In Powers v. Selcon Community Credit Union, et. al., 2016 WL 126739, at *4-5 (D.Or. 2016), Judge McShane denied summary judgment to a FCRA furnisher defendant on the reasonableness of its re-investigation. The takeaways from the decision are four, from someone who has handled a number of such cases. First, the decision demonstrates how granular these cases can get in terms of the data and information that is required to be obtained. Second, the Court found relevant and relied on the e-OSCAR manuals, but found that a jury might find that, in this particular case, they led to conflicting standards and obligations between furnishers and CRAs. Third, the court in a single sentence seems to allow the “empty chair” defense for a furnisher — namely, that a furnisher might be entitled to point the finger at the CRA’s conduct relevant to the furnisher’s own re-investigation (see underlined portion below). And, fourth, the case demonstrates the risk for a plaintiff playing the furnisher and the CRA against each other in conflicting declarations.
Powers argues the e-OSCAR manual is inadmissible. First, Powers argues the manual is not properly authenticated. This argument is meritless. Miller’s declaration states the manual was provided by e-OSCAR during training sessions provided by e-OSCAR. Authentication requires nothing more. Of course this does not prevent Powers from making her own arguments related to the manual, or even from calling witness from e-OSCAR to refute Miller’s declaration or testimony. In the alternative, Powers argues the manual should be stricken because SELCO never provided the manual during discovery. Powers requests re-opening discovery to allow it to investigate the manual. Powers’s objections are denied. Miller was deposed over six months ago. During that deposition, it became clear that SELCO’s defense in this matter would rest on training provided by e-OSCAR regarding the “Date of Account Information.” Additionally, SELCO argues it was not until receiving Wagner’s declaration immediately before the discovery cutoff that it became aware that the August 31 date was at issue. The parties will of course be able to argue and present evidence about the meaning of the e-OSCAR manual and any other training provided by e-OSCAR. Turning to Powers’s motion for summary judgment, Powers argues SELCO’s investigation was clearly unreasonable and the only dispute is damages. Powers ignores Miller’s declaration stating TransUnion filled in the “Date of Account Information” and, under the e-OSCAR system, furnishers only review the information furnished as of the “Date of Account Information.” A jury could certainly take that information, along with the undisputed fact that Powers owed the debt on August 31, 2014, and conclude SELCO’s investigation was reasonable. In other words, a jury could conclude that any error here was TransUnion’s, not SELCO’s. Similarly, SELCO argues there is no genuine issue of material fact that its investigation, based on the information provided by TransUnion, was reasonable. In addition to making a reasonable inquiry into any consumer dispute, the FCRA requires furnishers to report any incomplete or inaccurate information found during the inquiry. § 1861s-2(b)(1)(D). As discussed in Gorman, the “pertinent question is thus whether the furnisher’s procedures were reasonable in light of what it learned about the nature of the dispute from the description in the CRA’s notice of dispute.” 584 F.3d at 1157. Although SELCO relies on the “Date of Account Information” field, the ACDVs contained other information related to the dispute. For example, the September 16 ACDV included information in the “FRCR Relevant Information” field. There, TransUnion alerted SELCO that “Consumer plans to submit relevant doc to support their claim.. Paid in full on 09/03/2014. $228.81 Balance should be zero.. account closed on 09/03/2014.” Miller Decl., Ex. 3. The October 30, 2014 ACDV provided additional information in that field: “On September 3, 2014, Plaintiff paid the debt at issue in full by paying $202, the balance as of that date. Plaintiff disputed the Selco a/c through TransUnion shortly after 09/03/2014. Defendant Selco verified the accuracy of the information in resp.” Miller Decl., Ex. 4. The e-OSCAR manual describes the “FCRA Relevant Info” field: “Dispute related information and other details that have been provided by the consumer and/or the CRA. This is extremely important information that should be considered when responding to the dispute. This information along with the Dispute Code will provide insight into why the consumer disputed the account.” Miller Decl., Ex. 7, 17. The e-OSCAR manual also provides several different “Response Codes” for a furnisher to use when responding to an ACDV. See Miller Decl., Ex. 7, 16. The first response is “1 Account information accurate as of date reported.” The manual describes that response as indicating “The account is accurately reported and there are no changes necessary.” This is in fact the response that SELCO used in its first three responses. SELCO chose response code 2 in its fourth response (which resulted in TransUnion fixing the inaccuracies). That response is “2 Modify account information as indicated.” Miller Decl., Ex. 7, 16. A jury could conclude SELCO reasonably relied on the e-OSCAR manual and training in limiting its investigation to the “Date of Account Information” provided by TransUnion. Or, the jury could look at the competing declaration and decide that while there was confusion on the part of CRAs and furnishers, SELCO acted reasonably under the circumstances. Finally, the jury could look at the FCRA relevant information provided by TransUnion on the second and third ACDVs and conclude SELCO’s limited investigation was unreasonable.