United States District Court, S.D. West Virginia, Huntington Division
JEFFREY W. CAMPBELL and ROBIN CAMPBELL, Plaintiffs,
SELECT PORTFOLIO SERVICING INC., Defendant.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Select Portfolio Servicing,
Inc.'s Motion for Summary Judgment. ECF No. 23. For the
foregoing reasons, the Court GRANTS summary
judgment in favor of the defendant.
present action stems from a loan issued to Plaintiffs on
November 6, 2006 and serviced by Defendant starting on March
1, 2009. Note, ECF No. 26-1; 2009 Letter,
ECF No. 26-3. As part of the loan, Defendant made property
tax payments on the land which secured the loan. Dec. 9,
2010 Letter, ECF No. 28-9. Due to an error in the
billing by Putnam County, taxes were paid on the wrong parcel
of land, but the back taxes were paid, and the money from
Plaintiffs' escrow account used to pay the incorrect
taxes was refunded. J. Campbell Depo., 156-57, ECF
No. 28-4; Tax Receipt I, ECF No. 24-1; Tax
Receipt II, ECF No. 24-2; Jan. 27, 2017 Letter,
ECF No. 24-4.
Plaintiffs failed to make timely payments on their loan and
Defendants appointed a trustee to foreclose on property.
Payment History, ECF No. 24-5; Appointment,
ECF No. 24-5; Notice of Sale, ECF No. 24-6.
Plaintiffs subsequently filed this action, alleging the
appointment of a trustee was a breach of contract and that
there were reports filed in violation of the Fair Credit
Reporting Act (“FRCA”). Defendant moved for summary
judgment on November 13. 2018.
obtain summary judgment, the moving party must show that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In considering a motion for summary
judgment, the Court will not “weigh the evidence and
determine the truth of the matter[.]” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead,
the Court will draw any permissible inference from the
underlying facts in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986).
the Court will view all underlying facts and inferences in
the light most favorable to the nonmoving party, the
nonmoving party nonetheless must offer some “concrete
evidence from which a reasonable juror could return a verdict
in his [or her] favor[.]” Anderson, 477 U.S.
at 256. Summary judgment is appropriate when the nonmoving
party has the burden of proof on an essential element of his
or her case and does not make, after adequate time for
discovery, a showing sufficient to establish that element.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). The nonmoving party must satisfy this burden of proof
by offering more than a mere “scintilla of
evidence” in support of his or her position.
Anderson, 477 U.S. at 252.
motion, Defendant characterizes the claims to be ruled on as
a breach of contract claim (“Count 1”) and
violations of the FCRA (“Count 2”). Mot.
Summ. J., at 1. The Court addresses each in turn.
Count I - Breach of Contract
their response, Plaintiffs concede their breach of contract
claim is insufficient as a matter of law. Resp. Memo., ¶
1. As such, the Court grants summary judgment for the
defendant as to Count I.
Count II - Violations of the Fair Credit Reporting Act
the Fair Credit Reporting Act, civil liability is created
under 15 U.S.C. §§ 1681n(a) and
1681o(a). The FCRA explicitly bars private suits for
violations of § 1681s-2(a), but consumers can still
bring private suits for violations of § 1681s-2(b). 15
U.S.C. § 1681s-2(c) (“[S]ections 1681n and
1681o do not apply to any violation of - (1)
subsection (a) of this section[.]”); see also
Saunders v. Branch Banking & Tr. Co. Of VA, 526 F.3d
142, 149 (4th Cir. 2008). The duties required under §
1681s-2(b) are triggered “[a]fter receiving notice [of
a dispute] pursuant to section 1681i(a)(2) of [Title
15.]” 15 U.S.C. § 1681s-2(b)(1). Notice under that
section occurs when “a consumer reporting
agency receives notice of a dispute from any consumer or
reseller”, then “the agency shall
provide notification of the dispute to any person who
provided any item of information in dispute[.]” 15
U.S.C. § 1681i(a)(2)(A) (emphasis added). This is
interpreted to mean that these duties are only prompted when
a person or entity that provided the disputed information
receives notice from a credit reporting agency.
“Whether the [creditor] received notice from any other
source, such as [a] Plaintiff, for example, is irrelevant for
the purposes of satisfying the FCRA's notice
requirement.” Copley v. Fairbank, No.
2:10-CV-01371, 2011 WL 2421024, at *2 (S.D. W.Va. June 13,
2011) (quoting Rambarran v. Bank of America, NA, 609