District Court (Ga.) Says FCRA Furnisher’s Re-investigation was Reasonable

In Boyd v. Wells Fargo Bank, N.A., 2016 WL 7323293, at *6–9 (S.D.Ga., 2016), Judge Wood found that a Furnisher’s reinvestigation of a FCRA dispute was reasonable and that the Plaintiff had suffered no damages.    Boyd is a nuclear submarine missile technician, who executed a power of attorney authorizing his then-wife, Siana Boyd, “to borrow money and to execute in [his] name any instrument evidencing indebtedness incurred on [his] behalf.”   The power remained effective until September 5, 2007.  Siana filed for divorce in November 2007.  In October 2007, after Siana’s power of attorney expired but before she filed for divorce, someone opened a new credit card in Boyd’s name. Boyd did not know about the card until returning home from sea in January 2008.  He learned that the bill was 60 days late, disputed the debt, and sued Wells Fargo for improperly re-investigating and validating the debt.  The Court granted summary judgment to Wells Fargo.

A furnisher can satisfy its FCRA duty by “uncovering documentary evidence that is sufficient to prove that the information is true,” or by “relying on personal knowledge sufficient to establish the truth of the information.” Id. at 1303. The furnisher must look beyond the ACDV and consider all of the dispute-related information that it has. Id. at 1306.⁸ That said, the ACDV limits the furnisher’s duty, because “whether an investigation is reasonable will depend on what the furnisher knows about the dispute.” Id.  The ACDV here indicated that Boyd contested the debt on the ground that he was “[n]ot liable for the account (i.e. ex-spouse, business).” Dkt. No. 67-2 at 8. Wells Fargo also knew, based on the attached letter, that Boyd claimed: “I have no liability on this account. I did not open this account. I have not used this account.” Dkt. No. 67-6 at 18.    Wells Fargo looked into its records. It confirmed Boyd’s identity and updated his contact information. Dkt. No. 67-2 ¶¶ 13-14, 18. Crucially, it also found that it had already conducted a FCRA investigation on the debt and held Boyd liable. Dkt. No. 67-2 at 9 (“Completed investigation of FCRA dispute—Consumer disagrees.”).  This was enough. FCRA does not force furnishers to endlessly ride the reinvestigation merry-go-round. To stop Wells Fargo from relying on the 2008 investigation, Boyd had to give it either “reason to doubt the veracity of the initial investigation” or “new information that would have prompted [it] to supplement the initial investigation.” Gorman, 584 F.3d at 1160; see also Drew v. Equifax Info. Servs., 690 F.3d 1100, 1108 (9th Cir. 2012). Without his doing so, “[Wells Fargo’s] decision not to repeat a previously-conducted investigation cannot have been unreasonable.” Id. (emphasis added) (affirming summary judgment).  Boyd did not cast a shadow upon the 2008 investigation. Neither the ACDV nor his attached letter called it into question or gave Wells Fargo any new information. In fact, neither even mentioned the earlier inquiry. Wells Fargo is therefore entitled to summary judgment, because its investigation was reasonable as a matter of law.    Boyd complains that Wells Fargo “has never stated what investigation it allegedly did in March of 2008.” Dkt. No. 69-1 ¶ 5. But Boyd cannot directly challenge that investigation, because it pre-dated Wells Fargo receiving Equifax’s notice of Boyd’s dispute. Green v. RBS Nat’l Bank, 288 Fed.Appx. 641, 642 (11th Cir. 2008) (per curiam) (unpublished opinion) (“[The plaintiff] contends that [the defendant] violated § 1681s-2(a) by tendering false information regarding his account. The FCRA, however, does not provide a private right of action to redress such a violation…. The FCRA does provide a private right of action for a violation of § 1681s-2 (b), but only if the furnisher received notice of the consumer’s dispute from a consumer reporting agency.”).  It would not have mattered even if the 2008 investigation had indeed turned out to have been inadequate, as far as the reasonability of the 2014 investigation is concerned. As explained above, it was Boyd’s duty to notify Wells Fargo of the 2008 investigation’s inadequacy at the time of his 2014 debt dispute, and he did not do so.   Still, because Boyd rests his case upon Wells Fargo’s silence, let the simple reason for it be noted: Boyd never made Wells Fargo speak. Boyd had access to a discovery arsenal. He could have issued subpoenas. He could have sent forth waves of interrogatories. He could have requested document production. If Wells Fargo failed to satisfy him, he could have moved the Court to compel discovery. “Ask, and it will be given to you” is rarely as true in American civic life as it is in modern federal litigation. See Matt. 7:7. It is inexcusable to quietly let discovery pass and then shout that the other party has failed to build one’s case. “Ours is an adversary system of justice,” and each party is responsible for procuring the evidence it needs. James v. Headley, 410 F.2d 325, 332 n.10 (5th Cir. 1969).   Thus, even if the 2008 investigation’s substantive reasonability mattered, the Court would still grant Wells Fargo summary judgment. “[T]he plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment. This is true even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff has had a full opportunity to conduct discovery.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986) (emphasis added). Boyd could have taken a swing at discovering information about the 2008 investigation, but he instead struck out looking. Wells Fargo’s 2014 investigation was reasonable as a matter of law.

The District Court also found that the Plaintiff had suffered no compensable loss.