In June 2002, Hennekam notified Buxton that her credit report reflected that she was enrolled
in credit counseling, which could impact her ability to obtain a home loan. Buxton then contacted
Lighthouse and asked to be removed from credit counseling, Lighthouse sent a letter to Buxton,
dated June 21, 2002, indicating that Buxton had withdrawn from credit counseling, Despite the
credit counseling notations on her credit report, on June 20, 2002, one day prior to the date of the
letter from Lighthouse, the Buxtons were pre-approved for a $320,000 home loan.

On July 6, 2002, Providian again reported to credit reporting agencies that Buxton was
enrolled in credit counseling. As of that date, Providian had received no information that Buxton
had withdrawn from credit counseling. From its perspective, based on all information supplied to
it, such report was accurate.’ On July 8, 2002, Buxton contacted credit reporting agencies to file
formal disputes regarding, among other things, the credit counseling notations on her credit Teport.
Buxton first telephoned Providian regarding the credit counseling dispute on July 12, 2002.6 On J uly
13, 2002, Providian received its first notice regarding this issue from a credit reporting agency, ‘Trans

Union.’ Buxton wrote a letter to Providian dated July 9, 2002, explaining that she was no longer in

* Although Buxton contends that she has insufficient information to respond to paragraph
29 of Providian’s statement of facts, Buxton has not pointed to any evidence that Providian
received any notice of a dispute regarding credit counseling until July 12, 2002, at the carliest.
Thus, it is undisputed that as of July 6, 2002, Providian had no notice that Buxton was not
enrolled in credit counseling.

§ Buxton claims in her materials that she attempted to cal! Providian on June 11 or 12,
2002. However, Buxton admitted as undisputed the first sentence of paragraph 28 of Providian’s
statement of facts, which states that Buxton’s first attempt to call Providian was on July 12,
2002. Consequently, this date is taken as undisputed.

7 Again, Buxton states that she has insufficient information to respond as to when.
Providian received information from Trans Union. This court cannot understand why Providian
did not provide a copy of such notice. However, Buxton attached the Automated Consumer
Dispute Verification form, which this court believes is the notice to which Providian refers, as

4


Buxton got exactly what she wanted. The FCRA does not mandate that in every case a furnisher of
information like Providian conduct the level of investigation Buxton suggests. Although the
determination of reasonableness is usually a factual question for the jury even when underlying facts
are undisputed, Providian’s reasonableness in this case is beyond question; therefore, summary
judgment in its favor is appropriate. Crabill v. Trans Union, L.L.C., 259 F.3d 662, 664 (7th Cir.
2001).
T, ACDV Response

Buxton also claims that Providian violated § 1681s-2(b) when it verified Buxton’s June and
July 2002 credit reports in response to the ACDV. Buxton, however, misses the point. In verifying
the information, Providian was not saying that Buxton’s account was still in credit counseling as of
July 29, 2002. Rather, after review of the ACDV and all information it possessed, Providian
believed the information provided to the credit reporting agencies in previous monthly reports,
particularly June and July, was accurate at the time it was furnished, The undisputed facts show that
on June 5 and July 6, 2002, based on all the information before it, namely the May 17, 2002, letter
from Lighthouse, Buxton was enrolled in credit counseling. Therefore, Providian did not supply
misleading information when it verified the ACDV. Further, Providian had no obligation to inform
the credit reporting agencies on July 16, 2002, or even July 29, 2002, that it had updated its records
to reflect that Buxton was not enrolled in credit counseling. All that is required is that the furnisher
conduct its investigation and report within thirty days, which Providian did. Finally, even if the

ACDV response was incorrect, Providian reported Buxton’s account status to credit reporting

information.



genuine issue as to any matcrial fact and that the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(¢). In ruling on a motion for summary judgment, the evidence of the
nonmovants must be believed and all justifiable inferences must be drawn in the nonmovants’ favor.
Anderson y. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), This court’s function is not to weigh
the evidence and determine the truth of the matter, but to determine whether there is a genuine issuc
for trial. A party who bears the burden of proof on a particular issue, however, may not rest on its
pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine
issuc of material fact that requires trial. Celotex Corp, v. Catrett, 477 U.S, 317, 324 (1986). In
considering a motion for summary judgment, this court is not required to scour the record in search
of evidence to defeat a motion for summary judgment; the nonmoving party must identify with
reasonable particularity the evidence upon which that party relies, Johnson v. Cambridge Indus.
Inc., 325 F.3d 892, 898 (7th Cir. 2003); Bombard v. Fort Wayne Newspapers. Inc., 92 F.3d 560, 562
(7th Cir. 1996). The evidence relicd upon must be competent evidence of a type otherwise
admissible at trial. Stinnett v. Iron Works Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th
Cir. 2002).
ANALYSIS

Buxton concedes that the only issue before this court is whether Providian conducted a
reasonable investigation in compliance with 15 U.S.C. § 1681s-2(b). (PI.’s Mem. at 8-9.) This
section requires a furnisher of information, such as Providian, after receiving notice from aconsumer
reporting agency, to conduct an investigation regarding the disputed information, review all relevant
information provided by the credit reporting agency, report the results of the investigation to the

credit reporting agency, and report the results to other credit reporting agencies if the original



credit counseling and requesting verification of such from Providian. Buxton faxed this letter to
Providian on July 15, 2002. Based on the July 12, 13, and 15, 2002, communications, Providian
investigated Buxton’s dispute. On July 16, 2002, Providian dropped Buxton from the debt
management program and changed its internal notation regarding Buxton’s account, showing that
she had in fact withdrawn from credit counseling.* Later that month, on July 29, 2002, Providian
processed an Automated Consumer Dispute Verification (“ACDV”) from credit reporting agency
Trans Union. Providian reported, after an investigation and based on the information it had before
it at the time of the prior reports, that the previous monthly reports, which indicated that Buxton was
enrolled in credit counseling, were accurate at the time they were furnished.

On August 7, 2002, Providian again furnished its regular monthly report of Buxton’s ercdit
information to credit reporting agencies. On that date, all references and notations that Buxton’s
Providian Visa card was being managed by credit counseling were forever removed. In fact, on
August 11, 2002, Buxton herself ordered a credit report, which showed the Providian account as
unblemished.

STANDARD OF REVIEW
Under Rule 56(c), summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

part of exhibit C of her statement of additional facts. Nevertheless, this date is immaterial. It is
undisputed that Providian first received notice on July 12, from Buxton herself, and investigated
and corrected her credit information within thirty days of that date.

§ Paragraph 32 of Providian’s statement of facts is taken as undisputed. Buxton’s
citations to paragraphs 11—18 of her statement of additional facts do not contradict Providian’s
statement. In addition, Providian’s internal records, attached to exhibit C of Buxton’s statement
of additional facts, reflect that on July 16, 2002, Buxton was no longer enrolled in credit
counseling.



(§ 16815-2(b)(1)(C), (D)) within thirty days (§ 1681s-2(b)(2)) of July 12, 2002." ‘This is all the law
requires.

Tn addition, the information Providian furnished in June and July 2002 was accurate at the
time it was reported. In June and July 2002, Providian had no information that Buxton’s Providian
Visa account was no longer enrolled in credit counseling; thus, the information furnished to the
credit reporting agencies was accurate at those times. When Providian reported on Buxton’s account
in August 2002, after learning and verilying that Buxton had withdrawn from credit counseling, the
report did not reflect that Buxton was in credit counseling.

Finally, Buxton argues that material facts are in dispute as to whether Providian’s
investigation was reasonable, citing primarily to an Eastern District of Missouri case, Bruce v. First
U,S.A. Bank, Nat’l Ass’n, 103 F, Supp. 2d 1135 (E.D. Mo. 2000). She argues that by failing to
contact her, Lighthouse, or anyone outside the company, Providian failed to conduct a reasonable

investigation. In some circumstances, like Bruce, Buxton may be correct. However, here, Providian

did not nced to do these things. Unlike Bruce, where the furnisher rejected the consumer’s dispute

and continued reporting the disputed information as accurate, Bruce, 103 F. Supp. 2d at 1139, 1141,

1143-44, upon receipt of a call and letter from Buxton and notice from Trans Union, Providian
accepted Buxton’s position, changed its records to reflect that Buxton was no longor enrolled in

credit counseling, and reported this fact to credit reporting agencies on August 7, 2002.'' Thus,

'° Because it is not clear that the ACDV [rom Trans Union is the July 13, 2002, notice at
issue, this court has used July 12, 2002, as the operative date on which Providian reccived notice
of a dispute.

"' The two other cases to which Buxton cites, Dalton v. Capital Associated Indus., Inc.,
257 F.3d 409, 415 (4th Cir, 2001), and Cushman v. Trans Union Corp,, 115 F.3d 220, 221 (3d
Cir. 1997), are distinguishable because they involve credit reporting agencies, not furnishers of

8


7 Silnute Odes Porm (06097)

ete

United States District Court, Northern District of Minois

Name of Assigned Judge
or Magistrate Judge

Sitting Judge if Other

mes F, Holderman
Jan than Assigned Judge

Mail AQ 450 form.

Docketing to mail natices.

Copy to judge/mugisteate judge,

CASE NUMBER 02 C 6288 DATE November 26, 2003
CASE BUXTON vs. EQUIFAX CREDIT INFORMATION SVCS et al
TITLE
[ln the following box (a) indicate the party filing the morion, ¢.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: ‘of the motion being presented.)
DOCKET ENTRY:
(1) Oo Filed motion of [ use listing in “Motion” box above.]
(2) ag Brief in support of motion duc
(3) ao Answer brief to motion duc. . Reply to answer brief due
(4) o Roling/Hearing on set for _ at
(5) 0 Status hearing[held/continucd to] [set for/re-set for] on ___ set for at
(6) Oo Pretrial conference[held/continued to] (set for/re-sct for] on set for At eee
(7) Qo Trial{set for/re-set for] on at
(8) o [BenclyJury trial] [Hearing] held/continued to __ al
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OC Local Rule 41.1 ClFRCP41(a)(1) 0 FRCP41(a)(2).
dao =f [Other docket entry} Pursuant to Memorandum Opinion and Order entered this day, defendant
Providian National Bank’s motion for summary judgment is granted. This action is dismissed in its
entirety. Any pending motions are moot.
day oa [For further detail sce order (on reverse side offattached to) the original minute order.]
No notices requited, advised in open court.
No notices required. uusiiber of notices: ‘
Notices mailed by judge's staff, 03
| Notified counsel by telephone, KG gi 20

186 a

BUND LO gs)
Sar yp ey pe
courtroom . ] “ve ray) zie insiled notion
depuly's ‘ ,
inal SMa id
Dutedtingg gecelved in
central Clerk's Office, rainy deputy initials



15 U.S.C, § 1681n(a). Buxton is correct that “{a] showing of malice or evil motive is not required
to prove willfulness under the Act, The plaintiff must only show that the defendant ‘knowingly and

intentionally committed an act in conscious disregard for the rights’ of the consumer.” Dalton, 257

F.3d at 418 (citations omitted). In the case at hand, Buxton has produced no evidence showing that
Providian knowingly and intentionally committed any act in conscious disregard of Buxton’s rights.
In fact, Providian did not violate the FCRA at all. Upon receiving information that its records may
noi be accurate, Providian properly conducted an investigation, changed its records, and reported the
updated information accurately to credit reporting agencies, all within thirty days. It reported, in
response to an ACDV, that at the time of its prior monthly reports, the information provided was
accurate. Providian had no necd, let alone a legal obligation, to conduct a more thorough
investigation. Buxton got exactly what she wanted. Because there is no evidence of willfulness on
the part of Providian, Buxton is not entitled to damages under the FCRA (and her attorneys cannot

recover attorneys’ fees), Sce Crabill, 259 F.3d at 667 (holding that following Buckhannon Board

& Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S, 598
(2001) and Bryanty. TRW. Inc., 689 F.2d 72 (6th Cir. 1982), “a plaintiff must obtain formal judicial
relief, and not merely ‘success,’ in order to be deemed a prevailing or successful party under any

attorneys’ fee provisions comparable to the civil rights attorneys’ fee statute [such as the FCRA|”).

11



agencies accurately on August 7, 2002, within the thirty-day period, Accordingly, the undisputed
facts show that Providian’s actions were reasonable.
Tl. Damages

To obtain an award of actual damages under 15 U.S.C. §§ 16810 or 1681n, Buxton must

show a causal connection between Providian’s alleged FCRA violation and her denial or loss of

credit. Crabill, 259 F.3d at 664. Ilere, itis undisputed that Buxton reccived a $320,000 home loan.
In fact, Buxton was approved for this loan by letter dated June 20, 2002 (Def.’s Stmt. of Facts, Ex.
J), well before her credit records were reported on August 7, 2002, and even before Lighthouse ever
sent her the Jetter dated June 21, 2002, indicating that she had withdrawn from credit counseling
(Def.’s Stmt. of Facts, lx. B). Therefore, although Hennekam states in his affidavit that “the fact
that a person has an account in credit counseling will cause a mortgage application to fail. That mark
alone will cause a rejection” (P1.’s Stmt. of Add’l Facts, Ex. E 6), Buxion’s credit counseling
“mark” did not cause her mortgage application to fail. Buxton essentially concedes this point, as
well as Providian’s argument that she did not suffer cognizable emotional distress, as she fails in her
response memorandum to address the issue of actual damages except in a most cursory way.

Instead, Buxton claims that she is entitled to statutory damages of “not less than $100 and
not more than $1,000....” 15 U.S.C. § 1681n(a)(1)(A), This subsection provides in full:

Any person who willfully fails to comply with any requirement imposed under this

subchapter with tespect to any consumer is liable to that consumer in an amount

cqual to the sum of—

(1)(A) any actual damages sustained by the consumer as a result of the failure or

damages of not less than $100 and not more than $1,000; .. .

(2) such amount of punitive damages as the court may allow; and

(3) in the case of any successful action to enforce any liability under this section, the
costs of the action together with reasonable attorney's fees as determined by the court.

10



information was incomplete or inaccurate. 15 U.S.C. §§ 1681s-2(b)(1)(A)-(D). ‘The furnisher must
complete all investigations, reviews, and reports within thirty days of receiving notice of the dispute
from the credit reporting agency. 15 U.S.C. § 1681s-s(b)(2). In the case at hand, viewing the facts
in the light most favorable to Buxton, the bottom line is that she got exactly what she was entitled
to under the law: Providian was notified ofan inaccuracy, investigated it, corrected it, and accurately
reported to the credit reporting agencies the following month, all within thirty days of the initial
notification of a dispute.
I, Reasonableness of the Investigation

It is undisputed that July 12, 2002, was the first date Providian became aware of any dispute
regarding Buxton’s account. Then, on July 13, 2002, Providian received a notice of dispute from
‘Trans Union, and on July 15, 2002, Buxton faxed information to Providian. After receiving and
reviewing the above information, Providian investigated the dispute and confirmed that Buxton had
withdrawn’ from credit counseling, On July 16, 2002, Providian updated its intemal records by
temoving the credit counseling notations from Buxton’s account. On August 7, 2002, when
Providian reported Buxton’s account to credit reporting agencies as part of its regular reporting
cycle, the credit counseling notations had becn removed. From that date forward, Buxton’s
Providian Visa account does not reflect that it is in credit counseling. Accordingly, Providian

completed its required investigation (§ 1681s-2(b)(1)(A)), review (§ 168 1s-2(b)(1)(B)), and report

° Although Buxton personally may never have enrolled in credit counseling, from the
perspective of Providian, she had. It is undisputed that Lighthouse enrolled her in credit
counseling, If Buxton was unwittingly enrolled in credit counseling, she should seek relicf from
Lighthouse. As of July 16, 2002, the only information Providian had was that Buxton had
withdrawn from credit counseling.



Buxton told the Lighthouse telemarketer that she was interested in credit counseling and that she
wanted to review Lighthouse’s literature. Buxton does not believe that she authorized Lighthouse
to enter her into credit counseling; nevertheless, Lighthouse did in fact enroll Buxton in credit
counseling. (Pl.’s Resp. to Def.’s Stmt. of Facts {| 6.)

Defendant Providian provides credit cards to consumers and is requircd to furnish
information regarding these consumers to credit reporting agencies. The parties agree that Providian
is a furnisher of information, not a credit reporting agency, On or about May 30, 2002, Providian
received a letter from Lighthouse notifying Providian that Buxton had enrolled in credit counseling
regarding her Providian Visa credit card.’ Providian then, in the normal course of its reporting,
furnished this information to credit reporting agencics. On June 5, 2002, based on the information
it possessed, Providian first reported to credit reporting agencies that Buxton was enrolled in credit
counseling.* As of that date, Providian had no information from anyone that Buxton was not
enrolled in, or had withdrawn from, credit counseling. Thus, from Providian’s standpoint, based on

all available information supplied to it, the June 5, 2002, disclosure was accurate.

3 For some reason this court cannot understand, Providian did not include a copy of this
letter among Providian’s summary judgment materials filed with (he court. Buxton, however,
attached the letter as part of exhibit C of her statement of additional facts. Although Buxton
claims that she has insufficient information to respond to Providian’s statement of facts
paragraph 10, the letter makes it clear, and thus undisputed, that Providian received, on May 30,
2002, notice from Lighthouse that Buxton was enrolled in credit counseling.

4 Although Buxton claims she has insufficient information to respond to the dates
Providian provided her credit information, this is immaterial. It is undisputed that in both June
and July 2002 Providian reported Buxton’s Providian Visa account as being in credit counseling,
and Buxton’s credit reports of June and July reflected that she was in credit counseling. (Pl.’s
Resp. to Def.’s Stmt, of Facts § 22.)



STATEMENT OF UNDISPUTED FACTS!

Tn March 2002, plaintiff Eva Buxton and her then-husband sought to obtain a mortgage for
a home in southern California, In mid- to late-April 2002, the Buxtons met with Prime Source
Mortgage loan oflicer Jim Hennekam (“Hennekam”Y to discuss a pre-approved home loan and begin
the qualification process. Around that same time, Buxton received a call from Lighthouse Credit

Foundation (“Lighthouse”), a company that helps repair bad credit, regarding credit counseling.

! The Statement of Undisputed Facts is drawn from Providian’s 56.1(a) statement of
undisputed facts, Buxton’s 56.1(b) response to statement of undisputed facts, Buxton’s statement
of additional undisputed facts, and Providian’s responscs thereto, Providian has moved to strike
significant portions of Buxton’s 56.1(b) response and statement of additional facts. In crafting
the statement of undisputed facts and in reviewing the evidence in this case, this court has
considered only admissible evidence which is supported by the record.

{n addition, this court has noticed a troubling trend of counsel failing to comply with
Local Rule 56.1, often necessitating, as in this case, needless motions to strike and responses and
replies thereto, even when counsel are told no reply is necessary. (Nov. 13, 2002, Minute Order,
Dkt. No. 51.) Local Rule 56.1 was intended to streamline the summary judgment process for the
partics and the court, but it frequently has the opposite effect. Here, counsel, particularly
plaintiff's counsel, are advised to read carefully Judge Castillo’s opinion in Malec v. Sanford,
191 E.R.D. 581 (N.D. Ll. 2000), which explains Local Rule 56.1 in great detail. Although
plaintiff's counsel’s 56.1 submissions have fallen well below the mark, defendant's counsel’s
performance is far from exemplary. In particular, defendant’s counsel, in their memorandum in
support of summary judgment, cite directly to the record, as opposed to their 56.1(a) statement of
facts. They have submitted exhibits both with their memorandum and 56.1 statement,
unnecessarily complicating matters. The memorandum should contain citations only to the 56.1
statement of facts, which in turm cites to the relevant and material portions of the record attached
to the statement. Malec, 191 F.R.D. at 586. Amazingly, as defendant’s counsel cited to Malee in
their motions to strike, presumably they read the case~apparently, however, not closely enough.
Finally, defendant’s counsel cite to an unpublished Seventh Circuit opinion, Dority v. City of
Chicago, No. 01-3855, 2002 WL 31296431 (7th Cir. Oct. 9, 2002), (Def.’s Mot. to Strike Pl.’s
56.1(b)(3)(A) Resp, at 2), which is prohibited by Circuit Rule 53(b)(2)(iv)(a). Greater diligence
from all counsel is expected.

2 Providian states that the Prime Source loan officer’s last name is “Hennekam.” Buxton
refers to him as “Hennckin.” Although the affidavit, presumably prepared by Buxton’s counsel,
uses “Hennekin,” the loan officer used “Hennekam” in the name block of his June 20, 2000,
letter to Buxton. (Def,’s Stmt. of Facts, Ex. J.) Therefore, this court will refer to him as
“Hennckam.”



TN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
)
Eva Buxton, )
)
Plaintiff, ,)
)
v. ,) No, 02 C 6288
)
Equifax Credit Information Services, Inc., )
Trans Union, LLC, Providian National Bank, )
and Sears Financial Corporation, )
)
Defendants. )
DOCKETED

DEC 0 1 2003
MEMORANDUM OPINION AND ORDER

JAMES F. HOLDERMAN, District Judge:

On September 4, 2002, plaintiff Eva Buxton (“Buxton”) filed a four-count complaint against
defendants, one count against each defendant, alleging violations of the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681-1681v. On September 30, 2003, defendant Providian National Bank
(“Providian”), the only remaining defendant in this litigation, moved, pursuant to Federal Rule of
Civil Procedure 56, for summary judgment, Based upon the undisputed material facts and for the

reasons explained below, Providian’s motion is granted.

“yh



CONCLUSION
For all of the reasons stated above, defendant Providian National Bank’s motion for summary

judgment is granted, This action is dismissed in its entirety. Any pending motions are moot.

ENTER:

(AMES F, HOLDERMAN
United States District Judge

DATE: November 26, 2003

12