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Wood v. Credit One Bank

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

September 21, 2017

DAVID W. WOOD, Plaintiff,
v.
CREDIT ONE BANK, Defendant.

          MEMORANDUM OPINION

          M. HANNAH LAUCK UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Plaintiff David W. Wood's Motion for Partial Summary Judgment, (ECF No. 55), Defendant Credit One Bank's ("Credit One") Motion for Summary Judgment, (ECF No. 57), and Wood's Motion to Exclude Testimony and Opinions of James Lynn (the "Motion to Exclude"), (ECF No. 56). Credit One's Motion for Summary Judgment and Wood's Motion for Partial Summary Judgment were both filed pursuant to Federal Rule of Civil Procedure 56.[1]Wood's Motion to Exclude was filed pursuant to Federal Rule of Evidence 702[2] and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).[3] Wood and Credit One have both responded to the motions for summary judgment, and both parties have replied. (ECF Nos. 67, 68, 70, 71.) Credit One responded to the Motion to Exclude, (ECF No. 66), and Wood replied, (ECF No. 69). The Court heard oral argument on all matters and ordered supplemental briefing, (ECF Nos. 78, 80).[4] These matters are ripe for disposition. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331[5] and 15 U.S.C. § 1681p.[6] The Court entered an Order ruling on all motions. (ECF No. 86.) For the reasons that follow, the Court denied Credit One's Motion for Summary Judgment, granted Wood's Motion for Partial Summary Judgment, and granted Wood's Motion to Exclude.

         I. Factual and Procedural Background

         A. Procedural History

         Wood filed his eight-count Complaint against Credit One, Midland Credit Management, Equifax Credit Information Services, LLC, Experian Information Solutions, Inc., and TransUnion, LLC, alleging violations of the Fair Credit Reporting Act (the "FCRA"), 15 U.S.C. § 1681 et seq. Only Credit One remains as a defendant, and Wood asserts only three counts of the Complaint against it. (See ECF Nos. 31, 40, 41, 44.) The gravamen of Wood's Complaint is that someone improperly opened a Credit One credit card account (the "Account") in Wood's name, and Credit One, despite numerous notifications from Wood that the Account was not his, failed to correct the error and continued to report the Account derogatorily on his credit report. Wood's Complaint alleges that Credit One violated the FCRA in the following ways:

Count VI: Credit One failed to fully and properly investigate Wood's disputes, in violation of 15 U.S.C. § 1681s-2(b)(1)(A);[7]
Count VII: Credit One failed to review all relevant information provided by the consumer reporting agencies ("CRAs") upon receiving Wood's disputes, in violation of 15 U.S.C. §1681s-2(b)(1)(B);[8] and,
Count VIII: Credit One failed to correctly report the results of an accurate investigation to each CRA, in violation of 15 U.S.C. §§ 1681s-2(b)(1)(C)&(D).[9]

         Wood alleges that each violation was willful, rendering Credit One liable for punitive damages pursuant to 15 U.S.C. § 168In, [10] and pleads alternatively that Credit One's violations were negligent, entitling him to recover under 15 U.S.C. § 1681o.[11] For each count, Wood seeks actual damages, statutory damages, punitive damages, pre- and post-judgment interest, and costs and attorneys' fees.

         Wood has moved for partial summary judgment. Wood urges this Court to: (1) grant summary judgment in his favor on Count VI, that Credit One failed to conduct a reasonable investigation of Wood's disputes; (2) grant summary judgment in his favor on Count VIII, that Credit One failed to truthfully report the results of its investigation back to the CRAs; and, (3) find that Credit One inaccurately reported that Wood opened and was responsible for the Account, which applies to Counts VI, VII, and VIII. Wood does not seek summary judgment on Count VII.

         Credit One has moved for summary judgment on all counts. Credit One asserts that the Court should grant summary judgment because: (1) Wood cannot show actual damages as a result of Credit One's investigations; and, (2) Wood cannot show that Credit One knowingly and intentionally committed an act in conscious disregard of his rights. According to Credit One, because Wood can prove neither actual damages nor a willful violation of the FCRA, the Court must grant Credit One summary judgment and dismiss Wood's Complaint.[12]

         B. Procedural Defects Within the Motions Before the Court

         Before and during oral argument, procedural defects in some filings became evident. Because the flaws within some motions and supporting briefs affect this Court's evaluation of the case, the Court pauses to discuss them.

         1. Credit One Failed to Comply with Local Rule 56(B)

         In defiance of this Court's Local Civil Rule 56(B), [13] Credit One's Memorandum of Law in Support of its Motion for Summary Judgment omits a section citing to the material facts not in dispute. Credit One instead scatters citations to the record throughout its memorandum, absent any reference to whether the facts are material or in dispute.

         In his response in opposition, Wood strongly objects to Credit One's approach. Wood denounces Credit One's summary judgment motion as stepping over more than procedural boundaries. According to Wood, Credit One's avowals that Wood has no case because he cannot prove either actual damages or willfulness-without citing disputed or material facts per this Court's rules-amounts to an improper trial brief demanding that Wood "[p]rove [his] case now." (Pl.'s Mem. Opp. Def.'s Mot. Summ. J. 1-2.)

         Despite Wood's challenge-and Credit One's clear failure-Credit One made no attempt to remedy its violation of this Court's Local Rules. Instead, in a short statement in its reply brief, Credit One sought forgiveness for its "noncompliance" with Local Civil Rules. Credit One acknowledged that "a court's response to a violation of the Local Rules generally varies in proportion to the seriousness of the violation, " and that a court "may deny a motion for summary judgment outright" when a "movant's violation of Local Rule 56(B) is blatant." (Def.'s Reply 2.) It then added the following non-sequitur: "[G]iven the short 10-page length of Credit One's brief, [its failure to present the undisputed facts] should not, in any real sense, impede this Court's ability to fairly and expeditiously consider Credit One's motion." (Id. at 1, 3.) Credit One further asserted that its "brief in support of its motion for summary judgment contains the appropriate and sufficient citation to the record to support the requested ruling." (Id. at 2.)

         Credit One's self-assurance is misplaced. Courts in the Eastern District of Virginia, including this one, weigh adherence to procedural rules seriously. "In response to a movant's blatant violation of Local [Civil] Rule 56(B), the Court may deny a motion for summary judgment outright." CertusView Techs., LLC v. S & N Locating Servs., LLC, No. 2:13cv346, 2015 WL 4717256, at *4 (E.D. Va. Aug. 7, 2015) (citing Mitchell v. Angelone, 82 F.Supp.2d 485, 487 (E.D. Va. 1999)). "[F]or more minor violations of Local [Civil] Rule 56(B), courts sometimes will refuse to 'elevate form over substance' and, instead, will excuse the party's failure to comply with the rule." Id. (quoting White v. Golden Corral of Hampton, LLC, No. 4:13cv27, 2014 WL 1050586, at *3 (E.D. Va. Mar. 14, 2014)). On the other hand, as Credit One acknowledged, "the Court has the inherent equitable authority to 'resolve the substantive issues raised and alleviate the need to consider them at trial.'" Id. (quoting Williams v. Gradall Co., 990 F.Supp. 442, 444 (E.D. Va. 1998)).

Local [Civil] Rule 56(B) serves two salutary purposes. It notifies non-moving parties of the facts that the movant contends are undisputed and support the movant's alleged entitlement to judgment as a matter of law, and it provides the Court with an organized analytical framework to assess whether any material factual dispute exists and whether the movant is entitled to the relief sought. A party that ignores Local [Civil] Rule 56(B) undermines those dual purposes and impedes the Court's ability to fairly and expeditiously resolve a motion for summary judgment.

Id. at *5.

         Overall, the policy behind Local Civil Rule 56 counsels enforcement of and strict adherence to the Rule by the courts. "[W]hile a court occasionally may forgive a litigant for failing to strictly comply with mere procedural formalities in the Local Rules, a violation of Local [Civil] Rule 56(B) lies at the more serious end of the spectrum of noncompliance ...." Id.

         Credit One's original error, and its failure to mitigate its error, offends on many grounds. First, Credit One's ten-page brief in support of its Motion for Summary Judgment stands in stark contrast to hundreds of pages of evidence, including partial transcripts of seven depositions, submitted by the parties. (See ECF Nos. 55-71.) A summary judgment motion with such an extensive record requires the parties to adhere to Local Rule 56(B) with special care. See CertusView Techs., LLC, 2015 WL 4717256, at *5 (stating that an important purpose of Rule 56(B) is to provide the Court with "an organized analytical framework to assess whether any material factual dispute exists and whether the movant is entitled to the relief sought"). Neither party can unilaterally ignore rules based on its own view of what the Court needs in order to decide a case. Not without consequence, at least.

         Second, Credit One "mitigates" its error in a wholly improper manner. In its reply, Credit One lists the number of every paragraph except paragraph two in Wood's statement of undisputed facts, and declares that Credit One "disputes" it.[14] However, Credit One offers a factual basis for its dispute as to only one of those paragraphs: paragraph thirteen. As to nine other paragraphs, Credit One proffers a legal dispute, discussed later, that borders on spurious. And Credit One offers no basis for its dispute of the twenty-five other paragraphs from Wood's statement of undisputed facts. Finally, Credit One shuns citation to any of the seven depositions or hundreds of pages of evidence in the record. This pro forma set of denials might serve as a textbook example of what Local Rule 56(B) seeks to prohibit.

         Credit One's violation, and its "correction" compounding its first error, plainly rest at the "more serious end of the spectrum of non-compliance" with Local Rule 56(B). See CertusView Techs., LLC, 2015 WL 4717256, at *5. This Court could deny Credit One's Motion for Summary Judgment outright. See Id. Or this Court could strike Credit One's "disputes" altogether and consider all of Wood's facts undisputed. See Local Civ. R. 56(B). While extreme, such sanctions would not seem unwarranted given Credit One's failure to even attempt a proper correction of its failure.

         2. Credit One Also Failed to Comply With Federal Rule of Civil Procedure 33(b)(5)

         During oral argument and in briefing, Credit One relied on its interrogatory responses in support of its own Motion for Summary Judgment and in opposition to Wood's Motion for Partial Summary Judgment. Pursuant to Federal Rule of Civil Procedure 56, a party asserting that a fact either cannot be or is genuinely disputed must support the assertion by, inter alia, "citing to particular parts of materials in the record, including depositions, ... interrogatory answers, or other materials." Fed.R.Civ.P. 56(c). If a party fails to properly support an assertion of fact or address another party's assertion of fact under Rule 56(c), the Court may:

(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it; or[, ]
(4) issue any other appropriate order.

Fed. R. Civ. P. 56(e).

         Federal Rule of Civil Procedure 33 articulates several requirements for answering interrogatories properly. First, interrogatories must be answered "by the party to whom they are directed, " but "if that party is a public or private corporation, ... by any officer or agent, who must furnish the information available to the party." Fed.R.Civ.P. 33(b)(1). Second, "[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath." Fed.R.Civ.P. 33(b)(3). And finally, "[t]he person who makes the answers must sign them, and the attorney who objects must sign any objections." Fed.R.Civ.P. 33(b)(5).

         "[U]nsworn, unsigned answers to interrogatories do not meet the requirements of F[ederal] R[ule of] Civ[il] P[rocedure] 56(e), " now Rule 56(c)(4).[15] Roberts v. Gen. Elec. Co., 1 F.3d 1234, at * 1 n.3 (4th Cir. 1993) (unpublished table opinion) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n.17 (1970); EEOC v. Clay Printing Co., 955 F.2d 936, 945 n.9 (4th Cir. 1992)). When ruling on a motion for summary judgment, a district court may properly decline to consider a party's interrogatory responses when the responses "were not properly attested." Kincaid v. Anderson, 681 F.App'x 178, 181 (4th Cir. 2017) (holding that the district court "did not abuse its discretion" by refusing to consider a plaintiffs improperly attested responses to interrogatories when ruling on the defendants' motions for summary judgment).

         Rule 33's provision allowing interrogatories directed to a corporate party to be answered "by any officer or agent, who shall furnish such information as is available to the party, " Fed.R.Civ.P. 33(b)(1)(B), "has been uniformly construed to authorize 'answers by an attorney' for the party." Wilson v. Volkswagen of Am., Inc., 561 F.2d 494, 508 (4th Cir. 1977) (citing 8 Wright & Miller, Federal Practice & Procedure § 2172; United States v. 42 Jars More or Less, Bee Royale Capsules, 264 F.2d 666, 670 (3d Cir. 1959); Fernandes v. United Fruit Co., 50 F.R.D. 82, 85-86 (D. Md. 1970)). However, when an attorney signs for a corporate client, the attorney must "make[] oath that to the best of his [or her] knowledge, information[, ] and belief[, ] the answers are true and contain all information ... available to the corporation on the interrogatories [that] are being answered." Fernandes, 50 F.R.D. at 86.

         After reviewing Credit One's Responses to Plaintiffs Interrogatories, the Court observed that no officer or agent had sworn to the interrogatory responses and that no such oath by an attorney had been made. Although the attorney for Credit One had electronically signed the responses, no oath, affirmation, or verification accompanied the signature-as required by the Federal Rules. In response to questioning by the Court during oral argument about whether Credit One properly signed and swore to its interrogatories as required by Federal Rule of Civil Procedure 33, Credit One could offer no definite answer. The Court granted it leave to file a statement clarifying the record.[16] Credit One then filed "Defendant Credit One Bank, N.A.'s Statement Regarding Verification of Interrogatories" (the "Statement"). (ECF No. 77.) In its Statement, Credit One acknowledged that it "did not execute a verification" of its interrogatories, " but that "Credit One provided answers to the interrogatories and fully participated in the drafting of the responses [and, w]ith leave of Court, Credit One stands prepared to remedy its oversight and submit a verification of its responses." (Statement 1.)

         As it did regarding its failure to abide by Local Rule 56(B), Credit One appears to seek forgiveness for "noncompliance, " without repercussion to it for failing to follow Rule 33. Credit One takes this stance bereft of factual or legal rationale as to why this Court should-or can- allow verification of interrogatory responses so grossly out of time, or why this Court should consider, in ruling on the pending motions for summary judgment, interrogatory answers that do not meet the requirements of Federal Rule of Civil Procedure 56. Credit One did not file a motion for leave to file discovery responses out of time or to supplement the summary judgment record. Had it done so, Credit One might have recognized the need to explain why verification should be allowed more than two months after discovery closed, and even further beyond the time responses were due.[17] Credit One cited no procedural or substantive law allowing this late verification to occur, nor did Credit One represent whether Wood objected to the belated supplementation of the record. Credit One did not even attempt to suggest good cause for its error. Credit One's statement that it "stands prepared to remedy its oversight" leaves nothing for this Court to rule on. No motion pends. As with the approach it took toward Local Rule 56(B), Credit One's failure to invoke the rules or law in addressing its own lapse layers a second failure on top of the first.

         Because "unsworn, unsigned answers to interrogatories do not meet the requirements of F[ederal] R[ule of] Civ[il] P[rocedure 56(c)(4)]" Roberts, 1 F.3d 1234, at *1 n.3, the Court will not consider Credit One's interrogatory responses in ruling on Credit One's Motion for Summary Judgment or Wood's Motion for Partial Summary Judgment.[18] Regardless of Credit One's assertion that it "stands prepared to remedy its oversight, " the Court will not consider, in a summary judgment motion, the content of interrogatories that "were not properly attested, " see Kincaid, 2017 WL 838271, at *4.

         This sanction falls short of those available to the Court for Credit One's flagrant violation of Local Civil Rule 56(B) and subsequent failure to attempt to remedy its initial violation. As discussed, Credit One layered multiple errors onto this summary judgment record, meaning that the Court could deny Credit One's Motion for Summary Judgment outright. See, e.g., CertusView Techs., LLC, 2015 WL 4717256, at *4 ("In response to a movant's blatant violation of Local [Civil] Rule 56(B), the Court may deny a motion for summary judgment outright."). Still, the Court finds that a more limited consequence serves the interest of justice and complies with requirements of the federal and local rules.

         Although Credit One's violation "impedes the Court's ability to fairly and expeditiously resolve [Credit One's] motion for summary judgment, " id. at *5, the Court will exercise its "inherent equitable authority to 'resolve the substantive issues raised and alleviate the need to consider them at trial, '" id. at *4 (quoting Williams v. Gradall Co., 990 F.Supp. 442, 444 (E.D. Va. 1998)). The Court will consider the merits of both Credit One's and Wood's motions for summary judgment.[19] In any event, as apparent below, when the Court considers the entirety of the record before it, not just the parts of the record cited by the parties, see Fed. R. Civ. P. 56(c)(3) ("The court [ruling on a motion for summary judgment] need consider only the cited materials, but it may consider other materials in the record."), the outcome of these motions likely would not change regardless of the sanction imposed.

         C. Factual History[20]

         1. The Account

         On June 11, 2013, "upon receiving [an] application, " Credit One opened the Account. (Maragos Dep. 19, ECF No. 68-3.) The "Applicant Information" included the name "David Wood, " a mailing address of PO Box 725 in West Point, Virginia, [21] a phone number of (804) 843-4080, and a primary e-mail address of "dyanlollis@ymail.com.[22] The applicant information also included a social security number and date of birth. On June 14, 2013, the Account was activated by a telephone call to Credit One's automated voice response system. That same day, Credit One received a request to add an authorized user to the Account. Credit One did not add the authorized user because the voice that had been recorded requesting the authorized user "was not recognized to be one that would match the [A]ccount details."[23] (Maragos Dep. 19.) By July 15, 2013, the balance on the Account exceeded the credit limit of $300. No payments were ever made on the Account, and Credit One eventually sold the account.

         Five weeks after the Account's activation, a "lost/stolen report was filed" on the Account after "Wood called in to report the [A]ccount to [Credit One] as a fraudulent application." (Maragos Dep. 17.) According to Wood, at some point in 2012, although "[he is] not ever going to be a hundred percent on the date, " (Wood Dep. 38), he "[w]ent up to the post office box and found some mail saying [he] owed money to some credit cards, " including Credit One, (Id. at 35-36).[24] Wood further stated that "the moment [he] discovered [the Account], [he] did close it and requested them to start a [sic] identity theft investigation. And [he] started credit monitoring with Equifax." (Id. at 36.)

         Helen Lanham, Credit One's Senior Vice President in Corporate Risk Management, testified that "[b]ased on [Credit One's] investigation and the information that-in reviewing from the CRA, there was nothing to indicate that it was not Mr. Wood who, in fact, opened the account." (Lanham Dep. 73, ECF No. 68-6.) Kim Maragos, Assistant Vice President of Customer Service for Credit One, testified that "[b]ased on the facts [Credit One] has available, it is [Credit One's] belief that Mr. Wood did apply for the card." (Maragos Dep. 13.)

         Wood testified that he did not recall ever receiving a solicitation from Credit One in the mail, and that he did not apply, use, authorize anyone to use, or receive goods or services that benefitted him from the Account. He stated that he had problems receiving mail, meaning that he "would be expecting mail [and] would not receive it" at multiple addresses in New Kent and West Point, including at a West Point post office box. (Wood Dep. 24-25.) Wood eventually began to suspect his mother, Dyan Lollis, and his aunt, Frieda Wood, of tampering with mail he received at these several addresses. Although Wood confronted both Lollis and Ms. Wood about his suspicions, neither of them admitted at the time to tampering with his mail. Wood later obtained and submitted an affidavit signed by Lollis, "certifying] that [the Credit One credit card was] opened against the will of David Wood, but instead by Dyan Lollis, " and stating that she "wish[es] to have [it] transferred back to the rightful owner Dyan Lollis."[25] (Lollis Aff. 1.)

         2. Police Incident Report

         On December 8, 2014, Wood reported to Sergeant Woodson of the West Point Police Department that he suspected Lollis had opened the Account in his name. The next day, Wood showed Sergeant Woodson a Credit One bill dated August 15, 2013, that had arrived at the post office box in West Point, Virginia, Over the next several months, Wood contacted law enforcement in multiple jurisdictions in an attempt to report the alleged identity theft. He also contacted the West Point Commonwealth's Attorney regarding a different incident in which he believed his mother had stolen his identity. Although a document exists titled "West Point Police Department Incident Report, " (the "Police Incident Report"), (ECF No. 68-4), Wood never received a copy of any police report. Wood testified that he requested a copy of the Police Incident Report approximately seven times over the course of sixty days, but never received one, and did not know that one existed.

         Credit One submitted an affidavit in which Sergeant Woodson swears that she is not aware of Wood ever requesting a copy of the Police Incident Report.[26] Karen Schumacher, a custodian of records with the West Point Police Department, also swears in an affidavit that she "has no personal recollection" of Wood, or anyone on his behalf, requesting a copy of the Police Incident Report. (Schumacher Aff. 2, ECF No. 68-13.) Schumacher affirms that if "anyone makes a request [for] a copy and it has been approved, they [sic] will be given a copy with necessary redactions made."[27] (Id.)

         3. Credit One's Dispute Resolution Process

         The undisputed evidence indicates that Credit One received six Automated Consumer Dispute Verifications ("ACDVs") regarding the Account.[28] Although the record identifies ten different Compliance Condition Codes ("CCC") that can be used, three are especially relevant in this case.

(1) "XB" indicates "Account information disputed by consumer under the Fair Credit Reporting Act." (Compliance Condition Codes 1, ECF No. 60-5.)
(2) "XC" denotes "Completed investigation of FCRA dispute-consumer disagrees." (Id.) This CCC never appears in the Account.
(3) "XH" means "Account previously in dispute-now resolved, reported by data furnisher." (Id.) This is the only CCC that appears in the Account.

         The undisputed facts establish the following relevant characteristics of Credit One's investigations upon receiving an ACDV:

1) Credit One's dispute agents earn about $ 15/hour;
2) Credit One's dispute agents do not use a telephone to investigate disputes;
3) Each dispute agent processes between thirty and one hundred disputes a day, averaging between five and fifteen minutes per dispute;
4) Credit One dispute agents have no quotas for the amount of disputes they should process, and they are not evaluated based on the volume of disputes they process;
5) Once Credit One has investigated a dispute, and made a determination, it will not always separately investigate a subsequent dispute received within thirty days of the earlier determination;
6) Credit One dispute agents are trained to create PDF files documenting the validation steps they take when they use tools "other than in-house systems" (Purged Fraud Apps 4, COB2256, ECF No.68-4);
7) If a Credit One dispute agent processes and validates a dispute for an account that has been "purged" or "charged-off, "[29] as Wood's was, the dispute agent is trained to update the Compliance Condition Code ("CCC") to "XH, " which means "Account previously in dispute, investigation completed, reported by data furnisher, " (id. at 2-4, COB2253-56); and,
8) If a Credit One dispute agent processes a dispute for an account that has been "purged" or "charged-off, " and is not able to validate the account, the dispute agent is trained to delete the account with the reason "Delete Due to Fraud, " (id).

         In almost all situations, Credit One's policies instruct an agent responding to an ACDV to update the CCC to XH-indicating that a previous dispute existed but is now resolved-once the agent has completed his or her investigation.[30] Credit One's "Customer Service Back Office EOSCAR Manual V.1.2" (the "E-Oscar Manual") instructs agents that, when responding to ACDVs in which the original code reported is XB (consumer disputes the account information under the FCRA), XD or XJ (account closed at consumer request and in dispute under the FCRA), or XF (account in dispute under the FCRA), all of which "indicate an active Dispute, " the agent should "update the field with the same [CCC] supplied within the ACDV" if an "active Dispute is still being worked." (E-Oscar Manual 1, COB591 (emphasis and capitalization in original).) Once "the Dispute has been resolved, " the agents are instructed to "update this field to 'XH, '" (account previously in dispute, now resolved). (Id.)

         However, when the original ACDV reports a code of XA (account closed at consumer's request), XC (investigation under the FCRA completed and consumer disagrees), XE (account closed at consumer's request, dispute investigation completed, and consumer disagrees), XG (dispute under the Fair Credit Billing Act[31] (the "FCBA") completed and consumer disagrees), or XH (account previously in dispute, now resolved), the agent is simply instructed to update the CCC to XH. For investigations in response to ACDVs of "Purged/Sold Accounts, " such as Wood's, Credit One's policies instruct agents to take one of two actions: either delete the account from being reported if the consumer is "found not responsible for the account, " or update the CCC to XH (account previously in dispute, now resolved). (Purged Fraud Apps 3-4, COB2255-56.)

         Credit One's dispute investigation procedures include no guidelines about when to report a CCC of XC (investigation completed, consumer disagrees)[32] to the CRAs. Indeed, Lanham testified that Credit One does not use the XC CCC at all. Thus, when a consumer disagrees with the outcome of an investigation completed by Credit One, Credit One never reports that circumstance to the CRAs, and it therefore is not included on the consumer's credit report.

         Moreover, Credit One uses the CCC of XB (consumer disputes the account information under the FCRA) only when "the account is in dispute and the investigation is continuing." (Lanham Dep. 50.) Credit One does not report a CCC of XB after an investigation has completed. If-after an initial investigation has been completed, the account has been verified, and Credit One has reported to the CRA a CCC of XH (account previously in dispute, now resolved)-the consumer submits a second dispute disagreeing with the resolution of the first dispute, Credit One does not update the CCC to XB or XC, but instead continues to report a CCC of XH.

         4. Wood's Contact with Credit One

         Wood testified that he contacted Credit One immediately after learning the Account existed and, in all, he contacted them at least thirty times, including five letters and approximately twenty-five phone calls. Credit One asserts that it has record of only four communications from Wood to Credit One.[33] Also, Credit One submitted evidence that it sent Wood "two requests for an affidavit [of fraud] in this matter, " but that it had no record that Wood ever provided Credit One with an affidavit, even though "a thorough search would have been made in incoming correspondence to make sure that an affidavit had not been received." (Lanham Dep. 75-76.)

         Wood testified that he does not recall Credit One ever telling him it would be sending an "affidavit of fraud" for him to fill out and return, that Credit One never suggested that he file an affidavit of fraud, and that he does not recall ever receiving an affidavit of fraud in the mail. When shown an example of the letter and attached affidavit of fraud Credit One sends to customers who claim identity fraud, Wood testified that it was his "first time seeing it." (Wood Dep. 81.) However, Wood testified that he sent Credit One a copy of "that notarized thing I signed and had my mom sign."[34] (Id. at 128.) He also stated under oath that he told Credit One he was "having difficulty getting a copy of the police report, " but he gave them 'the incident report number and the number they could call." (Id. at 126-27.)

         5. Wood's ACDVs

         Credit One received and processed six ACDVs regarding the Account. Each of the disputes was submitted with a dispute code of "103: Claims true identity fraud, account fraudulently opened. Provide or confirm complete ID." (See, e.g., July 11, 2014 ACDV, COB51.)

         a. July 11, 2014 ACDV

         Credit One's Account Notes include an entry dated July 11, 2014, that an ACDV was received from Equifax in which the cardholder claimed identity theft.[35] During its investigation in response to that ACDV, Credit One matched Wood's name, social security number, and birthday with the information in Credit One's internal files. However, the address provided in the ACDV did not match the address Credit One had in its internal files. Credit One responded to the ACDV that the information on the Account was verified, and the account information should be modified "as indicated." (July 11, 2014 ACDV 1, COB46; see Chu Dep. 67, ECF No. 68-11 (stating that a response code of 2 means "verified).) Credit One reported a CCC of XH (account previously in dispute, now resolved).

         b. April 28, 2015 ACDVs

         The record identifies two separate ACDVs submitted and responded to on April 28, 2015, both of which were processed by Alexandra Chu, then a fraud analyst for Credit One. During its investigation in response to the first April 28, 2015 ACDV, Credit One matched Wood's name, address, and social security number as provided in the ACDV with the information in Credit One's internal files (COB61, ECF No. 60-6; COB48, ECF No. 60-4.) Chu could not confirm the birthday or telephone number from the ACDV, but she changed the "ECOA Code" from "Individual" to "Joint Contractual Liability, " and the "Date Opened" from June 1, 2013, to June 10, 2013. She also matched the address for the Account with an address associated with Wood in Accurint. Based on the investigation she conducted, Chu responded to the ACDV that the account was "verified, " and she updated the CCC to XH (account previously in dispute, now resolved). At 8:22 a.m., Chu updated the Account Notes to say that an ACDV from Equifax was received in which the cardholder claimed identity theft, but that the address provided by the cardholder matched the address in Credit One's internal files and "linked to [the cardholder] thr[ough] Accurint, " so the cardholder was found "responsible." (Account Notes 3, COB61.)

         In the investigation of the second April 28, 2015 ACDV, Credit One matched Wood's name as provided in the ACDV with the information in Credit One's internal files. The record lacks clarity regarding whether any fields were updated or changed. Notes in the "FCRA Relevant Information" section of the second April 28, 2015 ACDV state: "Provided police report." (April 28, 2015 ACDV 1, COB51.) Additionally, the Account Notes for the second April 28, 2015 ACDV indicate that an "ACDV W/IMAGES" was received from TransUnion. (April 28, 2015 10:06 AM PST Account Notes, COB61.) Alexandra Chu, the agent who processed that ACDV, testified that, although "based on the printout, [she] can't tell whether or not any [document] was provided" with the ACDV, she "would have opened the documents to verify whether or not there actually was a police report in the documents attached." (Chu Dep. 86-87.) Credit One responded to the ACDV that the account was "verified, " and reported a CCC of XH (account previously in dispute, now resolved).

         At 10:06 a.m., Chu updated the Account Notes to say that an ACDV from Transunion was received "w[ith] images, " but that the Account was "previously investigated 4-28-15, " and the cardholder was "responsible, " so "no further action [was] taken." (Account Notes 3, COB61.) In seeming contradiction to this Account Note, Chu testified that she completed "another investigation on the secondary ACDV" and "validated the information again on the new ACDV against what we had on the account, " (Chu Dep. 86), and that she "still did verify the information on the [A]ccount.... The information that the CRAs asked us to verify which would be on [the] ACDV, the addresses, you know, the full list of the ACDV, we verified and went through and responded back and validated everything, " (id. at 100-01). In sum, Credit One "verified that [Wood] was responsible because of the address matches." (Id. at 99.) Credit One reported a CCC of XH (account previously in dispute, now resolved).

         c. May 5, 2015 ACDV

         Credit One received another ACDV regarding the Account on May 5, 2015. The extent to which Credit One conducted an investigation in response to this ACDV remains unclear because the ACDV printout appears to conflict with the Account Notes and Chu's testimony. The ACDV printout indicates that Credit One matched Wood's name, address, and social security number as provided in the ACDV with the information in Credit One's internal files, and then reported the Account as "verified." The Account Notes, however, indicate that the cardholder was "previously found responsible [on] 4-28-15 [and] no further action [was] taken."[36] (Account Notes 3, COB61.) Credit One reported a CCC of XH.

         d. June 10, 2015 ACDV

         Credit One received a fifth ACDV regarding the Account on June 10, 2015. Credit One matched Wood's name, phone number, and social security number as provided in the ACDV with the information in Credit One's internal files. Credit One also matched the address on file to an address associated with Wood via Accurint. The Account Notes for the June 10, 2015 ACDV indicate that Credit One received an "ACDV w[ith] images" from Experian, and that the address "on file links to [the cardholder] thr[ough] vehicle registration per Accurint." (Account Notes 1, COB59.) Credit One responded to the ACDV that the account was "verified, " and reported a CCC of XH.

         e. June 15, 2015 ACDV

         The final ACDV included in the record was sent to Credit One on June 15, 2015. Credit One matched Wood's address as provided in the ACDV with the information in Credit One's internal files. Credit One conducted no further investigation. Credit One responded to the ACDV that the account was "verified, " and reported a CCC of XH.

         6. Wood's Damages

         Wood submits an affidavit in which he swears that he suffered numerous damages as a result of his disputes with Credit One. He states that he lost income from the time he spent disputing the Account. He affirms that he "suffered many credit denials, " including denials from Comenity/Paypal, Spring Leaf Financial, Wells Fargo, and Eastern Virginia Bank, until he eventually "withdrew from the credit market so that [he] didn't have to keep wasting time ... applying and getting turned down [for credit]." (Wood Decl. ¶¶ 5-13, ECF No. 67-4.) Wood also states that he had difficulty finding a place to live because of his credit report. He "moved from place to place, occasionally staying with friends, sometimes renting rooms, " and living "in [his] car for approximately one month total." (Id. ¶¶ 19-20.)

         Wood testified under oath that the Account being included on his credit report

negatively impacted my credit. I couldn't get apartments. I had to keep moving around. I had to sometimes stay in a car because the houses I was staying at wouldn't-they were just tired of having another person in the house. Places I should have gone, I couldn't. People I should have seen, I didn't.
. . . .
I tried to get a personal loan. I tried to get a ... construction loan. And I attempted ...

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