Opinion
Civil Action No. 3:99-CV-0399-D
January 17, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff Nikhel P. Zala ("Zala") sues defendant Trans Union, LLC ("Trans Union"), a consumer reporting agency, to recover for violations of §§ 1681e(b) and 1681i(a) of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681-1681u, and on a pendent state-law claim for defamation. Trans Union moves for summary judgment. For the reasons that follow, the court grants the motion in part and denies it in part.
Trans Union also filed on September 13, 2000 objections to parts of Zala's summary judgment evidence. Unless otherwise noted, the court either has not relied on the objectionable evidence or has determined that, even if admissible, the evidence cannot prevent the entry of summary judgment against Zala.
I A
Zala entered into a lease purchase agreement for a home so that he could clean up his credit report and obtain a mortgage before the March 15, 1999 option deadline expired. Beginning in August or September 1998, Zala began the process of clearing erroneous items from his credit reports.
The court recounts the evidence favorably to Zala and draws all reasonable inferences in favor of Zala as the summary judgment nonmovant. See Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000).
Zala first sought financing for the home purchase from Columbia National ("Columbia"). Columbia obtained Zala's credit report from Trans Union, which reflected the following seven unreleased Arkansas tax liens from a failed business:
B10P490 $633.00 B11P352 $119.00 B11P347 $63.00 B11P348 $87.00 B11P349 $53.00 B11P350 $84.00 B11P351 $108.00
Columbia required that Zala correct the report to show that the tax liens — which appeared only on the Trans Union report — had been paid. Columbia also required that Zala pay off the tax liens before it would approve his request for a mortgage. It advised him that it would not consider making a home loan to him until he straightened out his credit report. Zala contacted Arkansas authorities and learned that the $633 lien had been released in 1993.
Zala undertook efforts to straighten out his report, eventually turning to First Stone Credit Counseling ("FSCC"), who reviewed the September 22, 1998 report and determined there were seven unreleased tax liens being reported. FSCC sent a first dispute to Trans Union on October 18, 1998. This dispute included a release of the $633 lien and a power of attorney from Zala to FSCC. Trans Union prepared a new credit report dated October 28, 1998, addressed to Zala at his former address, that continued to show all seven liens unreleased. It also sent an October 29, 1998 letter to the same address stating that it would verify various disputed items, including the tax liens.
On November 25, 1998 Trans Union prepared a new credit report that showed the $633 lien to be deleted. Trans Union only cloaked the Hen, rather than actually deleting it, because it had been unable to verify the release within the 30-day period allowed under the FCRA. Once Trans Union verified the release, it uncloaked the lien and reinserted it in Zala's December 18, 1998 credit report as a released lien. The report continued to reflect Zala's former address.
Because Trans Union refused to deal directly with consumer counselors like FSCC, it did not receive any of the information that Trans Union generated. On January 8, 1999 FSCC once again submitted the dispute of the liens and the September 15, 1998 power of attorney.
On January 18, 1999 an FSCC representative, J.D. Danielson ("Danielson"), telephoned Dawn Reeps ("Reeps") at Trans Union's Springfield, Pennsylvania office to dispute the liens and advise Trans Union of the urgency of Zala's mortgage financing. Danielson also sent Reeps a fax with another copy of the release of the $633 lien and all the releases, dated October 17 and 21, 1998, of all remaining, thereby disputing all liens in Trans Union's credit report for Zala. On January 21, 1999 Trans Union issued a new credit report that continued to show five liens unreleased.
On January 25, 1999 Zala contacted Trans Union directly. He spoke to Janice Jordan ("Jordan"), who advised him that Trans Union would act within one day of receiving lien release information. That same day, Zala faxed another release of the five liens. Zala also faxed all the requested information to Jordan's supervisor, Sean Walker ("Walker"), who Jordan said would help resolve the matter. Zala attempted to contact Jordan and Walker but never heard from them. Id. Trans Union did nothing after the January 25, 1999 telephone calls from Zala.
On February 8, 1999 Danielson telephoned the Orange, California office of Trans Union and spoke with "Antoinette," who told Danielson to start over again by faxing her a copy of the power of attorney. Danielson did so, but after not hearing from Antoinette, called her on February 11, 1999, whereupon Antoinette informed her that Trans Union would not accept the power of attorney because it was not "stamped by a court." Danielson then confirmed with Antoinette's supervisor, Kathy Goshen, that this reflected Trans Union's position.
Before Zala attempted through FSCC to correct his credit report, Bruce Danielson ("B. Danielson") referred him to Banc Capital Mortgage to obtain subprime financing if he could not correct the report.
Zala filed this suit on February 24, 1999. On March 17, 1999 Trans Union issued a new credit report for Zala that reflected 14 tax Hens and releases.
B
Zala alleges that Trans Union violated § 1681e(b) of the FCRA by including in his credit reports in 1998 and 1999 liens that had been released. He asserts that, in preparing his credit report, Trans Union willfully and/or negligently failed to follow reasonable procedures to assure maximum possible accuracy of the information.
Zala maintains that Trans Union violated § 1681 i(a) because, after he reported errors to Trans Union and requested that it reinvestigate the liens and delete them from his credit report, it failed to do so. He posits that the liens appeared in error in the report because Trans Union willfully and/or negligently failed to delete incomplete and inaccurate information in Zala's file after conducting a reinvestigation, or because it failed or refused to reinvestigate.
Zala also sues Trans Union for defamation, contending that it erroneously reported that liens existed and placed these items in Zala's credit reports either knowing they were prohibited or with heedless or reckless disregard for whether they were prohibited for without factual basis. He alleges that by publishing erroneous credit reports to third parties, Trans Union defamed him maliciously and/or with intent to injure, and that these incorrect reports constitute libel per se.
Zala seeks actual and punitive damages, attorney's fees, and other relief. Trans Union moves for summary judgment.
II
Trans Union contends for several reasons that it is entitled to dismissal of Zala's § 1681e(b) claim. The court need only address Trans Union's assertion that Zala cannot adduce evidence as to each element of the claim.
A
When the summary judgment movant will not have the burden at trial concerning a cause of action, it can meet its summary judgment obligation by pointing the court to the absence of evidence to support the claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the party does so, the nonmovant must then go beyond his pleadings and designate specific facts showing that there is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). Moreover, the summary judgment nonmovant must produce evidence to establish the existence of each element for which he bears the burden of proof. See Dunn v. State Farm Fire Cas. Co., 927 F.2d 869, 872 (5th Cir. 1991). Summary judgment is mandatory where the nonmoving party fails to meet his burden. Little, 37 F.3d at 1076.
B
Zala's first claim is brought under § 1681e(b), which provides:
Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.15U.S.C. § 1681n (a) creates a private right of action for willful noncompliance with the FCRA. 15 U.S.C. § 1681o(a) provides a private right of action for negligent noncompliance with the FCRA. To prove negligent noncompliance with § 1681e(b), Zala must establish four elements: (1) inaccurate information was included in a consumer's credit report; (2) the inaccuracy was due to defendant's failure to follow reasonable procedures to assure maximum possible accuracy; (3) the consumer suffered injury; and (4) the consumer's injury was caused by the inclusion of the inaccurate entry. Philbin v. Trans Union Corp., 101 F.3d 957, 963 (3d Cir. 1996) (citing Morris v. Credit Bureau of Cincinnati, Inc., 563 F. Supp. 962, 967 (S.D. Ohio 1983)); Bryant v, TRW, Inc., 487 F. Supp. 1234, 1238 (E.D. Mich. 1980), aff'd, 689 F.2d 72 (6th Cir. 1982)).
Trans Union has pointed the court to the absence of evidence that there was inaccurate information included in Zala's credit report. It argues that the undisputed proof shows that the tax liens reflected in the original credit report belonged to Zala for a tax deficiency that he owed. Trans Union asserts that Zala does not complain about the status of the liens as they appeared on his report originally, but instead disputes the "paid" or "unpaid" status of the liens as they appeared at various times on his report and about the amount of time it took for Trans Union to update the report to reflect that the liens were paid after he paid them in October and November 1998. Trans Union argues that to the extent this is his complaint, he may be stating a reinvestigation claim under § 1681i(a), but not a § 1681e(b) claim, because there was no inaccuracy contained in the original creation of the report.
In his response brief, Zala implicitly concedes the validity of this argument. He maintains, however, that the original report was inaccurate at least to the extent that it failed to pick up the fact that, five years earlier, the $633.00 lien had been released. See P. Br. at 3, 11-12. This assertion is insufficient to avoid summary judgment, however, because Zala testified unequivocally during his deposition that he was not complaining in this suit about the fact that the liens appeared initially on his credit report; instead, he was "disgruntled" because of the delays and problems in getting the Hens removed once he demonstrated that they had been paid. See D. App. 23. Accordingly, the court dismisses Zala's § 1681e(b) cause of action because he cannot satisfy the first essential element of that claim. See Swoager v. Credit Bureau of Greater St. Petersberg, Fla., 608 F. Supp. 972, 975 (M.D. Fla. 1985) (noting that § 1681e(b) refers to the initial compiled consumer credit report, not the reinvestigation of any asserted errors).
Ill
Trans Union next moves for summary judgment dismissing Zala's § 1681 i(a) claim. It argues that (1) Zala cannot adduce evidence as to each element of the claim, (2) he cannot show that Trans Union negligently failed to comply with the FCRA reinvestigation requirements, (3) there was no inaccuracy in Trans Union's reports caused by a failure to comply with the requirements of § 1681i, and (4) Zala cannot prove that he sustained actual damages, or establish causation, because the reports provided to Washington Mutual and Sebring Capital ("Sebring") did not contain an inaccuracy caused by a failure to comply with § 1681i.
A
Although Trans Union's assertion that Zala cannot prove the elements of his § 1681i(a) claim and its contention that it can affirmatively establish that it complied with the FCRA are analyzed in the summary judgment context under different standards, the court will address them together since they present variations of the same essential argument ( i.e., essentially contending that Zala cannot prove his claim and that Trans Union can disprove his claim).
As the court notes above, Trans Union, as the party who will not have the burden at trial concerning the § 1681i(a) claim, can meet its summary judgment obligation by pointing the court to the absence of evidence to support the claim, thereby shifting the burden to Zala to show there is a genuine issue for trial. Where Trans Union is attempting, however, affirmatively to disprove Zala's claim by showing that it did not violate the FCRA, it shoulders a summary judgment burden that is akin to that borne by a party who will have the burden of proof on a claim at trial. It must therefore adduce evidence that establishes "`beyond peradventure all of the essential elements of the . . . defense.'" Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F. Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)).
To establish a right of relief under § 1681i(a), Zala must demonstrate the following elements: (1) he disputed the completeness or accuracy of an item of information contained in his consumer file at Trans Union and notified Trans Union directly of that dispute; (2) Trans Union did not reinvestigate free of charge and either record the current status of the disputed information or delete the item from the file in the manner prescribed by § 1681i(a)(5) within the statutory period; (3) Trans Union's noncompliance was negligent; (4) Zala suffered injury; and (5) Zala's injury was caused by Trans Union's failure to reinvestigate and record of the current status the disputed information or delete the item from the file. See 15 U.S.C. § 1681i(a)(1)(A); Philbin, 101 F.3d at 963 (addressing elements of § 1681e(b) claim).
To establish a right to punitive damages, Zala must also prove that Trans Union acted willfully. See 15 U.S.C. § 1681n.
B
Trans Union argues that Zala submitted five disputes on or after his initial October 18, 1998 dispute letter and that it acted reasonably, not negligently, in reinvestigating all such disputes within the required time. Zala has introduced evidence, however, that after he provided a copy of the release of the $633.00 lien and of the other liens, instead of correcting his credit report on that basis or verifying with Arkansas tax authorities that the releases were authentic, Trans Union requested that Hogan Information Services ("Hogan"), its public records data provider, verify that the liens had been released. Hogan could not corroborate the release of the $633 tax lien within 30 days and never verified the October 1988 releases of three liens. As a result, Trans Union did not pick the releases up from Hogan's monthly reports until four months after the Hens were released. Instead, in February 1999 Trans Union obtained the information from Hogan's monthly reports.In Stevenson v. TRW Inc., 987 F.2d 288, 293 (5th Cir. 1993), the Fifth Circuit held that a consumer reporting agency that relied solely on subscribers' written consumer dispute verification forms rather than contacting the subscribers directly was negligent. The court noted that even though the credit agency was unable to verify some disputed accounts, it failed to remove those disputed accounts from the credit report. Id. Rejecting as insufficient the credit agency's practice of relying on the consumer to resolve the problem with the creditor, the court stated that "[i]n a reinvestigation of the accuracy of credit reports, a credit bureau must bear some responsibility for evaluating the accuracy of information obtained from subscribers." Id. Furthermore, in response to the credit agency's contention that it deleted erroneous or unverified information, the court pointed to evidence that the agency took ten weeks to correct the error. Id. In the present case, Trans Union's refusal timely to remove the disputed accounts from Zala's report even though Hogan did not verify their accuracy within the 30-day period would permit a reasonable jury to find that Trans Union violated § 1681i(a). Accordingly, the court denies summary judgment on this basis.
C
Trans Union maintains next that Zala's § 1681i(a) claim also fails because, as "outline[d] above" in its brief, there was no inaccuracy in Zala's reports caused by a failure to comply with the requirements of § 1681i. D. Br. 26. Zala has adduced evidence, however, that his credit report erroneously continued to report unpaid liens. For example, a December 18, 1998 report listed the disputed $633.00 lien as "re-inserted" even though Trans Union failed to verify the accuracy of the disputed record. P. App. 172. Indeed, a reasonable jury could find that it was not until March 24, 1999 that Trans Union prepared a fully accurate report. Because this evidence would permit a finding that there was an inaccuracy caused by a failure to comply with the requirements of § 1681i, Trans Union is not entitled to summary judgment on this basis.
IV
Trans Union moves for summary judgment on the grounds that Zala cannot prove that he sustained actual damages or establish causation.
A plaintiff asserting an FCRA claim has the burden of proving that his damages were caused by the defendant's violations of the FCRA. See Casella v. Equifax Credit Info. Servs., 56 F.3d 469, 473 (2d Cir. 1995). Zala asserts that the inaccuracy on his credit report caused by Trans Union's failure to comply with § 1681i resulted in actual damages, including denial of credit, humiliation and mental distress, injuries to his reputation and creditworthiness damages from denials of credit, increased interest rates, and out-of-pocket expenses paid by Zala. The court will consider each claimed element of damages in turn.
A
Trans Union moves for summary judgment on Zala's claims related to the actions of Columbia National.
First, Trans Union argues that Columbia National relied on CREDCO, rather than Trans Union, credit reports. Zala has presented evidence, however, that the CREDCO report was "compiled from all the different credit agencies[,]" and that Trans Union was one such agency. P. App. 39, D. App. 60, 63.
Second, Trans Union contends that Zala cannot recover for Columbia National's actions because he voluntarily withdrew his mortgage application before it was denied. Although, as the court discusses infra at § IV(D), a plaintiff may recover under the FCRA even in the absence of a denied application, Zala has presented no evidence that Trans Union's alleged violation of § 1681i caused him damages in his dealings with Columbia National. Zala testified that after he met Keith Smith at FSCC on September 1, 1998, he did not go back to Columbia National. He did not dispute any items on his credit report until October 18, 1998, more than six weeks after he decided not to pursue the Columbia National application. As the court notes supra at § III(A), under § 1681i Trans Union's duty to reinvestigate did not begin until Zala notified it of the disputed report.
Accordingly, the court grants summary judgment in favor of Trans Union on Zala's claims relating to his application with Columbia National.
B
Trans Union argues that it is not liable for any damages flowing from Washington Mutual's decision to deny Zala's loan application and Sebring's determination of the interest rate on loans made to Zala because the reports provided to Washington Mutual and Sebring did not contain an inaccuracy caused by a failure to comply with § 1681i, and Zala cannot prove that he sustained any damages as a result of those reports.
To the extent that Zala seeks damages based on the decision by Washington Mutual to deny Zala's loan application and by Sebring to establish the interest rate for Zala's first lien mortgage loan at 9.875% per annum and his second lien loan at 14.990%, the court agrees. With respect to Washington Mutual's denial of Zala's loan application, Trans Union has produced evidence that several other account delinquencies on Zala's credit report, separate from the liens in question in this case, were sufficient to justify a decision to deny the loan application. Similarly, the President of Sebring, Michael Brown ("Brown"), testified that Sebring assumed that the state tax liens had been paid. Moreover, Brown stated that tax liens "are generally not considered in secondary credit rating." D. App. 209. Zala has not offered any evidence to contradict the proof that Washington Mutual and Sebring did not rely on Trans Union's erroneous information. Rather, he asserts that this evidence "overlooks the fact that Danielson and Keith Smith would not have utilized Washington Mutual and Sebring" if Trans Union's errors had not forced him to seek subprime financing. P. Br. at 25. This argument, however, would not permit a reasonable jury to find that Zala suffered any damage from the actions of Washington Mutual and Sebring; it merely asserts that Trans Union's violation of § 1681i caused Zala other damages.
Accordingly, although the court agrees that Zala cannot recover damages from Trans Union based on the decisions by Washington Mutual and Sebring, this does not preclude Zala from recovering other damages that he seeks in this case and that are available under the FCRA, and the court's decision in this respect does not apply to those damages claims.
C
Trans Union seeks summary judgment dismissing Zala's claims based on alleged credit denials by Cross Country Bank, Providian, ATT, Citibank Rochester, and Home Shark. Zala does not contest Trans Union's motion on these issues, and the court therefore grants summary judgment in favor of Trans Union on these claims.
D
Trans Union moves for summary judgment on Zala's claims for humiliation and mental distress on the ground that Zala was not denied a line of credit and thus did not suffer any cognizable damages. The court disagrees.
Actual damages include humiliation or mental distress, even if the consumer has suffered no out-of-pocket losses. See Stevenson, 987 F.2d at 296; Pinner v. Schmidt, 805 F.2d 1258, 1265 (5th Cir. 1986); Thompson v. San Antonion Retail Merchants Ass'n, 682 F.2d 509, 513 (5th Cir. 1982) (per curiam). Courts have allowed recoveries where, as alleged here, the plaintiff suffered mental anguish based on events other than a denial of credit. See Stevenson, 987 F.2d at 296 (holding that consumer who inter alia was shocked at bad credit rating could recover for mental anguish); Thompson, 682 F.2d at 513-14 (holding that consumer who inter alia spent months trying to correct credit report and who succeeded only after bringing lawsuit could recover for mental anguish). Because Zala has adduced evidence indicating that he suffered emotional distress, the court declines to dismiss these claims on this basis.
E
Trans Union moves for summary judgment on Zala's damages claims for decreased earning potential, lost personal investment opportunities, the credit repair fee charged by FSCC, and the rent he paid for the house he ultimately purchased.
Regarding his claim for decreased earning potential, Zala has submitted evidence in the form of his deposition testimony that he lost up to 20 days as a result of spending time straightening out his credit report. He further testified that his average daily net income from the sale of equipment is $750. Although his subsequent testimony suggested that the 20 days estimate may be exaggerated, Zala has met his summary judgment burden on the question whether he can recover lost earning potential. Zala's claim for lost personal investment opportunities cannot survive summary judgment. Although Zala offers the conclusory statement from his credit repair representative, B. Danielson, that everyone in the credit business knows that an unsatisfied tax lien will "stop a mortgage loan," see P. App.106, this contention is not supported by summary judgment evidence. In fact, the loan applications he filed with Washington Mutual and Sebring were unaffected by any Trans Union errors. See supra § IV(B). Sebring, which ultimately approved his loan application and set his interest rate, did not consider the tax liens to be unsatisfied and determined them to be "no factor" in Sebring's rating of Zala's credit acceptability. D. App. 209. Considering this evidence and the dearth of proof supporting Zala's assertion that he was given a higher interest rate on his mortgage loans because of Trans Union's alleged violation of § 1681i, there is no basis for a damages award for lost personal investment opportunities and Trans Union is entitled to summary judgment on this component of his damages claim.
Trans Union objects to Zala's deposition testimony regarding the existence of damages as lacking foundation and personal knowledge and constituting hearsay and speculation. The court overrules the objection.
Trans Union is also entitled to summary judgment on Zala's claim for the credit fee he paid to FSCC. The record demonstrates that Zala contacted FSCC on September 1, 1998. He did not communicate with Trans Union to dispute the status of the state tax liens until October 18, 1998. Given the timing of these events, FSCC's fee cannot be attributed to Trans Union's delay in correcting the liens' status.
Finally, Trans Union is entitled to summary judgment on Zala's claim for the rent he paid while he attempted to clear up his credit. Other than submitting the amount of his rental payments, Zala has produced no evidence of how much he lost on that transaction as a result of Trans Union's violation of § 1681i, particularly in light of the fact that in return for the rental payments, he did receive the right to live on the property without making mortgage payments during that period.
F
Trans Union moves for summary judgment dismissing Zala's request for punitive damages under the FCRA on the grounds that (1) he cannot prove, as required by § 1681n, that Trans Union knowingly and intentionally committed an act in conscious disregard of the rights of others, and (2) Trans Union has established by affirmative proof that (a) it did not violate the FCRA and any statements it made were true, (b) Trans Union relied in good faith on information provided to it by third parties and acted quickly and in compliance with the FCRA to resolve Zala's disputes, and (c) Trans Union never knowingly or intentionally acted or failed to act to violate the FCRA or with conscious disregard for Zala's rights. Concerning Zala's defamation claim, it posits that under Texas law, a consumer reporting agency is protected by a qualified privilege that Zala can overcome only by evidence that Trans Union made a defamatory statement toward him with actual malice (defined as actual knowledge of or reckless disregard for the falsity of the statement), and that there is no evidence that Trans Union did so.
Under § 1681n of the FRCA, to act willfully means to knowingly and intentionally commit an act in conscious disregard for the rights of others. See Stevenson, 987 F.2d at 293. Willful noncompliance occurs only when a defendant knowingly and intentionally commits an act in conscious disregard for the rights of others. Pinner, 805 F.2d at 1263. In other words, the defendant is liable under § 1681n for violating § 1681i only if it engaged in willful misrepresentations or acts of concealment during the reinvestigation process. Stevenson, 987 F.2d at 294. Trans Union asserts that Zala cannot establish this element and that it has introduced affirmative evidence that demonstrates that it did not act knowingly and intentionally or with conscious disregard for Zala's rights.
The court holds, however, that Zala has satisfied his burden to adduce specific evidence indicating that Trans Union willfully violated § 1681i. On January 25, 1999 Zala contacted Jordan, who told him that Trans Union would act within one day of receiving proof that the state tax liens had been released. When Zala faxed the necessary information that same day to Jordan as well as to Walker, Trans Union still did not take the action it had promised. Zala asserts that Trans Union's refusal to comply with § 1681i is motivated by its disdain for Zala's decision to enlist the help of a credit repair organization. Trans Union's opinion of such organizations is evident in its brief, which characterizes credit repair clinics as "at best, a waste of consumers' money or, at worst, outright fraud." D. Br. 4 n. 3. Furthermore, Trans Union admits that it identifies consumers who are being represented by credit repair companies and that it knew Zala was being represented. Finally, Trans Union's affirmative evidence is insufficient to support summary judgment because it does not address Trans Union's alleged malice toward Zala for choosing to use a credit repair company or its reluctance to correct the credit report even after Zala provided proof of the releases.
Therefore, because Zala has adduced evidence that Trans Union willfully violated § 1681i, the court denies summary judgment dismissing his FCRA punitive damages claim.
V
Trans Union seeks summary judgment as to Zala's defamation cause of action on the ground that it is preempted by the FCRA. Trans Union appears, however, to recognize, as § 1681h(e) explicitly states, that the FCRA does not preempt a defamation action that is based on false information furnished with malice or willful intent to injure the consumer. Trans Union otherwise maintains that there is no evidence of actual malice — actual knowledge of the falsity of the statement or reckless disregard for whether the statement was true or false — to support Zala's state-law defamation claim.
As the court discusses supra at § IV(F), however, the record demonstrates that Zala has adduced evidence of actual malice. Although Zala faxed proof of the releases on January 25, 1999, Trans Union did not immediately update Zala's report, but attempted instead to reverify the information through Hogan. Although Trans Union possessed proof of the releases, it nevertheless sent out credit reports that did not reflect the releases. This evidence of reckless disregard for the falsity of the report satisfies Zala's summary judgment burden.
In addition, the discussion supra at § IV(A)-(F) regarding Zala's ability to recover certain actual and punitive damages under the FCRA also applies to Zala's defamation claim.