Chiang v. Verizon New England, Inc.

United States Court of Appeals
For the First Circuit

No. 09-1214

WEN Y. CHIANG,

Plaintiff, Appellant,

v.

VERIZON NEW ENGLAND INC.,

Defendant, Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.

Dean Carnahan with whom Law Offices of Dean Carnahan were on
brief for appellant.
Joshua A. Lewin with whom William A. Worth and Prince, Lobel,
Glovsky & Tye LLP were on brief for appellee.

February 9, 2010
 LYNCH, Chief Judge. In July 2006, plaintiff Wen Y.

Chiang sued his telecommunications company, Verizon New England

Inc. (Verizon NE), in state court, alleging in part that the

company had billed his account for telephone service he had not

ordered. Chiang filed a second state court suit against Verizon NE

in February 2007 over a billing dispute triggered by Chiang's

conceded failure to pay telephone bills on two accounts, totaling

approximately $200. Chiang's substantive billing disputes with

Verizon NE were resolved in these state court lawsuits and are not

at issue here.

In November 2006, Chiang brought this suit against

Verizon NE in Massachusetts federal court, seeking more than $1

million for claimed violations of his rights under § 1681s-2(b) of

the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., and

under the Fair Debt Collection Practices Act (FDCPA), id. § 1692 et

seq., as to Verizon NE's handling of the disputes resolved in state

court. The district court granted summary judgment for Verizon NE

on all of Chiang's claims in January 2009. Chiang v. Verizon New

England, Inc., No. 06-cv-12144-DPW, 2009 WL 102707 (D. Mass. Jan.

13, 2009). Chiang appeals from the grant of summary judgment.

In particular, Chiang asserts that Verizon NE, as a

furnisher of information, failed to adequately investigate disputes

about the furnished information reported to it by consumer

reporting agencies (CRAs), as required under the FCRA. 15 U.S.C.

-2-
§ 1681s-2(b). He also alleges that Verizon NE was a debt collector

and its practices were abusive, in violation of the FDCPA. Id.

§ 1692a. Creditors are generally not liable under the FDCPA when

collecting on their own accounts, but Chiang asserts that Verizon

NE falls within a limited exception for creditors who collect their

own debts under a name that suggests a third party is collecting

the account. Id. § 1692a(6).

His claims raise several issues of first impression for

our court. They include whether § 1681s-2(b) of the FCRA provides

for a private right of action and the standards for asserting a

claim under that section. We join other circuits in recognizing

that under § 1681s-2(b) there is a private cause of action, that

the investigation must be reasonable, that this test is objective,

and that plaintiff bears the burden of proof. We further hold that

a § 1681s-2(b) claim requires plaintiff to show actual inaccuracies

that a furnisher's objectively reasonable investigation would have

been able to discover. However, we reject the defendant's argument

that the restriction in an earlier section of the statute, id.

§ 1681s-2(a)(1)(D), which precludes reliance on a plaintiff's

allegations for the purposes of that subsection, applies to a

plaintiff's own assertions in support of his claim under § 1681s-

2(b).

We affirm summary judgment for Verizon NE on the FCRA

§ 1681s-2(b) claims, because Chiang fails to raise a genuine issue

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of material fact on two issues on which he bears the burden: (1)

that Verizon NE's investigation as a furnisher to CRAs was

unreasonable and (2) that there were actual inaccuracies that

Verizon NE could have detected in a reasonable investigation. We

also affirm entry of summary judgment on Chiang's FDCPA claim

because there is no material dispute of fact that Verizon NE is not

a debt collector.

I.

When reviewing a grant of summary judgment, we draw all

reasonable inferences in favor of the nonmoving party "while

ignoring conclusory allegations, improbable inferences, and

unsupported speculation." Sutliffe v. Epping Sch. Dist., 584 F.3d

314, 325 (1st Cir. 2009) (internal quotation marks omitted).

Chiang's argument is that the court drew the wrong legal

conclusions from the undisputed facts. Accordingly, "[w]e take the

facts largely as described by the district court and from the

record of the district court proceedings." Boston & Me. Corp. v.

Mass. Bay Transp. Auth., 587 F.3d 89, 92 (1st Cir. 2009).

A. Background: Chiang's Disputes with Verizon NE over His
Telephone Service and the State Court Litigation

The merits of Chiang's disagreements with Verizon NE are

not at issue in this case and have already been resolved in state

court litigation. However, we outline these disputes to clarify

the events that triggered the debt collection and credit reporting

practices at issue in this federal case.

-4-
 Chiang is the president of a residential construction and

painting company in Massachusetts, which, Chiang says, also engages

in international trade. At various points between 2005 and 2007,

Chiang obtained telephone service on two lines from Verizon NE, a

telecommunications company that conducts business in Massachusetts.

During this period, Chiang had several disputes with Verizon NE

over his service on both accounts. How Verizon NE handled these

disputes is the subject of Chiang's federal litigation.

The first disagreement involved Chiang's assertion that

Verizon NE charged him from July to November 2005 for long distance

service on one line that he says he had not ordered. Chiang

alleged in his affidavit, but provided no documentation, that he

discussed these charges with a Verizon NE representative in

November 2005 but that the company did not follow through on its

promise to correct his bill.

A second conflict arose in early 2006, after Chiang

temporarily switched his telephone service on both lines to another

provider but continued to receive bills from Verizon NE. On May

16, 2006, Chiang sent two demand letters to Verizon NE, noting that

he had switched to a different carrier, effective on February 8 of

that year, and asking the company to adjust his bill accordingly.

Chiang switched his telephone service back to Verizon NE

in the summer of 2006. Although his installation was scheduled for

July 5, 2006, Chiang claims that Verizon NE did not install his

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service until July 13. On July 18, 2006, Chiang filed suit against

Verizon NE in Massachusetts state court, alleging damages stemming

from the delayed installation, as well as from the charges he

continued to accrue after switching his service away from Verizon

NE.

Chiang asserts that Verizon NE overcharged him for

telephone service between July and December 2006, billing him for

calls he did not make and for services he did not order while

failing to credit him for payments he had made on his account. In

August 2006, Chiang stopped paying his telephone bills on both

telephone lines. He believed that he owed Verizon NE nothing and

that the company instead owed him compensation for the amount that

he had been overcharged.1

Chiang's affidavit says he discussed his concerns with a

Verizon NE representative in late August 2006. In September 2006,

Chiang wrote a letter to Verizon NE's attorney, in which he

complained about his experience with Verizon NE customer service

and alleged that the representative had told him his service would

be discontinued if he did not pay his bill. He also threatened

further legal action if Verizon NE continued to "abuse" him.

In December 2006, after providing notice of

discontinuance, Verizon NE suspended Chiang's service for

1
Chiang made at least one partial payment to Verizon NE,
which he explained was meant to cover the fraction of his bill that
he did not dispute.

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delinquent payment. The company later restored limited service to

him. In January 2007, Chiang switched both disputed telephone

lines to another provider. The following month, he filed a second

state court suit against Verizon NE for alleged damages arising out

of the suspension and partial restoration of his account.

The state court suits were consolidated and resolved

primarily for Verizon NE on its motion for summary judgment.2

B. Verizon NE's Debt Collection and Credit Reporting
Practices

Chiang's federal claims are about the debt collection and

credit reporting practices of Verizon NE during and after the

period of his contested service. We describe the evidence on those

practices.

1. FDCPA Claim

We first review facts related to Chiang's claim that

Verizon NE is liable under the FDCPA. Chiang alleges that Verizon

NE was a debt collector, its debt collection practices were

abusive, and it attempted to collect its own debts under a name

2
The state court granted summary judgment in Verizon NE's
favor on Chiang's claims for emotional distress and violations of
the Massachusetts Consumer Protection Act, Mass. Gen. Laws ch. 93A.
It also found that Chiang's failure to show willful misconduct or
gross negligence meant Massachusetts telecommunications tariffs
controlled and limited damages on his remaining claims. Since
Verizon NE had expressed its willingness to compensate Chiang for
days when he was without service under these tariffs, the court
entered summary judgment in Chiang's favor "on th[e] limited issue"
of his "entitlement to the proportion of service charges he paid
during the days he was without service."

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that suggested the debts were being collected by a third party. In

August 2006, Chiang began to receive letters and telephone calls

from debt collection agencies seeking to collect on his delinquent

accounts with Verizon NE, which totaled just over $200.3 Chiang

says that at least one of the collection agencies used profane,

abusive language and called repeatedly, despite his request that he

not be contacted by telephone.

The collection letters identified Chiang's creditor by a

variety of names, including "Verizon-North," "Verizon North NE

(MASS R)," and "Verizon New England Inc." Chiang also claims to

have received notice from a collection agency and his "credit alert

company" that "Verizon Massachusetts, Inc.," based in Columbus,

Ohio, was seeking payment on his delinquent account. At the time,

he believed that "Verizon Massachusetts, Inc." was an independent

corporation that collected debts for Verizon NE.

2. FCRA Claim

Turning to facts pertinent to Chiang's FCRA claim, in

addition to letters from debt collection agencies, Chiang received

communications from CRAs, including Equifax and TransUnion,

reflecting his delinquent Verizon NE accounts. Chiang responded to

these credit reports with demand letters to the CRAs, in which he

3
Although the precise amount owed varied in the collection
letters, the majority of the letters requested payment on Chiang's
two accounts, which were delinquent in the amounts of $119.20 and
$100, respectively.

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requested that the CRAs remove this information from his account or

list it as disputed. Eight of Chiang's demand letters to the CRAs

were in evidence before the district court.4 While those letters

provide background, the FCRA claim against Verizon NE is not and

cannot be based on what Chiang told the CRAs. The claim is instead

based on the communications from the CRAs to Verizon NE and Verizon

NE's response.

The evidence about the CRAs' communication with Verizon

NE about Chiang's assertions and Verizon NE's response did not come

from Chiang, but from Verizon NE. Verizon NE's undisputed evidence

is that its corporate affiliate, Verizon Services Corp. (Verizon),

contracts with the Columbus, Ohio-based company Credit Bureau

Collection Services, Inc. (CBCS) for all consumer-reporting related

activities. Verizon NE has conceded that, under agency law,

Verizon NE is liable if CBCS violates the FCRA while acting within

the scope of its contractual duties. So we review both the actions

of CBCS and of Verizon NE.

CBCS, Verizon NE's agent, is responsible for initially

transmitting consumer credit information to the CRAs. Verizon

sends CBCS information about delinquent accounts every month. CBCS

4
Of these eight demand letters, three were addressed to
Equifax, dated November 24, 2006, April 25, 2007, and May 15, 2007;
three were addressed to TransUnion, dated November 30, 2006,
December 4, 2006, and December 16, 2006; and two were addressed to
Experian, dated November 30, 2006, and December 4, 2006. Only one
of these letters had been mailed when Chiang initiated his federal
lawsuit on November 29, 2006.

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separates out accounts whose balances exceed $50 and have not been

paid after sixty days and converts data for these accounts into the

digital format used by CRAs. It then transmits this information to

the CRAs.

The CRAs also notify CBCS, through an online reporting

system, when a consumer disputes his credit information. These

reports of disputes trigger the protections of 15 U.S.C. § 1681s-

2(b), the statute at issue here. CBCS then investigates consumer

disputes by going electronically into Verizon NE's account and

billing records (to which Verizon has given CBCS access), in order

to determine the accuracy of information provided to CRAs. CBCS

contacts Verizon employees when CBCS is unable to verify the

accuracy or completeness of a particular consumer's credit

information based on the available records alone. Verizon

designates at least one employee to monitor CBCS's credit reporting

activities.

The evidence, provided by Verizon NE, is that CBCS

received twelve inquiries from CRAs, over about six months between

late 2006 and 2007, about the accuracy of Chiang's reported credit

information through its online reporting system. The record

contains twelve summary reports, recovered from the CBCS system,

that relate to CRA inquiries about Chiang's account.5 These one-

5
Each of the twelve summary reports contains information
about a particular dispute reported to CBCS by a CRA. Information
presented in each report includes: the name and address of the CRA

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page reports indicate that Chiang's disputes were described by the

CRAs variously as "[c]laims inaccurate information," "[c]laims paid

the original creditor before collection status or paid before

charge-off," "consumer disputes the balance of this account and

states account is in [state and federal lawsuits]," "claims that

this account was never paid late," and "[a]ccount involved in

litigation." Chiang does not dispute these are the CRA inquiries

at issue, although none of them had been made when he first filed

his federal lawsuit. Verizon has no record of its personnel having

been contacted by CBCS with any additional inquiries regarding

Chiang's disputes. After completing its investigation of Chiang's

reported complaints, CBCS notified the CRAs in each instance that

the information reported on Chiang's account was accurate.

C. District Court Proceedings

On November 29, 2006, Chiang filed suit in the federal

district court of Massachusetts, alleging, inter alia, violations

that reported the dispute at issue; the dates on which the
notification was received and CBCS's response was sent; the
disputed account's balance and payment information; a brief
description of "FCRA Relevant Information," that is, the basis for
Chiang's complaint; and the response sent to the CRA. All twelve
reports indicate that CBCS responded to the various CRAs, "Account
information accurate as of date reported." The earliest report is
dated December 6, 2006--more than a week after Chiang filed his
federal lawsuit--and the last is dated May 25, 2007. Five reports
are from December 2006, three from March 2007, and the remaining
four from May 2007.

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of the FCRA and FDCPA and seeking damages.6 We describe specific

claims below. On January 13, 2009, the district court granted

Verizon NE's motion for summary judgment. Chiang, 2009 WL 102707,

at *12.

In the course of its reasoning on the FCRA claim, the

court held that Chiang had the burden to "identify affirmatively

information that a furnisher of credit information could have

uncovered through a reasonable investigation." Id. at *9-10. The

court noted that this circuit has recently announced a similar rule

in the context of CRAs' duty under the FCRA to reinvestigate

information disputed by consumers. Id. at *10 (citing DeAndrade v.

Trans Union LLC, 523 F.3d 61, 67 (1st Cir. 2008)). The district

court also ruled that, "absent any corroborating evidence," a

plaintiff's allegations of inaccuracies were insufficient to

demonstrate information that might have been uncovered. Id. at

*10. For this reason, it said, it declined to consider Chiang's

deposition testimony, affidavits, or demand letters when deciding

whether he had demonstrated actual inaccuracies that Verizon NE

could have discovered. Id. at *11.

6
Chiang claims that the negative credit information
related to his Verizon NE accounts prevented him from securing a
$500,000 loan. Although Chiang has never earned more than $59,000
in a year, he alleges that his failure to secure this loan
prevented him from participating in an international business deal
with a total contract value of more than $200 million. Chiang has
variously estimated his lost profits from this missed opportunity
at $500,000, $8 million, $27.5 million, and $80 million.

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 This appeal followed.

II.

Chiang's claims under the FCRA and the FDCPA present

several pure questions of law, including issues of statutory

interpretation. The district court resolved the case on summary

judgment. Both because these are issues of law and because the

case is before us on summary judgment, our review is de novo. See

Bristol W. Ins. Co. v. Wawanesa Mut. Ins. Co., 570 F.3d 461, 463

(1st Cir. 2009). We may affirm the district court on any basis

apparent in the record. Sutliffe, 584 F.3d at 325.

Although it is true that "the standards for summary

judgment are highly favorable to the nonmoving party, the nonmovant

. . . still has a burden to produce evidence sufficient for a

reasonable juror to find in his favor." Hinchey v. NYNEX Corp, 144

F.3d 134, 146 (1st Cir. 1998); see also 10A Charles A. Wright et

al., Federal Practice and Procedure § 2727, at 490 (2d ed. 1998)

(noting that although "[t]he burden on the nonmoving party is not

a heavy one," the party is "required to show specific facts . . .

that present a genuine issue worthy of trial"). To defeat a

summary judgment motion, a party "must do more than simply show

that there is some metaphysical doubt as to the material facts."

Matushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986). Similarly, our "indulg[ence of] all reasonable

inferences" in the nonmoving party's favor is bounded by that

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party's obligation to support the alleged factual controversy with

evidence that is neither "conjectural [n]or problematic." Nat'l

Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.

1995) (internal quotation marks omitted).

A. The FCRA Claim

1. There Is a Private Cause of Action against
Furnishers under the FCRA, 15 U.S.C. §§ 1681n-o,
1681s-2(b), and the Alleged Breach of the Duty to
Investigate Is Evaluated under an Objective
Reasonableness Standard

As a preliminary matter, we dispose quickly of the

question of whether there is a private cause of action under 15

U.S.C. § 1681s-2(b), as the question is related to our

jurisdiction. See, e.g., United States v. Hilario, 218 F.3d 19, 22

(1st Cir. 2000) ("Jurisdictional issues have primacy of place in

appellate review . . . ."). We also address the meaning of the

term "investigation" in that section, a more recent addition to the

FCRA.

Congress, recognizing abuses in the burgeoning credit

reporting industry, originally "enacted FCRA in 1970 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); see also 7 Kenneth M. Lapine et al.,

Banking Law § 153.02, at 153-5 to -7(2009 ed.). The FCRA imposes

obligations on CRAs and users of consumer information and provides

for enforcement by various federal agencies. See, e.g., 15 U.S.C.

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§ 1681s. The act also expressly creates a private cause of action,

enabling consumer suits for willful or negligent noncompliance with

its requirements. Id. § 1681n-o. See generally Lapine et al.,

supra § 153.03, at 153-11 to -12; id. § 153.09, at 153-128.

Plaintiffs may recover actual damages for negligent violations, 15

U.S.C. § 1681o(a)(1), and actual or statutory and punitive damages

for willful ones, id. § 1681n(a)(1)-(2); Safeco, 551 U.S. at 53.

There is no basis for any claim of willful violations on this

record, so only actual damages are at issue.

In 1996, Congress substantially amended the FCRA, and

those amendments are involved here. See, e.g., H.R. Rep. No. 108-

396, at 1753-54 (2003) (Conf. Rep.). Among the changes adopted was

a new section governing the responsibilities of so-called

"furnishers"7 of information to CRAs. Consumer Credit Reporting

Reform Act of 1996, Pub. L. No. 104-208, ch. 1, sec. 2413, § 623,

110 Stat. 3009-426, 3009-447 to -449 (codified as amended at 15

U.S.C. § 1681s-2). This addition was intended to close an

identified "gap in the FCRA's coverage," whereby even dutiful

investigations of consumer disputes by CRAs could be frustrated by

furnishers' irresponsible verification of inaccurate information,

7
Any person with relevant data about a consumer's
financial activity may voluntarily provide it to a CRA, but "[t]he
most common . . . furnishers of information are credit card
issuers, auto dealers, department and grocery stores, lenders,
utilities, insurers, collection agencies, and government agencies."
H.R. Rep. 108-263, at 24 (2003).

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without legal consequence to the furnishers. S. Rep. No. 103-209,

at 6 (1993). Verizon NE is sued here as a furnisher of information

under that section.

Under § 1681s-2, furnishers may not provide inaccurate

information to consumer reporting agencies, 15 U.S.C. § 1681s-

2(a)(1), and also have specific duties in the event of a dispute

over furnished information, id. § 1681s-2(b). Only the second of

these duties is subject to a private cause of action. Chiang's

appeal concerns the latter obligation–-Verizon NE's investigation

into disputed information. To understand his argument, we outline

both provisions of the statute.

Section 1681s-2(a) prohibits any person from

"furnish[ing] any information relating to a consumer to any

consumer reporting agency if the person knows or has reasonable

cause to believe that the information is inaccurate." Id. § 1681s-

2(a)(1)(A). Congress expressly limited furnishers' liability under

§ 1681s-2(a) by prohibiting private suits for violations of that

portion of the statute. Id. 1681s-2(c)(1).

Section 1681s-2(b), the provision at issue in this case,

outlines a furnisher's duties when a consumer disputes the

completeness or accuracy of information in their credit report.

Under the FCRA, consumers generally notify CRAs of such disputes.

See id. § 1681i(a)(1). Although a consumer may dispute credit

information directly to a furnisher, as Chiang has done, the

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consumer has no private right of action if the furnisher does not

reasonably investigate the consumer's claim after direct

notification.8

When a customer disputes credit information to a CRA, the

CRA must advise the furnisher of that data that a dispute exists

and provide the furnisher with "all relevant information regarding

the dispute that the agency has received from the consumer." Id.

§ 1681i(a)(2)(A). Once notified by a CRA, a furnisher must

(A) conduct an investigation with respect to the
disputed information;
(B) review all relevant information provided by the
consumer reporting agency . . . .;
(C) report the results of the investigation to the
consumer reporting agency;
(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; and
(E) if an item of information disputed by a
consumer is found to be inaccurate or incomplete or
cannot be verified after any reinvestigation . . .,
for purposes of reporting to a consumer reporting
agency only, as appropriate, based on the results

8
The FCRA was recently amended to allow consumers to
notify furnishers of disputes directly. See § 1681s-2(a)(8);
Lapine et al., supra § 153.06, at 153-95. However, there is no
private cause of action for failure to properly investigate such a
dispute, 15 U.S.C. § 1681s-2(c)(1), and Chiang has not asserted
that he complied with the procedures for direct notification. A
notice of disputed information provided directly by the consumer to
a furnisher does not trigger a furnisher's duties under
§ 1681s-2(b). See, e.g., Gorman v. Wolpoff & Abramson, LLP, 584
F.3d 1147, 1154 (9th Cir. 2009). On the facts of this case, we
need not address how, if at all, a consumer's direct notification
to a furnisher would impact a furnisher's later investigation
triggered by CRA notification under § 1681s-2(b).

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 of the reinvestigation promptly--(i) modify that
item of information; (ii) delete that item of
information; or (iii) permanently block the
reporting of that item of information.

Id. § 1681s-2(b)(1); see also Lapine et al., supra § 153.06, at

153-96 to -97. Although a furnisher may choose to contact a

consumer directly about a dispute reported to the furnisher by a

CRA, "requiring a furnisher to automatically contact every consumer

who disputes a debt would be terribly inefficient and such action

is not mandated by the FCRA." Westra v. Credit Control of

Pinellas, 409 F.3d 825, 827 (7th Cir. 2005).

The question before us is whether the act as amended

creates a private cause of action for violations of § 1681s-2(b).

The issue, given the exclusion of a private right of action in

subsection 2(a), is whether to read a similar exclusion into

§ 1681s-2(b), despite the fact that the original statute created a

private cause of action in consumers generally. 15 U.S.C. § 1681n-

o. The statute, in our view, creates a private right of action in

§ 1681s-2(b).

In contrast to the express limitations on private causes

of action under § 1681s-2(a), Congress included no such restriction

on violations of § 1681s-2(b). Moreover, when it amended the FCRA

to include responsibilities for furnishers, Congress expanded the

statute's private cause of action from allowing suits against CRAs

and users of consumer information to creating a cause of action

against "any person" who violated the statute. See Nelson v. Chase

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Manhattan Mortgage Corp., 282 F.3d 1057, 1060 (9th Cir. 2002)

("[W]ho else except furnishers could Congress have had in mind when

it introduced 'any person' into the statute?"). Furnishers are

persons who could violate § 1681s-2(b).

We join the vast majority of courts to have considered

this issue in holding that a plain reading of the FCRA's text

indicates that a private cause of action exists for individuals

seeking remedies for furnishers' violations of § 1681s-2(b). See,

e.g., Saunders v. Branch Banking & Trust Co. of Va., 526 F.3d 142,

149 (4th Cir. 2008); Westra, 409 F.3d at 826-27; Nelson, 282 F.3d

at 1060; Gordon v. Greenpoint Credit, 266 F. Supp. 2d 1007, 1010-11

(S.D. Iowa 2003) (collecting cases); see also Lapine et al., supra

§ 153.06, at 153-98 & n.23 (collecting cases). But see Carney v.

Experian Info. Solutions, Inc., 57 F. Supp. 2d 496, 502 (W.D. Tenn.

1999).

This leaves the question of the extent of a furnisher's

investigation obligation under § 1681s-2(b). The statute does not

define the term "investigation" and is apparently intended to give

the furnisher some flexibility. We know that the investigation is

meant to determine if the disputed information is "incomplete or

inaccurate." Mere incompleteness, however, is not enough; the

incompleteness must be such as to make the furnished information

misleading in a material sense. See Saunders, 526 F.3d at 148

(holding that a furnisher may be held liable under § 1681s-2(b) for

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failure to report information as disputed when the omission is

"misleading in such a way and to such an extent that it can be

expected to [have an] adverse[] effect") (alteration in original)

(internal quotation marks omitted).9 We agree generally with the

Fourth Circuit's observation that "[i]t would make little sense to

conclude that, in creating a system intended to give consumers a

means to dispute–-and ultimately, correct–-inaccurate information

on their credit reports, Congress used the term 'investigation' to

include superficial, un reasonable [sic] inquiries by creditors."

Johnson v. MBNA Am. Bank, NA, 357 F.3d 426, 430-31 (4th Cir. 2004)

(citing cases interpreting CRAs' analogous duty to investigate as

requiring reasonable investigations); see also Gorman, 584 F.3d at

1156-57.

We also hold that the reasonableness of the investigation

is to be determined by an objective standard. See Gorman, 584 F.3d

at 1156-57. The burden of showing the investigation was

unreasonable is on the plaintiff. See Gorman, 584 F.3d at 1157;

Westra, 409 F.3d at 827; Johnson, 357 F.3d at 429-31.

There is more to a plaintiff's burden of proof. We

recently considered what a plaintiff must show in order to carry

his burden in a related context under the FCRA. In DeAndrade, we

9
Here, any claim of incompleteness would be unavailing.
On this record, Verizon NE's failure to report Chiang's disputes
would not have been "misleading in a material sense." See
Saunders, 526 F.3d at 148.

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addressed a plaintiff's suit against a CRA, not a furnisher, for

the CRA's alleged failure, upon being notified of a consumer

dispute, to "conduct a reasonable reinvestigation to determine

whether the disputed information [wa]s inaccurate." 523 F.3d at 65

(quoting 15 U.S.C. § 1681i(a)) (emphasis added). We concluded

that, absent a showing of actual inaccuracy on a reinvestigation,

a plaintiff's claim against a CRA fails as a matter of law. Id. at

67-68. In other words, to carry his burden, the plaintiff had to

demonstrate some causal relationship between the CRA's allegedly

unreasonable reinvestigation and the failure to discover

inaccuracies in his account. We hold that plaintiffs suing

furnishers under § 1681s-2(b) must make the same showing, for

several reasons.

First, a primary component of CRAs' reinvestigation

requirement, at issue in DeAndrade, is CRAs' obligation to promptly

notify a furnisher of challenged information of the consumer's

dispute so that the furnisher can conduct an investigation pursuant

to § 1681s-2(b). See 15 U.S.C. § 1681i(a)(2)(A); see also Gorman,

584 F.3d at 1156 ("[T]he CRA's 'reasonable reinvestigation'

consists largely of triggering the investigation by the

furnisher."). Given the considerable overlap between a CRA's

responsibility to reinvestigate and a furnisher's duties under

§ 1681s-2(b), it would be inconsistent for plaintiffs to bear a

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weightier burden in suits against a CRA under § 1681i(a) than in

suits against furnishers under § 1681s-2(b).

The text and purpose of the statute support our

interpretation. Section 1681i(a) mandates that a CRA reinvestigate

reported information to determine whether the disputed data is

"inaccurate." Section 1681s-2(b) imposes essentially the same

obligation on furnishers of information, requiring them to

determine if furnished information is "incomplete or inaccurate."

"The FCRA is intended to protect consumers against the compilation

and dissemination of inaccurate credit information." DeAndrade,

523 F.3d at 67. In light of the parallel obligations imposed on

CRAs and furnishers--and the narrow purpose of the amendments to

the FCRA--that same rationale supports requiring a showing of

actual inaccuracy in suits against furnishers.

Practical considerations also point to our conclusion.

As in DeAndrade, it is "difficult to see how a plaintiff could

prevail on a claim for damages" based on an unreasonable

investigation of disputed data "without a showing that the disputed

information . . . was, in fact, inaccurate." Id.

We emphasize that, just as in suits against CRAs, a

plaintiff's required showing is factual inaccuracy, rather than the

existence of disputed legal questions. Id. at 68. Like CRAs,

furnishers are "neither qualified nor obligated to resolve" matters

-22-
that "turn[] on questions that can only be resolved by a court of

law." Id.

Finally, what is a reasonable investigation by a

furnisher may vary depending on the circumstances. For instance,

a more limited investigation may be appropriate when CRAs provide

the furnisher with vague or cursory information about a consumer's

dispute. The statute is clear that the investigation is directed

to the information provided by the CRA. A CRA's notice informs a

furnisher of "the nature of the consumer's challenge to the

reported debt, and it is the receipt of this notice that gives rise

to the furnisher's obligation to conduct a reasonable

investigation." Gorman, 584 F.3d at 1157; see also 15 U.S.C.

§ 1681s-2(b)(1)(B) (requiring a furnisher to review "all relevant

information" provided to it by a CRA). Accordingly, the central

inquiry when assessing a consumer's claim under § 1681s-2(b) is

"whether the furnisher's procedures were reasonable in light of

what it learned about the nature of the dispute from the

description in the CRA's notice of dispute." Gorman, 584 F.3d at

1157; see also Westra, 409 F.3d at 827.

If a CRA fails to provide "all relevant information" to

a furnisher, then the consumer has a private cause of action

against the CRA, 15 U.S.C. §§ 1681i(a)(2)(A), 1681n-o, but not

against the furnisher.

We measure this case against these standards.

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 2. Summary Judgment Was Appropriate on Chiang's FCRA
Claim for Two Independently Sufficient Reasons

Against this backdrop, we hold that summary judgment was

appropriate on Chiang's FCRA claim, since Chiang failed to raise a

genuine issue of material fact that the investigation was

unreasonable and also, independently, because he failed to show any

actual inaccuracies that Verizon NE could have found through a

reasonable investigation. Chiang has presented no evidence that

the procedures employed by Verizon NE to investigate the reported

disputes were unreasonable. Indeed, Chiang neither sought

discovery on nor produced any evidence whatsoever about the

procedures Verizon NE, through its agent CBCS, used. The only

evidence on this point consists of a Verizon employee's uncontested

affidavit detailing the procedures followed by Verizon NE's agent,

CBCS, procedures which are, on their face, not unreasonable.10

Chiang's failure to demonstrate actual inaccuracies in the

furnished information that a reasonable investigation could have

discovered is a separate, sufficient basis for summary judgment.

As an initial matter, we reject Verizon NE's argument

that we should categorically exclude Chiang's affidavit, testimony,

and letters from consideration when deciding whether his claim

should survive summary judgment. Verizon NE relies on language in

§ 1681s-2(a)(1), which prohibits furnishers from knowingly

10
The parties do not dispute that CBCS followed its
standard procedures when investigating Chiang's claims.

-24-
reporting inaccurate information to CRAs in the first instance.

That language, "[f]or purposes of subparagraph (A) [of § 1681s-

2(a)(1)]," defined a furnisher's "reasonable cause to believe that

[furnished] information is inaccurate" as "having specific

knowledge, other than solely allegations by the consumer." 15

U.S.C. § 1681s-2(a)(1)(D) (emphasis added).

To start, the statute's plain language restricts this

provision to subparagraph (A) of § 1681s-2(a)(1), which reads in

part: "A person shall not furnish any information relating to a

consumer to any consumer reporting agency if the person knows or

has reasonable cause to believe that the information is

inaccurate." Id. § 1681s-2(a)(1)(A). It does not refer to the

section of the FCRA of concern to us. Even more, the section of

concern to us, § 1681s-2(b), does not mention a furnisher's

"reasonable cause to believe," nor did Congress otherwise add

language about a special evidentiary rule to subsection (b).

Absent such clear direction from the statutory text, we

see no reason to adopt a per se rule excluding a plaintiff's

affidavits, testimony, or letters when considering summary judgment

on a claim under § 1681s-2(b). See Fed. R. Civ. P. 56(c)(2)

(specifying that summary judgment is appropriate only when "the

pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material

-25-
fact") (emphasis added).11 As the Supreme Court recently noted in

a different context, it is not "necessary or desirable for courts

to create special burden-of-proof rules, or other special

procedural or evidentiary rules." Metro. Life Ins. Co. v. Glenn,

128 S. Ct. 2343, 2351 (2008).

To say that plaintiffs' own allegations are not per se

excluded does not excuse them from having to meet the normal

evidentiary requirements that they be relevant and competent. The

assertions made in Chiang's affidavit and letters are largely

irrelevant to the FCRA claim at issue. And even accepting these

materials at face value, Chiang's unsupported allegations and

unlikely inference raise no genuine issues of material fact. See,

e.g., Hoyos v. Telecorp Commc'n, Inc., 488 F.3d 1, 9 (1st Cir.

2007).

We go back to the relevant evidence. Chiang relies

solely on his own statements that Verizon NE was inaccurate in

reporting he had not paid bills due and owing and his assertions

that he had discussed his disputes with Verizon NE representatives,

and he urges us to infer that, as a result, a reasonable

investigation would have revealed Verizon NE's purported awareness

11
There are, of course, limits on what may be asserted in
an affidavit at the summary judgment stage. See, e.g., Nieves-
Luciano v. Hernández-Torres, 397 F.3d 1, 5 (1st Cir. 2005) ("For
purposes of summary judgment, an allegation in an affidavit must be
based on personal knowledge and show affirmatively that the affiant
is competent to testify to the matters stated therein.").

-26-
of inaccuracies in his account. In particular, Chiang cites his

affidavit, in which he details alleged overcharges to his account

and conversations with Verizon NE representatives regarding these

charges that he says took place in November 2005 and August 2006.

Chiang also relies on several letters he sent to Verizon NE. Two

of these letters are chapter 93A demand letters, dated May 16,

2006–-before Chiang's first state court lawsuit–-threatening

litigation if alleged errors in billing on his two accounts were

not corrected. The third, dated September 15, 2006, was sent to

Verizon NE's attorney in the midst of Chiang's first state court

suit and also threatened legal action if Verizon NE did not correct

alleged overcharges.

At most, Chiang's proffered evidence would have shown

that Verizon NE was aware he disputed the claimed amount and that,

as of July 2006, the dispute was in state court. Chiang's

allegations are consistent with Verizon NE having reviewed his

account and billing history and confirmed that the factual

information, while disputed, was nonetheless accurate. Cf. Gorman,

584 F.3d at 1159-60. Despite ample opportunity over two years of

pretrial proceedings, Chiang neither requested nor produced any

evidence inconsistent with this information being accurate.

Also significant is that CBCS received only cursory

notices from the CRAs, which were generalized and vague about the

nature of Chiang's disputes. The summary reports in CBCS's online

-27-
filing system indicate that the information reported largely

consisted of broad, non-specific statements. We take them in turn.

Two reports said that Chiang "claims that this account

was never paid late." However, Chiang has conceded that, beginning

in August 2006, he did not pay any part of at least some of his

disputed bills–-so that cannot be the basis for an inaccuracy.

Nor, for the same reason, can two other reports, which indicated

that Chiang claimed to have "paid the original creditor before

collection status or paid before charge-off."

Five reports said that Chiang "[c]laims inaccurate

information," which was not in the least bit specific as to what

information was disputed. Finally, several reports essentially

said that the consumer disputed the account and the account was

involved in litigation, which was true, was not challenged by

Verizon NE, and again, provided no guidance as to either the

specific information that was disputed or the basis for the

dispute.

None of these reports alerted CBCS to which of the

allegedly erroneous charges underlying Chiang's dispute was

inaccurate. Nor did they evidence that a more searching inquiry

may have been necessary. See Westra, 409 F.3d at 827 (holding that

a furnisher was entitled to summary judgment on § 1681s-2(b) claim

because merely verifying that account information was accurate as

reported was reasonable, given "scant information" received from

-28-
the CRA); see also Gorman, 584 F.3d at 1157-58. We repeat that an

investigation under § 1681s-2(b) is geared to the information

provided by the CRA to the furnisher; if the CRA fails in its

obligation to provide "all relevant information regarding the

dispute," 15 U.S.C. § 1681i(a)(2)(A), then there is a claim against

the CRA but not the furnisher.

Plaintiff's behavior in refusing to engage in discovery

or provide any information about the reasonableness of Verizon NE's

investigation procedures cannot be a shortcut to trial on the

merits. The fact that Chiang put on evidence that he told Verizon

NE he disputed various bills does not itself raise a reasonable

inference that Verizon NE, through CBCS, conducted an unreasonable

investigation or that the furnished information was not accurate.

That evidence is not enough. See, e.g., Nat'l Amusements, Inc., 43

F.3d at 735.12

12
The district court cited the Fourth Circuit's decision in
Johnson in support of its determination that a reasonable jury
might conclude that Verizon's procedures were unreasonable.
Chiang, 2009 WL 102707, at *9. But several distinguishing factors
suggest that Johnson cannot support the weight the district court
placed upon it. First, in Johnson, the court noted that the
furnisher's limited investigation could be deemed unreasonable in
part because the furnisher's inquiry occurred after it had been
notified by the CRA "of the specific nature of Johnson's dispute."
Johnson, 357 F.3d at 431. Verizon NE had no such notice.
It is true the court emphasized that the defendant furnisher's
investigation generally extended no further than its own
computerized Customer Information System (CIS), but unlike CBCS's
procedures, it apparently never provided for more searching review.
Id. That was pertinent because the furnisher artificially
restricted the review of its own computerized records.
Investigators needed only to confirm "two out of four pieces of

-29-
 Independently, we agree with the district court's

application of our holding in DeAndrade to conclude that Chiang was

required to present evidence of actual inaccuracies in his account

that an alternative investigation might have uncovered. He has not

done so.

Chiang's affidavit and letters show that he had several

disagreements with Verizon NE over his billing, which extended into

state court litigation; Verizon NE does not dispute this. Chiang

has not, however, demonstrated that any of his substantive disputes

with Verizon NE involved actual, factual inaccuracies in his

billing that a reasonable investigation could have detected. To

the extent that his argument reduces to the claim that any

investigation that did not accept his allegations as accurate was

by definition unreasonable, it fails. For this reason, too,

summary judgment was appropriate on Chiang's FCRA claim.

B. Summary Judgment Was Appropriate on Chiang's FDCPA Claim

Summary judgment was also appropriate on Chiang's FDCPA

claim. We agree with the district court's determination that

Verizon NE does not qualify as a "debt collector" under the

information contained in the CIS--name, address, social security
number, and date of birth--in order to verify [a consumer's]
identity." Id. at 431 n.3. This truncated inquiry was how the
furnisher confirmed to CRAs that their information was accurate.
Id. at 431. As there is no evidence of similarly restricted
investigation here, or anything else that might raise a genuine
issue of material fact as to the reasonableness of Verizon NE's
investigation, summary judgment was appropriate.

-30-
statute. Chiang's assertions to the contrary are either wholly

unsupported by the record or waived.

The FDCPA was enacted to protect debtors from abusive

debt collection practices. 15 U.S.C. § 1692(e); see also Lapine et

al., supra § 155.02, at 155-6. To that end, it regulates debt

collectors' tactics and, inter alia, creates a private cause of

action for victims of "oppressive or offensive collection agency

behavior." Lapine et al., supra § 155.02, at 155-6. The statute

defines "debt collector" as any individual in a business whose

"principal purpose . . . is the collection of any debts, or who

regularly collects or attempts to collect . . . debts owed or due

or asserted to be owed or due to another." 15 U.S.C. § 1692a(6).

Creditors collecting on their own accounts are generally

excluded from the statute's reach. Id. § 1692a(6)(F)(ii); cf.

Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 22 n.4 (1st Cir.

2002). There is, however, a limited exception for "any creditor

who, in the process of collecting his own debts, uses any name

other than his own which would indicate that a third person is

collecting or attempting to collect such debts." Id. § 1692a(6).

The exception was designed to combat "flat-rating," whereby

creditors attempt to intimidate debtors by creating the false

impression that a third party is participating in the debt

collection process. See White v. Goodman, 200 F.3d 1016, 1017 (7th

Cir. 2000).

-31-
 Chiang claims that Verizon NE violated several provisions

of the FDCPA, including its proscription of "conduct the natural

consequence of which is to harass, oppress, or abuse any person in

connection with the collection of a debt." 15 U.S.C. § 1692d.

Although Verizon NE is not a debt collector, Chiang urges that it

falls within the exception for creditors because the company

attempted to collect its own debt from him under the allegedly

deceptive name "Verizon Massachusetts." Chiang does not claim that

Verizon NE was directly collecting its own debts, but instead

asserts that debt collectors were instructed by Verizon NE to use

the name "Verizon Massachusetts." Chiang's argument fails.

Assuming, dubitante, that the alleged practice would

render Verizon NE a "debt collector" under the FDCPA, we

nonetheless agree with the district court that Chiang's argument

should be rejected as a mere conclusory allegation, utterly

unsupported by the record. E.g., Estate of Bennett v. Wainwright,

548 F.3d 155, 177-78 (1st Cir. 2008). On appeal, Chiang insists,

without further explanation or citation to caselaw, that the

district court's failure to draw the inference that debt collectors

received the name "Verizon Massachusetts" from Verizon NE was

erroneous. His declaration does not make it so.

Absent any evidence that Verizon NE was collecting its

own debts we need not reach Chiang's argument that the use of the

name "Verizon Massachusetts" would deceive consumers,

-32-
unsophisticated or otherwise. Cf. Maguire v. Citicorp Retail

Servs., Inc., 147 F.3d 232, 236 (2d Cir. 1998) (describing the

"least sophisticated consumer" standard). We also do not address

Chiang's argument that CBCS's communications with him on behalf of

Verizon NE make Verizon NE a debt collector. This claim was not

raised before the district court and is waived. E.g., In re New

Motor Vehicles Canadian Exp. Antitrust Litig., 533 F.3d 1, 5-6 &

n.3 (1st Cir. 2008).

III.

The district court's grant of summary judgment is

affirmed.

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