IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

Ann Marie Attridge §

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Plaintiff Civil Action No.:

5:20-cv-00205-OLG

V

Colonial Savings, F.A. and Trans 

Union, LLC

Defendants

Plaintiff’s Response to Motion for Summary Judgment by 

Defendant Colonial Savings, F.A.

____________________

Credit reports are largely composed of the information provided by furnishers. When a 

furnisher verifies information it knows to be false, liability is triggered under the Fair 

Credit Reporting Act. When a consumer finds false information, they can dispute it. 

Following each of Attridge’s disputes Colonial certified that it had verified information it 

knew to be false. Will this Court allow Colonial to escape liability after repeatedly 

certifying that it had verified false information? 

Case 5:20-cv-00205-OLG Document 40 Filed 07/23/21 Page 1 of 19
Factual Background1

1. In 2014 Ann Attridge tried to make an online mortgage payment to Colonial and 

was blocked. When she contacted Colonial she was told it was due to a bankruptcy 

flag in her file. She informed Colonial that she had never filed bankruptcy. Colonial 

said they would fix it. She believed the flag had been removed because the 

following day she was able to make payment. Colonial admits as this much—in its 

motion it produced an internal email showing its knowledge of the falsity as early 

as 20142:

2. The chain of emails following this email shows Colonial understood the impact of 

false bankruptcy reporting. At this time Attridge was not aware of whether 

Colonial had reported this information on her credit report. 

1 Exhibit 1 is Attridge’s declaration which give more detail as to the factual background. 

2 Exhibit 2 contains the 2014 email chain. 

Case 5:20-cv-00205-OLG Document 40 Filed 07/23/21 Page 2 of 19
3. Five years later, in 2019, Attridge, while seeking employment in the mortgage 

industry, was offered a job contingent on the results of a background check. When 

a HireRight background check came back she was flabbergasted. She saw that 

Colonial was now furnishing inaccurate information—reporting that her account 

was included in a bankruptcy. Information Colonial knew was false.

4. The same day Attridge contacted Colonial through its web portal to notify them of 

the error. Five days later, without a response, Attridge called Colonial and filed a 

dispute with HireRight. A week later Colonial responded acknowledging the 

bankruptcy reporting was false and showering blame on TransUnion. 3

Background on Credit Reporting 

5. Credit reports are largely composed of the information provided by furnishers. 

Furnishers send data to the credit bureaus via a set of codes known as the Metro 2 

format. The Metro 2 format is a long string of letters and numbers. Each 

combination of letters and/or numbers contains specific information reflected as 

information on a consumer’s credit report. See Chapter 3 of Defendant’s Exhibit 

A-9. 

6. This long string is broken into a number of sections or “fields” each with its own 

meaning. The Consumer Information Indicator (CII) field is where a furnisher can 

3 Exhibit 3: Colonial’s May 1, 2019 letter to Attridge acknowledging the false reporting.

Case 5:20-cv-00205-OLG Document 40 Filed 07/23/21 Page 3 of 19
report an account as having been included in a bankruptcy. Or erase an erroneously 

reported bankruptcy. 

7. Colonial attached 2017 Credit Reporting Resource Guide (2017 CRRG) as Exhibit 

A-9 to its motion4. The 2017 CRRG states on page 1-1:

8. While the 2017 CRRG instructs otherwise, Colonial’s credit reporting specialist

Deanzala “Dee” Johnson testified that per her training leaving the CII field blank 

would correct the bankruptcy reporting:

Q. Do you -- does the blank -- what effect does the 

blank line have in updating or changing the credit 

reporting?

A. It takes away any previously reported.

Q. It takes any previously reported what?

A. Reported code.

Q. Okay. So where did you learn that that takes away 

the previously reported codes?

A. When I was trained, and also from the manuals.

Deposition of Dee Johnson Page 22:12-20. Exhibit 5.

9. But the 2017 CRRG manual makes it clear leaving the CII field blank does not take 

4 Exhibit 4. Plaintiff attaches Chapter 1 of the 2017 CRRG. 

Case 5:20-cv-00205-OLG Document 40 Filed 07/23/21 Page 4 of 19
away the previously reported code. Per the 2017 CRRG page 4-22 (pictured in part 

below) “Regardless of the method of reporting, the indicator will be deleted 

only when another Consumer Information Indicator or Removal value (Q, S, 

U) is reported.” (emphasis in original):

5

10. Dee Johnson, Colonial’s credit reporting specialist, had this manual at her desk.

Q. Okay. Which manuals did you receive from Colonial?

A. I received Colonial's manual, resource manual, and 

5 See Exhibit 6 This image is taken from Page 4-22 of the 2017 CRRG. 

Case 5:20-cv-00205-OLG Document 40 Filed 07/23/21 Page 5 of 19
also received the CDIA manual from e-OSCAR.

Q. Okay. And when you say the "CDIA manual," do you 

mean the Credit Reporting Resource Guide?

A. Yes.

Q. And do you keep those at -- well, I assume prior to 

the pandemic, you worked at a desk at Colonial, 

correct?

A. Yes.

Q. And did you keep those manuals at your desk at 

Colonial?

A. Yes.

Deposition of Dee Johnson Page 7:6-19. Exhibit 5.

11. The Metro 2 format is a set of codes that are meant for machine, not human, 

interpretation. They are presented, for readability, on an ACDV form. Johnson 

reviewed these ACDV forms before submitting Colonial’s data to TransUnion. 

Q. Okay. So after you go through all the drop-downs and 

fill in all the boxes, you print this out, and you 

check it --

A. Yes.

Q. -- whenever you submit it?

A. Yes.

Q. And you check this document carefully?

A. Yes.

Deposition of Dee Johnson Page 19:2-9. Exhibit 5.

12. The CII field is presented on the ACDV form as a three box column among a rows

Case 5:20-cv-00205-OLG Document 40 Filed 07/23/21 Page 6 of 19
of boxes. Colonial’s credit reporting specialist reviewed this document carefully 

and intended to report the CII information as blank. Colonial was under the 

mistaken understanding that leaving it blank would correct the inaccurate 

reporting. It failed to understand the tools for credit reporting and adhere to the 

standards for credit reporting. Instead it incorrectly blamed TransUnion for not 

accepting a blank field as a removal value. 

Attridge’s First Dispute

13. Following receipt of Attridge’s first dispute and per her training, Colonial’s credit 

reporting specialist left the CII field blank. The end of the text on page two of the 

ACDV under “Submitted by:” the form states: 

“By submitting this ACDV, you certify that you have reviewed and 

considered all associated Images, you have verified the accuracy of the 

data in compliance with all legal requirements, and your computer 

and/or manual records will be adjusted to reflect any changes noted.” 

(emphasis added). 

14. Below is the relevant portion of Colonial’s May 14, 2019 ACDV form with the CII 

field highlighted6.

6 Exhibit 7 is a true and correct copy of the May 14, 2019 ACDV form with redactions per Fed. R. Civ. P. 5.2.

Case 5:20-cv-00205-OLG Document 40 Filed 07/23/21 Page 7 of 19
15. It does not contain a removal value as required on page 4-22. The negative, 

inaccurate reporting continued. So did the disputes. 

Attridge’s Second Dispute

16. Attridge again disputed the negative, inaccurate reporting. In a dispute response 

dated June 14, 2019 Colonial’s credit reporting specialist responded without 

putting a removal value (“Q”, “S”, or “U”) in the CII indicator7

. Again by 

submitted the ACDV she certified that she had verified the accuracy of the 

bankruptcy in compliance with all legal requirements.

17. The bankruptcy reporting did not change. The June 2019 dispute results from 

TransUnion (attached as Exhibit E8 to the amended complaint [Docket No. 13-7]) 

continue to reflect Colonial’s reporting: 

7 Exhibit 8 is a true and correct copy of the June 14, 2019 ACDV form with redactions per Fed. R. Civ. P. 5.2. 8 Attached as Exhibit 9 to this response. 

Case 5:20-cv-00205-OLG Document 40 Filed 07/23/21 Page 8 of 19
Attridge’s Third Dispute

18. Four months later, in a dispute response dated October 15, 2019, Colonial again 

responded without a removal value in the CII indicator9. This ACDV contains the

same certification of verification. Predictably, following this response Attridge’s 

report continued to reflect that her mortgage was included in a Chapter 7 

bankruptcy when it was not. 

19. Again, the failure to put a removal value had the effect of verifying its false 

reporting as accurate. TransUnion’s October 2019 dispute response shows that 

Colonial verified the bankruptcy reporting as accurate10:

9 Exhibit 10 is a true and correct copy of the October 15, 2019 ACDV form with redactions per Fed. R. Civ. P. 5.2. 10 Exhibit 11 contains a true and correct copy of the dispute response with redactions per Fed. R. Civ. P. 5.2.

Case 5:20-cv-00205-OLG Document 40 Filed 07/23/21 Page 9 of 19
Plaintiff’s Objection to Colonial’s Expert

20. Dean Binder, Colonial’s credit reporting expert has a long career as an expert 

witness. Here he makes a number of statements that are legal conclusions, made 

without the support of evidence, or are pure speculation. 

Legal Conclusion

21. First, Binder offers a legal conclusion in the guise of an expert opinion. He states 

that failing to use the “Q” code does not constitute an FCRA violation. This and 

other statements in his declaration are conclusions of law. An expert’s legal 

opinion is inadmissible. Particularly when, as shown above, its not difficult to 

comprehend what happened here. 

“Rule 704, however, does not open the door to all opinions. The Advisory 

Committee notes make it clear that questions which would merely allow the 

witness to tell the jury what result to reach are not permitted. Nor is the 

Case 5:20-cv-00205-OLG Document 40 Filed 07/23/21 Page 10 of 19
rule intended to allow a witness to give legal conclusions.”

Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983)

“An expert's legal opinions are inadmissible.”

Olson v. City of Burnet, No. A-20-CV-00162-JRN, 2021 U.S. Dist. LEXIS 

69851, at *7 (W.D. Tex. 2021) (citing Owen)

22. Legal conclusions are familiar territory to Binder: 

“The Court agrees that much of Binder's declaration consists of conclusory 

statements that go directly to legal issues at the heart of this summary 

judgment dispute.”

Sung Gon Kang v. Credit Bureau Connection, Inc., No. 1:18-CV-01359-AWISKO, 2021 U.S. Dist. LEXIS 41108, at *15 (E.D. Cal. 2021).

Lack of Foundation, Speculation, Reliability 

23. Further, Binder’s claims are unsupported by the evidence. He did not review any 

evidence to support his testimony that the other bureaus changed their reporting in 

response to Colonials updated reporting. Under “Documents Reviewed for this 

Matter” he includes portions of TransUnion’s production, two pages of 

Colonial’s production, and credit reporting from Colonial directed at TransUnion.

24. Plaintiff objects that the statement, “The same type of correction was successful 

with CRA’s[sic] Equifax and Experian as Defendant reports the exacts[sic] same 

information to all 3 CRA’s[sic].” Nowhere does he identify what documents he 

alleges contain information about any other bureaus. Plaintiff objects that Binder 

lacks an evidentiary foundation and he based his opinion on speculation.

Case 5:20-cv-00205-OLG Document 40 Filed 07/23/21 Page 11 of 19
25. He cannot testify as to Experian and Equifax’s actions as he has not reviewed any

documents concerning them. Worse yet, Binder testifies inconsistently with 

Colonial’s discovery requests. In response to requests for admission Colonial only

admits to furnishing data to TransUnion. See responses to requests for admission 

2 and 3 in Exhibit 12. In response an interrogatory requesting the identity of every 

entity who received the disputed information Colonial identifies eight pages of 

documents AMA 189-194 and AMA 220-221. See interrogatory 4 in Exhibit 13. 

These documents are the ACDV forms sent to TransUnion. AMA 189-190 is the

May 14, 2019 ACDV attached referenced above as Exhibit 7. AMA 191-194 are two 

copies of the same two-page ACDVs, AMA 193-194 is referenced above as Exhibit 

8. AMA 191-192 are duplicates of AMA 193-194 and are redacted and attached as 

Exhibit 14. AMA 220-221 are the October 15, 2019 ACDV attached above as 

Exhibit 10. All of these are communications to TransUnion. 

26. The incorrect reporting didn’t appear at any other bureau because Colonial 

furnished the information only to TransUnion. Plaintiff objects that Binder’s 

testimony is unreliable. 

Wrong Manual

27. Finally, Plaintiff objects that Binder’s opinions are based on the 2019 CRRG 

manual. Colonial provided the 2017 CRRG in response to discovery requests and 

attached the 2017 CRRG to its motion. Nowhere does Binder explain the 

Case 5:20-cv-00205-OLG Document 40 Filed 07/23/21 Page 12 of 19
differences between these two documents or why he is referring to a different 

manual than the one used by Colonial.

Colonial’s Expert

28. Subject to the above objections: Binder chants Colonial was “devoted to the 

process of the correction.” That devotion is not borne out by Colonial’s reporting.

It knew the reporting was inaccurate and continued to repeat it. The FCRA 

prohibits this:

“A person shall not furnish any information 

relating to a consumer to any consumer reporting 

agency if the person knows or has reasonable cause 

to believe that the information is inaccurate.” 15 

U.S.C. 1681s-2(a). 

29. Colonial’s expert can spew endless technical jargon at the Court, but proof is in 

the ends—information furnished, not in the means—how it was furnished. 

Whether accomplished by dropping the correct letter into the correct box, sending 

the correct form to the correct address, or signaling the correct set of dots and 

dashes in Morse code—what matters is that the information furnished is 

accurate—not the method of furnishing that information.

30. Here, after three disputes, handled by two different credit reporting specialists—

who had the manual within reach—Colonial’s failure to understand credit 

Case 5:20-cv-00205-OLG Document 40 Filed 07/23/21 Page 13 of 19
reporting tools and adhere to standards caused it to furnish information that it 

knew was inaccurate and a violation of the FCRA. 

Negligence and Willfulness

31. Colonial furnished inaccurate information to TransUnion under the certification of 

the verification of accuracy. Attridge repeatedly disputed it. Colonial incorrectly 

verified the false information. Colonial acted with negligence in handling 

Attridge’s disputes. It disregarded the manual that was within arm’s reach. The 

very manual which states—in plain language—what will and will not correct the 

false reporting. Otherwise it would not have repeatedly verified inaccurate 

information. Not only is this negligence, it rises to the level of willfulness.

“Only defendants who engaged in 'willful misrepresentations or 

concealments' have committed a willful violation and are subject to punitive 

damages under § 1681n.”

Cousin v. Trans Union Corp., 246 F.3d 359, 374 (5th Cir. 2001)

“For the violation to be "willful," thereby justifying an award of punitive 

damages under the Fair Credit Reporting Act, a defendant's course of 

conduct must exhibit a "conscious disregard" for or entail "deliberate and 

purposeful" actions taken against a plaintiff's rights.”

Sapia v. Regency Motors of Metairie, Inc., 276 F.3d 747, 753 (5th Cir. 2002)

“Rather, reckless disregard of an FCRA requirement is enough to qualify as 

a willful violation under § 1681n. Safeco, 551 U.S. at 71.”

Lowry v. Croft (In re Croft), 500 B.R. 823, 846-47 (Bankr. W.D. Tex. 2013)

32. Colonial acted with conscious disregard to Attridge. Colonial hired and trained 

Case 5:20-cv-00205-OLG Document 40 Filed 07/23/21 Page 14 of 19
credit reporting specialists. Each with the credit reporting manual on their desk. 

The manual contained warnings about understanding the tools for and maintaining 

the standards for credit reporting.11 It contained the codes they needed and the 

instructions on how to use them to remove the inaccurate reporting. Each 

specialist reviewed and signed off on each response they submitted. After each 

dispute they continued to cling to an approach they knew would not reflect 

accurate reporting. The only explanation is that they disregarded their training and 

manuals. This is sufficient for a jury to find that Colonial acted willfully. 

Damages

33. Colonial asserts that Attridge did not suffer damages as a result of the false 

bankruptcy reporting. Its expert, in other litigation, has testified to the damaging 

nature of bankruptcy reporting:

“An account included in bankruptcy is considered a major derogatory by 

FICO.”

In re Anzaldo, 612 B.R. 205, 212 (Bankr. S.D. Cal. 2020) (emphasis added).

34. Attridge’s career includes 23 years at Security Service Federal Credit Union with 

the last 11 as a senior mortgage loan officer. She has since worked in the mortgage 

industry. She takes pride in being well organized, a good manager of her finances, 

and a hard worker. She understands credit reporting, how it affects people, and 

11 See Exhibit 2.

Case 5:20-cv-00205-OLG Document 40 Filed 07/23/21 Page 15 of 19
how inaccurate information should be corrected.12

35. Colonial claims that she needs corroborating testimony to support an award of 

damages. Colonial deposed three witnesses that testified about Attridge’s mental 

anguish and emotional distress. Her sister testified about the toll the negative 

reporting has taken on her. See Exhibit 15. Her brother, an Austin police officer, 

testified that she was put on edge, hair trigger, and emotional because of this. See 

Exhibit 16. Her husband testified that from the time she learned of the false 

bankruptcy she has undergone a “marked character change.” See Exhibit 17.

36. Colonial ignored the evidence that it obtained in alleging that there is no 

corroborating evidence of her mental anguish.

37. Attridge details her mental anguish in her declaration attached as Exhibit 1. She 

details the saga of disputing the bankruptcy, her training, and the time and money 

spent disputing these items. She testifies as to how her employer and co-workers 

saw the false information and how that affected her. She estimates that she spent 

$200 and 40 hours in drafting disputed and mailing them. She values her time at 

$31 per hour for damages of $1,240. See Exhibit 18. 

12 See generally Exhibit 1. 

Case 5:20-cv-00205-OLG Document 40 Filed 07/23/21 Page 16 of 19
The Summary Judgment Standard 

38. Rule 56 provides that a party is entitled to a 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.”

39. Plaintiff has shown via the 2017 CRRG, deposition testimony, credit reporting 

documents, and Attridge’s declaration that there is a genuine dispute as to 

material facts. Colonial is not entitled to a judgment as a matter of law.

40. Attridge provides evidence to show:

a. Colonial furnished information it knew to be inaccurate;

b. Her credit report reflected that inaccurate information;

c. She disputed the inaccurate information;

d. Colonial received the disputes;

e. Colonial failed to correct its reporting; 

f. The inaccurate reporting was published to third parties; and 

g. Attridge suffered damages.

41. In evaluating summary judgment evidence, the Fifth Circuit holds that the Court 

must refrain from making credibility determinations or weighing the evidence. 

“When assessing whether a dispute to any material fact exists, we consider 

all of the evidence in the record but refrain from making credibility 

Case 5:20-cv-00205-OLG Document 40 Filed 07/23/21 Page 17 of 19
determinations or weighing the evidence.” Turner v. Baylor Richardson Med. 

Ctr., 476 F.3d 337, 343 (5th Cir. 2007).

Conclusion

42. Colonial furnished information that it knew was false—that Ann Attridge’s 

mortgage had been included in a Chapter 7 bankruptcy. As soon as Attridge 

discovered this she disputed it. Colonial certified that it had verified information it 

knew to be false. Attridge re-disputed. Colonial again certified it had verified it. 

She disputed it a third time. Colonial again certified the verification the false 

information. False information that was published to Attridge’s employer and coworkers. 

43. Colonial and its expert blame TransUnion. TransUnion followed credit reporting 

standards and reported exactly what Colonial furnished. Colonial’s expert 

misdirects on this point. He claims that other bureaus, who were never furnished 

the incorrect information, corrected it. He chants that Colonial was “devoted” to 

correcting it. 

44. But not devoted enough to refer to the manuals within arm’s reach of its credit 

reporting specialists. Manuals showing that leaving the CII field blank is ineffective 

at removing the incorrect reporting. Reporting that shows a sophisticated 

consumer who works in mortgage underwriting has a mortgage that was included 

in a bankruptcy. False bankruptcy information that caused her mental angish.

Case 5:20-cv-00205-OLG Document 40 Filed 07/23/21 Page 18 of 19
45. Plaintiff asks the Court to deny Defendant’s motion for summary judgment. 

Dated: July 23, 2021 Respectfully Submitted,

/s/William M. Clanton

William M. Clanton

Texas Bar No. 24049436

Law Office of Bill Clanton, P.C.

926 Chulie Dr. 

San Antonio, Texas 78216

210 226 0800

210 338 8660 fax 

bill@clantonlawoffice.com

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