United States Court of Appeals
For the First Circuit
No. 09-2323
WEN Y. CHIANG,
Plaintiff, Appellant,
v.
MBNA, A Bank of America Company;
FIA CARD SERVICES, N.A.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Torruella, Lipez and Howard,
Circuit Judges.
Dean Carnahan, with whom Law Offices of Dean Carnahan was on
brief, for appellant.
Terry B. Bates, with whom Reed Smith LLP, Bruce D. Berns and
Abendroth Berns & Warner LLC, were on brief, for appellees.
September 9, 2010
HOWARD, Circuit Judge. The Fair Credit Reporting Act
imposes certain obligations on entities that furnish credit
information to consumer credit reporting agencies (CRAs). See 15
U.S.C. § 1681s-2. One such obligation is to investigate any
disputes over the completeness or accuracy of the information
furnished and then notify the CRA of any corrections -- but only if
the CRA, acting as a gatekeeper, has previously notified the
furnisher of the consumer's dispute. Id. § 1681s-2(b)(1). By
contrast, "[a] notice of disputed information provided directly by
the consumer to a furnisher does not trigger a furnisher's duties
under § 1681s-2(b)." Chiang v. Verizon New England, Inc., 595 F.3d
26, 35 n.8 (1st Cir. 2010).
The appeal before us centers on this distinction.
Plaintiff Wen Chiang brought suit against FIA Card Services, N.A.
(formerly known as MBNA America Bank, N.A.), after it allegedly
reported delinquent payments on his credit card.1 Chiang disputes
the alleged delinquency report and claims that FIA, as a furnisher
of credit information, violated § 1681s-2(b)(1) by failing to
follow up on that dispute with a further investigation. The
district court granted summary judgment to FIA after finding no
evidence that a CRA, rather than just Chiang himself, had ever
contacted FIA concerning Chiang's objections. Chiang v. MBNA, 634
1
It is not clear from the record whether Chiang's account was
ever actually reported as delinquent.
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F. Supp. 2d 164 (D. Mass. 2009). Discerning exactly the same fatal
hole in Chiang's case as the district court found, we affirm.2
Because the district court resolved the case on summary
judgment, we review its decision de novo. Harrington v. City of
Nashua, 610 F.3d 24, 27 (1st Cir. 2010). We will affirm the entry
of summary judgment if, after we have drawn all reasonable
inferences in the non-moving party's favor, the record reveals no
genuine issue of material fact that would prevent judgment for the
moving party as a matter of law. Fed. R. Civ. P. 56(c)(2).
Deposed representatives from the three major CRAs
testified that they had never sent a dispute notification to FIA.
Consistent with that testimony, an FIA vice president stated in an
affidavit that FIA had never received one. "Once the moving party
avers an absence of evidence to support the non-moving party's
case, the non-moving party must offer definite, competent evidence
to rebut the motion." Meuser v. Fed. Express Corp., 564 F.3d 507,
515 (1st Cir. 2009) (internal quotation marks omitted). The
evidence Chiang offers, however, is a parade of irrelevancies.
He first seeks to discredit the CRAs' deposition
testimony. He argues that the agencies did not adequately account
2
This is not the first unsuccessful consumer challenge that
this plaintiff and his counsel have brought within this circuit.
See Chiang v. Verizon New England, Inc., 595 F.3d 26; Chiang v.
Bank of Am., No. 07-cv-11733-RWZ (D. Mass. Mar. 12, 2010); see also
Chiang v. Chase Bank USA, N.A., No. 07-cv-11931-NG (D. Mass. June
12, 2008) (dismissal of claims and counterclaims after alternative
dispute resolution settlement).
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for the fact that, during the relevant time frame, FIA and its
institutional predecessors MBNA and Bank of America were in the
midst of organizational changes that could have created confusion
about which entity actually provided the account. As proof, he
points to portions of the testimony where the CRA representatives
appeared unfamiliar with the exact relationship between Bank of
America, MBNA, and FIA. According to Chiang, a dispute
notification could therefore have been sent to any of the three,
while the agencies searched their records only for notifications
sent to FIA. Yet the agencies explained in their affidavits that
searches were conducted according to the consumer's account number,
not according to the recipient.3 Any search would therefore have
turned up documents addressed to any of the three entities.
Moreover, FIA's affidavit explicitly confirmed that the "records
would have contained all of the documents relating to the Account,
irrespective of whether the documents were addressed to FIA, MBNA,
or Bank of America."
3
The district court allowed FIA to supplement the record with
these affidavits after depositions had already been taken. Because
the CRA representatives had referred only to FIA in their sworn
testimony, the court requested additional discovery to clarify
whether the representatives had also searched for notice sent to
FIA's affiliates MBNA and Bank of America. Chiang claims that the
court erred in considering these supplementary affidavits, but he
is mistaken. "A subsequent affidavit that merely explains, or
amplifies upon, opaque testimony given in a previous deposition is
entitled to consideration in opposition to a motion for summary
judgment." Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 26
(1st Cir. 2002).
-4-
Chiang generates much sound and fury arguing that these
affidavits conflict with the CRA representatives' deposition
testimony, creating a triable issue of material fact. But all that
the purportedly contradictory testimony shows is that the deponents
were not as thoroughly knowledgeable about the relationship between
Bank of America, MBNA, and FIA as perhaps they ideally might be.
Even construing that fact in Chiang's favor, it would have nothing
to do with whether a search according to account number would turn
up documents sent to any of them. The result would have been the
same whether the agencies' representatives thought that the three
entities were affiliates or unrelated competitors. There was no
notice in any of the agencies' records, and the account
number–based search would have found any that existed. The only
reasonable inference is that no notice was ever sent.
Chiang's own documentary evidence is similarly beside the
point. He points to complaints that he sent to CRAs, but these do
not establish that the agencies ever took the next step of
communicating those complaints to the furnisher. As the district
court aptly explained,
In their deposition testimony, two CRA
representatives explained that the receipt of
a consumer dispute does not automatically
trigger notification to the furnisher.
Rather, a consumer complaint initiates a
multi-step process which may or may not result
in contact with a particular furnisher. For
example, upon receipt of a consumer complaint
letter, the credit reporting agency will
perform an initial review to specifically
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identify the dispute; if the consumer's
initial complaint is difficult to decipher,
the agency will often contact the consumer
asking for additional information before
proceeding further. An agency will often
first check its records to ensure that the
consumer's understanding of their account is
accurate (i.e., whether an account which the
consumer claims has been reported delinquent
is indeed reporting as delinquent). If the
consumer's belief does not match what the
agency sees on its review of the consumer's
file, then the agency may seek to resolve the
discrepancy on its own without contacting a
furnisher (i.e., the agency may contact the
consumer to let him or her know that their
account is not listed as delinquent).
Chiang, 634 F. Supp. 2d at 171 (internal record citations omitted).
He next offers a faxed communication he received from
Bank of America regarding his account. This document's
significance, according to Chiang, lies not in the typed content of
the fax itself but in Chiang's own handwritten note, allegedly
jotted down during a phone conversation with a Bank of America
customer service representative, Sherry Wyman: "Ms. Sherry said
all [corrections]4 has [sic] been sent to credit bureau and allow
90–120 days to showing [sic] the credit report. this is include
[sic] all disputed, wrong reports that she has on file. She also
told [sic] my account is open and not have any past due history
too." Here, too, there is no suggestion that a CRA had contacted
FIA concerning the disputed information. Moreover, Wyman stated in
4
Chiang appears to have written a different word here, but he
maintains that he meant "corrections." The choice of words does
not alter the analysis.
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her affidavit that, at the time of the alleged phone call, she was
not working in the credit bureau dispute department and would not
have handled a credit bureau dispute from Chiang or anyone else.
Chiang's final piece of evidence is a pair of letters
that Equifax, one of the CRAs, sent to him. These letters
acknowledge completion of Chiang's requested investigation of his
credit file and explain that Equifax had "contacted each source
directly." Chiang insists that a reasonable juror could infer from
these letters that Equifax had indeed contacted FIA. But even if
Equifax had contacted FIA in some capacity, other language in the
letters makes it unreasonable to infer that Equifax had sent notice
about the particular dispute at issue here. The letters proceed to
explain that the credit card account was "reporting as OPEN" and
"paid as agreed, with no late payments," rather than delinquent;
because the predicate for Chiang's complaint was nowhere to be
found, it is rather unlikely that Equifax would have identified the
dispute as requiring formal communication to FIA. Indeed, the
letters also mention two disputes with Verizon, noting that "[t]his
creditor has verified to Equifax that the balance is being reported
correctly" -- a sentence conspicuously absent from the paragraph
dealing with the FIA account. That Equifax memorialized this
verification only when discussing the Verizon disputes and not the
FIA dispute suggests that Equifax actually communicated the
relevant dispute to Verizon but not to FIA. Hence, by negative
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implication, these letters actually cut against the proposition
that Chiang believes them to support.5
Affirmed. Costs to appellees.
5
Chiang also highlights the letters' use of the word
"reinvestigate," which appears to suggest that Equifax had in fact
conducted some prior investigation of the dispute. But
"reinvestigation" is a term of art in the Fair Credit Reporting Act
and refers only to a CRA's reevaluation of a consumer's credit
report in light of a consumer's dispute, not a second
investigation. See 15 U.S.C. § 1681i(a)(1)(A) ("[I]f the
completeness or accuracy of any item of information contained in a
consumer's file at a consumer reporting agency is disputed by the
consumer and the consumer notifies the agency directly, or
indirectly through a reseller, of such dispute, the agency shall,
free of charge, conduct a reasonable reinvestigation to determine
whether the disputed information is inaccurate . . . .").
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