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Martinez v. Triple S Properties

United States District Court, W.D. Missouri, Southern Division

September 18, 2019

ELIZABETH MARTINEZ, et al., Plaintiffs,



         Plaintiffs Elizabeth Martinez, Elizabeth Bolden, and Jesus Rios, Jr. have brought this suit against Defendant Triple S Properties alleging that Defendant violated the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x (“FCRA”). (Doc. 1-1.) Before the Court are cross motions for summary judgment. (Docs. 93, 95.) Defendant seeks a finding that it is entitled to partial summary judgment on Plaintiffs’ claim for actual damages. Plaintiffs seek summary judgment against Defendant on liability. The motions are fully briefed and ready for disposition. (Docs. 93, 94, 95, 96, 97, 105, 106, 107, 119, and 131.) After careful consideration, the motions are DENIED. However, pursuant to Fed.R.Civ.P. 56(g), the Court will treat as established in this case that: (1) Plaintiffs’ sole claim against Defendant is for statutory damages under 15 U.S.C. § 1681n; and (2) Defendant failed to comply with the adverse action notice requirement of 15 U.S.C. § 1681m(a) as to Plaintiffs.


         The following facts are uncontroverted. Defendant is a Missouri corporation that leases rental homes. On or about February 19, 2017, Plaintiffs submitted an application to lease a home owned by Defendant located in Republic, Missouri. As part of the lease application process, Defendant requested, and Plaintiffs authorized, a credit report to be run by Equifax for Plaintiffs. Based on the contents of Plaintiffs’ credit report obtained from Equifax, Defendant took adverse action in response to Plaintiffs’ lease application. Specifically, Defendant required Plaintiffs (1) to obtain a co-signer on their lease application and (2) ultimately denied Plaintiffs’ lease application. Defendant denied Plaintiffs’ application based on their credit history, which indicated that Plaintiffs owed money to their former landlord. After taking adverse action, Defendant did not provide Plaintiffs with any notice that, based on the contents of Plaintiffs’ credit reports, it was (1) requiring Plaintiffs to obtain a co-signer and (2) denying their application. Defendant additionally failed to provide Plaintiffs with notice providing the following information:

a. the name, address and phone number of Equifax, the credit-reporting agency that supplied the request;
b. a statement that Equifax didn’t make the adverse decision and [Equifax] can’t explain why the decision was made;
c. notice of the Plaintiffs’ right to a free copy of their report from Equifax if they ask for it within 60 days;
d. notice of Plaintiffs’ right to dispute the accuracy or completeness of any information provided by Equifax; and
e. the [Plaintiffs’] credit score, if a score was used.

(Doc. 96 at 2, ¶ 4.) Plaintiffs’ petition makes a claim for actual damages. However, Plaintiffs have elected to pursue only statutory damages in the amount of $1, 000 per violation for each Plaintiff.

         Legal Standard

“Summary judgment is required 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. Ins. Co. v. Great Am. Ins. Co., 893 F.3d 1098, 1102 (8th Cir. 2018) (citations and quotation marks omitted). The Court views the evidence “in the light most favorable to the nonmoving party and giv[es] the nonmoving party the benefit of all reasonable inferences.” Id. (citation and quotation marks omitted). “If the court does not grant all the relief requested by the motion [for summary judgment], it may enter an order stating any material fact – including an item of damages or other relief – that is not genuinely in dispute and treating the fact as established in the case.” Fed.R.Civ.P. 56(g).


         I. Defendant’s Motion for Partial Summary Judgment on Plaintiff’s Claim for Actual Damages

         Defendant argues that it is entitled to partial summary judgment as to Plaintiffs’ claim for actual damages because Plaintiffs have not produced evidence that they suffered any actual harm as a result of the alleged FCRA violation. Defendant further argues that, without any actual harm, Plaintiffs’ bare allegation of a procedural violation of the FRCA does not satisfy the injury-in-fact requirement of standing under Article III.

         The FCRA, among other things, requires certain procedures to be followed to assure maximum possible accuracy of consumer reports. 15 U.S.C. § 1681e(b). Relevant here, the FCRA requires users of consumer reports to provide an individual with notice in the event of adverse action that is based “in whole or in part on any information contained in” the individual’s consumer report. 15 U.S.C. § 1681m(a). For a negligence violation of the FCRA, the FCRA only permits actual damages. 15 U.S.C. § 1681o. For a willful violation of the FCRA, the FCRA permits actual damages or statutory damages “of not less than $100 and not more than $1, 000[.]” 15 U.S.C. § 1681n(a)(1)(A).

         Here, while Plaintiffs sought actual damages in their Petition, (Doc 94-1), Plaintiffs have since elected to only pursue statutory damages under § 1681n, rather than actual damages. (Doc. 106 at 2; Doc. 94-9 at C.1.) Plaintiffs have, however, submitted affidavits to demonstrate that they have suffered an injury. Plaintiffs each state that the credit report obtained for him or her by Defendant included inaccurate entries regarding past due accounts. (Doc. 107-1 ¶ 9; Doc. 107-2 ¶ 9; Doc. 107-3 ¶ 9.) Plaintiffs state that they would have corrected errors in their consumer reports and reapplied for a lease if they had received proper FRCA adverse action notices. (Doc. 107-1 ¶ 9-11; Doc. 107-2 ¶ 9-11; Doc. 107-3 ¶¶ 9-11.) The Court has previously found in its Order denying class certification that the statements in these affidavits demonstrate that Plaintiffs have suffered an Article III injury. (Doc. 150.)

         Defendant argues that Plaintiffs’ affidavits conflict with Plaintiffs’ prior sworn deposition testimony and should therefore be stricken. “A party should not be allowed to create issues of credibility by contradicting his own earlier testimony.” Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365-66 (8th Cir. 1983). “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own earlier testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact. Id. at 1365. “District courts, however, must use extreme care in examining such issues[.]” City of St. Joseph v. Sw. Bell Tel., 439 F.3d 468, 476 (8th Cir. 2006). “Accordingly, when the affiant states in his affidavit that he was confused in his deposition or where the affiant needs to explain portions of his deposition testimony that were unclear, the district court should not strike the affidavit from the record.” Id. To be properly disregarded, statements in an affidavit must directly contradict prior sworn testimony such that it could be considered a sham. See Baker v. Silver Oak Senior Living Mgmt. Co., L.C., 581 F.3d 684, 690 (8th Cir. 2009).

         A. Plaintiff Jesus Rios Jr.’s affidavit

Starting with Plaintiff Jesus Rios, Jr. (“Rios”), the Court discusses the deposition testimony and the affidavits for each Plaintiff in turn. Defendant argues that two statements made by Rios in his affidavit conflict with Rios’ former deposition testimony and should be stricken. The statements are (1) regarding Rios’ knowledge of the accuracy of his credit report and (2) regarding Rios’ knowledge of owing any money to TLC Properties. Additional context is important when examining Rios’ statements in his deposition and subsequent affidavit. Below is the single entry on Rios’ credit report showing a past due account which is discussed in Rios’ deposition and affidavit:

Credit History














30 60 90



01/01/17 $3626 $3943 $3943 -- -- -- COLL 001$0 COLLECTION XP B

(Doc. 148 at 1175.) Notably, the creditor is listed as “Hunter Warfield, ” but in small print, the “Remarks” just below the entry lists the original creditor as “Coryell Courts.” There are two different amounts listed: $3626 (high credit) and $3943 (balance/past due amount). The account’s present status is noted as in “collection.” Additionally, Plaintiffs’ lease application indicates that Plaintiffs previously lived at an address at ...

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