Case: 17-30592 Document: 00514341402 Page: 1 Date Filed: 02/08/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-30592
Fifth Circuit
FILED
Summary Calendar February 8, 2018
Lyle W. Cayce
JAMES CAMERON, Clerk
Plaintiff
v.
GREATER NEW ORLEANS FEDERAL CREDIT UNION,
Defendant
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JAMES CAMERON,
Plaintiff - Appellant
v.
EXPERIAN INFORMATION SOLUTIONS, INCORPORATED,
Defendant - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:16-CV-8514
Before STEWART, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
Case: 17-30592 Document: 00514341402 Page: 2 Date Filed: 02/08/2018
No. 17-30592
PER CURIAM:*
James Cameron appeals the district court’s grant of Experian’s motion
for summary judgment and rejecting his claims brought under the Fair Credit
Reporting Act (“FCRA”), 15 U.S.C. § 1681. For the following reasons, we
AFFIRM.
I. BACKGROUND
In February 2006, Cameron purchased a vehicle using a $21,594.02 loan
from Greater New Orleans Federal Credit Union (“GNO”). In December 2008,
after several missed or late payments, Cameron’s account with GNO became
delinquent and did not return to current status. GNO charged off the
remaining $14,284 balance and reported it to Experian in 2009. Between June
2013 and October 2015, Cameron requested that GNO and Experian remove
the allegedly erroneous delinquency from his credit report. Although Experian
first refused to remove the information after GNO verified its accuracy, it
purged the GNO credit line from Cameron’s credit report in October 2015.
Cameron contends that as a result of Experian’s erroneous report, he
suffered actual damages because his poor credit prevented him from securing
financing and subjected him to higher interest rates, causing humiliation and
emotional distress. Subsequently, Cameron brought this action against
Experian and GNO in the Western District of Oklahoma. After that court
dismissed GNO for lack of personal jurisdiction, Cameron refiled in the
Eastern District of Louisiana, and the case against Experian was transferred
and consolidated with the GNO action. After filing a motion for summary
judgment on all claims against it but before the district court could rule on the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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motion, GNO reached a settlement with Cameron. After the close of discovery, 1
Experian also filed a motion for summary judgment asserting that Cameron
provided no evidence to support the necessary elements of his claim and he had
sustained no compensable damages. The district court agreed with Experian
and dismissed Cameron’s claims. Cameron timely filed this appeal.
II. STANDARD OF REVIEW
“We review the district court’s summary judgment ruling de novo,
applying the same legal standard as the district court.” Bacharach v. Suntrust
Mortg., 827 F.3d 432, 434 (5th Cir. 2016) (per curiam). Summary judgment is
appropriate where the moving party establishes “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). As the plaintiff, Cameron bears the burden of proof
at trial. In response to Experian’s motion for summary judgment, Cameron
must present evidence that raises a genuine issue of material fact. See Nichols
v. Enterasys Networks, Inc., 495 F.3d 185, 188 (5th Cir. 2007). Notwithstanding
this burden, the court views the facts in the light most favorable to the
nonmovant. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
III. DISCUSSION
Cameron’s argument is that Experian reported erroneous information on
his credit report and delayed removing the information upon being notified of
its error. We need not decide whether Experian’s practices constituted a
violation of the FCRA because even assuming, arguendo, that Experian
reported erroneous information, Cameron fails to raise a genuine issue of
material fact that demonstrates that Experian acted willfully or that he was
actually damaged by these actions. See Nichols, 495 F.3d at 188.
1 Cameron failed to: (1) respond to interrogatories and requests for production before
the close of discover; (2) answer or object to requests for admissions within thirty days; or (3)
move the court for an extension of time or to withdraw his deemed admissions.
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A. Willful Noncompliance
The FCRA provides for civil liability in 15 U.S.C. §§ 1681n and 1681o.
Whether the violation was willful or negligent dictates the type of damages
awarded. If a violation is willful, the defendant is subject to punitive damages.
15 U.S.C. § 1681n. However, if a plaintiff fails to show that the violations are
willful, a defendant will only be held liable for the plaintiff’s actual damages.
See 15 U.S.C. § 1681o. If a plaintiff fails to demonstrate willfulness and actual
damages, the claim must fail. According to section 1681n, a defendant commits
a willful violation and is subject to punitive damages only if it engages in
“willful misrepresentations or concealments.” 15 U.S.C. § 1681n(a)(2); see also
Stevenson v. TRW, Inc., 987 F.2d 288, 294 (5th Cir. 1993) (quoting Pinner v.
Schmidt, 805 F.2d 1258, 1263 (5th Cir. 1986)). Noncompliance is considered
willful when the defendant “knowingly and intentionally committed an act in
conscious disregard for the rights of others.” Pinner, 805 F.2d at 1263. A failure
to adequately investigate and swiftly correct inaccurate information generally
does not constitute a willful violation. See id. at 1262–63.
Cameron provides no evidence of willful noncompliance. He recites case
law addressing section 1681n and concludes that Experian’s actions sufficed.
Cameron never points to which of Experian’s actions constituted willful
noncompliance, nor does he analyze how Experian knowingly and intentionally
committed these actions. Cameron generally alleges that Experian maintained
insufficient procedures that facilitated the reporting of inaccurate information
and delayed the process of correcting that information. However, he provides
no evidence that these activities were done knowingly and intentionally.
Therefore, the district court did not err in dismissing Cameron’s section 1681n
claims.
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B. Actual Damage
Having failed to show Experian willfully misreported Cameron’s credit
information, in order to prevail on a section 1681o claim, Cameron must
demonstrate that Experian’s actions caused him actual damages. 15 U.S.C. §
1681o. Cameron alleges that as a result of Experian reporting inaccurate
information and failing to correct it after multiple requests, financial
institutions denied him credit or offered credit at much higher interest rates,
which caused him humiliation and financial and emotional distress.
a. Credit Denial
Section 1681o provides for recovery if the defendant’s erroneous credit
report resulted in the plaintiff’s credit denial or higher interest rates. To
prevail, plaintiff must present some evidence that the potential creditor’s
decision was affected by the defendant’s FCRA violations. See Bacharach, 827
F.3d at 435.
Cameron alleges that he was denied credit and received higher interest
rates as a result of Experian’s negligence. The district court found that
Cameron failed to present evidence that his credit denial was a result of
Experian’s actions because the documents Cameron provided indicated that
potential creditors relied on Equifax credit reports, not Experian.
However, on appeal, Cameron presented evidence that he was denied a
home loan by First United Bank and Trust Company depending on credit
information from Experian, Equifax, and TransUnion. We generally do not
consider arguments first raised on appeal. See New Orleans Depot Servs., Inc.
v. Dir., Office of Worker’s Comp. Programs, 718 F.3d 384, 387 (5th Cir. 2013)
(en banc) (citing Lampton v. Diaz, 639 F.3d 223, 227 n.14 (5th Cir. 2011)). But
when the assertion “fairly appears in the record as having been raised,” waiver
does not apply. Lampton, 639 F.3d at 227 n.14 (quoting 19 JAMES W. MOORE
ET AL., MOORE’S FEDERAL PRACTICE § 205.05[1], at 205–57 (3d ed. 2011)).
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Here, the document upon which Cameron relies was presented as an
attachment supporting his opposition to Experian’s summary judgment
motion, and his general assertions that he was denied loans as a result of
Experian’s misreporting are likely sufficient to preserve the argument.
Nevertheless, although Cameron argues that the document shows that First
United denied Cameron a loan, it only shows that Experian, Equifax, and
TransUnion were the sources of the credit information First United obtained.
Cameron presented no information regarding First United’s loan decision. The
record does not show that this loan was approved or denied. So although on
appeal Cameron was able to point to a document already in the record that
showed that a creditor at least partially relied on information from Experian,
he provided no evidence that the reliance resulted in a credit denial. Therefore,
the district court did not err in finding that Cameron failed to establish that
any alleged negligence resulted in him being denied credit or receiving a higher
interest rate.
b. Emotional Distress
“The FCRA permits ‘recovery for humiliation and mental distress and
for injury to one’s reputation and creditworthiness.’” Bacharach, 827 F.3d at
435–36 (quoting Sapia v. Regency Motors of Metairie, Inc., 276 F.3d 747, 753
(5th Cir. 2002)). However, to recover for such emotional distress, one must do
more than make bare assertions. See id. It is not enough that one’s pleadings
allege emotional distress. See id. To survive a motion for summary judgment,
the plaintiff must present some specific evidence of emotional distress. See id.
A plaintiff must provide actual “evidence of a genuine injury,” which may
include, “the observations of others, “corroborating testimony,” or “medical or
psychological evidence.” Id. at 436 (quoting Cousin v. Trans Union Corp., 246
F.3d 359, 371 (5th Cir. 2001)).
We have previously held that a plaintiff's testimony supporting their
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own emotional state was insufficient to support an award for emotional
distress. See Cousin, 246 F.3d at 370–71. Here, Cameron fails to even provide
such testimony. The record is void of an affidavit, deposition testimony,
corroborating testimony, or a doctor’s note supporting Cameron’s allegations
of emotional distress. Because Cameron also fails to raise a genuine dispute of
material fact concerning his emotional state sufficient to overcome summary
judgment as to the claim of emotional distress, the district court did not err in
dismissing his section 1681o claims.
IV. CONCLUSION
For the aforementioned reasons, the district court’s judgment granting
Defendants-Appellees motion for summary judgment is AFFIRMED.
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