United States District Court, D. Colorado
A. BRIMMER, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Pennsylvania Higher Education
Assistance Agency's Motion for Summary Judgment [Docket
No. 67]. The Court has jurisdiction pursuant to 28 U.S.C.
Garret Gissler claims that he was harmed by defendant
Pennsylvania Higher Education Assistance Agency's credit
reporting. Plaintiff brings claims under the Fair Credit
Reporting Act (“FCRA”), 15 U.S.C. § 1681
et seq., and the Colorado Uniform Credit Code, Colo.
Rev. Stat. § 5-5-109(2) (“Colorado Credit
is the loan servicing company for plaintiff's student
loans. Defendant's Statement of Undisputed Material Facts
(“DSUMF”) 3; Docket No. 67 at 2, ¶
Plaintiff failed to make payments on his student loans from
November 2012 to April 2013. DSUMF 4; Docket No. 67 at 3,
¶ 4. Defendant did not report the loan as delinquent in
November or December 2012 because the Department of
Education, which owned the loan, had directed defendant to
not report delinquencies to the credit reporting agencies
until a consumer is 60 or more days late. DSUMF 9; Docket No.
67 at 4, ¶ 9. However, given the passage of 60 days,
defendant reported that plaintiff's January to April 2013
payments were late. DSUMF 4; Docket No. 67 at 3, ¶ 8;
see, e.g., Docket No. 67-13 at 9, ¶ 46
(“[Defendant's] transmission on January 31, 2013
reported to the credit bureaus that Plaintiff was ‘60
DAYS' delinquent on the Student Loan.”). On May 2,
2013, plaintiff requested a forbearance that would cover the
late payments from November 2012 to April 2013. DSUMF 5;
Docket No. 67 at 3, ¶ 5. On May 3, 2013, defendant
approved plaintiff's request. Id. As part of the
forbearance, defendant agreed to remove the delinquencies on
plaintiff's loan and eliminate the late fees. DSUMF 6;
Docket No. 67 at 3, ¶ 6. At the time plaintiff asked for
a forbearance, plaintiff did not ask that credit reporting
regarding his missed payments be changed and defendant did
not say it would do so. DSUMF 7; Docket No. 67 at 3, ¶
three years later, plaintiff filed disputes with credit
reporting agencies. DSUMF 14; Docket No. 67 at 4, ¶ 14.
These disputes took the form of letters that stated:
following information needs to be verified and deleted from
my credit report as soon as possible:
1) Late payments up to 150 days from January 2013 to April
This account was granted forbearance for the above time
period. Please see the documents enclosed with this letter.
17; Docket No. 67 at 5, ¶ 17; see Docket No.
67-20 at 2. The credit reporting agencies referred these
disputes to defendant for investigation. DSUMF 32; Docket No.
67 at 8-9, ¶ 32.
beginning of the investigation, defendant temporarily marked
plaintiff's account with the Compliance Condition Code
“XB, ” which indicates that the account
information has been disputed and an investigation is
pending. DSUMF 21; Docket No. 67 at 6, ¶ 21. Defendant
investigated the disputes, confirmed that plaintiff did not
make loan payments from November 2012 to April 2013, and
confirmed that plaintiff had been granted a forbearance
covering the delinquent months, but defendant did not change
its reporting regarding the missed payments. DSUMF 35-36;
Docket No. 67 at 9-10, ¶¶ 35-36. Defendant's
decision not to change its reporting was based on
defendant's conclusion that the reporting was accurate
and on defendant's unwritten policy that, for Department
of Education loans, defendant will not change its credit
reporting as a result of a forbearance granted after payments
have already been missed. DSUMF 10; Docket No. 67 at 4,
¶ 10; DSUMF 36; Docket No. 67 at 10, ¶ 36. This
policy was directed by the Department of Education and
applies to all Department of Education loans. DSUMF 11,
Docket No. 67 at 4, ¶ 11. Defendant has a different policy
for loans owned by Chase and Bank of America. Docket No. 75-2
at 6, 48:9-19. For such loans, defendant does change the
credit reporting when it grants a retroactive forbearance.
Id.; see also Docket No. 78 at 6
(“[Defendant's] credit reporting policy for
retroactive forbearances is dependent on the owner of the
credit reporting agency refers a dispute it has received to
defendant for investigation, defendant ascertains the
substance of the dispute and reviews any documents supplied
by the agency. DSUMF 20; Docket No. 67 at 6, ¶ 20.
Defendant compares the dispute with the account records,
including the payment, forbearance, and credit reporting
history. Id. At the beginning of the investigation
on a referred complaint, defendant marks the account as in
dispute by using the Compliance Condition Code
(“CCC”) of “XB, ” which means
“Account information disputed by consumer under the
Fair Credit Reporting Act.” Docket No. 67 at 10, ¶
39; id. at 16. Defendant followed this procedure
when investigating plaintiff's complaint. DSUMF 34;
Docket No. 67 at 9, ¶34. When defendant completed its
investigation, defendant changed the CCC to code “XH,
” meaning “Account previously in dispute -
investigation completed, reported by data furnisher.”
DSUMF 40; Docket No. 67 at 11, ¶ 40, 16. Defendant
claims it did not change the CCC to “XC, ”
meaning “Completed investigation of FCRA dispute -
consumer disagrees, ” because plaintiff never notified
defendant that he disagreed with the investigation results.
Docket No. 67 at 11.
January 27, 2017, defendant filed its motion for summary
judgment. Docket No. 67, ¶ 41.
STANDARD OF REVIEW
judgment is warranted under Federal Rule of Civil Procedure
56 when 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);
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-50 (1986). A disputed fact is “material” if
under the relevant substantive law it is essential to proper
disposition of the claim. Wright v. Abbott Labs.,
Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only
disputes over material facts can create a genuine issue for
trial and preclude summary judgment. Faustin v. City
& Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir.
2005). An issue is ...