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Bacharach v. Suntrust Mortgage, Inc.

United States District Court, E.D. Louisiana

April 27, 2015

KAREN BACHARACH,
v.
SUNTRUST MORTGAGE, INC., SECTION

ORDER & REASONS

ELDON E. FALLON, District Judge.

Before the Court is a motion from Defendant SunTrust Mortgage, Incorporated ("SunTrust") for summary judgment or alternatively partial summary judgment. (Rec. Doc. 41). Having considered the briefs and the applicable law, the Court now rules on this matter.

I. BACKGROUND

On March 31, 2014, pro se Plaintiff Karen Bacharach brought this action against Defendant SunTrust Mortgage, Inc. in the Civil District Court for the Parish of Orleans. Ms. Bacharach asserted claims under the Fair Credit Reporting Act ("FCRA"), the Fair Debt Collection Practices Act ("FDCPA"), and state law regarding two SunTrust loans that she received. On April 29, 2014, SunTrust removed to this Court (Rec. Doc. 1). On June 4, 2014, the Court granted leave for Ms. Bacharach to amend her complaint on or before June 30, 2014. (Rec. Doc. 12). On the date of the deadline, June 30, 2014, Ms. Bacharach filed the amended complaint through counsel Michael Breeden; however, the amended complaint was marked "deficient" because it did not contain a caption, signature, valid certificate of service, or separate attachment. Ms. Bacharach was instructed to refile the deficient document within seven calendar days, which she did not do. A status conference was held on July 23, 2014 to discuss the status of the case. Ultimately, Ms. Bacharach filed an amended complaint on July 25, 2014. (Rec. Doc. 21).

In the amended complaint, Ms. Bacharach alleges that SunTrust made a bookkeeping error with regard to her payment on loans held by SunTrust, which caused negative information to appear on her credit reports. Ms. Bacharach alleges that she was unsuccessful in her attempts to resolve this error, despite the fact that SunTrust admitted to the error on several occasions. Due to the fact that these errors appeared on her credit report, Ms. Bacharach states that she was unable to obtain financing to repair her home when it was damaged by Hurricane Isaac. Despite continued conversations with both SunTrust and the credit monitoring services, the delinquencies continue to appear on Ms. Bacharach's credit report.

In the amended complaint, Ms. Bacharach asked for relief based on three theories. First, she claimed that SunTrust is liable under the theory of detrimental reliance, based on the fact that she was, according to SunTrust's statements, "lulled into not acting against SunTrust or making more inquiries through the credit reporting agencies." (Rec. Doc. 21). Ms. Bacharach also sought relief under the Fair Credit Reporting Act based on the allegations that SunTrust failed to take the steps needed to investigate the errors. Finally, Ms. Bacharach requested damages under Louisiana tort law, alleging that she suffered damages when she was unable to obtain credit to improve her business and make repairs following Isaac.

The Court recently granted as unopposed SunTrust's motion for partial judgment on the pleadings, finding merit to SunTrust's evidence and arguments regarding its motion. Specifically, the Court dismissed the state law claims of detrimental reliance and tort because the FCRA preempted such claims.

II. PRESENT MOTION

SunTrust now moves for summary judgment and partial judgment on the pleadings in the alternative. (Rec. Doc. 41). It argues that the material facts are undisputed and that Ms. Bacharach has not demonstrated the elements of her claim. First, SunTrust argues Ms. Bacharach pled a claim under § 1681i, which only applies to Credit Reporting Agencies ("CRA"). Second, SunTrust argues that to the extent Ms. Bacharach is making a claim under § 1681s-2(b), her claim nonetheless fails because there is no evidence that SunTrust's credit reporting was actually incorrect. Rather, SunTrust argues, Ms. Bacharach was late on several payments, and SunTrust reported that information. Third, SunTrust argues that it received no notice of any disputed claim from a CRA.[1] Finally, SunTrust argues that she cannot show any damage.

As she has done repeatedly throughout this case, Ms. Bacharach missed the deadline by which to oppose SunTrust's motion for summary judgment. Instead, she requested an extension until April 20, 2015 to file her response. The Court extended the deadline until April 20, 2015 and yet again Ms. Bacharach did not respond. Only after the Court gave one last extension did Ms. Bacharach finally oppose SunTrust's motion. (Rec. Doc. 56). Ms. Bacharach argues that material facts are in dispute in that SunTrust agreed not to report Ms. Bacharach as late on her payments and that her due dates would be extended. Ms. Bacharach further argues that SunTrust admitted to "clerical errors." Ms. Bacharach also asserts that there is ample evidence as to her damages. Ms. Bacharach thus requests that the Court deny the motion for summary judgment.

III. DISCUSSION

A. Statement of law - summary judgment

Summary judgment is appropriate if the moving party can show "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). Under Federal Rule of Civil Procedure 56(c), the moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When the moving party has met its Rule 56(c) burden, the non-moving party cannot survive a motion for summary judgment by resting on the mere allegations of its pleadings. See Prejean v. Foster, 227 F.3d 504, 508 (5th Cir. 2000). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986). Furthermore, "[t]he non-movant cannot avoid summary judgment... by merely making conclusory allegations' or 'unsubstantiated assertions.'" Calbillo v. ...


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