether Defendant violated section 1692e(8) of 

the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. (“FDCPA”). 

A. FCRA 

The FCRA under section 1681s-2(b) provides that credit furnishers such as RJM must: 

 (1) conduct a reasonable investigation with respect to the disputed information; 

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 (2) review all relevant information provided to RJM by the credit bureaus; 

 (3) report the results of the investigation to the credit bureaus; and 

 (4) report any change to all three major credit bureaus if its investigation finds that 

 the information is incomplete or inaccurate. 

RJM was required to conduct a reasonable investigation; not merely a brief review of its 

own computer records. Johnson v. MBNA America Bank, NA, 357 F.3d 426, 431 (4th Cir. 

2004); see also Bruce v. First U.S.A. Bank, Nat. Ass’n., 103 F. Supp. 2d 1135, 1143 (E.D. Mo. 

2000). As the Fourth Circuit recently observed in affirming a denial of a credit finisher’s motion 

for summary judgment in an FCRA case, a jury may find that a credit furnisher’s investigation 

was unreasonable if the evidence establishes that the credit furnisher did not look beyond the 

information contained in its own computer system and did not consult any underlying 

documents, such as the original account application. Johnson v. MBNA America Bank, NA, 357 

F.3d 426, 431 (4th Cir. 2004).1

 

 Moreover, questions of the reasonableness of a company’s investigation under the FCRA 

are usually for the jury. See Cushman v. Trans Union Corp., 115 F. 3d 220, 225-27 (3d. Cir. 

1997); Agosta v. Inovision, Inc., 2003 WL 22999213 (E.D. Pa. Dec. 16, 2003) (denying 

summary judgment in FCRA case and allowing reasonableness of credit furnisher’s investigation 

to be determined by jury); Evantash v. G.E. Capital Mortg. Servs., Inc., 2003 WL 22844198 

 

1

 In determining whether a credit furnisher reported accurate and complete information following its 

investigation, a court must be mindful that “technical accuracy” is not a defense. Even if a credit item is technically 

accurate, a credit furnisher still violates the FCRA if the way in which it reports that item is “misleading or 

materially incomplete.” Evantash v. G.E. Capital Mortg. Servs., Inc., 2003 WL 22844198, at *4 (E.D. Pa. Nov. 25, 

2003); Koropoulos v. Credit Bureau, Inc., 734 F.2d 37 (D.C. Cir. 1984). A credit item can be considered inaccurate 

or incomplete for purposes of the FCRA if the way in which the credit furnisher reported it is misleading to potential 

creditors. Agosta v. Inovision, Inc., 2003 WL 22999213, at *5 (E.D. Pa. Dec. 16, 2003); see Curtis v. Trans Union, 

Nos. 02-C-207, 02-C-208, 2002 WL 31748838, at * 4 (N.D. Ill. Dec. 9, 2002) (finding that even factually correct 

information may be “inaccurate” for FCRA purposes where such information may be misleading to a party 

reviewing the consumer’s credit report). 

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(E.D. Pa. Nov. 25, 2003) (same); Sheffer v. Experian Info. Solutions, Inc., Civ. No. 02-7407, 

2003 WL 21710573 (E.D. Pa. July 24, 2003) (same). 

In the case at bar, a reasonable jury may conclude that RJM failed to conduct reasonable 

investigations in to Mr. Farren’s disputes with Experian and Trans Union and failed to update 

these credit bureaus to delete the disputed account at the same time. 

B. FDCPA

With respect to the FDCPA, plaintiff claims RJM violated the federal statute by: 

Communicating 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). 

The FDCPA was created to prohibit the use of abusive, deceptive and unfair debt 

collection practices by persons engaged in the debt collection industry. Wilson v. Quadramed 

Corporation, 225 F.3d 350, 2000 WL 1222164, *3 (3d Cir. 2000); Crossley v. Lieberman, 868 F. 

2d 566 (3d. Cir. 1989). Congress enacted the FDCPA upon the finding that there was abundant 

evidence of abusive, deceptive and unfair practices by many debt collectors. Wilson, supra, 

citing Miller v. Payco-General American Credits, Inc., 943 F.2d 482, 483-84 (4th Cir. 1991) 

(quoting 15 U.S.C. §§1692a and 1692e).2

 

 Consistent with several other titles of the federal Consumer Credit Protection Act 

(“CCPA”), the FDCPA establishes a system of enforcement primarily by private attorney’s 

general. 15 U.S.C. §1692k; Russey v. Rankin, 837 F. Supp. 1103, 1105 (D.N.M. 1993); Whatley 

v. Universal Collection Bureau, Inc., 525 F. Supp. 1204, 1206 (N.D. Ga. 1981). The FDCPA is 

 

2

 The continuing existence of such consumer abuse has only been confirmed by recent statistics. The Federal 

Trade Commission (“FTC”) recently found that more consumers complained about third-party debt collectors than 

any other industry in 2004. Federal Trade Commission, Annual Report: Fair Debt Collection Practices Act ( 2004).

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also similar to other titles of the CCPA in that it is a strict liability statute to be liberally 

construed, requiring no proof of deception or actual damages to obtain its statutory remedies. 

Bentley v. Great Lakes Collection Bureau, Inc., 6 F.3d 60, 63 (2d. Cir. 1993); Baker v. G.C. 

Services Corp., 677 F.2d 775, 780 (9th Cir. 1982). As the FDCPA is a strict liability statute, 

proof of one violation is all that is required to support judgment for a plaintiff. Woolfolk v. Van 

Ru Credit Corp., 783 F. Supp. 724, 725 (D. Conn.1990). 

 The FDCPA permits a consumer to recovery statutory damages up to $1,000.00. 15 

U.S.C. § 1692k(a)(2)(A). FDCPA also allows consumers to recover actual damages, in addition 

to statutory damages. 15 U.S.C. § 1692k(a)(1). With respect to actual damages under the 

FDCPA, courts from around the country, including the Third Circuit, have all held that 

emotional distress damages are actual damages deserving of compensation. See Anderson v. 

Conwood Co., 34 F. Supp. 2d 650 (W.D. Tenn. 1999) ($50,000 in actual damages awarded in 

absence of testimony other than worry, stress and anxiety); Stevenson v. TRW, 987 F.2d 288 (5th

Cir. 1993) ($30,000 in mental anguish and embarrassment damages, plus $20,700 in attorney’s 

fees); Thompson v. San Antonio Retail Merchants Ass’n, 682 F.2d 509 (5th Cir. 1982) ($10,000 

actual damages for humiliation and mental distress even when no out-of-pocket expenses); 

Morris v. Credit Bureau, 563 F. Supp. 962 (S.D. Ohio. 1983) ($10,000 for stress, anxiety, 

humiliation, injury to his reputation , his work, his family, his sense of well-being); Collins v. 

Retail Credit Co., 410 F. Supp. 924 (E.D. Mich. 1976) ($21,750 for loss of reputation, 

embarrassment, in recognition of the “many subtle and indirect adverse effects upon a personal, 

social and economic life”, $50,000 in punitive damages and $21,000 in attorney’s fees); Bryant 

v. TRW Inc., 689 F.2d 72 (6th Cir. 1982) ($8,000 for embarrassment and humiliation, attorney’s 

 

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fees $13,705); Belile v Allied Medical Accounts Control Associated Bureaus, Inc., 209 B.R. 658 

(E.D. Pa. 1997) (consumer is entitled to actual damages under the FDCPA, PDCTPR and 

UTPCPL for emotional distress arising from unlawful debt collection practices arising from 

letter violation); Crossley v Lieberman, 90 B.R. 682 (E.D. Pa 1988), aff'd, 868 F.2d 566 (3d. Cir 

1989) (actual damages in the form of emotional stress assessed at $1,000 for debt collector's 

violation of the FDCPA); In re Littles, 75 B.R. 241 (E.D. Pa. 1987), aff'd, 90 B.R. 700 (E.D. Pa. 

1988); Southern Siding Company, Inc, v. Raymond, 703 So.2d 44 (La. App., 1st Cir. 1997) 

(actual damages of $5000 and $2000 and $2000 in statutory damages were awarded to husband 

and wife under the FDCPA for mental and emotional distress in the form of undue stress, anxiety 

and sleeplessness and physical injury in the form of depression as result of threatening letter); 

Venes v. Professional service Bureau, 353 N.W. 2d 671 (Minn. Ct. App. 1984)($6000 awarded 

for undue stress as a result of debt collection violations involving harassing telephone calls); 

Smith v. Law Offices of Mitchell N. Kay, 124 B.R. 182 (D. Del. 1991)($3000 for actual 

damages in the form of emotional distress as a result of FDCPA violation). Moreover, damages 

for emotional distress, personal humiliation, embarrassment, sleeplessness, depression and 

mental anguish need not be proved by medical documentation or expert testimony and can be 

sustained by the consumer himself. See Belile, Crossley, Littles, Raymond. 

 RJM’s conduct, which will be established at trial via both testimony and documents, 

violated the FDCPA. Indeed, the clear and undisputed records in this case will show that RJM 

never marked the disputed debt as disputed with either Trans Union or Experian despite being 

put on notice of the dispute on at least three separate occasions. 

 

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 This Trial Memorandum is: 

Respectfully submitted,

FRANCIS & MAILMAN, P.C. 

BY: ___________________________ 

JAMES A. FRANCIS, ESQUIRE 

MARK D. MAILMAN, ESQUIRE 

JOHN SOUMILAS, ESQUIRE 

Land Title Building, 19th Floor 

100 South Broad Street 

Philadelphia, PA 19110 

(215) 735-8600 

Dated: October 7, 2005 

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