321 F.Supp.2d 348 (2004) | Cited 7 times | D. Connecticut | June 2, 2004


Plaintiff Rachel Spector ("plaintiff" or "Spector") brings thisaction against defendant Wachovia Bank Card Services forviolating the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681et seq., the Connecticut Unfair Trade Practices Act ("CUTPA"),Conn. Gen. Stat. § 42-11a et seq., the Consumer Credit ReportsAct ("CCRA"), Conn. Gen. Stat. § 36a-695, common law negligence,and the Equal Credit Opportunity Act (ECOA), 15 U.S.C. § 1691.Plaintiff alleges that Wachovia violated the FCRA for failing tocomply with its obligations to properly investigate her consumerdispute, and now moves for partial summary judgment as to theFCRA claim. In response, Wachovia has cross-moved for summaryjudgment. For the reasons set forth below, the court grantsdefendant's motion for summary judgment and denies plaintiff'spartial motion for summary judgment as moot.


The Court sets forth only those facts deemed necessary to an understanding of the issues raised in, and decision renderedon, this Motion. The facts are culled from the parties' LocalRule 56(a) Statements, affidavits, and the exhibits attached totheir respective memoranda.

In March, 2001, plaintiff's Husband, Dr. William Spector, fileda Chapter 7 bankruptcy and received a discharge in June, 2001.One of the accounts Dr. Spector listed and discharged inbankruptcy was a Wachovia credit card account. Dr. Spector hasmaintained a Wachovia credit card account since 1992. When heapplied for the card, he requested that his wife be included asan authorized user of the Wachovia card. (Affidavit of WilliamSpector at ¶ 5). The account was opened on or about January 26,1993. (Declaration of Scheuerman at 1). Currently in dispute iswhether plaintiff was merely an authorized user or an actualco-obligor of the Account. Plaintiff and her husband assert thatshe was only an authorized user of the account. However, on theSchedule F of his bankruptcy petition, Dr. Spector checked theco-debtor box next to his Wachovia Account. (Dkt. No. 98). Inaddition, on Schedule H, Dr. Spector listed his wife, theplaintiff, as a co-debtor for four creditors, including WachoviaBank. (Id.) Defendant Wachovia has not been able to verify how orprecisely when plaintiff's status changed in their records fromauthorized user to a co-obligor, due to the fact that Wachovia sold all of its consumer credit cardaccounts to First USA Bank in or about July 2001. As a result,they are no longer in possession of many documents and recordsconcerning plaintiff's credit card account. In addition, Wachoviaconverted its computer system in 1998, making old datainaccessible. Most of the employees that worked for Wachovia intheir credit services department are also no longer employed withthe company. Therefore, there is no direct evidence on the recordregarding the manner in which plaintiff's status on the accountwas changed from authorized user to joint-obligor status. Mr.Scheuerman, a Senior Vice President of Wachovia from 1991 to2002, explained in his affidavit various ways in whichplaintiff's account holder status could have changed according toregular business practices at Wachovia. For example, he explainedthat plaintiff could have become a coobligor during asolicitation of a promotion or during a balance transfer.Scheuerman clarified that because plaintiff was an authorizeduser of the account, Wachovia was authorized to adjust her statusto that of joint obligor over the phone without any paperwork.(Declaration of Michael Scheuerman at 6).

Wachovia was able to access plaintiff's year-end accountrecords by accessing the master year-end backup files for plaintiff's account from 1993-2001. (Affidavit of Tim Huffstetlerat 3). The 1993 year-end file reflects that plaintiff's status inDecember, 1993 was recorded as a joint-obligor to the account.Wachovia also possessed plaintiff's social security number at thesame time, which, according to Mr. Scheureman, is furtherindication that she was an obligor of the account because it wasthe ordinary business practice of Wachovia to request only thesocial security numbers of individuals who agreed to obligatethemselves on an account. (Declaration of Michael Scheuerman at3). Defendant also produced a May, 1995 Wachovia credit card billin the name of both William B. Spector and Rachel S. Spector.(Declaration of Michael Scheuerman, Exh. B). According to Mr.Scheuerman, Wachovia's regular practice is to direct statementsonly to those individuals who were obligated on an account, andthat neither plaintiff nor her husband ever objected to the billsbeing addressed to both of them. (Id. at ¶ 16).

In 2001, after her husband filed for bankruptcy, plaintiffcomplained to three consumer reporting agencies, Equifax,Experian and Trans Union, that her credit report was inaccurateas a result of Wachovia providing allegedly false information tothese agencies. (Pl.'s Affidavit). Plaintiff claims that Wachoviaincorrectly reported the credit card as an individual account and that the account debt was included in a bankruptcy.Experian issued credit reports in April, May, July, November andDecember 2001, listing the status of all of plaintiff's creditcards, including her Wachovia account. Under the "Responsibility"category the report states that the Wachovia account is"individual," and under "Status Details" the report indicates,"Status: Petition for Chapter 7 Bankruptcy/Past due 120 days."

Plaintiff alleges that Wachovia did not properly investigateher consumer disputes or report to credit bureaus the results ofinvestigating her disputes as obligated under the FCRA, becauseit did not change either the bankruptcy status or the individualresponsibility notation on the report. (Pl's Local Rule 56(a)2statement.) The record reflects that in May of 2001, Wachoviareceived two Automated Consumer Dispute Verifications (ACDV) fromExperian Information Solutions and Trans Union regardingplaintiff's claim that she was not a co-obligor on the account.After receiving such notice, Wachovia confirmed to Trans Union"verified as reported" and to Experian and Equifax, the notation"Debt included in Bankruptcy Chapter 7." (Pl.'s 56(a)(1)Statement at 2; Responses to First Set of Interrogatories byDefendant Wachovia Bank Card Services at 1-2; Defendant's Local56(a)(2) Statement). Again in or around December 11, 2001, Wachoviaprovided Experian with an ACDV Response Activity Report whichindicated that "debt was included in bankruptcy." (Affidavit ofWilhelmina Strawther, at ¶ 16, 29). Wachovia asserts that theverification only pertains to plaintiff's dispute regarding herstatus as a co-obligor, and denies ever listing plaintiff'scredit card as an individual account or verifying to Experianthat the credit card was an individual account. (Def.'s 56(a)(2)Statement at 3). Mr. Scheureman also attests that he is unawareof any industry practice of reading credit reports that wouldcause a creditor to assume that plaintiff, a joint obligor on theWachovia account, had herself filed bankruptcy, based on thenotation that "debt was included in bankruptcy." (Declaration ofMichael Scheuerman at ¶ 9-13).

Because Wachovia sold its credit card services to First Unionin July, 2001, no employee can testify as to the precise stepstaken by Wachovia to investigate plaintiff's dispute. Mr.Scheuerman described the ordinary business procedures taken toinvestigate consumer disputes by the Consumer DisputeVerification (CDV) Unit, and avers that there is no reason tobelieve Wachovia deviated from this practice with respect toplaintiff's dispute. (Declaration of Michael Scheuerman at 3-5).Wachovia's normal business practice is to review all available account records and account notes, which are recordingsof occurrences of account activity on particular dates enteredinto the computer at the approximate time of the accountactivity. Id. To verify an individual's account status,Wachovia's normal business practice is to refer to the "creditassociation" of the particular individual, which identifies theindividual's obligation or status on the account, and whetherWachovia possessed the individual's social security number. Theaccount notes on plaintiff's account reflected that plaintiff hadbeen designated a credit association of "2", which is anindicator that she was jointly obligated on the Account. Theaccount notes also included plaintiff's social security number,which would indicate to an investigating employee that theindividual was an obligor on the account. (Id. at 3). Based onthe information in the account and the account notes, Mr.Scheuerman averred that "an employee reviewing Wachovia'sregularly maintained business records upon receipt of Plaintiff'sdispute would have reasonably concluded that the plaintiff hadbecome a co-obligor on the account at some point after theinitial application . . . [and that] the Account balance was adebt that was included in the bankruptcy.") (Id. at 5).

While admitting that Wachovia followed its "usual procedures" in investigating her complaint, plaintiff assertsthat such procedures were "utterly inadequate" and caused heremotional distress, pain and suffering. Plaintiff does not allegeactual economic loss as a result of Wachovia's conduct, butcharges that she suffered "undue stress and heart break andsleeplessness, a lot of unnecessary paperwork and, most of all,damaging [her] credit." (Pl.'s Deposition at 90). Plaintiff couldnot, however, verify that the information in dispute on herreport has adversely affected her credit rating or that anyonethought the plaintiff herself had filed bankruptcy as a result ofWachovia's reporting her credit card debt was involved in abankruptcy. (Id. at 40) Plaintiff was denied a Best BuyVisa/MasterCard she applied for while in a Best Buy store in thespring of 2002. However, she was given instead a Best Buy CreditCard which allowed her to buy the item she went to the store topurchase. (Id. at 42-47). Plaintiff also paid off the creditcard debt within the first six months and, therefore, was notcharged any interest. (Id. at 45). Plaintiff was not told thereason she was only given a Best Buy credit card and not a BestBuy Visa/MasterCard other than that the latter was denied. Id.at 48. At the time of her deposition, plaintiff had not attemptedto apply for any other forms of credit since July of 2001. (Id.at 47). Legal Analysis

I. Cross Motions to Strike

As an initial matter, the parties have cross moved to strikeaffidavits submitted in support of their respective motions forsummary judgment. The principles concerning admissibility ofevidence do not change on a motion for summary judgment. Raskinv. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997); Newport Elecs. v.Newport Corp., 157 F. Supp.2d 202, 208 (D.Conn. 2001).Accordingly, a motion to strike is appropriate if documentssubmitted in support of a motion for summary judgment containinadmissible hearsay or conclusory statements, are incomplete, orhave not been properly authenticated. See, e.g. Hollander v.American Cyanamid Co., 999 F. Supp. 252, 255-56 (D.Conn. 1998);Dedyo v. Baker Engineering New York, Inc., 1998 U.S. Dist.LEXIS 132, 1998 WL 9376 at *4 (S.D.N.Y. 1998).

A. Plaintiff's Motion to Strike Declarations by Huffstetler andScheuerman

Plaintiff moves to strike the declarations of Tim Huffstetlerand Michael Scheuerman, two Wachovia employees, as inadmissibleunder Fed.R.Civ.P. 56(e). Tim Huffstetler, the Senior Managerin the Systems Development Group of Wachovia, signed a sworn declaration explaining how he retrieved a backupmaster file of plaintiff's year-end Account reports at Wachovia.(Declaration of Tim Huffstetler at 1-2). He did so based on his"personal knowledge" of Wachovia and "technical familiarity withthe practices and procedure of Wachovia's information systems."(Id.) Plaintiff asserts that, because this file was retrievedafter litigation began, it is therefore inadmissible in courtbecause it was "prepared for litigation" in violation ofFed.R.Civ.P. 56(e). (Mem. In support of Pl.'s Motion to Strike at 1).In contradistinction, this court finds the declaration of TimHuffstetler explaining how he recovered the year-end accountreports from Wachovia's computer system are statements regardingbusiness records kept in the ordinary course of business, andtherefore his testimony and the documents are admissible underFed.R.Evid. 803(6). The mere fact that the records wereretrieved from a complex computer storage system after thelitigation began does not make these records documents preparedfor litigation. Furthermore, this court finds, as Senior Managerof Systems Development at Wachovia, Huffstetler is qualified tospeak as to the purpose and operation of the backup master filesystem, and did not make speculative statements by explaining hisunderstanding of how and why Wachovia maintains this back-up file system.

This court also rejects plaintiff's challenge to declarationsmade by Michael Scheuerman, the Senior Vice President of Wachoviaduring the time of the events in question. Mr. Scheuermandescribed the regular business practices of Wachovia with respectto investigating consumer disputes and the maintenance of accountnotes of an account with joint obligor status. Mr Scheuerman alsoexplained the notes that had been recorded with respect toplaintiff's account, indicating Wachovia had designated plaintiffas jointly obligated on her husband's account. The declarationsof Scheuerman and Huffstetler, high ranking employees ofWachovia, provide a sufficient basis for finding personalknowledge and competence to testify regarding the generalbusiness practices and procedures of Wachovia under Fed.R. Civ.P. 56(e). Therefore, such declarations are admissible forpurposes of these summary judgment motions.

B. Defendant's Motion to Strike Plaintiff's Affidavits

Defendant moves to strike portions of Plaintiff's affidavitsubmitted in support of her motion for partial summary judgment,on the grounds that it contains hearsay and vague statements, aswell as references to documents not identified in the affidavit. Hearsay is a statement, other thanone made by the declarant, offered in evidence to prove the truthof the matter asserted. Fed.R.Evid. 801(c). Hearsay testimonythat would not be admissible if testified to at trial may notproperly be set forth in a Rule 56 affidavit accompanying asummary judgment motion. H. Sand & Co., Inc. v. Airtemp Corp.,934 F.2d 450, 454-55 (2d Cir. 1991). Paragraphs Two and Eight ofplaintiff's affidavit make references that she "learned" and"confirmed" information regarding her credit reports, but do notidentify the source of her information. Paragraph Eight alsostates that "I also learned that Wachovia did not respond to mydisputes at all." (Pl.'s Affidavit at 2).

Similarly, Paragraph Seven states that Experian, one of thecredit bureaus and previously a co-defendant in this lawsuit,"confirmed" that Wachovia had verified disputed information.While this court agrees that plaintiff's affidavit is inartfullydrafted, these statements are not hearsay because they are reliedon only as evidence of what was said or reported to plaintiff,not as evidence of the truth of any statement or record made.Fed.R.Civ.P. 801(c); New York v. St. Francis Hosp.,94 F. Supp.2d 423, 428 (S.D.N.Y. 2000). Further, because she has alsosubmitted supporting evidence including credit reports and anaffidavit from a Custodian of records at Experian, this court relies primarily on the evidenceon the record with respect to what information was reported andverified.

Defendant Wachovia also moves to strike Paragraphs Three andFive of plaintiff's affidavit pursuant to Fed.R.Evid. 1002because she makes a reference to "reports" without specifying theparticular documents or submitting them as evidence. In heraffidavit, paragraph three states that "[t]he adverse informationincluded reports that my `individual' accounts had beendischarged in bankruptcy." Paragraph five states that "In 2001, Idisputed the items which included the false adverse informationwith all three major credit bureaus." (Dkt. #84). While thesestatements may be vague taken on their own, when read inconnection with the copies of plaintiff's credit report andconsumer dispute verification paperwork submitted with heraffidavit, the reference to the report is clarified. Further, theBest Evidence rule, Fed.R.Evid. 1002, does not apply becauseplaintiff's statement is not an attempt to prove the content of awriting. See Dean v. New York Marriott Fin. Ctr. Hotel &Marriott Int'l, 1998 U.S. Dist. LEXIS 13957, 12-13 (U.S. Dist.,1998) Accordingly, this court finds these statements admissiblefor consideration on summary judgment. However, plaintiff'sstatements as to the contents of these reports will be disregarded to the extent thatthey contradict what the records themselves reveal. Defendant'sMotion to Strike is therefore denied in its entirety.

II. Summary Judgment

A. The Standard of Review

In a motion for summary judgment, the burden is on the movingparty to establish that there are no genuine issues of materialfact in dispute and that it is entitled to judgment as a matterof law. Fed.R.Civ.Proc. 56(c). See also Anderson v. LibertyLobby, Inc., 477 U.S. 242, 256, (1986) (plaintiff must presentaffirmative evidence in order to defeat a properly supportedmotion for summary judgment). If the moving party meets itsburden of identifying those portions of the record that itbelieves demonstrate the absence of genuine issues of materialfact, "the non-moving party must, under Federal Rule of CivilProcedure 56, demonstrate to the court the existence of a genuineissue of material fact." Lendino v. Trans Union Credit Info.Co., 970 F.2d 1110, 1112 (2d Cir. 1992).

To meet its burden and avoid summary judgment, the nonmovingparty "must come forward with affirmative evidence showing agenuine issue of material fact exists for trial." Chandra Corp. v. Val-Ex, Inc., No. 99-9061, 2001 WL 669252, at*2 (S.D.N.Y. Jun. 14, 2002) (citing Celotex v. Catrett,477 U.S. 317, 324 (1986)). The court is mandated to "resolve allambiguities and draw all inferences in favor of the nonmovingparty. . . ." Aldrich v. Randolph Cent. Sch. Dist.,963 F.2d 520, 523 (2nd. Cir.), cert. denied 502 U.S. 849 (1991). "Onlywhen reasonable minds could not differ as to the import of theevidence is summary judgment proper." Bryant v. Maffucci,923 F.2d 979, 982 (2d. Cir.), cert. denied, 502 U.S. 849 (1991).

"[T]he mere existence of some alleged factual dispute betweenthe parties will not defeat an otherwise properly supportedmotion for summary judgment; the requirement is that there be nogenuine issue of material fact . . . Only disputes over factsthat might affect the outcome of the suit under the governing lawwill properly preclude the entry of summary judgment. Factualdisputes that are irrelevant or unnecessary will not be counted."Liberty Lobby, Inc., 477 U.S. at 247-48. (emphasis inoriginal). Nonetheless, summary judgment is improper if there isany evidence in the record from any source from which areasonable inference could be drawn in favor of the nonmovingparty. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2dCir. 1994). The Second Circuit has repeatedly noted that "[a]s ageneral rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favorof the party opposing the motion, and all doubts as to theexistence of a genuine issue for trial should be resolved againstthe moving party." Brady v. Town of Colchester, 863 F.2d 205,210 (2d Cir. 1988) (internal citations omitted) citing Celotexv. Catrett, 477 U.S. at 330, n. 2 (Brennan, J., dissenting) andAdickes v. S.H. Kress & Co., 398 U.S. 144, 158-59(1970));Cartier v. Lussier, 955 F.2d 841, 845 (2d Cir. 1992). Whenexamining the record before it to see if there are any genuineissues of material fact, this court's focus is on issue finding,not on issue-resolution. The district court's role is not toresolve disputed issues of fact itself, but rather to see ifthere are issues of fact to be resolved by the fact-finder attrial. See Liberty Lobby, Inc., 477 U.S. at 249.

B. Standard Applied

The FCRA imposes a duty on entities responsible for furnishinginformation to consumer reporting agencies following the receiptof notice of a dispute over the accuracy of information providedby that furnisher to the consumer reporting agency.15 U.S.C. § 1681s-2(b) states that, after receiving notice of a dispute froma consumer reporting agency under 15 U.S.C. § 1681(a)(2), thefurnisher shall: (A) conduct an investigation with respect to the disputed information;

(B) review all relevant information provided by the consumer reporting agency pursuant to section 1681i(a)(2) of this title; (C) report the results of the investigation to the consumer reporting agency; and (D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis.Plaintiff claims that defendant Wachovia is liable under15 U.S.C. § 1681o, for negligently failing to comply with15 U.S.C. § 1681s-2(b), or under 15 U.S.C. § 1681n, for willfulnon-compliance with 15 U.S.C. § 1681s-2(b). This court addressesboth claims below.

1. Negligent Failure to Comply with FCRA

15 U.S.C. § 1681o provides: Any person who is negligent in failing to comply with any requirement imposed under this sub-chapter with respect to any consumer is liable to that consumer in an amount equal to the sum of (1) any actual damages sustained by the consumer as a result of the failure; (2) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorneys fees as determined by the court.In order to survive a summary judgment motion on a claim of negligent violation of the FCRA, a plaintiff must provide someevidence from which a reasonable fact-finder could conclude thatshe suffered actual damages as a result of defendant's actions.See McMillan v. Experian, 170 F. Supp.2d 278, 284 (D. Conn.2001).

Defendant Wachovia cross-moved for summary judgment based onthe fact that plaintiff has failed to come forward with evidenceof actual damages caused by Wachovia's alleged negligent orwillful noncompliance. Because Wachovia points to the absence ofsuch evidence, the burden therefore shifts to the non-movingplaintiff to demonstrate the existence of a material factualdispute as to the existence of damages. See Celotex, 477 U.S.at 323-24; LaBounty v. Coughlin, 137 F.3d 68, 72 (2d Cir.1998). This court finds plaintiff failed to meet her burden ofproving she has sustained damages as a result of Wachovia'sindication that her credit card account was part of a bankruptcyproceeding. Preliminarily, this court rejects plaintiff'scontention that the question of damages is "inconsequentialbecause emotional distress is recoverable, as are punitivedamages." (Pl.'s Local Rule 56(a)2 Statement). While plaintiff iscorrect that damages under FCRA "may include humiliation andmental distress even in the absence of out-of-pocket expenses,"the Second Circuit has placed clear limitations on a plaintiff's ability to recover for pain andsuffering when no economic harm is alleged. In Casella v.Equifax Credit Info. Servs., 56 F.3d 469, 474-475 (2d Cir.1995), the Court affirmed the district court's finding that theplaintiff was not entitled to pain and suffering damages becausehe had failed to show that his emotional distress was caused bythe defendant, as opposed to other creditors or credit bureaucompanies. See also McMillan v. Experian, 170 F. Supp.2d at286 ("Casella stands for the proposition that recovery under theFCRA for pain and suffering is precluded where the plaintiffcannot show that a creditor was aware of the inaccurateinformation, because mere knowledge by a plaintiff of potentiallydamaging credit information is insufficient FCRA damages.").

Even interpreting the record in favor of the plaintiff, she hasnot submitted any evidence that she suffered any economic loss asa result of the conduct of Wachovia. Plaintiff attempted to showthat other creditors "saw the inaccurate report after Wachovia'sinvestigation" by citing to the Affidavit of WilhelminaStrawther, a custodian of records for the Consumer AffairsSpecial Services Department of Experian. However, the portions ofStrawther's affidavit plaintiff points to demonstrate thatExperian's records show a company by the name of Cohoes Fashions received a plaintiff'scredit report on March 15, 2000. (Affidavit of Strawther at 6).This credit check therefore occurred a year before Dr. Spectorfiled for Bankruptcy and before plaintiff disputed the allegedinaccuracy on her account, and therefore any emotional damagecaused by such inquiry cannot have been caused by Wachovia'salleged failure to adequately investigate and respond toplaintiff's consumer dispute. Plaintiff also provides this courtwith no information with respect to Cohoes Fashion, failing toshow what information this company received, how they interpretedsuch reports, and whether Cohoes Fashions relied on any allegedlyinaccurate information from Wachovia.

When asked specifically in her deposition whether she couldidentify anybody who, she was aware, had read the phrase"included in bankruptcy" on her credit report as meaning that sheherself had filed bankruptcy, plaintiff was unable to identifyanyone. (Pl.'s Deposition at 38-9). Further, the only denial offinancial services plaintiff could point to was when sheattempted to sign up for a Best Buy MasterCard/Visa whileshopping at Best Buy in the Spring of 2002. (Id. at 42).Plaintiff explained that, while she was not given a Best BuyVisa/MasterCard card, she was given a Best Buy credit card which allowed her to buy the items she had intended to buy thatday. Plaintiff could not recall the reason she had been deniedthe Visa/MasterCard, or whether anything led her to believe thatshe had been denied credit because of something Wachovia haddone. She received no information about what type of creditreport they relied on, if any.1 (Id. at 85). Finally,plaintiff stated at her deposition that she did not recallapplying for any other forms of credit aside from the Best BuyCard since the dispute over her Wachovia card arose. This courtfinds plaintiff's mental anguish, on its own, without evidence ofa denial of credit or of any third parties viewing or relying onthe information Wachovia provided regarding the status of hercredit card, is not enough to survive summary judgment. CompareMcMillan v. Experian, 170 F. Supp.2d 278, 285 (D. Conn. 2001)(denying summary judgment on damages issue because a reasonablejury could conclude that a denial of insurance resulted frommisinformation supplied by the defendant) and Spector v. TransUnion LLC First USA Bank, N.A., 301 F. Supp.2d 231, 2004 U.S. Dist. LEXIS 1386 (D. Conn. 2004)(finding summary judgment inappropriate because evidence wassubmitted that creditors were aware of alleged inaccurateinformation). This court therefore concludes that plaintifffailed to adduce any evidence of actual damages sustained as aresult of defendant's activities, as required by FCRA, andsummary judgment is granted for defendant Wachovia.

Because the court has found that plaintiff failed to meet herburden of proving damages as required by the FCRA, it isunnecessary to address the issue of whether Wachovia was indeednegligently non-compliant for failing to change plaintiff'sstatus on her credit report as a co-obligor and erase allinformation pertaining to her husband's bankruptcy filing.

II. Willful Non-compliance

Plaintiff has also failed to present any evidence of willfulnoncompliance with any provision of the FCRA. See15 U.S.C. § 1681n. Under the FCRA, "any person who willfully fails to complywith any requirement imposed under [the FCRA] with respect to anyconsumer is liable to that consumer in an amount equal to the sumof . . . such amount of punitive damages as the court may allow."15 U.S.C. § 1681n. Plaintiff is correct that punitive damages maybe available even where a plaintiff has sustained no actual damages. See15 U.S.C. § 1681n(2); Casella, 56 F.3d at 476; Boothe v. TRW Credit Data,557 F. Supp. 66, 71-72 (S.D.N.Y. 1982). However, to survivesummary judgment on a willful non-compliance claim, a plaintiffmust set forth affirmative evidence demonstrating "consciousdisregard" or "deliberate and purposeful" actions necessary tomake out a claim for willful noncompliance under the FCRA. 56F.3d at 476 (quoting Pinner v. Schmidt, 805 F.2d 1258, 1263 (2dCir. 1986) ("[i]n each case where punitive damages have beenallowed the defendant's conduct involved willfulmisrepresentations or concealments.") Based on the record beforethis court, there is no evidence that Wachovia engaged indeliberate or reckless conduct that would warrant punitivedamages. In fact, plaintiff admits that "Wachovia followed itsnormal procedure in responding to plaintiff's dispute and has noinformation indicative of any departure from normal procedures."(Pl.'s Rule 56(a)(1) Statement). Accordingly, summary judgment isalso granted in favor of defendants on plaintiff's claim ofwillful non-compliance.


Plaintiff's Motion to Strike Declarations [Dkt. No. 100] isDenied. Defendant's Motion to Strike Affidavit [Dkt. No. 91] isDenied. Defendant's Cross Motion for Summary Judgment on the FCRA claim is granted [Dkt. No. 93] and Plaintiff'sPartial Motion for Summary Judgment against Wachovia [Dkt. No.81] is denied as moot.


1. Plaintiff brought similar claims against numerous othercredit reporting agencies and financial institutions allegingthey falsely reported her credit information. Plaintiff hassubmitted no evidence that Best Buy relied on informationWachovia provided, as opposed to any of the numerous otherfinancial institutions which reported the same information asWachovia. See Spector v. Trans Union LLC, 301 F. Supp.2d 231(D. Conn. 2004).

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