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Gissler v. Pennsylvania Higher Education Assistance Agency

United States District Court, D. Colorado

September 28, 2017

GARRETT GISSLER, Plaintiff,
v.
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY, Defendant.

          ORDER

          PHILIP A. BRIMMER, UNITED STATES DISTRICT JUDGE.

         This 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. § 1331.

         I. BACKGROUND[1]

         Plaintiff 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 Code”).

         Defendant is the loan servicing company for plaintiff's student loans. Defendant's Statement of Undisputed Material Facts (“DSUMF”) 3; Docket No. 67 at 2, ¶ 3.[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, ¶ 7.

         Approximately 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:

         The 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 2013
This account was granted forbearance for the above time period. Please see the documents enclosed with this letter.

         DSUMF 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.

         At the 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.[3] 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 loan.”).

         When a 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.

         On January 27, 2017, defendant filed its motion for summary judgment. Docket No. 67, ¶ 41.

         II. STANDARD OF REVIEW

         Summary 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 ...


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