United States Court of Appeals

For the First Circuit

No. 09-2323

WEN Y. CHIANG,

Plaintiff, Appellant,

v.

MBNA, A Bank of America Company;

FIA CARD SERVICES, N.A.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Torruella, Lipez and Howard,

Circuit Judges.

Dean Carnahan, with whom Law Offices of Dean Carnahan was on

brief, for appellant.

Terry B. Bates, with whom Reed Smith LLP, Bruce D. Berns and

Abendroth Berns & Warner LLC, were on brief, for appellees.

September 9, 2010
It is not clear from the record whether Chiang's account was 1

ever actually reported as delinquent. 

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HOWARD, Circuit Judge. The Fair Credit Reporting Act

imposes certain obligations on entities that furnish credit

information to consumer credit reporting agencies (CRAs). See 15

U.S.C. § 1681s-2. One such obligation is to investigate any

disputes over the completeness or accuracy of the information

furnished and then notify the CRA of any corrections -- but only if

the CRA, acting as a gatekeeper, has previously notified the

furnisher of the consumer's dispute. Id. § 1681s-2(b)(1). By

contrast, "[a] notice of disputed information provided directly by

the consumer to a furnisher does not trigger a furnisher's duties

under § 1681s-2(b)." Chiang v. Verizon New England, Inc., 595 F.3d

26, 35 n.8 (1st Cir. 2010).

The appeal before us centers on this distinction.

Plaintiff Wen Chiang brought suit against FIA Card Services, N.A.

(formerly known as MBNA America Bank, N.A.), after it allegedly

reported delinquent payments on his credit card. Chiang disputes 1

the alleged delinquency report and claims that FIA, as a furnisher

of credit information, violated § 1681s-2(b)(1) by failing to

follow up on that dispute with a further investigation. The

district court granted summary judgment to FIA after finding no

evidence that a CRA, rather than just Chiang himself, had ever

contacted FIA concerning Chiang's objections. Chiang v. MBNA, 634
This is not the first unsuccessful consumer challenge that 2

this plaintiff and his counsel have brought within this circuit.

See Chiang v. Verizon New England, Inc., 595 F.3d 26; Chiang v.

Bank of Am., No. 07-cv-11733-RWZ (D. Mass. Mar. 12, 2010); see also

Chiang v. Chase Bank USA, N.A., No. 07-cv-11931-NG (D. Mass. June

12, 2008) (dismissal of claims and counterclaims after alternative

dispute resolution settlement).

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F. Supp. 2d 164 (D. Mass. 2009). Discerning exactly the same fatal

hole in Chiang's case as the district court found, we affirm. 

2

Because the district court resolved the case on summary

judgment, we review its decision de novo. Harrington v. City of

Nashua, 610 F.3d 24, 27 (1st Cir. 2010). We will affirm the entry

of summary judgment if, after we have drawn all reasonable

inferences in the non-moving party's favor, the record reveals no

genuine issue of material fact that would prevent judgment for the

moving party as a matter of law. Fed. R. Civ. P. 56(c)(2).

Deposed representatives from the three major CRAs

testified that they had never sent a dispute notification to FIA.

Consistent with that testimony, an FIA vice president stated in an

affidavit that FIA had never received one. "Once the moving party

avers an absence of evidence to support the non-moving party's

case, the non-moving party must offer definite, competent evidence

to rebut the motion." Meuser v. Fed. Express Corp., 564 F.3d 507,

515 (1st Cir. 2009) (internal quotation marks omitted). The

evidence Chiang offers, however, is a parade of irrelevancies. 

He first seeks to discredit the CRAs' deposition

testimony. He argues that the agencies did not adequately account
The district court allowed FIA to supplement the record with 3

these affidavits after depositions had already been taken. Because

the CRA representatives had referred only to FIA in their sworn

testimony, the court requested additional discovery to clarify

whether the representatives had also searched for notice sent to

FIA's affiliates MBNA and Bank of America. Chiang claims that the

court erred in considering these supplementary affidavits, but he

is mistaken. "A subsequent affidavit that merely explains, or

amplifies upon, opaque testimony given in a previous deposition is

entitled to consideration in opposition to a motion for summary

judgment." Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 26

(1st Cir. 2002). 

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for the fact that, during the relevant time frame, FIA and its

institutional predecessors MBNA and Bank of America were in the

midst of organizational changes that could have created confusion

about which entity actually provided the account. As proof, he

points to portions of the testimony where the CRA representatives

appeared unfamiliar with the exact relationship between Bank of

America, MBNA, and FIA. According to Chiang, a dispute

notification could therefore have been sent to any of the three,

while the agencies searched their records only for notifications

sent to FIA. Yet the agencies explained in their affidavits that

searches were conducted according to the consumer's account number,

not according to the recipient. Any search would therefore have 3

turned up documents addressed to any of the three entities.

Moreover, FIA's affidavit explicitly confirmed that the "records

would have contained all of the documents relating to the Account,

irrespective of whether the documents were addressed to FIA, MBNA,

or Bank of America."
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Chiang generates much sound and fury arguing that these

affidavits conflict with the CRA representatives' deposition

testimony, creating a triable issue of material fact. But all that

the purportedly contradictory testimony shows is that the deponents

were not as thoroughly knowledgeable about the relationship between

Bank of America, MBNA, and FIA as perhaps they ideally might be.

Even construing that fact in Chiang's favor, it would have nothing

to do with whether a search according to account number would turn

up documents sent to any of them. The result would have been the

same whether the agencies' representatives thought that the three

entities were affiliates or unrelated competitors. There was no

notice in any of the agencies' records, and the account

number–based search would have found any that existed. The only

reasonable inference is that no notice was ever sent.

Chiang's own documentary evidence is similarly beside the

point. He points to complaints that he sent to CRAs, but these do

not establish that the agencies ever took the next step of

communicating those complaints to the furnisher. As the district

court aptly explained, 

In their deposition testimony, two CRA

representatives explained that the receipt of

a consumer dispute does not automatically

trigger notification to the furnisher.

Rather, a consumer complaint initiates a

multi-step process which may or may not result

in contact with a particular furnisher. For

example, upon receipt of a consumer complaint

letter, the credit reporting agency will

perform an initial review to specifically
Chiang appears to have written a different word here, but he 4

maintains that he meant "corrections." The choice of words does

not alter the analysis.

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identify the dispute; if the consumer's

initial complaint is difficult to decipher,

the agency will often contact the consumer

asking for additional information before

proceeding further. An agency will often

first check its records to ensure that the

consumer's understanding of their account is

accurate (i.e., whether an account which the

consumer claims has been reported delinquent

is indeed reporting as delinquent). If the

consumer's belief does not match what the

agency sees on its review of the consumer's

file, then the agency may seek to resolve the

discrepancy on its own without contacting a

furnisher (i.e., the agency may contact the

consumer to let him or her know that their

account is not listed as delinquent). 

Chiang, 634 F. Supp. 2d at 171 (internal record citations omitted).

He next offers a faxed communication he received from

Bank of America regarding his account. This document's

significance, according to Chiang, lies not in the typed content of

the fax itself but in Chiang's own handwritten note, allegedly

jotted down during a phone conversation with a Bank of America

customer service representative, Sherry Wyman: "Ms. Sherry said

all [corrections] has [sic] been sent to credit bureau and allow 4

90–120 days to showing [sic] the credit report. this is include

[sic] all disputed, wrong reports that she has on file. She also

told [sic] my account is open and not have any past due history

too." Here, too, there is no suggestion that a CRA had contacted

FIA concerning the disputed information. Moreover, Wyman stated in
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her affidavit that, at the time of the alleged phone call, she was

not working in the credit bureau dispute department and would not

have handled a credit bureau dispute from Chiang or anyone else. 

Chiang's final piece of evidence is a pair of letters

that Equifax, one of the CRAs, sent to him. These letters

acknowledge completion of Chiang's requested investigation of his

credit file and explain that Equifax had "contacted each source

directly." Chiang insists that a reasonable juror could infer from

these letters that Equifax had indeed contacted FIA. But even if

Equifax had contacted FIA in some capacity, other language in the

letters makes it unreasonable to infer that Equifax had sent notice

about the particular dispute at issue here. The letters proceed to

explain that the credit card account was "reporting as OPEN" and

"paid as agreed, with no late payments," rather than delinquent;

because the predicate for Chiang's complaint was nowhere to be

found, it is rather unlikely that Equifax would have identified the

dispute as requiring formal communication to FIA. Indeed, the

letters also mention two disputes with Verizon, noting that "[t]his

creditor has verified to Equifax that the balance is being reported

correctly" -- a sentence conspicuously absent from the paragraph

dealing with the FIA account. That Equifax memorialized this

verification only when discussing the Verizon disputes and not the

FIA dispute suggests that Equifax actually communicated the

relevant dispute to Verizon but not to FIA. Hence, by negative
Chiang also highlights the letters' use of the word 5

"reinvestigate," which appears to suggest that Equifax had in fact

conducted some prior investigation of the dispute. But

"reinvestigation" is a term of art in the Fair Credit Reporting Act

and refers only to a CRA's reevaluation of a consumer's credit

report in light of a consumer's dispute, not a second

investigation. See 15 U.S.C. § 1681i(a)(1)(A) ("[I]f the

completeness or accuracy of any item of information contained in a

consumer's file at a consumer reporting agency is disputed by the

consumer and the consumer notifies the agency directly, or

indirectly through a reseller, of such dispute, the agency shall,

free of charge, conduct a reasonable reinvestigation to determine

whether the disputed information is inaccurate . . . .").

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implication, these letters actually cut against the proposition

that Chiang believes them to support.5

Affirmed. Costs to appellees.