The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN WOOD, Executor of the ) Case No. 1:20-cv-02537
Estate of Judy Fillinger, )
) Judge J. Philip Calabrese
Plaintiff, )
) Magistrate Judge
v. ) Jonathan D. Greenberg
)
THIRD FEDERAL SAVINGS AND )
LOAN ASSOCIATION, )
)
Defendant. )
)
OPINION AND ORDER
Plaintiff Judy Fillinger applied for a loan with Defendant Third Federal
Savings and Loan Association, which denied the application. Initially, the bank
offered one explanation, which did not ring true to Ms. Fillinger. Later, the bank
offered another. These shifting explanations prompted Plaintiff to file suit alleging
violations of the Fair Credit Reporting Act and the Equal Credit Opportunity Act.
Both parties move for judgment as a matter of law. For the reasons that follow, the
Court GRANTS Defendant’s motion and DENIES Plaintiff’s motion.
STATEMENT OF FACTS
Although the parties disagree on the law, they largely agree on the facts
underlying this dispute. In August 2020, Plaintiff Judy Fillinger, through her power
of attorney John Wood, applied for a loan with Defendant Third Federal Savings and
Loan Association. (ECF No. 41-1, PageID #609–10; ECF No. 41-3, PageID #679–82.)
In her loan application, Ms. Fillinger checked a box labeled “Yes” for the question:
“Have you directly or indirectly been obligated on any loan which resulted in
foreclosure, transfer of title in lieu of foreclosure, or Judgment.” (ECF No. 41-1,
PageID #610–11; ECF No. 41-3, PageID #682.) As a result, Third Federal’s agent,
Marvella Munroe, requested additional information, including bankruptcy
documentation, to determine whether Ms. Fillinger’s foreclosures were discharged.
(ECF No. 41-1, PageID #614; ECF No. 41-3, PageID #683–85.) In response,
Ms. Fillinger provided copies of dockets from three foreclosure cases in 2010, 2012,
and 2014, and a bankruptcy report listing real property, a schedule of secured
creditors, and a discharge from 2009. (ECF No. 40-1, PageID #459–77; ECF No. 41-1,
PageID #614–15 & #654.)
On September 19, 2020, Munroe sent an email to Ms. Fillinger advising that
Third Federal denied her loan application. (ECF No. 41-1, PageID #618–19.)
Specifically, the email states as follows:
Hello,
Per underwriting:
After review of supporting documents for foreclouse / bankurcpy [sic],
unfortunately, the loan was denied.
No loan due to Settled real estate debt for less than full balance. (2 of
properties were Sheriff Sales) Note: file was already sent to committee
and reviewed by management.
Thanks
(ECF No. 41-3, PageID #695.) Ms. Fillinger questioned this explanation because the
documents she provided Third Federal did not indicate that she settled any real
estate debt for less than the full balance. (ECF No. 41-1, PageID #619 & #620; ECF
No. 41-3, PageID #696.) In particular, Ms. Fillinger owned two rental properties in
Cuyahoga County that went through foreclosure as three cases. (ECF No. 41-2,
PageID #674.) In the first case, Ms. Fillinger had no equity interest in the property
at the time of the 2010 sheriff’s sale. (Id., PageID #671.) In the two later cases, the
court ruled that Ms. Fillinger was not a party and had no obligation on the debt. (Id.,
PageID #671–73.) Pointing to her 2009 bankruptcy filing, which resulted in her
dismissal from the 2012 and 2014 foreclosure actions, Ms. Fillinger requested a
review of the denial of her loan application. (ECF No. 41-3, PageID #696.)
Then, on September 29, 2020, Third Federal issued Ms. Fillinger a Statement
of Credit Denial, Termination, or Change on a standard form. (ECF No. 41-3, PageID
#701–03.) Importantly, Third Federal left unchecked the foreclosure and bankruptcy
boxes; and instead, indicated that the reason for the denial was “[s]ettled real estate
debt for less than full balance.” (Id., PageID #702.) Further, the Statement of Credit
Denial, Termination, or Change specified that Third Federal based its denial “in
whole or in part on information obtained from the consumer reporting agency . . .
listed below,” which was a company called Factual Data. (Id., PageID #703.)
After receiving the Statement of Credit Denial, Termination, or Change,
Ms. Fillinger contacted Factual Data and requested a description of the transaction
reported to Third Federal that supplied the basis for the denial of her loan
application. (ECF No. 40-1, PageID #499.) In response, Factual Data advised that
its credit report did not include information that Ms. Fillinger settled a real estate
debt for less than its full balance. (Id., PageID #500.) With this information,
Ms. Fillinger again contacted Third Federal, which responded through an attorney.
(Id., PageID #507–10.) According to Third Federal’s attorney, the company followed
its underwriting standards and denied Ms. Fillinger’s loan application “due to her
prior mortgage loans being resolved by her losing her title to the encumbered
properties through foreclosures and as a result of the foreclosures, the loans not being
repaid in full.” (Id., PageID #509.) Third Federal took the position that its “denial of
credit to Judy Fillinger was not based on a report of discharge of debt by bankruptcy
beyond the ten-year limit. Rather it was a proper underwriting decision based upon
[Ms. Fillinger’s] own disclosure, that she was a defendant in a foreclosure.” (Id.,
PageID #510.)
STATEMENT OF THE CASE
Based on these events, Plaintiff filed suit alleging five claims under the Fair
Credit Reporting Act and Equal Credit Opportunity Act, seeking compensatory
damages, punitive damages, costs, and attorney’s fees. (ECF No. 1.) In Counts One
and Two, alleging violations of the Fair Credit Reporting Act and the Equal Credit
Opportunity Act, respectively, Plaintiff seeks $100 in actual damages, costs, and
attorney’s fees. (Id., ¶¶ 9–19, PageID #2–4.) In Count Three, alleging violation of
the Equal Credit Opportunity Act, Plaintiff seeks actual damages of $20,000, punitive
damages of $10,000, costs, and attorney’s fees. (Id., ¶¶ 31–34 PageID #5.) In Counts
Four and Five, alleging violations of the Fair Credit Reporting Act, Plaintiff seeks the
greater of $20,000 in actual damages, or $1,000 plus costs, punitive damages in an
unspecified amount, and attorney’s fees. (Id., ¶¶ 46–55 PageID #7–8.)
Plaintiff did not make a jury demand. (Id., PageID #1 & #8–9.) Nor did
Defendant make a jury demand in its answer. (ECF No. 29, PageID #201 & #215.)
Initially, Defendant moved to dismiss Plaintiff’s claims. The Court granted
Defendant’s motion on Count Three, but denied its motion on Counts One, Two, Four,
and Five. (ECF No. 25, PageID #171.) Following the Court’s Order, and after the
close of discovery, the parties filed cross-motions for summary judgment.
ANALYSIS
Summary judgment is appropriate “if the movant shows that 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). On a motion for summary judgment, “the judge’s
function is not . . . to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). “The party seeking summary judgment has the initial
burden of informing the court of the basis for its motion” and identifying the portions
of the record “which it believes demonstrate the absence of a genuine issue of material
fact.” Tokmenko v. MetroHealth Sys., 488 F. Supp. 3d 571, 576 (N.D. Ohio 2020)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The non-moving party must
then “set forth specific facts showing there is a genuine issue for trial.” Id. (citing
Anderson, 477 U.S. at 250).
“When the moving party has carried its burden under Rule 56(c), its opponent
must do more than show there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
Court, instead, determines “whether the evidence presents a sufficient disagreement
to require submission to a jury” or whether the evidence “is so one-sided that one
party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52. In doing so,
the Court must view the evidence in the light most favorable to the non-moving party.
Kirilenko-Ison v. Board of Educ. of Danville Indep. Schs., 974 F.3d 652, 660 (6th Cir.
2020) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587).
If a genuine dispute exists, meaning “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party,” summary judgement is not
appropriate. Tokmenko, 488 F. Supp 3d at 576 (citing Anderson, 477 U.S. at 250). If
the evidence, however, “is merely colorable or is not significantly probative,”
summary judgment for the movant is proper. Id. The “mere existence of some factual
dispute between the parties will not defeat an otherwise properly supported motion
for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Anderson,
477 U.S. at 247–48).
“Just as plaintiff may not rely on conclusory allegations to proceed past the
pleading stage, so too a plaintiff may not rely on conclusory evidence to proceed past
the summary-judgment stage.” Viet v. Le, 951 F.3d 818, 823 (6th Cir. 2020) (cleaned
up). “Conclusory statements unadorned with supporting facts are insufficient to
establish a factual dispute that will defeat summary judgment.” Id. (quoting
Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir. 2009)).
“[W]here, as here, the parties filed cross-motions for summary judgment, ‘the
court must evaluate each party’s motion on its own merits, taking care in each
instance to draw all reasonable inferences against the party whose motion is under
consideration.’” McKay v. Federspiel, 823 F.3d 862, 866 (6th Cir. 2016) (quoting Taft
Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991)). Therefore, cross-
motions for summary judgment do not warrant granting summary judgment unless
one of the parties is entitled to judgment as a matter of law on facts that are not
genuinely disputed. Langston v. Charter Twp. of Redford, 623 F. App’x 749, 755 (6th
Cir. 2015).
I. Abandonment of Claims
Plaintiff moved for summary judgment in its favor on the remaining claims,
those asserted in Counts One, Two, Four, and Five. (ECF No. 38.) However, the
Court struck Plaintiff’s motion because it did not comply with the page limits of Local
Rule 7.1(f). (Order [non-document], June 1, 2022.) Specifically, Local Rule 7.1(f)
limits briefs in support of dispositive motions to twenty pages for standard track cases
such as this. Plaintiff filed a fifty-page memorandum, causing the Court to strike the
brief. Nonetheless, to afford Plaintiff an opportunity to seek a judgment as a matter
of law, the Court gave Plaintiff a week to file a summary judgment motion that
complied with an extended limit of twenty-five pages. (ECF No. 39.)
Instead of taking a week to comply with the new page limits the Court set,
Plaintiff filed the operative motion for summary judgment the same day. (ECF
No. 40.) This motion for summary judgment is silent on Counts One and Two. To
comply with the page limits the Court set, Plaintiff’s counsel simply removed the
pages discussing Counts One and Two, opting instead to oppose Defendant’s motion
for summary judgment on those counts. (Compare ECF No. 38 with ECF No. 40.)
On this record, the Court construes Plaintiff’s “failure to urge [his] claims . . .
as an intention to abandon that part of the case.” Vaughn v. Mobil Oil Expl. &
Producing Se., Inc., 891 F.2d 1195, 1198 (5th Cir. 1990). “[T]he failure to pursue a
point before the trial court inevitably leads to the conclusion that the issue will not
receive judicial consideration.” Id. (quoting Federal Deposit Ins. Corp. v. Castle, 781
F.2d 1101, 1104 (5th Cir. 1986)). Ordinarily, a plaintiff could just oppose a motion
for summary judgment, which if denied would result in the submission of his claims
to a jury. In this case, however, the parties waived a jury, and the record shows
general agreement about the operative facts. At least it shows no genuine dispute of
material fact that would foreclose the entry of judgment as a matter of law for one
party or the other on their respective cross-motions.
In this posture, if Plaintiff has not forfeited Counts One and Two, it is difficult
to see how he intends to proceed. If Defendant is not entitled to judgment as a matter
of law, a bench trial on the record presented—even construed in Plaintiff’s favor—
scarcely differs from the cross-motions for summary judgment before the Court.
Accordingly, the Court construes Plaintiff’s decision simply to drop any argument in
his affirmative motion for summary judgment as move, too cute by half, to comply
with the page limits for briefing a dispositive motion without making a sincere effort
to do so. Therefore, the Court finds that Plaintiff forfeited Counts One and Two.
In any event, Count One asserts a claim under the Fair Credit Reporting Act,
15 U.S.C. § 1681m, and fails as a matter of law for the reasons discussed below.
Although Count Two might appear to have merit, the Court has no occasion to
consider it. For these reasons, the Court GRANTS summary judgment in favor of
Defendant on Counts One and Two.
II. Private Right of Action
Counts Four and Five of the complaint assert violations of Section 615 of the
Fair Credit Reporting Act, codified at 15 U.S.C. § 1681m. In Counts Four and Five,
Plaintiff maintains that Third Federal’s statement of credit denial violates Section
1681m(a) by falsely stating that Factual Data was the source of the information
resulting in the denial of the loan. (ECF No. 40, PageID #428–30 & #434.) In Count
One, if Plaintiff did not forfeit it, Plaintiff maintains that Third Federal violated
Section 1681m(b)(1) by failing to provide an adverse action notice when it denied
Ms. Fillinger’s loan application. (ECF No. 43, PageID #736–38.) Defendant argues
that it did not violate the statute because the statement of credit denial did not
“specifically state[] that Factual Data [was] the source of the information: settled
real estate debt for less than full balance.” (ECF No. 41, PageID #584.)
II.A. Statutory Text
Section 1681m imposes various requirements on anyone taking “adverse
action” against a consumer based on information contained in consumer credit
reports. 15 U.S.C. § 1681m(a)–(b). In 2003, Congress amended the Act by adding
Section 1681m(h)(8), which eliminates private enforcement of Section 1681m. It
provides that Section 1681n, under which Plaintiff seeks damages in Counts Four
and Five (ECF No. 1, ¶¶ 47 & 55, PageID #7 & #8), “shall not apply to any failure by
any person to comply with this section,” 15 U.S.C. § 1681m(h)(8)(a). Lest there be
any doubt, subsection (b) of the statute as amended reads: “This section shall be
enforced exclusively under section 1681s of this title by the Federal agencies and
officials identified in that section.” 15 U.S.C. § 1681m(h)(8)(b).
To date, the Sixth Circuit has not addressed the issue. Only one Circuit has.
In Perry v. First National Bank, 459 F.3d 816, 819–20 (7th Cir. 2006), the Seventh
Circuit read the statutory language “this section” in Section 1681m(h)(8) to refer to
Section 1681m as a whole. Accordingly, the Seventh Circuit held that Congress
preempted private causes of action to enforce Section 1681m. Id. at 823. Indeed,
“virtually every federal district court, and the only courts of appeal to address the
issue, have concluded that § 1681(h)(8)’s language to be clear and unambiguous in
precluding a private right of action for violations of § 1681m in its entirety.” Thomas
v. BrandAuto Fin., No. 1:18-CV-252, 2019 WL 1769152, at *4 (E.D. Tenn. Apr. 22,
2019) (collecting cases); see also Perry, 459 F.3d at 822 (same). Based on the Court’s
reading of the plain language of the statute, and the overwhelming weight of
authority, the Court agrees and determines that Section 1681(h)(8) does not
authorize private enforcement.
II.B. Plaintiff’s Counterargument
Because the statute on its face appears not to create a private right of action,
an issue which the parties did not address in their summary judgment papers, the
Court requested supplemental briefing on the issue. In response, Plaintiff argues
that the statute does not deprive the Court of jurisdiction. (ECF No. 46, PageID
#773.) In this regard, the Court agrees. The absence of a private right of action does
not affect jurisdiction. “[W]hether a cause of action exists is not a question of
jurisdiction.” Burks v. Lasker, 441 U.S. 471, 476 n.5 (1979). Indeed, the Sixth Circuit
consistently holds that “the question of whether a complaint states a cause of action
or claim for relief calls for a decision on the merits, not for a determination of
jurisdiction.” Cherokee Express, Inc. v. Cherokee Express Inc., 924 F.2d 603, 609 (6th
Cir. 1991); see also Bush v. State Indus., Inc., 599 F.2d 780, 785 (6th Cir. 1979).
But just because the Court has jurisdiction does not mean a federal statute
confers a private right of action. To meet this objection, Plaintiff maintains that a
mistake of the codifiers of the 2003 amendment resulted in the addition of Section
1681m(h)(8), which improperly (as codified) limits the remedial provisions of the Fair
Credit Reporting Act. In other words, Plaintiff maintains that inclusion of the
language from the 2003 amendment in 15 U.S.C. 1681m, and its limitation on private
rights of action, arises from a mistake. (ECF No. 46, PageID #774.) This argument
finds no support in the text of the statute.
Section 311 of the Fair and Accurate Credit Transactions Act of 2003 begins
by making clear that the amendment applies to the entirety of Section 615 of the Fair
Credit Reporting Act, codified at 15 U.S.C. 1681m. It reads: “Section 615 of the Fair
Credit Reporting Act (15 U.S.C. 1681m), as amended by this Act, is amended by
adding at the end the following . . . .” Pub. L. 108-159, § 311(a), 117 Stat. 1952, 1988
(2003). It concludes with the language currently codified at 15 U.S.C. § 1681m(h)(8),
leaving no doubt that Congress—not some bureaucratic codifier of the text enacted
in the session laws—meant what it said.
Plaintiff contends that the limitation on private enforcement runs counter to
the remedial provisions of Section 615 of the Fair Credit Reporting Act. Perhaps.
But in the twenty years since enactment of the Fair and Accurate Credit Transactions
Act, in the face of multiple courts including the Seventh Circuit reading the words of
the statute to mean what they say, Congress has not amended the words “this section”
to mean subsection (h), not Section 1681m. Further, Plaintiff cites no court reading
the statute as he proposes.
At bottom, the plain language of Section 1681m(h)(8) demonstrates the
unambiguous congressional intent to preempt private causes of action in the
enforcement of Section 1681m. “The question whether Congress intended to create
a private right of action is definitively answered in the negative where a statute by
its terms grants no private rights to any identifiable class.” Accordingly, the Court
GRANTS summary judgment in favor of Defendant on Count One to the extent that
Plaintiff has not abandoned it, and Counts Four and Five.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s motion for
summary judgment and DENIES Plaintiff's motion for summary judgment.
SO ORDERED.
Dated: December 22, 2022
J. Philip Calabrese
United States District Judge
Northern District of Ohio
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