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Francis Howley and Candice Howley v. Experian Information Solutions

September 27, 2011


The opinion of the court was delivered by: Hillman, District Judge


Before the Court is defendant's motion for summary judgment on plaintiffs' consumer protection claims for alleged violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, et seq. Specifically, plaintiffs have alleged violations of Sections 1681b(a), 1681e(a), 1681e(b), and 1681h(a) of the FCRA.*fn1

In conjunction with their motion for summary judgment, defendant has also filed a motion to exclude purported hearsay statements by Francis Firlein, and to exclude a portion of plaintiffs' expert opinion. For the reasons expressed below, defendant's motion to exclude will be granted in part and denied in part without prejudice, and its summary judgment motion will be denied.


In 2001, plaintiff Francis Howley's personal identifying and credit information became "mixed" with personal identifying and credit information of an individual named Francis Firlein. Apparently, the retail store Sears reported a credit card account that belonged to Mr. Firlein under Mr. Howley's social security number. Mr. Firlein and Mr. Howley have almost identical social security numbers, except for the last number. Since the credit card was submitted under Mr. Howley's social security number and Mr. Howley and Mr. Firlein share the same first name, i.e., Francis, their Experian credit files became "mixed." Experian follows a rule that if the first name and social security number match, then new credit information can be added. Experian follows this rule based on the reasoning that when women marry, their first name and social security number typically do not change, but their last name and address do change.

In May 2003, plaintiff*fn2 obtained a copy of his Experian file, noticed the discrepancy, and disputed the credit information belonging to Mr. Firlein that appeared on his report. Mr. Firlein's mailing address, credit accounts, and other personal identifying information had also appeared on Mr. Howley's Experian credit report. On May 13, 2003, Experian removed the "trade lines" (reported information by credit grantors usually containing the account number, payment status, balance information, as well as account holder name, address, date of birth and social security number) that belonged to Mr. Firlein from Mr. Howley's file, and added a "do not combine" mechanism to block the addition of any trade lines pertaining to Mr. Firlein onto plaintiff's file.

Several years later, on or about January 23, 2007, plaintiffs received a telephone call from Tom Subranni, Esq., advising them that he had been contacted by Mr. Firlein. Plaintiffs recognized Mr. Firlein's name as the name on plaintiff's credit report generated by Experian. Mr. Subranni advised plaintiffs that Mr. Firlein believed that plaintiff Francis Howley was Mr. Firlein's long lost twin brother and was interested in making contact with him.

Plaintiffs obtained Mr. Firlein's telephone number from Mr. Subranni and contacted Mr. Firlein to determine Mr. Firlein's intentions. During their telephone conversation with Mr. Firlein, plaintiffs state that they learned that plaintiff Francis Howley's personal and private information including plaintiff's personal contact information appeared on Francis Firlein's credit report.

Mr. Firlein later contacted plaintiffs and told them that he and his fiance had been outside plaintiffs' home on two occasions.*fn3 On February 12, 2007, plaintiffs received another call from Mr. Firlein who said he was in the vicinity and wanted to visit. Plaintiffs told Mr. Firlein not to visit and filed an incident police report for harassment with the Galloway Township Police Department.

After reporting Mr. Firlein's conduct to the Galloway police, plaintiffs received a letter from Mr. Firlein who continued to claim that Mr. Howley was his long lost twin brother and reiterating his intent to reunite with him. Plaintiffs subsequently contacted the local police in Thurman, Ohio, where Mr. Firlein resided, to report Mr. Firlein's conduct. Plaintiffs state that Mr. Firlein had been convicted of running a drug lab and for drunken violent behavior, and had "mental impairments."

In or around April 2008, plaintiffs became aware that Mr. Firlein had been committing identity theft using plaintiff Francis Howley's identifying information which plaintiffs allege was included on Francis Firlein's credit report produced by Experian to Mr. Firlein. Plaintiffs allege that as a result of the "mixing" of Mr. Howley's and Mr. Firlien's credit files, plaintiffs have received calls and notices from creditors and debt collectors alleging that Mr. Howley owes significant sums of money to entities with whom plaintiffs have had no business, and that they have been forced to expend substantial sums of money to pay for a credit monitoring service in an attempt to resolve the credit difficulties created by the mixing of the credit files.


This Court has federal question jurisdiction over plaintiffs' FCRA claims pursuant to 28 U.S.C. § 1331.


A. Summary Judgment Standard

Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).

An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

B. The Fair Credit Reporting Act

The stated purpose of the Fair Credit Reporting Act (FCRA) is "... to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information in accordance with the requirements of this subchapter." 15 U.S.C.A. § 1681(b). "The ... FCRA ... was crafted to protect consumers from the transmission of inaccurate information about them, and to establish credit reporting practices that utilize accurate, relevant, and current information in a confidential and responsible manner." Cortez v. Trans Union, LLC, 617 F.3d 688, 706 (3d Cir. 2010)(citing Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir. 1995) (citations omitted)).

In passing the FCRA, Congress "... hoped to address a number of related problems, including the inability at times of the consumer to know he is being damaged by an adverse credit report, the lack of access to the information in [his] file, the difficulty in correcting inaccurate information, and getting [his] version of a legitimate dispute recorded in ... [his] credit file." Id. (citing S.Rep. No. 91-517, at 3 (1969)(internal citations omitted)). The Third Circuit has acknowledged that "'[t]hese consumer oriented objectives support a liberal construction of the FCRA,' and any interpretation of this remedial statute must reflect those objectives." Id.

There is no dispute between the parties that plaintiffs are "consumers" and defendant is a "consumer reporting agency" as those terms are defined under the FCRA. See 15 U.S.C.A. § 1681a. There is also no dispute that the FCRA applies to plaintiff Francis Howley's credit file maintained by Experian which is the subject of this litigation.

Plaintiffs have alleged violations of sections 1681b(a), 1681e(a), 1681e(b), and 1681h(a) of the FCRA. Section 1681b(a) sets forth the conditions under which specific individuals and entities may receive a consumer report. See 15 U.S.C.A. § 1681b(a). Section 1681e(a) requires that a consumer reporting agency maintain "reasonable procedures" designed to avoid violations of the FCRA and that it "... shall make a reasonable effort to verify the identity of a new prospective user and the uses certified by such prospective user prior to furnishing such user a consumer report" and that it may not "...furnish a consumer report to any person if it has reasonable grounds for believing that the consumer report will not be used for a purpose listed in section 1681b of this title." 15 U.S.C.A. § 1681e(a).

Section 1681e(b) provides that "[w]henever a consumer reporting agency prepares a consumer report*fn4 it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates." 15 U.S.C.A. ยง 1681e(b). Finally, section 1681h(a) requires that a "consumer reporting agency shall require, as a condition of making the ...

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