Ross v. Federal Deposit Insurance

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

CHARLENE ROSS, 
Plaintiff-Appellant,
v.
FEDERAL DEPOSIT INSURANCE  No. 08-1851
CORPORATION, as Receiver of
Washington Mutual Bank,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Dever III, District Judge.
(5:06-cv-00468-D)

Argued: September 22, 2010

Decided: October 29, 2010

Before WILKINSON, KING, and GREGORY,
Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge King and Judge Gregory joined.
2 ROSS v. FDIC
COUNSEL

Christopher Wyatt Livingston, White Oak, North Carolina,
for Appellant. Thomas G. Hooper, NELSON MULLINS
RILEY & SCARBOROUGH, LLP, Charlotte, North Caro-
lina, for Appellee.

OPINION

WILKINSON, Circuit Judge:

Charlene Ross brought claims against Washington Mutual
Bank ("WaMu") for false reporting of credit information and
unfair debt collection practices. But she tarried too long, and
by filing outside of the Fair Credit Reporting Act’s ("FCRA")
two-year statute of limitations she lost any FCRA claims she
may have had, whatever their merit.

Ross has tried to skirt this deficiency by bringing several
state law claims. Those claims, in the main, are preempted by
15 U.S.C. § 1681t(b)(1)(F), the FCRA’s preemption provi-
sion. And though Ross contends her claims are expressly
authorized by another FCRA provision, 15 U.S.C. § 1681h(e),
she fails to present evidence that WaMu acted with the "mal-
ice or willful intent to injure" necessary to benefit from this
section. Ruling otherwise would require us to broaden the def-
inition of "malice" to include mere negligence, and such a
holding would vitiate both the FCRA’s statute of limitations
and its preemption provision.

Only Ross’s unfair debt collection practices claim survives
preemption, but it too fails because she cannot prove proxi-
mate causation, an element of her state law claim. The district
court awarded WaMu summary judgment on both of these
claims, and we now affirm.
 ROSS v. FDIC 3
I.

James Williams executed a mortgage on a home on May 8,
1996. This loan was eventually assigned to WaMu, and
WaMu held it for all periods relevant to this case. The FDIC
is involved in this case as the receiver of Washington Mutual
Bank. On or about August 16, 1996, Williams quitclaimed his
interest in the property to Charlene Ross, and the two married
the following month. The relationship soured, and in April
2001 Ross secured a domestic violence protective order evict-
ing Williams. Ross obtained another order the following
month naming her as the property’s owner. Williams, how-
ever, retained sole responsibility for the loan.

Ross contacted WaMu about this arrangement in July 2001.
At that time, Ross confirmed that any payments she made
would be properly credited to the mortgage, requested an IRS
1098 form to claim a tax deduction for mortgage interest, and
asked that she receive monthly mortgage statements at the
address of the encumbered home. Ross then sent WaMu the
necessary documentation, including her social security card,
the May 2001 order, and the August 1996 quitclaim deed. In
the process of fulfilling Ross’s requests, WaMu mistakenly
listed Ross’s name on the mortgage.

The loan went into default when no payments were made
from June 2001 through September 2001. On September 11,
2001, Ross discovered that WaMu had reported negative
information about her to consumer reporting agencies
("CRAs"). WaMu took this action based on its mistaken belief
that Ross was responsible for the loan. Ross contacted WaMu,
but WaMu informed her that it did not know why the name
on the loan was changed. She also contacted the CRAs
directly, but they could only confirm that WaMu had indeed
placed the negative trade line on her report.

WaMu began pursuing foreclosure proceedings in October
2001, but in February 2002 Ross made the payments neces-
4 ROSS v. FDIC
sary to reinstate the mortgage. Later in 2002, Ross contacted
WaMu about the loan appearing on her credit reports. WaMu
conducted an investigation, suspended credit reporting for the
loan, and notified Ross of these actions in a September 27,
2002 letter.

But in June 2003 the loan again went into default. In
August 2003, Ross notified WaMu that one of the CRAs was
still reporting the loan on her credit report. WaMu conducted
another investigation, acknowledged that Ross was not
responsible for the loan, and directed the CRAs to remove the
loan from Ross’s credit report. The loan has not been on
Ross’s credit reports since December 31, 2003, but as a result
of the negative trade line, she alleges she was denied credit on
multiple occasions, including a business loan that Ross claims
would have allowed her to open an assisted-living facility that
would have made $3,000,000 in annual profits.

Other events occurring in Ross’s life during this time
period are relevant to her claims. Between 2001 and 2003,
Ross experienced numerous difficulties while employed as a
high school teacher in the Charlotte-Mecklenburg school sys-
tem. During this time, she pursued two employment discrimi-
nation charges and claims to have developed carpal tunnel
syndrome and Post Traumatic Stress Disorder ("PTSD"). This
is also when WaMu, acting on its mistaken belief that Ross
was responsible for the loan, placed debt collection calls to
Ross’s work.

WaMu again began pursuing foreclosure proceedings in
February 2004. On May 21, 2004, Ross filed suit in North
Carolina state court seeking to enjoin the foreclosure. She also
alleged North Carolina Unfair and Deceptive Trade Practices
Act ("NCUDTPA") claims against WaMu. The court denied
her motion for a preliminary injunction, and the trustee sold
the home. On August 25, 2005, Ross dismissed her lawsuit
against WaMu without prejudice.
 ROSS v. FDIC 5
Then on August 22, 2006, Ross again filed a complaint
against WaMu in North Carolina state court. Ross alleged
common law defamation claims, violations of the FCRA, and
violations of the NCUDTPA. Ross sought actual, statutory,
and punitive damages for her wrongfully damaged credit
scores, emotional distress, poor health, lost income, and lost
business opportunities. WaMu removed the action to federal
court on November 8, 2006. WaMu then moved for summary
judgment, which the district court granted on July 2, 2008.
Ross v. Washington Mutual Bank, 566 F. Supp. 2d 468, 485
(E.D.N.C. 2008). Ross now appeals the grant of summary
judgment on her NCUDTPA claims.

II.

The NCUDTPA regulates trade practices. N.C. Gen. Stat.
§ 75-1.1. Included within this statutory scheme are several
consumer protection provisions. Id. §§ 75-1.1, 75-50 to 75-56.
Article 1 of the NCUDTPA contains a general ban on "unfair
or deceptive acts or practices in or affecting commerce." Id.
§ 75-1.1(a). Article 2 of the NCUDTPA is the North Carolina
Debt Collection Act ("NCDCA"), which prohibits various
unfair debt collection practices. Id. §§ 75-50 to 75-56. We
will first evaluate Ross’s claims under Article 1 of the
NCUDTPA before turning to her NCDCA claims under Arti-
cle 2.

A.

Ross claims that WaMu’s reporting of incorrect informa-
tion to CRAs violates the NCUDTPA, which prohibits "unfair
or deceptive acts or practices in or affecting commerce." N.C.
Gen. Stat. § 75-1.1(a). But the FCRA’s preemption provision,
15 U.S.C. § 1681t(b)(1)(F), preempts this claim, regardless of
its underlying merits.

The FCRA is a comprehensive statutory scheme designed
to regulate the consumer reporting industry. 15 U.S.C.
6 ROSS v. FDIC
§ 1681(a). Congress recognized both the "vital role" of CRAs
and the "need to insure that consumer reporting agencies exer-
cise their grave responsibilities with fairness, impartiality, and
a respect for the consumer’s right to privacy." Id. CRAs pro-
vide a critical economic service by collecting and transmitting
consumer credit information. See Cushman v. Trans Union
Corp., 115 F.3d 220, 223 (3d Cir. 1997). But CRAs can make
mistakes by reporting inaccurate credit information. See id.
These errors are detrimental to the consumer, the creditor, and
the economy as a whole. See id.

Accordingly, Congress determined that while CRAs must
be allowed to perform their function, a regulatory framework
was necessary to prevent errors in credit reporting and remedy
those that do occur. In 1970, Congress accommodated both of
these interests by enacting the FCRA, a "comprehensive
series of restrictions on the disclosure and use of credit infor-
mation assembled by consumer reporting agencies." FTC v.
Manager, Retail Credit Co., 515 F.2d 988, 989 (D.C. Cir.
1975). The FCRA "has been drawn with extreme care, reflect-
ing the tug of the competing interests," and courts must
respect the balance struck by Congress when interpreting its
provisions. Nelson v. Chase Manhattan Mortgage Corp., 282
F.3d 1057, 1060 (9th Cir. 2002).

As originally enacted, the FCRA generally permitted state
regulation of the consumer reporting industry. With but few
exceptions, the original preemption provision, 15 U.S.C.
§ 1681t(a), preempted state laws only "to the extent that those
laws are inconsistent with any provision of [the FCRA]." As
part of the ongoing process of fine-tuning this statutory
scheme, Congress amended the FCRA with the Consumer
Credit Reporting Reform Act of 1996 ("CCRRA"). Pub. L.
No. 104-208, 110 Stat. 3009, 3009-426 to -455. The CCRRA
added a strong preemption provision, 15 U.S.C. § 1681t(b), to
this comprehensive legislative framework. The purpose of this
new subsection was, in part, to avoid a "patchwork system of
conflicting regulations." Michael Epshteyn, Note, The Fair
 ROSS v. FDIC 7
and Accurate Credit Transactions Act of 2003: Will Preemp-
tion of State Credit Reporting Laws Harm Consumers?, 93
Geo. L.J. 1143, 1154 (2005).

Included within the new subsection added by the CCRRA
is 15 U.S.C. § 1681t(b)(1)(F), the preemption provision at
issue in this case. It states:

No requirement or prohibition may be imposed
under the laws of any State (1) with respect to any
subject matter regulated under . . . (F) section 1681s-
2 of this title, relating to the responsibilities of per-
sons who furnish information to consumer reporting
agencies . . . .

Section 1681s-2 describes the responsibilities of those who
report credit information to CRAs. Section 1681s-2(a)
explains the "[d]uty of furnishers of information to provide
accurate information," which includes correcting any errors in
reporting. 15 U.S.C. §§ 1681s-2(a)(1)-(2). Section 1681s-2(b)
contains the duties of furnishers of information "[a]fter
receiving notice . . . of a dispute with regard to the complete-
ness or accuracy of any information provided by a person to
a consumer reporting agency." 15 U.S.C. § 1681s-2(b)(1).
These duties include conducting an investigation into the dis-
pute and correcting any errors discovered with the CRAs. Id.

Ross’s NCUDTPA claim under § 75-1.1 runs into the teeth
of the FCRA preemption provision. Her claim concerns
WaMu’s reporting of inaccurate credit information to CRAs,
an area regulated in great detail under §§ 1681s-2(a)-(b).
Because Ross’s NCUDTPA claim seeks to use § 75-1.1 as a
"requirement or prohibition" under North Carolina law con-
cerning "subject matter regulated under section 1681s-2," it is
squarely preempted by the plain language of the FCRA. 15
U.S.C. § 1681t(b)(1)(F).
8 ROSS v. FDIC
B.

Ross, however, argues that her claim is expressly autho-
rized by 15 U.S.C. § 1681h(e) because WaMu acted with
"malice or willful intent to injure." This argument is unavail-
ing.

Our analysis begins with an overview of § 1681h(e). Sec-
tion 1681h regulates the disclosures that CRAs must provide
to consumers under § 1681g. Section 1681g requires CRAs to
disclose to consumers the information in their credit file upon
request. Sections 1681h(a) through 1681h(d) contain the pro-
cedures CRAs must follow when providing these disclosures.
Section 1681h(e) then states:

Except as provided in sections 1681n and 1681o of
this title, no consumer may bring any action or pro-
ceeding in the nature of defamation, invasion of pri-
vacy, or negligence with respect to the reporting of
information against any consumer reporting agency,
any user of information, or any person who furnishes
information to a consumer reporting agency, based
on information disclosed pursuant to section 1681g,
1681h, or 1681m of this title, or based on informa-
tion disclosed by a user of a consumer report to or
for a consumer against whom the user has taken
adverse action, based in whole or in part on the
report except as to false information furnished with
malice or willful intent to injure such consumer.

Congress intended this section’s general bar on defamation,
invasion of privacy, and negligence actions to be the quid pro
quo for providing full disclosure under the FCRA. See Thorn-
ton v. Equifax, Inc., 619 F.2d 700, 703 (8th Cir. 1980). The
only exception to this bar is a narrow one, requiring proof of
"malice or willful intent to injure [the] consumer." 15 U.S.C.
§ 1681h(e).
 ROSS v. FDIC 9
Thus, the § 1681h(e) authorization Ross seeks involves a
two-step inquiry. First, we ask whether the claim falls within
the scope of § 1681h(e), which includes only claims "based
on information disclosed pursuant to section 1681g, 1681h, or
1681m of this title, or based on information disclosed by a
user of a consumer report to or for a consumer against whom
the user has taken adverse action, based in whole or in part
on the report." The second step in the analysis involves deter-
mining whether the "malice or willful intent to injure" excep-
tion to the general bar against state law actions applies. 15
U.S.C. § 1681h(e).*

C.

As an initial matter, it is unclear that Ross’s contentions
even fall within the scope of § 1681h(e). For starters, any
cause of action Ross may have had under § 1681n or 1681o
is now plainly time-barred by the FCRA’s statute of limita-
tions. See 15 U.S.C. § 1681p. Turning to the body of
§ 1681h(e), Ross must show that her action is "based on infor-
mation disclosed pursuant to section 1681g, 1681h, or 1681m
. . . or based on information disclosed by a user of a consumer
report to or for a consumer against whom the user has taken
adverse action, based in whole or in part on the report." 15
U.S.C. § 1681h(e). Sections 1681g and 1681h, as noted
above, apply only to CRAs. 15 U.S.C. §§ 1681g, 1681h.
WaMu is not a CRA. See 15 U.S.C. § 1681a(f). Section
1681m applies only to users of consumer reports. 15 U.S.C.
§ 1681m. WaMu is not a user of consumer reports vis-à-vis
Ross. The final § 1681h(e) category for actions "based on
information disclosed by a user of a consumer report to or for

*If Ross could meet the steps of the § 1681h(e) analysis, we would next
have to confront the alleged conflict between § 1681h(e) and
§ 1681t(b)(1)(F). Courts have taken a variety of approaches to resolving
this conflict. See Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147,
1165-67 (9th Cir. 2009) (reviewing the case law regarding the possible
conflict between § 1681h(e) and § 1681t(b)(1)(F)). Our disposition of this
case on other grounds means we need not address this issue.
10 ROSS v. FDIC
a consumer against whom the user has taken adverse action,
based in whole or in part on the report" does not appear to
apply because WaMu neither used Ross’s consumer report
nor took adverse action based on information in Ross’s report
or information disclosed by a user. 15 U.S.C. § 1681h(e).
Thus, it is not clear that Ross’s NCUDTPA claim under
§ 75.1-1 falls within the ambit of § 1681h(e). See Ross v.
Washington Mutual Bank, 566 F. Supp. 2d 468, 474-78
(E.D.N.C. 2008); Johnson v. JP Morgan Chase Bank, 536 F.
Supp. 2d 1207, 1214-15 (E.D. Cal. 2008); Knudson v.
Wachovia Bank, 513 F. Supp. 2d 1255, 1258-60 (M.D. Ala.
2007).

Even if we assume arguendo that § 1681h(e) applies, Ross
cannot meet the second step of the analysis. Viewing the sum-
mary judgment record in the light most favorable to Ross,
WaMu did not act with the "malice or willful intent to injure"
necessary for Ross to qualify for the § 1681h(e) exception. 15
U.S.C. § 1681h(e).

As a preliminary matter, the FCRA does not define "mal-
ice." Courts are split on whether state or federal law governs
the meaning of "malice" in § 1681h(e). Ross cites North Car-
olina law for the definition:

Actual malice may be proven by evidence of ill-will
or personal hostility on the part of the declarant or by
a showing that the declarant published the defama-
tory statement with knowledge that it was false, with
reckless disregard for the truth or with a high degree
of awareness of its probable falsity.

Dobson v. Harris, 530 S.E.2d 829, 837 (N.C. 2000) (internal
quotation marks omitted). And this court has previously
looked to state law for the definition as well. Beattie v.
Nations Credit Financial Services Corp., 69 F. App’x 585,
590-91 (4th Cir. 2003) (looking to South Carolina law for the
definition of "malice").
 ROSS v. FDIC 11
Other courts have reasoned that substantive aspects of fed-
eral statutes should be governed by federal law. See, e.g.,
Thornton v. Equifax, Inc., 619 F.2d 700, 705 (8th Cir. 1980).
These courts have suggested the actual malice standard from
New York Times Co. v. Sullivan, 376 U.S. 254 (1964), as an
appropriate definition. See Gorman v. Wolpoff & Abramson,
LLP, 584 F.3d 1147, 1168 (9th Cir. 2009); Morris v. Equifax
Information Services, LLC, 457 F.3d 460, 471 (5th Cir. 2006);
Thornton, 619 F.2d at 705. Accordingly, these courts look to
whether the statement in question was made "with knowledge
that it was false or with reckless disregard of whether it was
false or not." New York Times Co., 376 U.S. at 280.

We need not resolve this matter because Ross cannot create
a genuine issue of material fact under either definition. Fur-
thermore, the critical aspect of malice at issue in this case—
whether WaMu reported information it knew was false—is
included under both the state and federal definitions.

Ross argues that WaMu acted with malice because WaMu
reported negative loan information about Ross to CRAs even
though it knew Ross was not responsible for the loan. Ross
principally relies on an August 7, 2003 note in WaMu’s
records as the basis for this contention. This note states, "We
reported [the loan] on her credit report which we cannot as
she does not have note liability. We corrected the credit
reports and she will no longer be reported as having a loan w/
WaMu." In Ross’s view, this note, coupled with the fact that
one CRA continued to report Ross’s loan into December
2003, is evidence that WaMu continued to report negative
credit information even after it learned of its falsity.

But this cannot be. Ross has not brought forth evidence
proving the key element of malice—that WaMu knew the
loan information was incorrect at the time of reporting. Quite
the contrary. The record is replete with evidence that WaMu
made a regrettable but honest mistake and took action to rem-
edy this error once Ross brought it to WaMu’s attention.
12 ROSS v. FDIC
WaMu’s initial error, putting the loan in Ross’s name,
occurred in the course of its efforts to comply with Ross’s
wishes. Ross presented a unique and rather complicated set of
circumstances. She lived in the home financed with the mort-
gage in question, requested that monthly mortgage statements
be mailed to her, and asked for a mortgage interest deduction
form. Yet she was not the one responsible for the loan. In the
course of completing the paperwork to accommodate Ross’s
situation, WaMu mistakenly put the loan in Ross’s name.

When Ross notified WaMu that it was reporting false loan
information to the CRAs, WaMu suspended credit reporting
on the loan and sent a letter to Ross notifying her of its reme-
dial efforts. When Ross later informed WaMu that one CRA
was still reporting the loan, WaMu again took corrective
action, contacting the CRA and asking it to remove the loan
from Ross’s report. These are not the actions of a malicious
business entity. They are evidence of WaMu’s efforts to right
its wrong.

The linchpin of Ross’s argument is that one CRA continued
to report incorrect loan information after WaMu knew of its
initial error and took corrective action. Ross asks us to infer
from this that WaMu had not ceased its reporting of incorrect
loan information. We must draw all reasonable inferences in
Ross’s favor, but Ross has not presented evidence supporting
this inference. And, absent specific evidence, Ross’s conten-
tion that WaMu "transmitted the false information is merely
an inference from the fact that [one CRA] possessed the infor-
mation at later dates." Rhodes v. Ford Motor Credit Co., 951
F.2d 905, 907 (8th Cir. 1991). The Eighth Circuit declined to
draw any such inference in Rhodes, and so do we. See id.

Even if we were to indulge Ross’s unsupported inference,
Ross still does not create a genuine issue of material fact on
the malice issue. All that would be shown is that WaMu
behaved negligently with respect to its reporting activities.
Banks make mistakes, which include errors in their records.
 ROSS v. FDIC 13
And while we would hope that these errors could be held to
a minimum and corrected the first time they are brought to the
bank’s attention, the failure to do so does not necessarily con-
stitute malice.

At worst, WaMu needed a couple of tries to remedy fully
its initial mistake. This "may evidence the weakness and
unreasonableness of [WaMu’s] procedure[s], but no malice
can be derived from it." Cousin v. Trans Union Corp., 246
F.3d 359, 375-76 (5th Cir. 2001). To be sure, Ross would
have a triable case for negligence. But § 1681h(e) requires
malice, and there is no evidence that WaMu engaged in the
kind of knowing or reckless behavior needed to meet this
standard. WaMu may be guilty of sloppy recordkeeping, but
that is at most negligence, not malice. See Cousin, 246 F.3d
at 375-76. Malice is a high bar. The Ninth Circuit declined to
find malice even when the defendant used questionable debt
collection tactics, threatening, "We’re a big bank. You either
pay us or we’ll destroy your credit." Gorman, 584 F.3d at
1169. WaMu’s behavior pales in comparison to the conduct
of the Gorman defendant. Indeed, WaMu was accommodat-
ing and took measures to correct its mistake. In short, even
granting Ross’s unfounded inference, WaMu’s behavior,
while assuredly not perfect, falls short of the sort of malice
intended to be reached by § 1681h(e).

The critical flaw in Ross’s view of "malice" under
§ 1681h(e) is that it presents a false dichotomy. Ross’s rea-
soning implies that every incidence of furnisher conduct must
be categorized as either innocent or malicious. But, as noted,
there is a third option: negligence. To avoid having the
§ 1681h(e) exception swallow the rule, we must apply the
definition of malice in a way that leaves room for negligence.
To do otherwise would allow the NCUDTPA, a state statute
imposing treble damages, to scuttle § 1681h(e)’s general bar
as well as the FCRA’s preemption provision and statute of
limitations. Avoiding outcomes such as this is the reason why
we interpret exceptions to general rules narrowly. Choice
14 ROSS v. FDIC
Hotels Int’l, Inc. v. BSR Tropicana Resort, Inc., 252 F.3d 707,
711 (4th Cir. 2001). And, narrowly interpreted, the § 1681h(e)
exception authorizes state lawsuits only for conduct that is
truly malicious and not simply careless.

D.

It is important to keep in mind that this litigation would not
have been necessary if Ross had brought her claims within the
FCRA’s statute of limitations. She might have prevailed on
her FCRA claim had it been timely filed. But, instead, the dis-
trict court was forced to dismiss this claim as time-barred.
The rest of the story consists of Ross’s efforts to perform an
end-run around the FCRA’s preemption provision and its stat-
ute of limitations. These provisions were intended to encour-
age the timely filing of FCRA claims, not the belated pursuit
of state law actions. The latter is regrettably what we have in
the case at bar, and our respect for congressional intent
requires us to uphold the trial court’s rejection of Ross’s Arti-
cle 1 NCUDTPA claim.

III.

We now turn to Ross’s claim for unfair debt collection
practices under Article 2 of the NCUDTPA, the North Caro-
lina Debt Collection Act. The NCDCA prohibits debt collec-
tors from engaging in unfair debt collection practices,
including the use of threats, coercion, harassment, unreason-
able publications of the consumer’s debt, deceptive represen-
tations to the consumer, or other unconscionable means. N.C.
Gen. Stat. §§ 75-50 to 75-56. In addition to proving conduct
prohibited under the NCDCA, an NCDCA plaintiff must also
meet the three generalized requirements for all NCUDTPA
claims: "(1) an unfair act (2) in or affecting commerce (3)
proximately causing injury." Davis Lake Cmty. Ass’n v. Feld-
mann, 530 S.E.2d 865, 868 (N.C. Ct. App. 2000). It is the
third requirement, proximate causation, that is at issue in this
case.
 ROSS v. FDIC 15
To survive summary judgment, the non-movant must bring
forth "fact-specific and not merely speculative" evidence
establishing the cause of her injury. Driggers v. Sofamor,
S.N.C., 44 F. Supp. 2d 760, 765 (M.D.N.C. 1998). If there are
multiple possible causes for an injury, the plaintiff "must
introduce evidence which affords a reasonable basis for the
conclusion that it is more likely than not that the conduct of
the defendant was a substantial factor in bringing about the
result. A mere possibility of such causation is not enough." Id.
(internal quotation marks omitted).

A.

Ross claims that WaMu violated the NCDCA, largely by
making debt collection phone calls to her work and reporting
false credit information to CRAs. She seeks damages for non-
economic and economic injuries she suffered as a result of
WaMu’s debt collection practices.

As a preliminary matter, to the extent her claims rely on
WaMu’s reporting of false credit information, they are pre-
empted by 15 U.S.C. § 1681t(b)(1)(F). Ross would be
attempting to use the NCDCA as a "requirement or prohibi-
tion" of North Carolina law concerning conduct "regulated
under section 1681s-2 . . . relating to the responsibilities of
persons who furnish information to consumer reporting agen-
cies." 15 U.S.C. § 1681t(b)(1)(F). That leaves only the debt
collection phone calls as the basis for her NCDCA claim. But
there is no evidence that the phone calls were the proximate
cause of any damages at all to Ross, much less of the specific
damages she alleges.

B.

Ross argues that WaMu’s debt collection practices were the
proximate cause of her non-economic injuries, which include
emotional distress and numerous physical ailments. But Ross
16 ROSS v. FDIC
fails to provide evidence demonstrating that WaMu’s alleged
phone calls were the cause of her injuries.

No physician who has treated Ross has attributed any of her
conditions to WaMu’s alleged practices. Rather, all of her
physicians have either pinpointed the cause of her ailments as
something other than WaMu’s alleged practices or determined
that her conditions were of unknown origin. Specifically, Dr.
Zofia Bochacki, who treated Ross for PTSD and depression,
traced these ailments back to Ross’s friction-laden tenure in
the Charlotte-Mecklenburg school system. Dr. Kenneth Ash-
kin, who treated Ross for insomnia, concluded that her insom-
nia was caused by sleep apnea and periodic limb movement
disorder. Dr. Sara Beyer, who treated Ross for migraine head-
aches and ulcers, pinpointed the cause of the ulcers as a bacte-
rial infection from food Ross had eaten and indicated that the
cause of the migraine headaches could not be determined. Dr.
Fred Fowler, who treated Ross for esophageal problems, con-
cluded that Ross’s condition was of unknown origin. In short,
none of Ross’s physicians ever mentioned WaMu’s debt col-
lection phone calls as a possible source of her ailments.

What is as striking as the opinions of Ross’s physicians is
the apparent view of Ross herself as to the cause of her medi-
cal problems. One would expect a person seeking medical
treatment for such conditions as depression and insomnia to
mention any major sources of stress in her life. But Ross
never mentioned WaMu’s debt collection efforts to any of her
doctors, with the lone of exception of Dr. Bochacki. Even in
her first 21 visits with Dr. Bochacki, during which time Ross
explained the stress of working in the Charlotte-Mecklenburg
school system, she never once mentioned WaMu’s debt col-
lection practices. Instead, Ross waited until the day before Dr.
Bochacki’s deposition to broach the subject with her.

Finding no support in the medical testimony, the only evi-
dence Ross can bring forth are her own conclusory statements
concerning emotional distress. But because "emotional dis-
 ROSS v. FDIC 17
tress [is] fraught with vagueness and speculation, it is easily
susceptible to fictitious and trivial claims." Price v. City of
Charlotte, 93 F.3d 1241, 1250 (4th Cir. 1996). And this is
precisely why "conclusory statements that the plaintiff suf-
fered emotional distress . . . [do not] support[ ] an award of
compensatory damages." Id. at 1254. Presented only with
Ross’s conclusory assertions, no reasonable jury could find
that WaMu’s debt collection practices were the proximate
cause of Ross’s non-economic injuries.

C.

Ross also argues that WaMu’s debt collection practices
were the proximate cause of her economic injuries, which
include lost wages and lost profits. But, again, Ross fails to
present evidence causally linking these injuries to WaMu’s
practices.

Ross’s lost wages claim stems from her failing a teaching
certification exam and ceasing to work for the Charlotte-
Mecklenburg school system. It is true that Ross lost wages
from these events, but none of them were caused by WaMu’s
debt collection practices. Ross admits that WaMu’s alleged
actions did not prevent her from taking the teaching certifica-
tion exam. And her failure is likely due to her refusing to pre-
pare for the exam. Indeed, Ross acknowledges that she did not
study for the exam or even take a practice test. Ross stopped
working for the Charlotte-Mecklenburg school system
because she went on disability for PTSD and depression, ail-
ments she claims the school system, not WaMu, caused.
Therefore, based on Ross’s own admissions, WaMu’s debt
collection practices did not proximately cause any of her lost
wages.

Ross bases her lost profits claim on her inability to obtain
a business loan to open an assisted-living facility. She asserts
that this business would have made over $3,000,000 in annual
profits. But Ross’s lost profits claim fails on many levels. Per-
18 ROSS v. FDIC
haps its most fatal flaw is that the loan denial was alleged by
Ross to be due to WaMu’s reporting of false loan information,
not its debt collection practices. As has been discussed, 15
U.S.C. § 1681t(b)(1)(F) preempts Ross’s NCDCA claims to
the extent they relate to WaMu’s reporting of incorrect credit
information. And there is no evidence that WaMu’s debt col-
lection phone calls, the only basis for Ross’s claim that sur-
vives preemption, contributed to the denial of Ross’s loan in
any way, much less that they were a proximate cause.

Even if Ross managed to overcome this initial hurdle, she
has not met her burden under North Carolina law to "prove
such losses with reasonable certainty." McNamara v. Wil-
mington Mall Realty Corp., 466 S.E.2d 324, 330 (N.C. Ct.
App. 1996) (internal quotation marks omitted). Indeed, Ross
declined to hire an expert to testify concerning her potential
profits, failed to submit economic data supporting her rosy
predictions, and neglected to supply business records of simi-
lar assisted-living facilities. What is more, Ross asks this
court to rely on her own self-prepared projected profits in
spite of the fact that she has never run a business and has only
limited experience in the adult care field. These projections
are plainly flawed. Ross works from the unsupported assump-
tions that she will be able to fill a 140-bed facility, receive a
HUD grant, and raise money through private investors.

In sum, in the face of Ross’s failure to make any connec-
tion between WaMu’s debt collection efforts and her lost
wages and lost profits, no reasonable jury could find that
WaMu’s debt collection phone calls were the proximate cause
of Ross’s economic damages.

IV.

For the reasons above, the judgment of the district court is

AFFIRMED.