HARB v. WESTLAKE SERVICES LLC (2024)

ORDER

THIS CAUSE comes before the Court for consideration of Defendant Westlake Services, LLC's (“Westlake”) Motion for Summary Judgment, Plaintiff's response in opposition thereto, and Westlake's reply in further support of its motion. (Dkts. 57, 104, and 106) The Court has also considered Plaintiff's Motion for Summary Judgment, Westlake's response in opposition thereto, and Plaintiff's reply in further support of his motion. (Dkts. 105, 107, 109) Upon consideration of all relevant filings, case law, and being otherwise fully advised, the Court DENIES Westlake's Motion for Summary Judgment and DENIES Plaintiff's Motion for Summary Judgment.

I. BACKGROUND

This case concerns Defendant Westlake's alleged Fair Credit Reporting Act (“FCRA”) and Florida Consumer Collection Practices Act (“FCCPA”) violations. The following factual allegations, which are not in dispute, arise from the Amended Complaint, the Motions for Summary Judgment, and the responses in opposition to the Motion for Summary Judgment. Where the Parties are in dispute, the Court notes as such in its recitation of the facts.

a. Factual Background

On July 21, 2009, Westlake and AutoNation, Inc. (“AutoNation”) entered into a Master Dealer Agreement (“MDA”). (Dkt. 57 at 3) The MDA governs the relationship between Westlake, AutoNation, and AutoNation Ford St. Petersburg (“Dealer”), including the financing of Plaintiff's Retail Installment Sales Contract at issue. (Id.) Pursuant to the MDA, AutoNation's agents, employees, and contractors, via local retail outlets such as Dealer, were permitted to assign certain contracts to Westlake.

Paragraph 3 of the MDA provides:

As to each Contract sold by Dealer to Westlake, Dealer hereby represents and warrants that, as of the time of assignment that ․

(e) Each Contract contains a bona fide Unit for sale for the amount set forth therein, and that the description of the Unit contained in such Contract is in all respects true and complete;

(f) The Unit is in good working condition;

(g) The Unit has been delivered to Customer and all services contracted for have been provided by or performed by Dealer ․

(m) Customer has no legal or equitable defenses, setoff, or counterclaims as to the enforcement of any Contract arising out of Dealer's conduct ․

(q) Dealer has not made any false or misleading representations to Customer as to the price, quality of product, manufacturer, dealer's warranty, or any other false statement which misleads or confuses the Customer;

(Id. at 3-4)

On October 10, 2022, Plaintiff Henry Harb (“Plaintiff” or “Mr. Harb”) went to Dealer to potentially purchase a vehicle. (Dkt. 104 at 4) Mr. Harb found a vehicle and made a down payment of $4,000.00. (Id.) Mr. Harb executed a Retail Installment Sales Contract (“Contract”) reflecting a Total Sale Price of $16,512.22, including the $4,000.00 down payment. (Id.) Pursuant to the MDA, Dealer immediately assigned the Contract to Westlake. (Id.) Westlake funded the transaction. (Dkt. 57 at 5) Pursuant to the Contract, Plaintiff was required to remit 42 payments of $297.91, beginning November 24, 2022, and on the 24th of each month thereafter until paid. (Id.)

Because the vehicle needed repairs, AutoNation's representatives informed Mr. Harb that the Contract would not be finalized until the repairs were completed. (Dkt. 104 at 4) The repairs were never completed, and AutoNation refunded the down payment to Mr. Harb, ending his obligations under the Contract. (Id.)

Prior to Plaintiff's first payment due date, Westlake placed calls to Plaintiff to introduce him to Westlake and gather information to service the Contract. (Dkt. 57 at 5) Specifically, Westlake placed four calls to Plaintiff and only two resulted in a conversation between Westlake and Plaintiff. (Id.) The calls occurred on October 25 and 27, 2022. (Id.) Westlake contends that none of those calls were to collect a debt, (id.), which Plaintiff disputes. (Dkt. 104 at 31) The remainder of the calls between Westlake and Plaintiff were Plaintiff's calls to Westlake. (Dkt. 57 at 5)

On October 25, 2022, Westlake contacted Mr. Harb regarding the Contract. (Dkt. 104 at 4) Mr. Harb immediately informed Westlake during that initial phone call that he had not purchased the vehicle and that AutoNation had returned the down payment to him. (Id.) Westlake instructed Mr. Harb that he needed to contact AutoNation to resolve the matter as his account was still showing as active in Westlake's records. (Id. at 4-5) Mr. Harb then contacted AutoNation and was advised that AutoNation would resolve the matter directly with Westlake. (Id. at 5) Mr. Harb received multiple voicemails from AutoNation stating that it was working with Westlake to resolve the issue. (Id.)

According to Westlake's “Notes on Account” tracking system, Mr. Harb spoke with Westlake again on October 26, 2022, once again stating that he did not have the car. (Id.) According to an entry dated 10/26/2022 at 12:27 PM, a Westlake representative spoke with Mr. Harb and noted in the system that Mr. Harb stated that (1) he did not have the vehicle; (2) the down payment was returned to him; and (3) he “canceled the deal a week ago” because the dealer was unable to repair the vehicle. (Id.) The representative advised Mr. Harb that his account was still active and that Westlake had yet to receive a payout from AutoNation. (Id.)

The next day, on October 27, 2022, Westlake placed a courtesy call to Plaintiff to confirm a few pieces of information and answer any questions Plaintiff may have. (Dkt. 57 at 6) Plaintiff repeated the information provided to Westlake on the October 25, 2022, call: that he never had the car, did not purchase the vehicle, canceled the deal, and received back his down payment. (Id.) Westlake's associate advised that Dealer would have to repurchase the Contract. (Id.)

On or about March 3, 2023, Westlake received notice from Experian Information Solutions (“Experian”) that Plaintiff disputed Westlake's credit reporting. (Dkt. 57 at 6) Also, on or about March 3, 2023, Westlake received notice from Equifax Information Services, LLC (“Equifax”) that Plaintiff disputed Westlake's credit reporting. (Id.)

On March 7, 2023, Westlake responded to Experian by stating: “Consumer's dispute not specific. Consumer Information verified. Account information updated.” (Dkt. 104 at 6)

On March 7, 2023, Westlake similarly responded to Equifax by stating: “Disputed information accurate. Updated account information unrelated to the dispute.” (Id.)

On March 8, 2023, Westlake received notice from Experian that Plaintiff had submitted another dispute. (Dkt. 57 at 7) On March 9, 2023, Westlake responded to Experian by stating: “Disputed information accurate. Updated account information unrelated to the dispute.” (Dkt. 104 at 6)

On March 17, 2023, Westlake received a third notice from Experian that Plaintiff submitted another dispute stating that the account was not his. (Dkt. 57 at 7) On March 18, 2023, Westlake received a second notice from Equifax stating that Plaintiff had submitted another dispute. (Id.) On March 18, 2023, Westlake received a notice of dispute from Trans Union LLC (“TransUnion”) stating that the account had been paid and should be deleted. (Id.)

On March 20, 2023, Westlake responded to Experian, Equifax, and TransUnion (collectively, the “CRAs”) by again stating: “Disputed information accurate. Updated account information unrelated to the dispute.” (Dkt. 104 at 7)

In each of its responses to the CRAs, Westlake agreed that “[b]y submitting this [Automated Credit Dispute Verification (“ACDV”) form], you certify that you have reviewed and considered all associated Images, you have verified the accuracy of the data in compliance with all legal requirements, and your computer and/or manual records will be adjusted to reflect any changes noted.” (Dkt. 104 at 6) Westlake admits, however, that it incorrectly reported the account as a “charge-off” upon submitting the ACDV forms to the CRAs. (Dkt. 105 at 12)

In total, Westlake submitted six (6) ACDV forms to the CRAs after receiving notice of Plaintiff's dispute, certifying that the disputed information was accurate. No humans investigated the disputes or completed the ACDV forms prior to their submission to the CRAs; instead, it was all done through a “no-touch” computer system called “Sonnet.” (Dkt. 105 at 12, 18) The “FCRA Relevant Information” section on the ACDV forms, in which Plaintiff repeatedly indicated that the account was not his, is not reviewed by a human unless it contains certain key phrases or words that were unknown to Plaintiff. (Id. at 12, 25)

On the ACDV forms, the only box on which to indicate that the consumer continues to dispute the debt is the “Compliance Condition Code.” (Dkt. 104 at 8) This code is used by furnishers, such as Westlake, to indicate to CRAs that the consumer disputes the account despite the furnisher's findings. (Id.) Typically, if an account is disputed, Westlake would update the Compliance Condition Code. (Dkt. 105 at 12) However, in this case, Westlake never indicated on any of the ACDV forms that Mr. Harb continued to dispute the account, leaving the Compliance Condition Code blank on each of the forms. (Dkt. 104 at 8) Westlake does not mark the Compliance Condition Code as “disputed” because it believes that once it submits a response ACDV, the CRAs will automatically flag that specific account as disputed. (Id.)

On March 21, 2023, AutoNation repurchased the Contract from Westlake. (Dkt. 57 at 7) On that date, an entry was entered on Westlake's Notes on Account, reflecting that Westlake had received a partial payment from AutoNation on January 16, 2023, in the amount of $9,365.29. (Dkt. 104 at 7) The Notes further reflect that Westlake received $371.91 from AutoNation on March 17, 2023 “to complete the buyback account.” (Id.) On March 22, 2023, the Notes on Account reflect: “PAYOFF (03/22/2023) ․ FPD PAYMENT.” (Id.)

On March 29, 2023, less than thirty (30) days after Westlake first received notice of Plaintiff's dispute, Westlake submitted an Automated Universal Data request (“AUD”) to the CRAs to delete any credit reporting as to Plaintiff's account. (Id. at 8) A subsequent review of what the CRAs were reporting on Plaintiff's account revealed that the Westlake tradeline was deleted. (Id.)

Plaintiff contends that, since Westlake continually responded to the credit reporting disputes by verifying the information as accurate, Westlake caused Plaintiff to suffer from anxiety, sleeplessness, frustration, hopelessness, headaches, and despair. (Dkt. 104 at 7) Plaintiff claims he spent a considerable amount of time trying to rectify the mistakes. (Id.)

On April 26, 2023, Justin Brandt, Westlake's Senior Legal Counsel, provided Plaintiff's counsel with documentary proof that Westlake timely requested that the CRAs remove the credit reporting at issue. (Dkt. 57 at 8)

b. Procedural Background

Plaintiff initiated this action on April 20, 2023, against Westlake, alleging violations of the FCRA. (Dkt. 1) On October 24, 2023, Plaintiff filed an Amended Complaint against Westlake, adding three other Defendants to the matter – TransUnion, Equifax, and Experian. (Dkt. 26)

The Amended Complaint raises three causes of action against the Defendants. First, Plaintiff contends Westlake violated FCRA by, inter alia, failing to conduct a reasonable investigation into his disputes and failing to update the Compliance Condition Code to reflect Plaintiff's account as disputed. (Id. at 12-13) Second, Plaintiff alleges a violation of FCRA against TransUnion, Equifax, and Experian. (Id. at 13-14) Third, Plaintiff raises a violation of the Florida Consumer Collection Practices Act (“FCCPA”) against Westlake for seeking to enforce a debt against him when it knew that the debt was not legitimate. (Id. at 14-15) TransUnion, Equifax, and Experian have since been dismissed from the case. Because they have been dismissed, this Order only addresses the first and third violations against Westlake.

On February 23, 2024, Westlake moved for summary judgment. (Dkt. 57) On July 15, 2024, Plaintiff filed his response. (Dkt. 104) On July 31, 2024, Westlake filed a reply in further support of its motion for summary judgment. (Dkt. 106) On July 24, 2024, Plaintiff filed a cross-motion for summary judgment. (Dkt. 105) Defendant responded in opposition on August 23, 2024. (Dkt. 107) Plaintiff filed a reply on September 3, 2024. (Dkt. 109) Both motions are now ripe for review.

II. STANDARD OF REVIEW

The Court must “grant summary judgment 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); see also Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001) (explaining that “[s]ummary judgment is proper if the pleadings, depositions, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law”). For a factual dispute between the parties to defeat summary judgment, the factual dispute must be “both genuine and material.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008). A fact is material if it “affect[s] the outcome of the suit under the governing law,” and is genuine “if a reasonable trier of fact could return judgment for the non-moving party.” Id.

A court will “construe the facts and draw all inferences in the light most favorable to the non[-]moving party and when conflicts arise between the facts evidenced by the parties, [the court will] credit the non[-]moving party's version.” Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006) The role of the jury is to weigh the evidence and determine credibility, “[t]herefore, if the determination of the case rests on which competing version of the facts or events is true, the case should be submitted to the trier of fact and the motion for summary judgment denied.” Hodgetts v. City of Venice, Fla., 794 F. Supp. 2d 1265, 1271 (M.D. Fla. 2011).

A moving party discharges its burden on a motion for summary judgment by showing or pointing out to the Court that there is an absence of evidence to support the non-moving party's case. Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir. 2001) (citation omitted). When a moving party has discharged its burden, the non-moving party must then designate specific facts (by its own affidavits, depositions, answers to interrogatories, or admissions on file) that demonstrate there is a genuine issue for trial. Porter v. Ray, 461 F.3d 1315, 1320-1321 (11th Cir. 2006) (citation omitted). The party opposing a motion for summary judgment must rely on more than conclusory statements or allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (“conclusory allegations without specific supporting facts have no probative value.”). “If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact ․ the court may grant summary judgment if the motion and supporting materials ․ show that the movant is entitled to it.” Fed. R. Civ. P. 56(e).

Cross motions for summary judgment do not change the standard. Westport Ins. Corp. v. VN Hotel Grp., LLC, 761 F. Supp. 2d 1337, 1341 (M.D. Fla. 2010) (citing Latin Am. Music Co. v. Archdiocese of San Juan of Roman Catholic & Apostolic Church, 499 F.3d 32, 38 (1st Cir. 2007)). Rather, “[c]ross-motions must be considered separately, as each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.” Shaw Constructors v. ICF Kaiser Eng'rs, Inc., 395 F.3d 533, 538-39 (5th Cir. 2004).

III. DISCUSSION

While the Court considers each motion separately and on its own merits, the Parties offer nearly identical arguments in support of their respective motions and in response to the opposing party's motion. As such, the Court proceeds by analyzing the motions together.

A. Plaintiff Has Established Article III Standing.

In its motion for summary judgment, Westlake contends that even if its actions somehow violated the FCRA, Plaintiff is not entitled to recover damages because his injuries are insufficiently concrete to confer Article III standing. (Dkt. 57 at 11; Dkt. 107 at 2) Plaintiff, in response, claims he has suffered particularized and actual injury sufficient to satisfy standing. (Dkt. 104 at 9-12)

The Article III standing doctrine “limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338, 136 S. Ct. 1540, 194 L. Ed. 2d 635 (2016) (citations omitted). This threshold requirement “must be addressed prior to and independent of the merits of a party's claims.” Pedro v. Equifax, Inc., 868 F.3d 1275, 1279 (11th Cir. 2017) (citation omitted).

Standing consists of three elements: (1) an injury in fact, defined as a concrete and particularized injury that is actual or imminent and not conjectural or hypothetical; (2) the injury must be fairly traceable to the actions of the defendant; and (3) it must be likely that the injury can be redressed by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements “with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130. Thus, “in response to a summary judgment motion, ‘the plaintiff ․ must “set forth” by affidavit or other evidence specific facts’ ” showing he was injured, by the defendant's legal violation, in a manner amenable to judicial relief. Ga. Republican Party v. Secs. & Exch. Comm'n, 888 F.3d 1198, 1201 (11th Cir. 2018) (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130).

Here, the Parties’ dispute centers on whether Plaintiff has established an injury in fact. “An injury sufficient for standing purposes is ‘an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.’ ” Pedro, 868 F.3d at 1279 (citations omitted). “A concrete injury ‘must actually exist,’ meaning it must be ‘real and not abstract.’ ” Id. (citation omitted). “An intangible injury, like a violation of the right to free speech, can be concrete.” Id. “An injury is ‘particularized’ if it ‘affect[s] the plaintiff in a personal and individual way.’ ” Id.

Walters v. Fast AC, LLC, 60 F.4th 642 (11th Cir. 2023) is instructive to resolving the Parties’ dispute. There, the Court addressed whether Mr. Walters had standing to bring a suit against an entity for failure to provide certain disclosures about the cost of a loan he received in violation of the Truth in Lending Act, 15 U.S.C. § 1601 et seq. Id. at 645. The Court held that Mr. Walters “identified several concrete, particularized harms,” sufficient to establish an injury in fact. Id. at 648. The Court stated that he “testified in his deposition that (1) he was forced to spend time disputing his debt; (2) his credit took a hit, preventing him from making other purchases or refinancing his home; (3) he spent money faxing documents to his attorney; and (4) he felt anxious, exploited, embarrassed, and worthless.” Id. The Court held that “[o]ur precedent recognizes each of these harms as a concrete injury in fact.” Id. The Court reasoned as follows:

We have held that such injuries include not only ‘straightforward economic injuries,’ like lost money, but also ‘more nebulous’ ones, Tsao v. Captiva MVP Rest. Partners, LLC, 986 F.3d 1332, 1338 (11th Cir. 2021), like wasted time, missed credit opportunities, and emotional distress. See, e.g., Losch v. Nationstar Mortg. LLC, 995 F.3d 937, 943 (11th Cir. 2021) (“[T]here is no question that wasted time is a concrete harm ․”); Pinson v. JPMorgan Chase Bank, Nat'l Ass'n, 942 F.3d 1200, 1207 (11th Cir. 2019) (reduced credit score and ‘lost credit opportunities’ are concrete economic harms). And a plaintiff like Walters, who suffers these concrete harms himself, necessarily satisfies the particularity requirement, too. See Lujan, 504 U.S. at 560 n.1, 112 S.Ct. 2130 (stating an injury is ‘particularized’ if it ‘affect[s] the plaintiff in a personal and individual way’).

Id.

Here, Plaintiff testified that, as a result of Westlake verifying to the CRAs that the debt associated with the Contract belonged to him, he felt “anxiety, frustration, and hopelessness.” (Dkt. 104-1 at ¶ 18) He claims he “began losing sleep and suffered from headaches.” (Id.) He states that he “spent considerable time trying to explain that [he] never took possession of the vehicle from AutoNation and therefore should not owe anything to Westlake for a vehicle he did not purchase.” (Id.) He further claims that “[t]o this day, [he] feel[s] anger and frustration at the way Defendant Westlake damaged [his] credit.” (Id. at ¶ 21) As in Walters, the Court finds that Plaintiff has “identified several concrete, particularized harms,” sufficient to establish an injury in fact under Eleventh Circuit precedent, including “wasted time,” “emotional distress” and either “reduced credit score [or] lost credit opportunities.” Walters, 60 F.4th at 648.

Westlake, however, contends that Plaintiff has not established a concrete injury in fact because “a bare procedural violation” of FCRA does not confer Article III standing. (Dkt. 57 at 11-12; Dkt. 107 at 2) (first citing Spokeo, 578 U.S. at 342, 136 S.Ct. 1540; and then citing TransUnion v. Ramirez, 594 U.S. 413, 434–36, 141 S. Ct. 2190, 2210, 210 L.Ed.2d 568 (2021)) As Walters recognized, “[t]hese authorities establish the ‘now-familiar admonition’ that a procedural statutory violation, standing alone, does not amount to a concrete injury in fact.” Walters, 60 F.4th at 648 (citing Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 924 (11th Cir. 2020) (citation omitted)). “Instead, a statutory violation gives rise to an injury in fact only if the violation (1) inflicts some separate concrete harm on the plaintiff or (2) creates a material risk of such harm to the plaintiff.” Walters, 60 F.4th at 648.

But, as the Court recognized in Walters, these authorities “share a dispositive feature that is missing here: they each involved a ‘bare procedural violation’ and no ‘concrete harm.’ ” Id. at 648-49 (citing Spokeo, 578 U.S. at 341, 136 S.Ct. 1540). Like the plaintiff in Walters, here Plaintiff has “identified concrete harms in addition to a statutory violation.” Id. at 649 (citing TransUnion, 141 S. Ct. at 2210 (holding “[t]he mere presence of an inaccuracy in an internal credit file” in violation of federal statute inflicts “no concrete harm” unless it is “disclosed to a third party”); Muransky, 979 F.3d at 929 (holding unlawfully printing customers’ credit card numbers on receipts was not “by itself ․ a concrete injury”). Mr. Harb's injuries go beyond the mere presence of an inaccuracy in his internal credit file – “he provided evidence of lost time, [damage to credit], and peace. These are garden-variety injuries in fact under Article III.” Walters, 60 F.4th at 649.

Westlake also appears to challenge the sufficiency of Plaintiff's evidence by claiming that Plaintiff has only alleged “broad and generalized statements of intangible non-economic damages.” (Dkt. 57 at 13) But, the Eleventh Circuit has “explicitly held that a plaintiff's ‘self-serving and/or uncorroborated’ testimony can be enough on its own ‘to preclude summary judgment.’ ” Walters 60 F.4th at 648 (citing United States v. Stein, 881 F.3d 853, 857-59 (11th Cir. 2018) (en banc)) Plaintiff testified to matters within his personal knowledge. (Dkt. 104-1 at ¶ 3) As in Walters, Plaintiff's testimony, through his Declaration, “describing his lost time, [damage to credit], and emotional distress is sufficient evidence of those injuries to survive summary judgment.” 60 F.4th at 648 (citing Losch, 995 F.3d at 943 (plaintiff adequately established, through his deposition testimony and affidavit, “concrete injury in the form of the emotional distress and time he spent contesting the inaccurate information”)).

Notably, Plaintiff's evidence of emotional damages “is an argument that also runs to the merits” of Plaintiff's FCRA claim. See Losch, 995 F.3d at 944. “A plaintiff must show damages to recover under the FCRA.” Johnson v. Newrez, LLC, No. 3:22-cv-635-BJD-JBT, 2023 WL 7825824 at *3, 2023 U.S. Dist. LEXIS 205384 at *8 (M.D. Fla. Nov. 7, 2023) (citations omitted). “Failure to produce evidence of damages mandates summary judgment against plaintiff.” Id. (citing Cahlin v. General Motors Acceptance Corp., 936 F.2d 1151, 1160 (11th Cir. 1991)).

In Losch, the Eleventh Circuit held that “Losch's statements regarding ‘stress, anxiety, and lack of sleep’ are not mere conclusory recitations of a damages element, and at summary judgment we must take the non-movant's facts—Losch's—as true. Accordingly, Losch's affidavit is sufficient evidence both to establish injury for Article III standing purposes, and to raise a jury question about damages on the merits.” Losch, 995 F. 3d at 944. Thus, the Court finds that, as in Losch, Plaintiff has not only established evidence of injury for Article III standing purposes but also evidence sufficient to raise a jury question about damages on the merits. See id.

Westlake also contends Plaintiff cannot demonstrate an injury-in-fact “where Westlake requested the tradeline to be deleted within the thirty-day safe harbor established by the FCRA. At a minimum, Plaintiff must show what harm he sustained within this short timeframe to establish standing.” (Dkt. 57 at 11) But Plaintiff has provided evidence of the harm he has sustained after March 7, 2023, which is when he claims he first submitted disputes to the CRAs, until March 29, 2023, which is when Westlake fixed its error and submitted its deletion request. At least some of the concrete, particularized harms that Plaintiff has identified occurred within this short timeframe. (See, e.g. Dkt. 104-1 at ¶ 18 (“The responses from TransUnion, Equifax, and Experian to my credit disputes caused me anxiety, frustration, and hopelessness. I began losing sleep and suffering from headaches as a result of Westlake verifying to the credit reporting agencies that it was my debt, that I owed it and that it was past due and reporting a balance in excess of $10,000.”)

The Court notes that Plaintiff contends his symptoms began “in late 2022” when he discovered the discrepancy on his credit line and “did not wane until April 2023.” (Dkt. 104 at 11) However, Plaintiff concedes that he did not file his credit disputes with the CRAs until on or about March 7, 2023. (Dkt. 104-1 at ¶ 17) Thus, any alleged symptoms Plaintiff experienced prior to filing his credit disputes are irrelevant to the FCRA because the duties of a furnisher, such as Westlake, are not triggered until after it receives notification of a customer dispute from a CRA. See Thomas v. Equifax Info. Servs. LLC, No. 1:22-cv-4848-CAP-JKL, 2023 WL 4049317 at *5, 2023 U.S. Dist. LEXIS 106727 at * 11 (N.D. Ga. Apr. 12, 2023) (“These investigation duties are triggered when a furnisher receives notice from a CRA of a consumer's dispute with regard to the completeness or accuracy of the information in a consumer's credit report.”) Thus, the Court finds that the relevant period of time to begin the assessment of Plaintiff's injuries is from on or about March 7, 2023, which is after Westlake's duties as a furnisher were triggered, until March 29, 2023, when Westlake fixed its mistake. See Rambarran v. Bank of Am., N.A., 609 F. Supp. 2d 1253, 1262 (S.D. Fla. 2009). Notwithstanding this short period of time, as explained above, at least some of the injuries Plaintiff identified occurred within this time frame. See supra.

Consequently, the Court finds that Plaintiff has demonstrated he suffered an injury in fact. Because Westlake does not challenge the remaining elements for standing, the Court finds that Plaintiff has established Article III standing.

B. A Genuine Dispute of Material Fact Exists As To Whether Westlake Negligently or Willfully Violated FCRA.

a. Whether Westlake Conducted a Reasonable Investigation

Westlake claims that it is entitled to summary judgment as a matter of law because it timely complied with the FCRA by filing an AUD request, within 30 days of Plaintiff's notice of dispute, to have Plaintiff's credit reporting account deleted from all three CRAs. (Dkt. 57 at 9) Stated differently, Westlake contends that it conducted a reasonable investigation because it instructed the CRAs to delete Plaintiff's account within 26 days of it being notified of Plaintiff's first dispute. (See Dkt. 107 at 10, 11) Plaintiff contends that it is entitled to judgment as a matter of law because Westlake violated the FCRA by failing to conduct a “reasonable investigation” after first receiving notice of his dispute. (Dkt. 104 at 12-25; Dkt. 105 at 12-31)

“The FCRA is a consumer protection act that imposes certain duties on CRAs and ‘furnishers of information’ to CRAs.” Felts v. Wells Fargo, 893 F.3d 1305, 1312 (11th Cir. 2018). “Furnishers of information,” such as Westlake, “are required to (1) report accurate information to CRAs regarding consumers, see 15 U.S.C. § 1681s-2(a); and (2) conduct an investigation after receiving notice from a CRA of a dispute lodged by a consumer regarding information provided by the furnisher, see id. § 1681s-2(b).” Felts, 893 F.3d at 1312.

As noted above, “[t]hese investigation duties are triggered when a furnisher receives notice from a CRA of a consumer's dispute with regard to the completeness or accuracy of the information in a consumer's credit report.” Thomas, 2023 WL 4049317 at *5, 2023 U.S. Dist. LEXIS 106727 at * 11 (first citing Ware v. Bank of Am. Corp., 9 F. Supp. 3d 1329, 1338 (N.D. Ga. 2014); then citing 15 U.S.C. § 1681s-2(b); and then citing Sampson v. Wash. Mut. Bank, 453 F. App'x 863, 867-68 (11th Cir. 2011)).¹ After receiving notice of a dispute from a CRA, the furnisher must conduct an investigation concerning the disputed information, review all relevant information regarding the dispute, report its results to the CRA, report any inaccuracies to the CRA, and modify, delete, or permanently block any mistakes. 15 U.S.C. § 1681s-2(b)(1). 15 U.S.C. § 1681s-2(b)(2) requires a furnisher of information to complete all investigations and obligations imposed by § 1681s-2(b)(1) within the period prescribed by 15 U.S.C. § 1681i(a)(1), which is thirty days from the date that the CRA receives notice of the dispute. 15 U.S.C. § 1681i(a)(1). Any person who fails to comply with these requirements may be subject to liability based on 15 U.S.C. §§ 1681n (willful noncompliance) and 1681o (negligent noncompliance).

Westlake moves for summary judgment on the basis that because it timely complied with the FCRA, it did not have to conduct a reasonable investigation. (See Dkt. 57 at 9-11; Dkt. 106 at 2-3) Alternatively, in response to Plaintiff's motion for summary judgment, Westlake asserts that Plaintiff's admission that Westlake corrected the information within 26 days of his first dispute negates Plaintiff's argument that Westlake failed to conduct a reasonable investigation. (See Dkt. 107 at 9-10) Westlake's motion for summary judgment is due to be DENIED.

In Hinkle v. Midland Credit Mgmt., Inc., the Eleventh Circuit considered, for the first time, the scope of a furnisher's duty to investigate under § 1681s-2(b). Hinkle v. Midland Credit Mgmt., Inc., 827 F.3d 1295, 1301 (11th Cir. 2016). The Court stated that “[t]he FCRA does not specify the nature and extent of the ‘investigation’ a furnisher of information must conduct under § 1681s-2(b).” Id. However, the Court expressly noted that “[t]he structure of the statute ․ suggests that the duty of a furnisher under § 1681s-2(b) is a component of the larger reinvestigation duty imposed by § 1681i(a) on CRAs themselves.” Id. (emphasis added) As part of the “larger reinvestigation duty,” the Court specifically cited § 1681s-2(b)(2), which requires furnishers to complete their investigation and report its results before the expiration of the thirty-day period. The Court then held that “[g]iven the interrelated nature of §§ 1681s-2(b) and 1681i(a), we conclude that ‘reasonableness’ is an appropriate touchstone for evaluating investigations under § 1681s-2(b).” Id. at 1302. In so holding, the Court stated that “what constitutes a ‘reasonable investigation’ will vary depending on the circumstances of the case and whether the investigation is being conducted by a CRA under § 1681i(a), or a furnisher of information under § 1681s-2(b).” Id.

Viewed against the foregoing case law, the Court cannot conclude, as a matter of law, that Westlake conducted a reasonable investigation into Plaintiff's dispute simply because it eventually corrected its mistake before the expiration of the thirty-day period. “The duty of a furnisher [to reasonably investigate] under § 1681s-2(b) is a component of the larger reinvestigation duty imposed by § 1681i(a) on CRAs themselves,” which includes the timely completion of all investigations, reviews, and reports within thirty days of notification. See Hinkle, 827 F.3d at 1301 (emphasis added). In other words, according to Hinkle, a furnisher has a duty to both reasonably investigate and complete all of its investigations, reports, and reviews, within the thirty-day period “imposed by § 1681i(a) on CRAs themselves.” See id. One duty does not nullify or supersede the other.

Hinkle further stated that “Section 1681s-2(b) contemplates three potential ending points to reinvestigation: verification of accuracy, a determination of inaccuracy or incompleteness, or a determination that the information ‘cannot be verified.’ See 15 U.S.C. § 1681s-2(b)(1)(E).” Id. In light of Hinkle, a reasonable jury could conclude that Westlake's duties to investigate and reinvestigate concluded after each of its six (6) separate submissions of the ACDV forms to the CRAs, in which Westlake informed Plaintiff that its investigation was complete by repeatedly verifying the accuracy of the disputed account. There is no dispute that after each submission, Westlake agreed, that “[b]y submitting this [ACDV form], you certify that you have reviewed and considered all associated Images, you have verified the accuracy of the data in compliance with all legal requirements, and your computer and/or manual records will be adjusted to reflect any changes noted.” (Dkt. 104 at 6) (emphasis added)

As such, Westlake's motion for summary judgment is DENIED. It is not entitled to judgment as a matter of law simply because it corrected the error on Plaintiff's account within thirty days. See Rapapport v. Green Tree Servicing, LLC, No. 13-61624-cv-Rosenbaum/Hunt, 2013 WL 5728731 at *3, 2013 U.S. Dist. LEXIS 151521 at * 17 (“[A] consumer's cause of action [under the FCRA] accrues either at the expiration of the thirty-day period or upon notification of the consumer by the furnisher of information — directly or indirectly through the credit bureau — that the reinvestigation duties have been completed, whichever occurs first.”) (emphasis added)

Plaintiff has moved for summary judgment on the basis that Westlake failed to conduct a reasonable investigation. (Dkt. 105 at 12-27) Plaintiff contends that he has established Westlake committed a willful and/or negligent violation as a matter of law. That motion, too, is due to be DENIED.

In Rambarran v. Bank of Am., N.A., the court noted that “numerous courts have recognized that the reasonableness of an investigation is a matter to be determined at trial, not summary judgment, unless the facts of the case establish the reasonableness or unreasonableness of a particular investigation beyond all doubt.” Rambarran v. Bank of Am., N.A., 609 F. Supp. 2d 1253, 1262 (S.D. Fla. 2009).

Concerning Westlake's negligence, Plaintiff has not satisfied his initial burden by showing there is an absence of a genuine dispute of material fact concerning the reasonableness of Westlake's investigation(s). To the contrary, Plaintiff points to evidence that Westlake repeatedly responded to the disputes, verifying the disputed information as accurate, through its “Sonnet robot program.” (See Dkt. 104-2 at 170, 173) Plaintiff claims that he was “unaware of the fact that ․ a live person [at Westlake]” did not review the information in the “FCRA Relevant Information” section – in which Plaintiff repeatedly indicated that the account was not his or that it had been paid and should be deleted – unless it contained certain key phrases or words that were unknown to Plaintiff. (Dkt. 105 at 12, 25) While a reasonable juror may conclude that Westlake's reliance on the “Sonnet robot program” was unreasonable, the Court cannot conclude, as a matter of law, that such reliance was unreasonable. Nor has Plaintiff pointed to binding authority finding that an FCRA entity's reliance on such a program as part of its procedures of review is unreasonable as a matter of law. Instead, the Court finds that this question, concerning the negligence of Westlake's conduct and the procedures it employed, is better left for the jury to decide. See Losch, 995 F.3d at 944 (“Whether a [furnisher] acted reasonably under the FCRA ‘will be a jury question in the overwhelming majority of cases.’ ” (quoting Cahlin v. Gen. Motors Acceptance Corp., 936 F.2d 1151, 1156 (11th Cir. 1991))).

Turning to whether Plaintiff has established Westlake willfully violated FCRA, Plaintiff must show that Westlake “either knowingly or recklessly violated” the FCRA. Pedro, 868 F.3d at 1280; see 15 U.S.C. § 1681n. “Thus, even absent proof of an ‘evil motive,’ it is well established that statutory and punitive damages may be warranted under section 1681n where an FCRA entity institutes a policy or performs an action in ‘reckless disregard’ of a consumer's rights under the FCRA.” Rambarran, 609 F. Supp. 2d at 1270 (citations omitted).

Plaintiff has pointed to evidence to demonstrate that Westlake may have acted willfully by repeatedly verifying the disputed information as accurate when it had information in its possession to the contrary. Once Westlake was notified by the CRAs of Plaintiff's dispute on or about March 3, 2023, Westlake repeatedly verified the disputed information as accurate even though in the ACDV forms that Westlake submitted to the CRAs, the “FCRA Relevant Information” box included notes from Plaintiff in which he stated he did not have an account with Westlake, he did not owe Westlake any money, and he never took possession of the car. (See Dkt. 104-2 at 132-165) As explained above, Plaintiff points to evidence that no human at Westlake reviewed the statements he made in the “FCRA Relevant Information” box, but that it was rather Westlake's “Sonnet robot program” that “reviewed” the information. (See Dkt. 104-2 at 170, 173)

As set forth above, a furnisher may be found to have acted willfully under section 1681n where “it institutes a policy or performs an action in ‘reckless disregard’ of a consumer's rights under the FCRA.” Rambarran, 609 F. Supp. 2d at 1270 (citations omitted). A reasonable jury could conclude that Westlake's failure to verify information it had in its possession that stated an account did not belong to a customer was due to a “policy or ․ action,” in which it simply verified disputed information as accurate, through its “Sonnet robot program” “in ‘reckless disregard’ of a consumer's rights under the FCRA.” See id.; (see Dkt. 104-2 at 170, 173)

However, the Court cannot conclude, based on this evidence, that Westlake acted willfully as a matter of law. The Supreme Court of the United States has stated that recklessness means “action entailing an unjustifiably high risk of harm that is either known or so obvious that it should be known.” Safeco Ins. Co. of Am v. Burr, 551 U.S. 47, 68, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007) (cleaned up). Thus, a furnisher acts in reckless disregard of FCRA requirements if its “action is not only a violation under a reasonable reading of the statute's terms, but shows that the company ran a risk of violating the law substantially greater than the risk associated with a reading that was merely careless.” Id. at 69, 127 S.Ct. 2201; see Williams v. First Advantage LNS Screening Sols., Inc., 947 F.3d 735, 745 (11th Cir. 2020). Plaintiff has not demonstrated, by way of record evidence, that Westlake knew or should have known that employing the Sonnet robot system in the way that it did ran such “a risk of violating the law substantially greater than the risk associated with a reading [of the law] that was merely careless.” See Burr, 551 U.S. at 69, 127 S.Ct. 2201; (see generally, Dkt. 104-2) Absent such a finding, Plaintiff is not entitled to a finding that Westlake willfully violated FCRA as a matter of law.

Based on the foregoing, Plaintiff's motion for summary judgment concerning the negligence and willfulness of Westlake's conduct is DENIED.

b. Whether Westlake Violated Its Duties as a Furnisher When It Failed to Complete the Compliance Condition Code Section on the ACDV Forms.

In his motion for summary judgment, Plaintiff contends that he is also entitled to judgment as a matter of law because Westlake was obligated to inform the relevant CRAs that the account was disputed by the consumer despite its conclusions to the contrary. (Dkt. 105 at 31, 33) He claims that Westlake “should have sent a Compliance Condition Code (‘CCC’) of ‘XB,’ ” which means the consumer disputed the account information under FCRA, to the CRAs after each dispute (Id. at 31, 33) As above, Plaintiff asserts that Westlake committed both a negligent and/or willful violation.

To support his argument, Plaintiff relies on Saunders v. Branch Banking and Trust Co. of Virginia, 526 F.3d 142 (4th Cir. 2008), which “[c]ourts within the Eleventh Circuit have followed.” See Bush v. Roundpoint Mortg. Servicing Corp., 122 F. Supp. 3d 1347, 1351 (M.D. Fla. 2015) (collecting cases). In Saunders, the court held that “FCRA requires furnishers to determine whether the information that they previously reported to a CRA is ‘incomplete or inaccurate.’ § 1681s-2(b)(1)(D) (emphasis added). In so mandating, Congress clearly intended furnishers to review reports not only for inaccuracies in the information reported but also for omissions that render the reported information misleading. Courts have held that a credit report is not accurate under FCRA if it provides information in such a manner as to create a materially misleading impression.” Saunders, 526 F.3d at 148 (citations omitted). Thus, Plaintiff claims that Westlake violated its FCRA duties when it reported the results of its investigation(s) to the CRAs, pursuant to § 1681s-2(b)(1)(C), but failed to inform them, after each dispute, that Plaintiff disputed the account by sending a CCC to that effect. According to Plaintiff, that omission rendered the ACDV forms “misleading.” See Saunders, 526 F.3d at 148.

Plaintiff points to evidence to support his belief that Westlake violated its duties as a furnisher. Westlake's Director of Compliance, Tracey Bergiman, testified that Westlake knew that the CCC field was used to indicate that an account was being disputed. (See Dkt. 104-2 at 65:20-23) However, the evidence demonstrates that Westlake repeatedly left the CCC fields blank. (See id. at 132, 134, 143, 149, 162, and 164) A reasonable juror, therefore, could conclude that Westlake's omissions “implied to the CRAs that each of the disputes had been investigated, that Westlake's information was accurate, and that the disputes had been resolved” even though Plaintiff continued to dispute the debt associated with his account. (Dkt. 105 at 33)

Courts have found that juries could reasonably conclude that a furnisher's decision to report a debt without mentioning a dispute can be “misleading.” See Saunders, 526 F.3d at 150 (holding that a jury could reasonably conclude that a furnisher's decision to report the debt without any mention of a dispute was “misleading in such a way and to such an extent that it can be expected to have an adverse effect”); Hrebal v. Seterus, Inc., 598 B.R. 252, 271 (D. Minn. 2019) (finding that a genuine dispute of material fact exists as to whether a furnisher acted “willfully” or “recklessly” under the FCRA when it had a blanket policy against reporting debts as disputed).

The Court finds the reasoning from the Third Circuit persuasive on this ground. In Seamans v. Temple University, the court aptly noted that “[i]t may seem peculiar that FCRA compels a furnisher, who can only be formally notified of a dispute by a CRA, to then re-designate the account as disputed in its submission back to the same CRA, which of course already knows about the dispute, having been the initial recipient of notice from the consumer.” 744 F.3d 853, 867 n.11 (3d Cir. 2014). But, the court noted that this requirement “serves two purposes: first, the furnisher, not the CRA, is in the best position to determine whether the dispute is bona fide, and thus the furnisher's validation of the dispute signifies that the dispute is genuine; and second, the furnisher must provide notice of the dispute to all CRAs to whom it originally submitted the information—not just to the CRA which initially notified the furnisher of the dispute.” Id. In light of this persuasive reasoning, as well as the persuasiveness of the other cases noted above, the Court finds that a reasonable juror could conclude that Westlake violated its duties as a furnisher by failing to note that Plaintiff disputed the debt on each ACDV form that it returned to the CRAs.

The Court, however, denies Plaintiff's request for judgment as a matter of law because a genuine dispute of material fact exists as to whether Westlake negligently or willfully violated its FCRA duties in this regard. As an initial matter, as noted above, the Court notes that the question of whether Westlake's procedures were reasonable is generally a question that is better left for the jury to decide at trial. See Rambarran, 609 F. Supp. 2d at 1262.

Further, Mr. Bergiman testified at his deposition that the CRAs, as opposed to the furnishers, mark the account as disputed upon receipt of the dispute. (Dkt. 107 at 13) Mr. Bergiman testified as follows:

Q Is the reporting of Westlake complete, however, where they're not indicating Mr. Harb's dispute about the very basis of the account?

․

MR. LYONS: Well, it's -- the reporting is not complete. There's no indication that Mr. Harb disputes the reporting by Westlake.

Q You'd agree with that, right, Mr. Bergiman?

A No. That's incorrect.

Q You -- somehow there's a demonstration by Westlake showing that Mr. Harb disputes the reporting?

A Correct. Once they submit an indirect dispute, the CRAs will automatically flag that specific account with them as in dispute.

Q What is your basis for that testimony?

A Six years of doing credit disputes. That's how the process works.

Q Are you telling me that without flagging the consumer compliance condition code field, there's another mechanism by which an account can be reported as disputed?

A As soon as a consumer disputes with Equifax, Experian, or Trans Union, they're the ones that will trigger the account in dispute. The only time we will trigger it in dispute is if it's a direct dispute to us. Then we will report it as in dispute. But it's the CRA's responsibility to flag their own accounts as in dispute when they get a direct dispute to them, which would be an indirect dispute to us.

(Dkt. 104-2 at 63:20-64:25) (emphasis added)

Thus, in light of Mr. Bergiman's testimony, the Court finds that whether Westlake acted negligently or willfully in failing to complete the Compliance Condition Code field is a question that is better left for the jury to decide. Plaintiff's request for summary judgment is due to be DENIED on this ground.

C. A Reasonable Juror Could Conclude that Westlake Violated the FCCPA.

The Parties both move for summary judgment on Plaintiff's FCCPA claim. Westlake argues that Plaintiff's FCCPA claim fails because Westlake did not attempt to collect a debt from Plaintiff with actual knowledge that a debt was not owed to it and, even if it did, the frequency of the calls was insufficient to trigger an FCCPA violation because it did not rise to the level of harassment under Fla. Stat. 559.72(7). (Dkt. 57 at 13-15; Dkt. 107 at 14-16) Plaintiff contends that Westlake violated the FCCPA by making debt collection calls and sending debt collection letters to him. (Dkt. 104 at 31; Dkt. 105 at 38-42)

The FCCPA is modeled after the Fair Debt Collection Practices Act (“FDCPA”). When “applying and construing [the FCCPA], due consideration and great weight shall be given to the interpretations of the ․ federal courts relating to the federal [FDCPA].” See Fla., Stat, § 559.77(5); see also Trent v. Mortgage Elec. Registration Sys., 618 F. Supp. 2d 1356, 1360-61 (M.D. Fla. 2007), aff'd 288 F. App'x. 571 (11th Cir. 2008).² To state a claim for violation of the FCCPA, a plaintiff must establish: (1) that defendant falls within the definition of “person” under the FCCPA, (2) that plaintiff was the subject of collection activity concerning a consumer debt, and (3) that defendant engaged in a prohibited practice under the FCCPA. Garrison v. Caliber Home Loans, Inc., 233 F. Supp. 3d 1282, 1290 (M.D. Fla. 2017). Westlake does not dispute that it falls under the definition of “person” and that it is a “creditor” as those terms have been defined under the FCCPA and by case law. (See Dkt. 57 at 13-15; Dkt. 104 at 29-30 (collecting cases); Dkt. 106 at 7-9); Fla. Stat. § 559.55(5). However, Westlake disputes the remaining two elements.

i. Whether Westlake Engaged in Debt Collection Activity

Initially, the Court notes that Plaintiff claims Westlake's reporting of his delinquent payments to the CRAs constitutes debt collection activity in violation of the FCCPA. (Dkt. 104 at 32; Dkt. 105 at 39) That claim fails. In Osborne v. Vericrest Fin., Inc., the plaintiff similarly argued that a furnisher's disclosure of false information to CRAs violated the FCCPA. No. 8:11-cv-716-T-30TBM, 2011 WL 1878227 at *2–3, 2011 U.S. Dist. LEXIS 52787 at *6 (M.D. Fla. May 17, 2011). The court disagreed, finding that plaintiff's allegations under the FCCPA were preempted by the FCRA. Id. The court noted that “Section 1681t of the FCRA states that a party cannot assert a claim imposed under the laws of ‘any State’ with respect to any subject matter regulated under section 1681s-2 relating to the ‘responsibilities of persons who furnish information to consumer reporting agencies.’ See 15 U.S.C. § 1681t.” Id. Consistent with the statute, the court found that plaintiff's FCCPA claim was preempted to the extent that plaintiff raised allegations “relat[ing] to Defendant's disclosure to credit reporting agencies concerning the existence of a debt known by Defendant to be false.” Id.

The same conclusion applies here. Plaintiff's claim that Westlake's reporting of delinquent payments to the CRAs violates the FCCPA is preempted by FCRA because his claim relates to “subject matter regulated under section 1681s-2 [of the FCRA] relating to the ‘responsibilities of persons who furnish information to consumer reporting agencies.’ ” See id.; 15 U.S.C. § 1681t.

Plaintiff's reliance on Rivera v. Bank One for a contrary result is misplaced. 145 F.R.D. 614 (D. PR. 1993). There, the court stated that “a Bank Card issuer's ability to report on the credit habits of its customers is a powerful tool designed, in part, to wrench compliance with payment terms from its cardholder.” Id. at 623. Plaintiff seizes on this language to support his belief that Westlake's reporting to the CRAs constituted debt collection activity. However, the question presented in Rivera, which was whether a court could exercise specific personal jurisdiction over a nonresident defendant, is different from the instant question before the Court, that is whether the reporting of delinquent payments constitutes debt collection activity under the FCCPA. Second, and more importantly, Rivera fails to address Section 1681t of the FCRA, which, as explained above, preempts Plaintiff's FCCPA claim to the extent he contends that Westlake's reporting of delinquent payments constitutes debt collection activity under the FCCPA. See Osborne, 2011 WL 1878227 at *2–3, 2011 U.S. Dist. LEXIS 52787 at *6. Plaintiff's reliance on Rivera, therefore, is misplaced.

Turning to Westlake's arguments, Westlake claims that Plaintiff was never subjected to debt collection activity. It asserts that it never made any collection calls to Plaintiff or sent any collection letters to Plaintiff. (Dkt. 57 at 13-14; Dkt. 106 at 7-8; Dkt. 107 at 14-17) Plaintiff argues that Westlake did engage in these actions. (Dkt. 104 at 31-32; Dkt. 105 at 36-39)

The Eleventh Circuit has held that “a communication has the necessary nexus to debt collection under the FDCPA [and FCCPA] if it ‘conveys information about a debt and its aim is at least in part to induce the debtor to pay.’ ” Lamirand v. Fay Servicing, LLC, 38 F.4th 976, 979 (11th Cir. 2022) (quoting Caceres v. McCalla Raymer, LLC, 755 F.3d 1299, 1302 (11th Cir. 2014)). “To determine whether a communication has those traits, we view it ‘holistically.’ ” Lamirand, 38 F.4th at 979 (citation omitted).

In Lamirand, the Court found that the plaintiffs had adequately alleged defendant's debt collection activity “had both traits.” Id. The Court noted that defendant sent periodic statements to the plaintiffs, informing them “about the remaining principal, the interest rate, the amount owed, the date payment was due, and the delinquency on the account. And throughout, the statements advised the Lamirands to pay. In multiple places they bolded the amount due and instructed that the Lamirands ‘must pay this amount to bring [their] loan current.’ The statements also warned that a failure to pay the over $90,000 due could ‘result in additional fees or expenses, and in certain instances,’ the ‘loss of [their] home to a foreclosure sale.’ ” Id. at 980. Further, the statements “included a detachable payment coupon, prefaced with the all-caps command: ‘DETACH AND RETURN BOTTOM PORTION WITH YOUR PAYMENT.’ ” Id. The Court noted that defendant “dedicated the back of its periodic statements to listing other ways to pay—sometimes twice. The statements also noted that ‘[defendant] is a debt collector, and information you provide to us will be used for that purpose.’ ” Id. The Court held that, considered as a whole, “these statements easily satisfy” the standard because they both conveyed information about a debt and their aim was at least, in part, to induce the plaintiffs to pay. Id.

Here, as for the phone calls, Westlake explains that “only two of four total phone calls Westlake initiated to Plaintiff resulted in a conversation, and both occurred well before his first payment was due.” (Dkt. 57 at 14; Dkt. 107 at 14-15) The Court has listened to the recordings of Westlake's calls with Plaintiff. Upon review, the Court finds that the purpose of those calls was to welcome Plaintiff to Westlake. (See Dkt. 57-4 at ¶¶ 5-6) In the first call, on October 25, 2022, a Westlake representative stated that she was calling regarding Plaintiff's alleged recent purchase of the vehicle. (See id.) Plaintiff immediately informed the representative that he did not purchase the vehicle. In the second call on October 27, 2022, a different representative introduced himself to Plaintiff by stating “this is a courtesy call to welcome you to Westlake Financial” and that he was “calling to confirm a few pieces of information with you as well as to answer other questions you may have.” (See id.) Plaintiff informed the representative, again, that he did not purchase the vehicle. Neither conversation concerned a debt and the representatives’ aim was not to induce Plaintiff to pay a debt associated with the vehicle. Thus, the calls are notably different from the communications deemed to be debt collection activity in Lamirand. Cf. Lamirand, 38 F.4th at 979-80.³

Plaintiff also contends that he was sent collection letters from Westlake. Plaintiff asserts that he was “sent debt collection statements alleging that Plaintiff was past due on his auto loan, and he was sent letters stating that if Plaintiff does not provide Defendant proof of car insurance, he would be in default of his loan obligation to Defendant.” (Dkt. 104 at 32; Dkt. 105 at 38-39)

The record reveals that Westlake sent two letters to Plaintiff on October 13, 2022, and November 7, 2022, requesting he provide proof of car insurance because the policy he had provided to AutoNation was due to expire. (Dkt. 104-2 at 126, 131) The letters stated, “[i]n the event that you do incur a loss and you are not covered by adequate insurance coverage, you may be responsible for the entire amount of the outstanding balance of your loan at the time of loss.” (Id. at 126) However, the October 13, 2022, letter was sent before Plaintiff alleges he advised Westlake that he did not take possession of the vehicle. (See Dkt. 104-1 at ¶¶ 5, 11-12) Further, both letters were sent merely to provide the required notice that Plaintiff's insurance was due to expire. Viewed in that context, the letters, mailed from the “Insurance Department” of “Westlake Financial Services” did not “convey information about a debt and [their] aim [was not] at least in part to induce [Plaintiff] to pay” because their purpose was to ensure that Plaintiff had adequate insurance coverage to protect his vehicle, not that he pay a debt. Cf. Lamirand, 38 F.4th at 979-80.

However, the Court finds that a reasonable juror could conclude that Westlake engaged in debt collection activity when it sent a billing statement to Plaintiff on November 4, 2022. (See Dkt. 104-2 at 127-130) The billing statement provided that Plaintiff's initial payment was due on November 24, 2022, in the amount of $297.91. (Id. at 127) Although the billing statement did not state that Plaintiff was “past due on his auto loan,” as Plaintiff asserts, the Court finds that Westlake's mailing of the billing statement to Plaintiff nevertheless qualifies as debt collection activity because the definition of “debt” under the FCCPA is broad. (See Dkt. 104 at 32)

The FCCPA defines debt as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” Fla. Stat. 559.55(6). Thus, pursuant to the FCCPA, a reasonable juror could conclude that the billing statement reflected a debt owed to Westlake because it demonstrated Plaintiff's “obligation or alleged obligation ․ to pay money arising out of a transaction ․” See Fla. Stat. 559.55(6). Accordingly, the Court finds that a reasonable juror could conclude that Plaintiff was the subject of debt collection activity when Westlake mailed the billing statement to him. See Garrison, 233 F. Supp. 3d at 1290.

ii. Whether Westlake Engaged in A Prohibited Practice Under the FCCPA.

As an initial matter, contrary to Westlake's contention, Plaintiff did not allege that Westlake harassed him under Fla. Stat. 559.72(7). (See generally, Dkt. 26) Fla Stat. 559.72(7) provides that one may not “[w]illfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family.”

Instead, Plaintiff has only alleged that Westlake “is subject to, and violated the provisions of, Florida Statutes, Section 559.72(9)[:] Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such person knows that the right does not exist.” (Dkt. 26 at ¶ 74). Thus, to the extent Westlake claims it is entitled to summary judgment under the FCCPA based on the minimal volume of calls made to Plaintiff, that claim fails because Plaintiff never made a claim under the FCCPA for harassment. (See Dkt. 57 at 14-15; Dkt. 104 at 33) The Court proceeds by analyzing whether either party is entitled to judgment as a matter of law under Fla. Stat. 559.72(9).

Plaintiff contends that Westlake was informed “on multiple occasions” that “no debt was owed and that he never took possession of the vehicle,” yet it continued to send him “debt collection statements.” (Dkt. 104 at 32) Westlake asserts that it did not send the billing statement with actual knowledge that the debt was illegitimate because the statement “was sent prior to the first payment due date and the account was not in default at the time.” (See Dkt. 106 at 8-9; Dkt. 107 at 16-17)

The Court finds that a reasonable juror could conclude that Westlake sent the billing statement, dated November 4, 2022, to Plaintiff with knowledge that such debt was “not legitimate.” Fla. Stat, § 559.72(9). As explained above, Westlake placed two phone calls to Plaintiff on October 25, 2022, and October 27, 2022. (See Dkt. 57-4 at ¶¶ 5-6) In both calls, Plaintiff informed Westlake's representatives that he did not purchase the vehicle. Westlake does not dispute that Plaintiff made these statements to its representatives. Yet, Plaintiff still received a billing statement after he informed Westlake that the vehicle was not his.

However, Westlake's representative Mr. Bergiman testified that, although Westlake might have been aware after those two calls that Plaintiff had not purchased the vehicle, it was not required to accept the assertion that a debt from Plaintiff was not owed to it. According to Mr. Bergiman, “[u]ntil the buyback is completed, we don't know if it's a true buyback or not.” (Dkt. 104-2 at 34:22-23) Mr. Bergiman further stated that when “the dealer pays us back, and we close the account,” Westlake knows that it is a “true buyback.” (Id. at 34:24-25) Thus, a reasonable juror could also conclude that there is evidence that Westlake did not know, at the time it sent its billing statement to Plaintiff, that a debt was not owed to it.

Plaintiff and Westlake have pointed to conflicting evidence regarding whether Westlake knew that the debt owed to it from Plaintiff was “not legitimate.” Fla. Stat, § 559.72(9). A reasonable juror could conclude that Westlake was on notice that the debt was illegitimate when its representatives spoke to Plaintiff and Plaintiff informed them that he had not purchased the vehicle. But a reasonable juror could also credit Mr. Bergiman's testimony that Westlake did not know that a debt was not owed to it because a buyback had not been completed. Summary judgment is due to be DENIED as to both Westlake's and Plaintiff's motions for summary judgment as to Plaintiff's FCCPA claim.

D. The Court Declines to Award Attorney's Fees to Westlake on the Basis that Plaintiff Acted in Bad Faith.

Westlake's request for attorney's fees, on the basis that Plaintiff acted in bad faith by pursuing his FCRA claim, is due to be DENIED. Westlake requests an award of attorney's fees because it claims that “the record evidence is undisputed that Westlake complied with the FCRA by submitting its deletion request within the requisite thirty days and that Plaintiff was aware of this on April 26, 2023.” (Dkt. 57 at 20) For the reasons explained above, the Court does not find Plaintiff's FCRA claim to be meritless. There is no evidence that Plaintiff filed his action in bad faith. Thus, each party shall bear its own attorneys’ fees and costs associated with this matter.

IV. CONCLUSION

Accordingly, it is hereby ORDERED as follows:

1. Defendant's Motion for Summary Judgment, (Dkt. 57), is DENIED.

2. Plaintiff's Motion for Summary Judgment, (Dkt. 105), is DENIED.

3. Defendant Westlake's request for attorney's fees is DENIED. Each party shall bear its own attorneys’ fees and costs associated with this matter.

4. The Court will set any pretrial and trial deadlines via separate notice.

DONE and ORDERED in Tampa, Florida, this 10th day of September 2024.

FOOTNOTES

1.   The Court notes that “[a]lthough an unpublished opinion is not binding on this court, it is persuasive authority. See 11th Cir. R. 36-2.” United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000).

2.   The Court notes that “[a]lthough an unpublished opinion is not binding on this court, it is persuasive authority. See 11th Cir. R. 36-2.” United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000).

3.   Mr. Bergiman testified that “the verbal consent to call [Plaintiff]” was “disabled” on October 27, 2022, after the second call, “because he's saying he did not continue with the deal.” (Dkt. 104-2 at 34:3-7) Thus, although Plaintiff placed calls to Westlake after October 27, 2022, Westlake made no other calls to Plaintiff after that date.

MARY S. SCRIVEN, UNITED STATES DISTRICT JUDGE