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Kelly v. Suntrust Bank

United States District Court, E.D. Virginia, Richmond Division

February 25, 2016

FREDDIE J. KELLY, Plaintiff,
SUNTRUST BANK et al., Defendants.


John A. Gibney, United States District Judge

The pro se plaintiff, Freddie J. Kelly, brings claims against various defendants under the Fair Credit Reporting Act ("FCRA"). In short, he claims that his lender SunTrust Bank ("SunTrust"), and the three national consumer credit reporting agencies ("CRAs"), Equifax Information Services, LLC, Experian Information Solutions, Inc., and Trans Union LLC (collectively, the "CRA Defendants"), violated FCRA by reporting his SunTrust loan as delinquent in certain months. Unfortunately, Kelly simply misunderstands the way these entities report payment delinquencies on consumer reports. Accordingly, the Court resolves this confusion by granting summary judgment in favor of the defendants.


On June 10, 2009, Kelly entered into a $22, 435.22 loan agreement with a car dealership to purchase a vehicle. SunTrust purchased the loan from the dealership. Under the agreement, Kelly owed sixty monthly payments of $445.43. He owed payment on the twenty-fifth day of each month. If Kelly failed to pay within seven days of a due date, SunTrust would assess a five percent late fee.

Kelly admittedly made late payments for the months of October 2011, November 2011, and January 2012. Indeed, he included the amount of the five percent late fee in his payment totals. He made the payment due October 25, 2011, on November 25, 2011, thirty-one days after the due date. He made the payment due November 25, 2011, on December 24, 2011, which fell on a Saturday. SunTrust did not post Kelly's payment until December 27, 2011, because SunTrust was closed on December 25, 2011, a Sunday, and December 26, 2011, a federal holiday. Thus, Kelly's payment posted on December 27, 2011, thirty-two days after the original due date. Finally, Kelly made the payment due January 25, 2012, on February 24, 2012, thirty days after the due date.

Every time Kelly failed to make a payment within thirty days of a due date, SunTrust reported his account to the CRA Defendants as between thirty and fifty-nine days delinquent.[1]Thus, the CRA Defendants reported Kelly's account delinquent in the months of November 2011, December 2011, and February 2012. In other words, Kelly's consumer report noted delinquencies in the months that a payment became thirty to fifty-nine days delinquent, not in the month the delinquent payment was due.

Kelly does not dispute that he paid certain loan payments late. Rather, he disputes that he crossed the thirty-day threshold in the months in question. Kelly sent eight letters to the CRA Defendants about the reported delinquencies between January 8 and April 28, 2012.[2] Any time one of the CRA Defendants received a letter from Kelly, it responded by generating an automated consumer dispute verification ("ACDV") and sending it to SunTrust.[3] The CRA Defendants use ACDVs to inform furnishers of credit information, like SunTrust, that a consumer lodged a dispute with a CRA about information contained in his consumer report. The furnisher then reviews the information, verifies or corrects it, and sends a response to the CRA. In this case, the CRA Defendants generated an ACDV each time they received a letter from Kelly. Each time, SunTrust verified that the delinquencies noted on Kelly's consumer report were accurate.


A court should grant summary judgment when '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.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Rule 56(a) mandates granting summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. "Courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion." Scott v. Harris, 550 U.S. 372, 378 (2007) (internal citation, quotation, and alterations omitted). Once the movant satisfies its showing for summary judgment, the burden shifts to the non-moving party to establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-88 (1986). The non-movant may not rest on claims within its pleading, but "must come forward with specific facts showing that there is a genuine issue for trial." Id. at 587 (internal quotation marks and emphasis omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In cases involving cross-motions for summary judgment, "the court must review each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law." Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (internal citation omitted). Finally, relevant here, "[courts] are always obliged to construe liberally the contentions being pursued by pro se parties." Sinclair v. Mobile 360, Inc., 417 F.App'x 235, 243 (4th Cir. 2011) (unpublished) (citing Gordon v. Leeke, SI A F.2d 1147, 1151 (4th Cir. 1978)) (applying the liberal construction for pro se parties to consideration of evidence at the summary judgment stage).


Kelly claims that SunTrust and the CRA Defendants failed to reasonably reinvestigate the information in his consumer report when he disputed the reporting. Additionally, he claims that SunTrust violated the notice provisions of FCRA by failing to notify him prior to, or within thirty days of, passing negative credit information to the CRA Defendants. The Court struggles to discern which FCRA provisions Kelly thinks each defendant violated. Nevertheless, applying the liberal construction standard, the Court evaluates Kelly's claims under the provisions listed below.


Congress enacted FCRA to "ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy." Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007). It assigns duties both to furnishers of credit information and to CRAs, including duties when ...

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