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Long v. Pendrick Capital Partners II, LLC

United States District Court, D. Maryland, Southern Division

March 18, 2019

CRYSTAL LONG, Plaintiff,
v.
PENDRICK CAPITAL PARTNERS II, LLC, et al. Defendants.

          MEMORANDUM OPINION

          GEORGE J. HAZEL UNITED STATES DISTRICT JUDGE.

         Plaintiff Crystal Long brings this consumer protection action against Defendants Pendrick Capital Partners II (Pendrick) and Ability Recovery Services, LLC (Ability) alleging Fair Credit Reporting Act (FCRA), Fair Debt Collection Practices Act (FDCPA), common-law defamation, Maryland Consumer Debt Collection Act (MCDCA), and Maryland Consumer Protection Act (MCPA) claims. Currently pending before the Court are Plaintiff's Partial Motion for Summary Judgment, ECF No. 45, requesting judgment as a matter of law on her FCRA and FDCPA, and Defendants' Cross Motions for Summary Judgment on all claims, ECF Nos. 55 & 57. No. hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). For the reasons that follow, Plaintiff's Partial Motion for Summary Judgment will be granted in part and denied in part, and Defendants' Motions for Summary Judgment will be granted in part and denied in part.

         I. BACKGROUND

         Defendant Pendrick is a debt buyer that purchases delinquent medical debts and then seeks to collect the debts by placing each account with a debt collection agency. ECF No. 45-3 at 47, 49.[1] Pendrick does not resell any of the debts it buys. Id. In November 2016, Pendrick purchased a medical debt from EmCare-Randall Emergency Physicians belonging to a “Crystal Long” who lived at 5126 Sekots Road, Baltimore, Maryland. ECF No. 45-3 at 36. Pendrick then engaged Defendant Ability-a debt collector-to recover two accounts related to the Emcare debt. ECF No. 57-4 ¶ 4. An account ending in “2448” sought to recover $1, 125 of the Emcare debt, and an account ending in “2446” related to $74.00 of the Emcare debt. ECF No. 45-3 at 101, 103.

         Pendrick transmitted certain information about the Emcare debt to Ability including the debtor's Baltimore address, ECF No. 45-3 at 35, and the fact that the debtor received emergency room services from Emcare in August 2014, see Exhibit H.[2] Ability also associated the birthdate “May 1, 1985” and a Social Security number ending in “6876” with the Emcare debt. See Exhibit H. Ability uses “skip tracing”-a service that finds potentially identifying information about a consumer based on the details that Ability already knows about a debtor. ECF No. 45-3 at 60. Through skip tracing, Ability associated Plaintiff's address with the Emcare debt. Id. at 62.

         Plaintiff Crystal Long has lived in Bowie Maryland at 12704 Fairwood Parkway for five years. ECF No. 45-3 at 3. Although Plaintiff shares her name with the Emcare debtor, it is undisputed that she is not responsible for the Emcare debt. ECF No. 45-3 at 24-26, 18; Exhibit H.[3] Further, despite sharing the debtor's name, Plaintiff does not share other personal identifying information with the debtor. Id. at 24-26, 28, 95-96; Exhibit H. The hospital summary of the Emcare services rendered show that the debtor “Crystal Long” received care on August 26, 2014, includes the debtor's birthdate, and indicates that the debtor worked at the Department of Corrections. ECF No. 45-3 at 95-96. Plaintiff has a different birthdate and social security number than debtor “Crystal Long”; she has never received any services from EmCare; and she has never worked at the Department of Corrections. Id. at 24-26, 28; Exhibit H.

         Based on the match between Plaintiff's and the debtor's name and a skip-traced address associating the debt with Plaintiff, Ability sent Plaintiff Crystal Long initial collection letters for the two accounts related to the underlying Emcare debt on November 14, 2016. Id. at 101-104. The letters included this language:

Unless you notify this office within 30 days after receiving this notice that you dispute the validity of the debt or any portion thereof, this office will assume this debt I [sic] valid. If you notify this office in writing within 30 days from receiving this notice, this office will provide you the name and address of the original creditor, if different from the current creditor. If you notify this office in writing within the thirty-day period that the debt, or any portion thereof, is disputed, this office will obtain verification of the debt or a copy of a judgment against you and a copy of such verification or judgment will be mailed to you by this office.

Id. at 101, 103. The letters also stated: “Be further advised that our client has instructed this office to make a direct report to a credit reporting agency should this debt go unresolved.” Id.

         Accordingly, on November 22, 2018, within thirty days of receiving the collection letters, Plaintiff called Ability to notify the office that she disputed the validity of the Emcare debt. Exhibit H. Ability employee Mark Carlson answered Plaintiff's call. Id. Carlson and Plaintiff began by discussing the letter for the account ending in “2448” requesting payment of $1, 125 of the Emcare debt. Id. Plaintiff told Carlson that she did not recognize this debt. Id. Carlson explained that the debt was for services rendered at an emergency room in August 2014 and asked whether the birthdate on file for the debtor matched Plaintiff's date of birth. Id. No Social Security number was associated with the $1, 125 debt (the “2448” account). Id. Plaintiff asserted that she was not in the emergency room in August 2014 and that the birthdate on file for the debtor was not her birthdate. Id. Carlson responded “You'll have to dispute this with your credit bureau then, ” and explained that Ability would place the account under dispute. Id. Carlson also shared that a Social Security number was purportedly associated with the second account for $74.00. Id. That associated Social Security number did not match Plaintiff's.

         Carlson at first told Plaintiff that Ability had already reported the debt to the consumer reporting agencies (CRAs); Plaintiff prompted, “you're telling me that these particular items of debt collection have been sent to my credit report, is that what you're saying, which is why you're going to dispute them?” and Carlson responded, “correct.” Id. However, Carlson later told Plaintiff that Ability had only been aware of the debt for fifteen days, and it waits thirty days before furnishing tradeline information to credit bureaus. Id.

         Although Ability had not yet furnished the tradeline information and despite Plaintiff's specific assertions that her Social Security number and birthdate did not match the debtor's, Carlson indicated that Ability would report the debt to the CRAs and that Plaintiff's sole recourse was to dispute the debt through the CRAs after it was reported. Id. Specifically, as Plaintiff pressed for more information about why Ability contacted her about the debt, Carlson told Plaintiff again and again that she should just dispute it with the CRAs rather than ask Ability questions or take other action: “So I would recommend just dispute this with your credit agency”; “So again, just dispute it with the credit agency”; “rather than ask the questions, the easiest way to resolve this is to just contact the credit agencies”; “you keep asking me why, these ‘whys' don't apply, I don't know ‘why'”; “several times now I've advised, just dispute it with the credit bureaus under your name”; “that answer is best suited for the credit reporting agencies.” Id. Acknowledging the possibility that Ability's collection attempts were based on errors, Carlson continuously suggested that the credit reporting agencies would be best suited to determine whether an error had in fact occurred: “when it gets sent over to the credit reporting agencies, they'll identify whatever unique factors that they utilize, matching up all your information and they'll identify if there was in fact an error. Think of the database in the credit reporting agency-millions upon millions upon millions of people are stored there. Are there errors that occur? Absolutely. On a daily basis. On a case by case basis. So the only way to be able to resolve those types of errors that occur, which, again, based on human hands is certainly possible, you have to go through the steps with the credit reporting agency to dispute this with them.” Id.

         Carlson also told Plaintiff that he would mark the accounts as disputed and Ability would not contact her about the debt. He did not tell her that she had to send in a written dispute to Ability, that she should request validation of the debts, or that she should provide documentation showing that her Social Security number and birthdate did not match the debtor's purported identifying information. Id. He stated at his deposition that he does not have the power to determine whether or not a consumer actually owes a debt and he was not sure who at Ability did have that authority. ECF No. 43-3 at 83. Similarly, Ability's corporate representative attested that Ability automatically uploads the information that they are provided to the CRAs, and the CRAs “decide the best fit” by matching the details provided with consumer information. Id. at 61.

         After the November 22, 2016 phone call, Ability updated its internal records to reflect that Plaintiff had disputed the debt. ECF No. 57-10 at 9. However, after the thirty-day period outlined in the initial collection letters had passed, it then furnished tradeline information to the CRAs regarding the disputed debt. ECF No. 57-4 ¶ 9.

         On December 17, 2016, Plaintiff received an alert from a credit report monitoring service stating that there was “new activity” on her credit report. ECF No. 45-3 at 106. Upon reviewing her credit report, she saw a new derogatory tradeline from Ability, indicating that she was delinquent on a $1, 125 debt. Id. at 109. Although Plaintiff had received collection letters related to two accounts underlying the Emcare debt, id. at 101-104, only one of the two debts appeared on her report, id. at 109. That same day, Plaintiff disputed the debt through Equifax Information Services, LLC.'s (Equifax) online credit reporting dispute protocol. Id. at 108-09. She explained that she had verbally disputed the debt with Ability, that she learned through a phone call with Ability that the debtor's birthdate did not match her date of birth and that the debt was related to an emergency room bill, which she had never incurred. Id. at 109. She wrote that she believed Ability's representatives “were going to make a note on their file stating that Crystal Long, at 12706 Fairwood Parkway, Bowie MD, 20720 was not the correct person and this would not be reported to my credit report. I am gathering by the fact that I am now writing this letter this did not happen.” Id.

         Plaintiff's complaint triggered Equifax to request verification of the account information from Ability. Id. at 116, 139. Equifax sent Ability an automated consumer dispute verification (ACDV), which indicated that Plaintiff disputed the debt as “NOT HIS/HERS” requested that Ability “PROVIDE COMPLETE ID” and included Plaintiff's Social Security number and birthdate, which, as previously described, did not match the identifiers in Ability's records. Id. at 116. Notwithstanding what Ability knew about the asserted mismatch between Plaintiff's identifying information and that associated with the EmCare debt, “Ability responded to Equifax's request and verified the account belonged to Plaintiff, including Plaintiff's first name, last name, and current address.” Id. at 116. After receiving verification of the debt from Ability, Equifax provided Plaintiff with its reinvestigation results on December 28, 2017 and did not delete the derogatory tradeline. Id.

         On January 31, 2017, Plaintiff wrote a dispute letter to Experian Information Solutions, Inc. (Experian), Equifax, and TransUnion disputing the Ability tradeline. Id. at 24-26. Those letters included her date of birth, Social Security number, and current address. Id. Equifax received that dispute letter on February 5, 2017 and contacted Ability on February 9, 2017 to request it reinvestigate the debt. Id. at 116. Ability responded to Equifax on February 24, 2017 and verified the account belong to Plaintiff. Id. Experian received the dispute letter on February 7, 2017 and sent it to Ability on February 13, 2017 requesting reinvestigation. Id. at 132. “Ability verified” to Experian “that the account was report[ed] accurately.” Id. The tradeline was not removed from Plaintiff's credit report.

         In letters dated May 5, 2017, Plaintiff again disputed the Ability tradeline with Experian and TransUnion. Id. at 169-70. Ability again verified the tradeline as accurate. Id. at 59, 99, 133. Ability did not communicate with Pendrick about the Emcare debt after receiving the CRA's requests for reinvestigation. ECF No. 45-3 at 62. It did not contact Plaintiff to obtain additional information. Id. at 59 (“She didn't get any more phone calls. She didn't get any additional letters.”). Instead, the reinvestigation procedure involved looking at the dispute information and reviewing the account details already in their system. Id. at 60, 99. Ability's system listed Plaintiff's account as disputed but did not specifically note that Plaintiff claimed she had never received emergency room services from Emcare or that she claimed the debtor's purported birthdate and Social Security number did not match her own.

         Although Plaintiff provided her birthdate and Social Security number in her disputes to the CRAs, she did not provide this information directly to Ability. As Ability's representative stated: “she didn't provide any additional information to use to state that it wasn't her, so we left it in a disputed status” and then “we get the [disputes] over [from the CRAs] with no additional information, so we verified what we had on the system which was unknown.” ECF No. 45-3 at 59.

         Plaintiff works in the finance department at Trust Health Plans in a position that involves significant financial responsibility including “overseeing the staff accountants, the temps, closing the books, approving financial transactions, and reviewing staff accountants' work” and handling millions of dollars in transactions on a regular basis. ECF No. 45-3 at 4, 7. When Plaintiff first applied to work at Trusted Health Plans, she signed a document giving her employer permission to check her credit. Id. at 5, 7. Plaintiff signed that document in June 2016 and started her employment with Trusted Health Plans on September 12, 2016. Id. at 18. It is not clear from the record whether Plaintiff's employer ever used the consent form to check her credit either when she first applied for employment during the summer of 2016 or later in 2016 and 2017 when the inaccurate derogatory tradeline appeared on her credit report, however the employer did have Plaintiff's consent to do so. Id. at 18.

         Plaintiff's awareness that her credit report included inaccurate information and that she worked in an industry that requires a high level of trust deterred Plaintiff from pursuing new career opportunities. ECF No. 65-1 at 9, 22. Specifically, in May 2017, after a prospective new employer required access to Plaintiff's credit report as part of a job application and subsequently did not make Plaintiff a job offer, Plaintiff postponed applying for additional new jobs. ECF No. 65-1 at 9, 22. After Plaintiff filed this lawsuit and the Emcare debt tradeline was finally removed from Plaintiff's credit report, Plaintiff was promoted twice, first in July 2017 and again in September 2017. ECF No. 51-11 at 10.

         Plaintiff also provides evidence that at some point the interest rate on one of her credit cards increased. ECF No. 65-1 at 1, 4, 31. However, it is disputed whether there is a connection between the interest rate increase and the inaccurate credit report information, and it is not clear from the record if the interest rate increased after the derogatory tradeline appeared on her credit report.[4]

         During the period that the inaccurate tradeline appeared on Plaintiff's credit report, she chose not to apply for new credit, believing a denial of new credit application likely. ECF No. 45-3 at 10, 11. For example, she was deterred from applying for credit to buy a new car. Id. at 11. Plaintiff also suffered emotional distress and anxiety that manifested through loss of sleep, headaches, racing pulse, and nausea, knowing that her credit report contained inaccurate information. Id. at 6.

         On May 19, 2017, Plaintiff filed this lawsuit against Defendants Pendrick and Ability as well as against Equifax and Experian in Prince George's County Circuit Court in Prince George's County, Maryland. ECF No. 1. Plaintiff filed an Amended Complaint on June 12, 2017. ECF No. 2. Defendants removed the action to this Court. ECF No. 1. The Amended Complaint alleged FCRA, FDCPA, MCDCA, MCPA, common law defamation, and declaratory judgment claims. ECF No. 2.

         In June 2017, a month after Plaintiff filed this action, Ability made requests to the CRAs to delete all tradeline information that was furnished regarding the Emcare debt. ECF No. 57-1 at 6.[5] When Ability requested that the tradeline be deleted, it had the same information about Plaintiff's dispute as it had when it had previously verified the accounts to the CRAs.

         Plaintiff filed a Partial Motion for Summary Judgment requesting judgment as a matter of law on her FCRA and FDCPA claims. ECF No. 45. Defendants each filed Cross Motions for Summary Judgment on all claims and opposed Plaintiff's partial motion. ECF Nos. 55 & 57. Plaintiff responded, ECF No. 65, and Defendants replied, ECF Nos. 68-69.

         II. STANDARD OF REVIEW

         Summary judgment is proper if there are no issues of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 302 (4th Cir. 2006). A material fact is one that “might affect the outcome of the suit under the governing law.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir.2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, (1986)). A dispute of material fact is only “genuine” if sufficient evidence favoring the non-moving party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.S. at 248-49. However, the nonmoving party “cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985). The Court may rely on only facts supported in the record, not simply assertions in the pleadings, in order to fulfill its “affirmative obligation . . . to prevent ‘factually unsupported claims or defenses' from proceeding to trial.” Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987). When ruling on a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Anderson, 477 U.S. at 255.

         Cross-motions for summary judgment require that the Court consider “each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003). “The Court must deny both motions if it finds there is a genuine issue of material fact, ‘but if there is no genuine issue and one or the other party is entitled to prevail as a matter of law, the court will render judgment.'” Wallace v. Paulos, 2009 WL 3216622 at *4 (D. Md. Sept. 29, 2009) (citation omitted).

         III. ...


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