United States District Court, D. Maryland
June 5, 2015
JAMES E. DAVENPORT, Plaintiff,
SALLIE MAE, INC., et. al., Defendants
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
E. Davenport, Plaintiff, Pro se, Beltsville, MD.
Sallie Mae, Inc., SLM Corporation, Defendants: Bonnie L
Martin, PRO HAC VICE, Ogletree Deakins Nash Smoak and Stewart
PC, Indianapolis, IN; Joleen Okun, Ogletree Deakins Nash
Smoak and Stewart PC, Washington, DC.
Equifax, Inc., Equifax Information Services, LLC, Defendants:
Nathan Daniel Adler, Neuberger Quinn Gielen Rubin and Gibber
PA, Baltimore, MD.
J. MESSITTE, UNITED STATES DISTRICT JUDGE.
Davenport, pro se, has sued Sallie Mae, Inc., and
SLM Corporation (since renamed, so collectively, "
Navient" ), alleging numerous federal and state law
violations resulting from Navient's reporting of
Davenport's credit history to various credit reporting
agencies. Navient has filed a Motion for Summary Judgment
(Paper No. 99). For the reasons that follow, Navient's
Motion for Summary Judgment will be GRANTED.
about July 19, 2006, Davenport signed a Federal PLUS Loan
Application and Master Promissory Note (" Note" )
in favor of Navient to obtain a loan to finance his
daughter's post-secondary education. On December 4, 2006,
Navient disbursed $6,800 of loan proceeds to Union College on
behalf of Davenport's daughter. The daughter was
continuously enrolled in college from the fall of 2006 until
her graduation in May 2010.
alleges that his contract with Navient provided that the
repayment of the loan principal would be deferred during the
period of his daughter's post-secondary studies and would
only begin six months after her graduation, with the
understanding that in the meantime interest would accrue and
be capitalized. Navient contends that the original Note
included no such deferment provision; to the contrary, it
says Davenport agreed to repay the loan in periodic
installments beginning on December 4, 2006.
early 2007 until approximately June 2010, Navient and
Davenport had numerous communications via email, phone, and
ordinary mail regarding their disagreement over when the
repayment of the loan would begin. During these
communications, Davenport received letters granting him: a
forbearance from February 19, 2007 through February 18, 2008
(Pl.'s Resp. Ex. 2); another forbearance from February
19, 2008 through February 18, 2009 ( id. Ex. 4); and
a third from February 19, 2009 through February 18, 2010 (
id. Ex. 6). The first payment on the last
forbearance was originally due on March 18, 2010.
Id. Ex. 8.
April 2, 2010, Navient sent Davenport a late notice for
failure to pay as of March 18, 2010. Def.'s Mot. Ex. ?
(Dav. Dep. 48:20-49:2; Ex. 5). On April 9, 2010, Davenport
called Navient and, still believing that the original deal
only required payments to begin 6 months after his daughter
graduated (i.e., the end of 2010), again sought delay of the
again agreed to delay the payments, though there is
disagreement as to the nature of that delay. Davenport
suggests that Navient agreed to a 10-month
forbearance, until December 2010. On April 9, 2010,
Navient sent Davenport two letters. The first acknowledges a
ten-month forbearance beginning on " February 19, 2009
[sic]" ; the second advises that his first payment would
be due on May 18, 2010. Pl.'s Resp. Exs. 9, 10.
on the other hand, argues that Davenport asked for (and was
mistakenly granted) a deferment. Because the
deferment was keyed to his daughter's school schedule,
Navient applied a deferment to his account from January 5,
2010, through May 5, 2010. To keep the bookkeeping
consistent, this required an ex post facto change of
the prior forbearance's end date from February 18, 2010,
to January 4, 2010.
April 16, 2010, Navient says it realized that Davenport did
not qualify for a deferment and therefore removed it from his
account. Because of the ex post change in the end
date of his prior forbearance to January 4, 2010, Navient
concluded that Davenport in fact had been delinquent since
January 5, 2010. Accordingly, on April 16, 2010, Navient sent
three letters to Davenport advising him that the deferment
had been removed, that he was more than 60-days delinquent,
and that he needed to begin payment right away in the amount
of $334.95. Def.'s Mot. Ex. A (Austin Dec., Exs. 4-6).
April 19, 2010, Davenport called to dispute this change and
did so again via a letter dated April 22, 2010. In the
letter, he expressed frustration with Navient's process
and stated that he had already elected forbearance in
conversations with Navient representatives. Pl.'s Resp.
Ex. 12. He referenced the April 9, 2010 letter from Navient
confirming that selection. Davenport requested a full
statement of his account, an indication of whether the
account was current, and a verification in writing of any
adverse statements Navient might have communicated to any
credit bureaus with respect to his account.
on April 30, 2010, Navient sent notice of his delinquency to
the Credit Reporting Agencies (" CRAs" ).
Def.'s Mot. Ex. A (Austin Dec. ¶ 23, Ex. 8).
about May 24, 2010, Davenport received correspondence from
Navient stating that his loan repayment was 90-days overdue
and that his delinquency had been reported. Pl.'s Resp.
Ex. 13. Davenport informed the three CRAs (Equifax, Experian,
and Trans Union) that he disputed the report. On August 23
and 24, 2010, Navient received the first two automated
consumer dispute verifications (" ACDVs" )
regarding Davenport's dispute. Navient received two more
ACDVs on October 13, 2010. Def.'s Mot. Ex. ? (Considine
Dec. ¶ 9, Ex. 1).
states that it verified the accuracy of its report that
Davenport was delinquent and notified the CRAs, after which
the CRAs ended their own investigations. Davenport disputes
the accuracy of Navient's report and submits that his
credit rating suffered because of Navient's reporting to
the CRAs, triggering a host of damages. These included, among
others: the loss or dramatic reductions of several business
lines of credit; the loss of an investment opportunity; an
increase in his car insurance premiums; and emotional
point in May 2010, Davenport again requested and received a
forbearance that was retroactively applied to the previously
delinquent period. Def.'s Mot. Ex. A (Austin Dec. ¶
24; Ex. 9). Navient states that it has not reported any
further delinquency on Davenport's loan beyond the April
30, 2010 delinquency. Id. ¶ 25; Def.'s Mot.
Ex. ? (Davenport Dep., 92:17-21). Pursuant to Navient's
policy, however, a prior delinquency report to the CRAs is
not removed when a retroactive forbearance is applied that
covers the delinquency period. Def.'s Mot. Ex. C
(Considine Dec. ¶ 24).
Complaint in this Court originally asserted twelve causes of
action against Navient: (1) negligent violation of the Fair
Credit Reporting Act (" FCRA" ); (2) willful
violation of the FCRA; (3) malicious defamation; (4)
violation of the Fair Debt Collection Practices Act ("
FDCPA" ); (5) violation of the Maryland Consumer
Debt Collection Act (" MCDCA" ) and consequent
violation of the Maryland Consumer Protection Act ("
MCPA" ); (6) interference with contract; (7)
interference with economic relationships; (8) injurious
falsehood; (9) injurious falsehood amounting to defamation;
(10) civil conspiracy; (11) intentional infliction of
emotional distress; and (12) breach of contract.
Court dismissed Counts 4 and 5 in ruling on Navient's
prior Motion to Dismiss (Paper No. 26), concluding that the
FDCPA did not apply to Navient as it is not a " debt
collector" as provided for in the statute, and because
the state statutory claims were preempted by §
1681t(b)(1)(F) of the FCRA. See Paper No. 60
(Memorandum Opinion). Following discovery, Navient now moves
for summary judgment on the remaining claims.
Rule 56(a), " [t]he court shall grant summary judgment
if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ, P. 56(a). This does not
mean, however, that " some alleged factual
dispute between the parties" defeats the motion for
summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)
(emphasis in original). Rather, " the requirement is
that there be no genuine issue of material
fact." Id. Further, " [a] party opposing a
properly supported motion for summary judgment may not rest
upon the mere allegations or denials of his pleadings, but
rather must set forth specific facts showing that there is a
genuine issue for trial." Bouchat v.
Baltimore Ravens Football Club, Inc., 346 F.3d 514,
525 (4th Cir. 2003) (internal quotation and citation
although federal courts must liberally construe a pro
se litigant's claims, this requirement " does
not transform the court into an advocate." United
States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012). The
court need not ignore a failure to allege facts which set
forth a cognizable claim for relief. See Weller
v. Dep't of Social Servs., 901 F.2d 387, 391 (4th
Counts One and Two: Negligent and Willful Violation of the
Negligent Violation of the FCRA
argues that it is entitled to summary judgment because its
report to the CRAs was accurate as a matter of law and, as a
result, it cannot be liable. It argues further that, even if
the information provided was inaccurate, Navient nonetheless
conducted a reasonable investigation and for that reason as
well it cannot be liable under the FCRA. Finally, Navient
argues that Davenport cannot show that he suffered an injury
as a result of Navient's investigation of the disputes
received from the CRAs. Without being able to show that any
" actual damages" flowed from Navient's
purported violation, it argues, the claim must be
U.S.C. § 1681s-2(b) imposes duties upon furnishers of
credit information upon being provided notice of a dispute of
the completeness or accuracy of any information provided to a
(A) conducting an investigation with respect to the disputed
information; (B) reviewing all relevant information provided
by the consumer reporting agency; (C) reporting the results
of the investigation to the CRA; and (D) if the investigation
finds that the information is incomplete or inaccurate,
reporting those results to all other CRAs to which it
furnished the original information. Accordingly, to bring a
claim under § 1681s-2(b) of the FCRA, Davenport must
establish: (1) that he notified the CRAs of the disputed
information; (2) that the CRAs notified Navient of the
dispute; and (3) that Navient then failed to investigate and
modify the inaccurate information. See Ausar-El
v. Barclay Bank Delaware, 2012 WL 31375151, at *3 (D.
Md. July 31, 2012) (citations omitted).
whether a furnisher conducted a reasonable investigation is a
question of fact for the jury. Akalwadi v. Risk Mgmt.
Alternatives, Inc., 336 F.Supp.2d 492, 510 (D. Md.
2004). Summary judgment is proper only if the "
reasonableness of the defendant's procedures is beyond
question and if the plaintiff has failed to adduce evidence
that would tend to prove the investigation was
unreasonable." Alston v. United Collections Bur.,
Inc., 2014 WL 859013, at *6 (D. Md. Mar. 4, 2014).
exists, then, a genuine dispute of material fact as to
whether or not Navient conducted a reasonable investigation,
since it cannot be said that its procedures were beyond
question. While Navient argues that it conducted a reasonable
investigation when it reviewed its own records, including the
records of phone conversations with Davenport that also
identify when correspondence was sent to him,
Def.'s Mot. at 11, this review apparently did not include
what the correspondence sent to Davenport actually
said. The correspondence clearly suggests that Davenport had
been granted a forbearance running until February 18, 2010,
and another running until May 18, 2010, meaning that he could
not have been 90-days delinquent on April 16, 2010. The basic
correspondence history also tends to support Davenport's
account that, on April 9, 2010, he requested and was granted
a forbearance. See Pl.'s Resp. Ex. 20 at 2.
Navient argues that it is limited as to the scope of the
investigation by the information provided by the ACDVs, but a
cursory review of its own documents might well have revealed
that there was at least some legitimate confusion as to when
Davenport's first payment was due, calling into question
the accuracy of his alleged 90-day delinquency.
not enough, however, to show that a defendant violated §
1681s-2(b) to survive summary judgment. A failure to
establish damages would still warrant summary judgment in
favor of a defendant. See Tinsley v. TRW,
Inc., 879 F.Supp. 550, 552 (D. Md. 1995) (" The
absence of any economic damages dooms Plaintiff s venture in
this Court." ); Spector v. Experian Info. Servs.
Inc., 321 F.Supp.2d 348, 356 (D. Conn. 2004) (" In
order to survive a summary judgment motion on a claim of
negligent violation of the FCRA, a plaintiff must provide
some evidence from which a reasonable fact-finder could
conclude that she suffered actual damages as a result of
defendant's actions." ).
FCRA provides that for negligent violations a claimant may
recover " any actual damages sustained . . . as a result
of the failure," ' 15 U.S.C. § 1681o. "
Actual damages" do not include nominal damages under the
FCRA. In re Trans Union Corp. Privacy Litig., 211
F.R.D. 328, 346 (N.D.Ill. 2002); see also Wright
v. TRW, Inc., 872 F.2d 420 (4th Cir. 1989)
(TABLE) (concluding that, absent a willful violation, no
nominal damages should be awarded without a separate showing
of actual damages). Indeed, the Fourth Circuit has noted that
the statutory requirement of " actual damages" acts
as a " gatekeeping function [to avoid] tremendous
overcompensation of plaintiffs whose damages evidence fails
to establish any meaningful injury at all." Doe v.
Chao, 306 F.3d 170, 181 n.6 (4th Cir. 2002) (evaluating
the " actual damages" requirement of the Stored
Communications Act); see also Global Policy
Partners, LLC v. Yessin, 686 F.Supp.2d 642, 654 (E.D.
Va. 2010) (" There is no reason in principle or in
statutory language that the definition of 'actual
damages' under the FCRA should be different from that
under the [Stored Communications Act]." ). This
precludes the kind of minor injury " that might support
a nominal damages award." Doe, 306 F.3d at 181
most serious harm that Davenport claims is that, as a result
of Navient reporting his purported $334.95 delinquency to the
CRAs, he lost some $140,000 in available lines of credit. But
the evidence does not support Davenport's claim that his
loss of available credit was caused by Navient's FCRA
violation. On June 21, 2010, Citi informed Davenport that it
would close his $50,000 line of credit because (1) the
proportion of balances to credit limits was too high on his
revolving accounts; (2) he had too many bank or national
revolving accounts; and (3) the amount owed on the revolving
accounts was too high. Def.'s Mot. Ex. B (Dav. Dep. Ex.
34). On July 26, 2010, Chase sent two letters to Davenport,
the first reducing his credit line on one account from
$33,100 to $21,600, and the other closing an $18,000 account
because the balance owed on his revolving accounts was too
high and because the balance was too high as compared to the
credit limit. Id. (Dav. Dep. Ex. 35, 36).
the stated reasons for Davenport's lost credit can be
tied to a reported delinquency in his loan repayments. Quite
simply, Davenport lost credit lines because he had too much
open credit. Moreover, even if Navient's reporting had
triggered Davenport's loss of credit, his claim would
still fail, since the alleged lost lines of credit occurred
prior to Navient's receiving a dispute notification or
having the opportunity to investigate that dispute.
cannot recover for harms that occurred prior to the
violation, i.e., prior to Navient's failure to
conduct a reasonable investigation upon receipt of the
disputes in August and October 2010. See Van
Veen v. Equifax. Inc., 844 F.Supp.2d 599, 609 (E.D. Pa.
2012) (" Plaintiff does not have a cause of action for
Defendant's alleged inaccurate reporting. Rather,
Plaintiff can recover only for Defendant's alleged
failure to conduct a reasonable investigation . . . .
Accordingly, Plaintiff can recover only for those damages
caused by Defendant's unreasonable investigations."
). Navient's purported violation of the FCRA for failing
to reasonably investigate Davenport's dispute in August
2010 could not have caused his loss of credit in June or July
2010. The same holds true for a letter Davenport received
from Bank of America on July 29, 2010, reducing his credit
line from $50,000 to $1,900. Although Davenport produced two
other letters regarding his credit line from Bank of America
dated June 13, 2011, and February 2, 2012, neither identified
his delinquency in repaying loans as a reason for its
decisions. See Pl's Resp. Ex. 18, D0180; D0184.
remaining damages Davenport claims are too speculative to
survive a motion for summary judgment. He says
he lost employment opportunities, but does not provide a
single example where the reported delinquency had any bearing
on a hiring decision. See Def.'s Mot. Ex. B
(Dav. Dep. 111:21-113:7). He also claims that he lost a
potential business venture, but that assertion is likewise
wholly speculative and cannot withstand scrutiny.
See Tinsley, 879 F.Supp. at 552. The same
holds true with respect to Davenport's claim that he was
chilled from even applying for a home loan refinance. There
can be no compensable injury when he never even applied for
such refinancing. Id. Davenport claims that his car
insurance rates went up after the reporting, but even he
admits that he was speculating that the reporting was a
factor in the rate increase. Def.'s Mot. Ex. B (Dav. Dep.
133:21-134:2). Although a subsequent application for car
insurance quoted a price higher than Davenport expected,
citing delinquency as one factor, the application occurred
years later and first relied on the fact that Davenport had a
too high " proportion of revolving balances to revolving
credit limits." This is too attenuated from the reported
delinquency to have been caused by the reported delinquency.
Davenport has claimed compensatory damages for emotional
distress attendant to the credit issues. The Fourth Circuit
has " warned that not only is emotional distress fraught
with vagueness and speculation, it is easily susceptible to
fictitious and trivial claims." Robinson v. Equifax
Info. Servs., LLC, 560 F.3d 235, 241 (4th Cir. 2009).
For that reason, " [a]n award of compensatory emotional
distress damages requires evidence establishing that the
plaintiff suffered demonstrable emotional distress, which
must be sufficiently articulated." Doe, 306
F.3d at 180 (internal quotation and citation omitted). That
is, a " plaintiff's own conclusory allegations that
he felt 'embarrassed," 'degraded.' or
'devastated,' and suffered a loss of self-esteem,
will not suffice to create a disputed issue of material fact
for the jury regarding the presence of compensable emotional
" a showing of 'very minor emotional distress,'
which, one supposes, would have to include any
amount of momentary annoyance, angst, or irritation that
might support a nominal damages award, cannot possibly
suffice to establish 'actual damages.'"
Id. at n.6. As an example of what would suffice, the
Fourth Circuit has suggested that when " a plaintiff can
produce evidence that emotional distress caused chest pains
and heart palpitations, leading to medical and psychological
treatment which included a formal diagnosis . . . as well as
necessitated prescription medication, it is clear that some
amount of compensatory damages for emotional distress is
claims for emotional distress do not rise above conclusory
assertions that he suffered embarrassment and stress related
to his credit issues. He has offered no evidence sufficient
to show demonstrable emotional distress. Since § 1681o
of the FCRA does not support an award of nominal damages for
such " minor emotional distress," there is no
genuine dispute of a material fact regarding whether
Davenport is entitled to " actual damages" as a
result of Navient's negligent violation of the FCRA.
Accordingly, summary judgment on Count One is granted in
favor of Navient.
Punitive Damages for Willful Violations of the
U.S.C. § 1681n provides that, for willful violations of
the FCRA, a plaintiff may recover actual or statutory
damages, punitive damages, as well as attorneys' fees and
costs. This may occur even without a showing of " actual
damages." Saunders v. Branch Banking & Trust Co. of
526 F.3d 142, 152 (4th Cir. 2008). To establish a
willful violation, Davenport would have to show that Navient
" knowingly and intentionally committed an act in
conscious disregard for the rights" of the consumer.
Dalton v. Capital Associated Indus., Inc., 257 F.3d
409, 418 (4th Cir. 2001).
record does not support such a finding. The record is clear
that, at worst, Navient's conduct was negligent. As a
large company with numerous employees working in its call
centers, it is apparent that Navient's proverbial left
hand did not know what its proverbial right hand was doing
when granting and removing forbearances from Davenport's
account. To be sure, Navient's process for reviewing
payment disputes, one where it does not even review its own
correspondence with a customer, is also wanting. But this is
a far cry from the level of knowing and intelligent
commission of acts in conscious disregard for the rights of
its customers. Although this process undoubtedly caused
Davenport frustration, it does not constitute a willful
violation of the FCRA. Davenport is not entitled to any
damages under § 1681n, and summary judgment is granted
in favor of Navient as to Count Two.
Count Three and Counts Six Through Eleven: State Common Law
has also asserted various common law actions. These include:
malicious defamation; interference with contract;
interference with economic relationships; injurious
falsehood; injurious falsehood amounting to defamation; civil
conspiracy; and intentional infliction of emotional distress.
standards for each of these claims are as follows:
defamation: Davenport must show: " (1) that the
defendant made a defamatory communication, i.e.,
that he communicated a statement tending to expose the
plaintiff to public scorn, hatred, contempt or ridicule to a
third person who reasonably recognized the statement as being
defamatory; (2) that the statement was false; (3) that the
defendant was at fault in communicating the statement; and
(4) that the plaintiff suffered harm." Peroutka v.
Streng, 116 Md.App. 301, 695 A.2d 1287, 1293 (Md. Ct.
Spec. App. 1997).
A claim for tortious interference with contract requires that
the defendant know of an existing contract and engage in
improper conduct to induce a third party's breach of that
contract." Mixter v. Farmer, 215 Md.App. 536,
81 A.3d 631, 638 (Md. Ct. Spec. App. 2013).
interference with economic relations, Davenport must show:
" (1) intentional and willful acts; (2) calculated to
cause damage to [his] lawful business; (3) done with the
unlawful purpose to cause such damage and loss, without right
or justifiable cause on the part of [Navient]; and (4) actual
damages and loss resulting." Kramer v. Mayor and
City Council of Baltimore, 124 Md.App. 616, 723 A.2d
529, 540 (Md. Ct. Spec. App. 1999).
falsehood consists of " the publication of matter
derogatory to the plaintiff's title to his property, or
its quality, or to his business in general, or even to some
element of his personal affairs, of a kind calculated to
prevent others from dealing with him, or otherwise to
interfere with his relations with others to his
disadvantage." Beane v. McMullen, 265 Md. 585,
291 A.2d 37, 48 (Md. 1972). " The plaintiff must prove .
. . that the publication has played a material and
substantial part in inducing others not to deal with
him, and that as a result he has suffered special
a claim for intentional infliction of emotional distress has
four elements: " (1) The conduct must be intentional or
reckless; (2) the conduct must be extreme and outrageous; (3)
there must be a causal connection between the wrongful
conduct and the emotional distress; (4) the emotional
distress must be severe." Manikhi v. Mass. Transit
Admin., 360 Md. 333, 758 A.2d 95, 113 (Md. 2000).
all of these claims, Navient argues that it did not act with
the requisite knowledge, intent, or malice to establish
liability. Navient also argues that the defamation claim is
barred by the statute of limitations. Davenport responds
that Navient's maliciousness is evidenced by a letter it
sent him stating: " Your account has been reported to
the consumer credit reporting agencies . . . . Your credit
rating has been damaged." Pl's Resp. Ex. 13.
According to Davenport, this letter connotes a considered and
intentional decision on the part of Navient to damage his
Court disagrees with Davenport. As noted earlier,
Navient's behavior amounts to at most negligence, but
docs not constitute the malice or willfulness associated with
these tort claims. Additionally, Navient is correct that
Davenport's defamation claim is barred by the one-year
statute of limitations. See Md. Code Ann., Cts. &
Jud. Proc. § 5-105. Absent any underlying tort, the
Court likewise concludes that no civil conspiracy exists.
summary judgment is granted in favor of Navient as to Count
Three and Counts Six through Eleven.
Count Twelve: Breach of Contract Claim
Davenport claims that Navient breached its contract with him
by accelerating his payment schedule after previously
agreeing to an oral modification to delay his payments via
forbearance. Navient responds that any forbearance or
deferment granted to him does not constitute a contract
modification, inasmuch as no consideration flowed back to
Navient and so the modification would be gratuitous.
arguments, in the Court's view, miss the mark. The harm
Davenport has claimed here is not, in truth, a breach of the
contract. Rather, the harm alleged is that Navient reported
his purported breach to third parties, ultimately damaging
his credit. The obligations under the Note were performed:
Navient disbursed the loan in 2006 and, from all accounts,
apart from the periods of forbearance and deferment,
Davenport has made his payments on the loan with no further
delinquency reported by Navient. Moreover, although Navient
may have briefly accelerated the payment schedule on April
16, 2010, by May 2010 it did again grant Davenport the
forbearance he believed he was entitled. No breach of
Summary Judgment is therefore granted in favor of Navient as
to Count Twelve.
foregoing reasons, the Court GRANTS Navient's Motion for
Summary Judgment (Paper No. 99) and the case will be
DISMISSED WITH PREJUDICE.
separate Order will ISSUE.
ORDER OF JUDGMENT
consideration of Defendants' Sallie Mae, Inc. and SLM
Corporation Motion for Summary Judgment (Paper No. 99), it
is, for the reasons stated in the accompanying Memorandum
Opinion, this 5th day of June, 2015,
1. Defendants' Motion for Summary Judgment (Paper No. 99)
2. Final Judgment is ENTERED in favor of Defendants Sallie
Mae, Inc. and SLM Corporation and against Plaintiff James
3. The Clerk of the Court is directed to CLOSE this case.
Equifax, Experian, and Trans Union were
also named as defendants in the Complaint. After the Court
received notices of settlement as to these defendants, they
were dismissed from the case.
Naivent has reprised several arguments
already raised on its Motion to Dismiss and rejected by the
Court. The first of these is the suggestion that Davenport
cannot use the present FCRA action to collaterally attack the
basis of its report. As before, Navient is mistaken.
See Paper No. 60 (Memorandum Opinion) at 4
Navient has copied and pasted into its
Motion for Summary Judgment another argument previously
raised and rejected by this Court at the Motion to Dismiss
stage--that Davenport's state common law claims are
preempted by the FCRA. As Navient makes the same argument
word-for-word as it did before, the Count refers Navient to
its prior reasoning rejecting that argument. See
Paper No. 60 (Memorandum Opinion) at 6-10.
In its Opinion ruling on Navient's
Motion to Dismiss, the Court reasoned that Davenport had
alleged a plausible claim for relief with respect to its
breach of contract claim because it was plausible that, in
exchange for consideration, Navient might have orally
modified the Note with respect to the payment schedule. On
the developed record, however, it is clear that no
consideration flowed back to Navient in exchange for
such forbearance--meaning any delay in the payment schedule
was a gratuitous promise by Navient. " [T]he
obligee's mere gratuitous forbearance from exercising its
legal rights under the instrument of indebtedness has not
been held to create an agreement to extend the period or
indebtedness." Fed. Deposit Ins. Corp. v. Louisiana
Nat. Bank, 653 F.2d 927, 940 (5th Cir. 1981); see
also Anderson v. U.S. Life Ins. Co., 2014 WL
4987207, at *6 (W.D.N.C. Oct. 7, 2014) (" a gratuitous
promise unsupported by consideration is unenforceable and
will not support the assertion of an actionable claim."
). To the extent Davenport claims he relied on that promise
to his detriment, as explained above, no damages flowed from
Navient's alleged breach.