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Walton v. BMO Harris Bank

United States District Court, S.D. Indiana, Indianapolis Division

August 16, 2018

DEBORAH WALTON, Plaintiff,
v.
BMO HARRIS BANK, et al., Defendants.

          ENTRY ON MOTIONS FOR SUMMARY JUDGMENT

          Hon. William T. Lawrence, Judge

         This cause is before the Court on the motions for summary judgment filed by the Plaintiff Deborah Walton (Dkt. Nos. 100 and 104), Defendant BMO Harris Bank, N.A. (“BMO”) (Dkt. No. 57) and Defendant Equifax Information Services LLC (“Equifax”) (Dkt. No. 111). The motions are fully briefed and the Court, being duly advised, GRANTS the Defendants' motions and DENIES the Plaintiff's motions for the reasons set forth below.[1]

         I. STANDARD

         Federal Rule of Civil Procedure 56(a) provides that 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.” In ruling on a motion for summary judgment, the admissible evidence presented by the non-moving party must be believed, and all reasonable inferences must be drawn in the non-movant's favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (“We view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor.”). However, a party who bears the burden of proof on a particular issue may not rest on its pleadings, but must show what evidence it has that there is a genuine issue of material fact that requires trial. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003). Finally, the non-moving party bears the burden of specifically identifying the relevant evidence of record, and “the court is not required to scour the record in search of evidence to defeat a motion for summary judgment.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).

         When the Court reviews cross-motions for summary judgment, as is the case here, “we construe all inferences in favor of the party against whom the motion under consideration is made.” Speciale v. Blue Cross & Blue Shield Ass'n, 538 F.3d 615, 621 (7th Cir. 2008) (quotation omitted). “‘[W]e look to the burden of proof that each party would bear on an issue of trial.'” Diaz v. Prudential Ins. Co. of Am., 499 F.3d 640, 643 (7th Cir. 2007) (quoting Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997)).

         II. FACTUAL BACKGROUND [2]

         In April 2006, the Plaintiff entered into a Home Equity Loan (the “Loan”) with First Indiana Bank. The Loan was secured by a second mortgage on the Plaintiff's property at 12878 Mayfair Lane, Carmel, Indiana, 46032. First Indiana Bank merged with M&I Bank, and M&I Bank subsequently merged with the Defendant BMO, who acquired the Plaintiff's Loan.

         The Loan has a twenty year term, maturing in April 2026. The Loan's term is split between a Draw Period and a Repayment Period. During the Draw Period, which compromises the first ten years of the Loan, the Plaintiff could access the Loan as a revolving line of credit. During the Draw Period, the Plaintiff was responsible for paying the accrued interest and any credit insurance premium.

         In April 2016, the Loan shifted from the Draw Period to the Repayment Period. During the Repayment Period, the Plaintiff was responsible for making monthly payments on the Loan.

         The parties dispute whether the Plaintiff made all of the required payments. Following the shift from the Draw Period to the Repayment Period, BMO received seven Automated Credit Dispute Verifications (“ACDV”) from credit reporting agencies (“CRA”) regarding the Loan, which were triggered by the Plaintiff disputing the information which BMO had reported. BMO investigated and responded to each ACDV:

• On August 30, 2016, BMO received an ACDV from Trans Union; BMO investigated the dispute and responded to Trans Union on September 19, 2016.
• On August 30, 2016, BMO received an ACDV from Equifax; BMO investigated the dispute and responded to Equifax on September 16, 2016.
• On October 13, 2016, BMO received an ACDV from Experian; BMO investigated the dispute and responded to Experian on October 25, 2016.
• On November 7, 2016, BMO received another ACDV from Experian; BMO reinvestigated the dispute and responded to Experian on November 29, 2016.
• On December 6, 2016, BMO received another ACDV from Equifax; BMO reinvestigated the dispute and responded to Equifax on December 22, 2016.
• On December 6, 2016, BMO received another ACDV from Experian; BMO reinvestigated the dispute and responded to Experian on December 19, 2016.
• On July 13, 2017, BMO received another ACDV from Equifax; BMO reinvestigated the dispute and responded to Equifax on August 1, 2017.

         Upon receipt of each of these ACDVs, in which the Plaintiff alleged that BMO inaccurately reported the Loan, BMO reviewed its records for the Loan, including the Plaintiffs repayment history, and compared that history to BMO's reporting of the Loan to the CRAs. BMO contends that the Plaintiff stopped making payments on the Loan, and concluded that its reporting regarding the Loan was accurate.[3]

         Defendant Equifax is a CRA to which BMO reports regarding its account with the Plaintiff (“Account”). Equifax maintains detailed policies and procedures designed to ensure that it conducts reasonable reinvestigations of information disputed by consumers as inaccurate. A consumer may contact Equifax to request a consumer disclosure or dispute information reported in his or her credit file by telephone, mail, or through an Internet portal on Equifax's website.

         When Equifax receives a dispute, it assigns each dispute a unique confirmation number. Equifax's records show that it was contacted by the Plaintiff three times regarding the Account. On August 30, 2016, the Plaintiff called Equifax to dispute information in Equifax's credit files regarding the Account. The unique confirmation number associated with this dispute is 6243018446. The Plaintiff did not provide Equifax with any documents or any other information. Equifax began its reinvestigation procedures with respect to the Plaintiff's dispute. On August 30, 2016, as part of its reinvestigation, Equifax sent an ACDV to BMO to request verification of the Account.

         According to Equifax's records, on September 8, 2016, the Plaintiff called Equifax to cancel the reinvestigation arising out of her August 30, 2016, dispute of the information in Equifax's credit files regarding the Account. Per the Plaintiff's request, Equifax cancelled the reinvestigation. Equifax sent a letter to the Plaintiff confirming that it canceled the reinvestigation. Because, according to Equifax, the September 8, 2016, call related to the August 30, 2016, call, the same confirmation number was used. The Plaintiff asserts that she did not request that the reinvestigation be cancelled.

         On December 6, 2016, the Plaintiff called Equifax to dispute information in Equifax's credit files regarding the Account. The unique confirmation number associated with this dispute is 6341025029. The Plaintiff did ...


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