In Aubert v. Russell Collection Agency, Inc. 2016 WL 5430184, at *2–3 (E.D.Mich., 2016), Magistrate Judge Patti held that a furnisher’s “reinvestigation” requires a different kind of investigation (i.e. less) “validation” under the FDCPA.
Whether verification is a requisite function in conducting a reasonable investigation? Answering this question in the affirmative, Plaintiff cites a Senate Report, which provides: “Currently, the FCRA does not apply to those entities that furnish information to consumer reporting agencies. The Committee believes that this gap in the FCRA’s coverage weakens the accuracy of the consumer reporting system. The consumer reporting agencies may dutifully respond to inquiries from consumers and attempt to verify disputed information by contacting the furnisher. If the furnisher of the information acts irresponsibly in verifying the information however, inaccurate information may remain on the report and the consumer is left with little or no recourse.” S. REP. 103-209, 6 (Dec. 9, 1993) (emphasis added). It is Plaintiff’s position that verification “is a crucial function in conducting a reasonable investigation pursuant to FCRA[,]” presumably referring to the furnisher’s (Defendant’s) duties under Subsection 1681s-2(b)(1)(A), and “in no way invokes 15 USC § 1692g…of the Fair Debt Collection Practices Act (FDCPA).” Here, Plaintiff explains that she refers to “verification” to the extent that “Congress intended to provide [a] private remedy against furnishers that perform ‘irresponsible verifications’ pursuant to FCRA.” (DE 23 at 4) (emphasis added). Nonetheless, whatever is stated in this Senate Report, the Court’s rulings are guided by the terms of the statute itself – 15 U.S.C. § 1681s-2 (“Responsibilities of furnishers of information to consumer reporting agencies”) – under which Plaintiff admits to bringing her lawsuit (see DE 1 at 5-7, DE 19 at 5). As the Supreme Court has “ ‘stated time and again… courts must presume that a legislature says in a statute what it means and means in a statute what it says there.’ ” Arlington Cent. School Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, 296 (2006) (citing Connecticut Nat. Bank v. Germain, 503. U.S. 249, 253-254 (1992)). “When the statutory ‘language is plain, the sole function of the courts – at least where the disposition required by the text is not absurd – is to enforce it according to its terms.’ ” Id. (citing Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6 (2000) (internal quotation marks and external citations omitted)). Here, the statutory language is clear and will be given its plain meaning; there is no need to resort to congressional reports to discover its intent. In a sense, Plaintiff argues that “verification” is some type of required link in the chain of conducting a “reasonable investigation.” This argument is problematic. First, Plaintiff provides no citation for her assertion. (See DE 23 at 4.) Second, “investigation” under 15 U.S.C. § 1681s-2(b) of the FCRA is distinct from “verification” under 15 U.S.C. § 1692g of the FDCPA. Under the FCRA, “the investigation an information furnisher undertakes must be a reasonable one[,]” and “the term ‘investigation’ itself denotes a ‘fairly searching inquiry,’ or at least something more than a merely cursory review.” Boggio v. USAA Fed. Sav. Bank, 696 F.3d 611, 616 (6th Cir. 2012). Moreover, Section 1681s-2(b) uses the term “investigation,” and its only use of the word “verified” appears in Subsection 1681s-2(b)(1)(E) – a duty not reached until after a Subsection 1681s-2(b)(1)(A) reinvestigation. On the other hand, under the FDCPA’s provision regarding disputed debts: “If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.” 15 U.S.C. § 1692g(b) (emphases added). As at least one court has explained this crucial distinction: “[A] debt collector’s obligation under the FCRA to verify a debt after receiving notice of a dispute from a credit reporting agency (“CRA”) is distinct from a debt collector’s obligation under the FDCPA to verify a debt (or cease collection efforts) after receiving a dispute directly from a consumer.” Edeh v. Midland Credit Mgmt., Inc., 748 F. Supp. 2d 1030, 1038 (D. Minn. 2010), aff’d, 413 F. App’x 925 (8th Cir. 2011) (concerning summary judgment as to an FCRA count). Relatedly, our sister court has opined: “The FDCPA“does not require an independent investigation of the debt referred for collection.” Id. at 1032. “Unlike the Fair Credit Reporting Act (“FCRA”), which requires the creditor to ‘conduct an investigation’ upon notification of the consumer’s dispute of the debt, 15 U.S.C. § 1681s–2(b)(1), the FDCPA only requires that a debt collector ‘obtain [ ] verification of the debt.’ ” Erickson v. Johnson, No. 05–427, 2006 WL 453201 at *6–7 (D.Minn. Feb.22, 2006). Furthermore, the debt collector does not have a “concomitant obligation to forward copies of bills or other detailed evidence of the debt” to comply with the FDCPA’s verification requirement. Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir.1999)[.]” Fassett v. Shermeta, Adams & Von Allmen, P.C., No. 1:12-CV-36, 2013 WL 2558279, at *6 (W.D. Mich. June 11, 2013) (Brenneman, M.J., regarding verification of debt under Section 1692g of the FDCPA). Third, a duty to investigate under 15 U.S.C. § 1681s-2(b)(1)(A) is “triggered” by receipt of a notice under 15 U.S.C. § 1681i (“Procedure in case of disputed accuracy”), Subsection (a)(2) (“Prompt notice of dispute to furnisher of information.”) from a CRA. See Hawes v. Bank of Am., N.A., No. 13-CV-10063, 2013 WL 4053143, at *2 (E.D. Mich. Aug. 12, 2013). Plaintiff having admitted she has no evidence of communications between the CRAs and Defendant, it is not clear whether the September 11, 2014 letter from Defendant was “triggered” in response to such a notice from a CRA. In sum, Plaintiff has not shown that verification is a requisite function in conducting a reasonable investigation, as she has not provided authority for this proposition. Moreover, as discussed above, these are distinct obligations, under two different statutes. The fact that this particular defendant had a duty of verification under a statute not pleaded in this lawsuit is of no event here. Even assuming, as Plaintiff maintained at trial, that “verification” is a “lower level of inquiry” than an “investigation,” and even without taking into consideration Defendant’s apparent position that it did not have a duty to comply with Plaintiff’s demand for verification, Plaintiff’s August 19, 2016 testimony and Exhibits (A)-(E) do not meet her burden to show that Defendant Russell Collection Agency failed to perform a reasonable investigation in response to a Section 1681i(a)(2) notice from any of the CRAs.