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Proof of emotional distress and the FCRA: Tenth Circuit summary.

November 1, 2013 Leave a comment

This month, our current series – on how each federal circuit treats proof of emotional distress damages under the FCRA – turns to the Tenth Circuit.  The 10th Circuit has made things easy for us, as it recently decided a case which presented this very issue:  Llewellyn v. Allstate Home Loans, Inc., 711 F.3d 1173 (10th Cir. 2013).

In Llewellyn, the plaintiff borrowed money from a bank to buy a house, and the bank had Ocwen service the loan.  The plaintiff then refinanced his loan, but he didn’t tell Ocwen that (at least not as clearly as he could’ve), and his new bank paid off the old loan by sending money to the old bank, not Ocwen.  The plaintiff, thinking that his loan had been completely refinanced, stopped paying Ocwen.  And Ocwen, knowing that it wasn’t getting payments on a loan that it thought was still open, commenced foreclosure proceedings.  This mess was eventually cleared up, but plaintiff sued Ocwen for violating the FCRA by allegedly failing to properly report the status of his loan to the credit bureaus.

As evidence of his emotional distress damages, the plaintiff submitted an affidavit, together with some medical records, in which he said that he had been healthy before his difficulties with Ocwen, but that afterward, his “health began to rapidly deteriorate”:  he allegedly suffered a recurrence of Crohn’s disease and of depression, plus  “‘severe abdominal pain with stomach and intestinal cramping, along with bloating, constipation, diarrhea, and reoccurring nausea” as well as “drenching night sweats, panic attacks, anxiety, severe kidney pains, horrible joint pains at [his] wrists, neck, hips, jaw, spine, and knees, and low grade fevers and chills.”  711 F.3d at 1182.

Ocwen filed for summary judgment and argued that because the plaintiff’s affidavit was uncorroborated and self-serving, it was not enough evidence of emotional distress to justify a trial.  This caused the 10th Circuit to consider what sort of evidence of emotional distress a plaintiff had to have to survive summary judgment on an FCRA claim.  It stated:

“We agree that in relying on his own testimony, Plaintiff was required to “explain [his] injury in reasonable detail and not rely on conclusory statements,” [Bagby v. Experian Info. Solutions, Inc., 162 F. App’x 600, 605 (7th Cir. 2006)], and conclude he has done precisely that.  Plaintiff detailed the state of his health prior to the Ocwen Defendants’ negative reporting, including the dormancy of his pre-existing conditions; he identified his discovery of the Ocwen Defendants’ negative credit reports as the event precipitating the deterioration of his health; and he described, in great detail, the stress, anxiety, and physical symptoms he experienced after learning of the negative reports and the effect they had on his Crohn’s disease and depression. Plaintiff’s attribution of his symptoms and the deterioration of his health to the Ocwen Defendants’ actions is not so incredible or conclusory we can ignore it.  It is reasonable to infer from the aggravation of Plaintiff’s previously managed conditions and the development of several new symptoms at precisely the time Plaintiff discovered the negative reports on his credit report that the Ocwen Defendants’ actions caused these forms of emotional damages. This inference is no less reasonable simply because Plaintiff was diagnosed with diabetes and experienced other stressful life events (including several foreclosures) during the same time period.

Contrary to the Ocwen Defendants’ assertion, Plaintiff was not required to produce evidence to corroborate his detailed and specific testimony in order to survive summary judgment…. Plaintiff described the circumstances surrounding his injury in reasonable and sufficient detail that he was not required to produce further evidence of his emotional distress.  We conclude that his affidavit alone created a genuine dispute as to whether the Ocwen Defendants’ actions caused him to suffer emotional damages.”

711 F.3d at 1182-83.

In summary, in the 10th Circuit, a plaintiff can survive summary judgment on emotional distress damages under the FCRA by either:  i) providing evidence that corroborates his claim of emotional distress (e.g., statements from doctors, family members, etc.); or ii) providing “detailed and specific testimony” as opposed to “conclusory statements.”

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