In Bankston v. Americredit Financial Services, Inc., 2011 WL 89730 (N.D. Cal. 2011), Judge Armstrong rejected a UCL claim based on an allegedly faulty post-repossession NOI letter on the basis that Plaintiff had not met the injury-in-fact prong of the UCL. With respect to the injury-in-fact requirement, Plaintiff argued that she suffered an injury in two ways: (1) “[h]er payment of money, as wrongfully demanded by AmeriCredit”; and (2) “AmeriCredit has reported the charge-off to the credit reporting agencies [.]”
Plaintiff contends that she sent AmeriCredit a check in the amount of $25 as a result of AmeriCredit’s demand for payment of the deficiency. Bankston Decl. ¶¶ 7-8, Dkt. 36. Plaintiff’s contention is belied by the record. At her deposition, Plaintiff testified under oath that after receiving her seventh default notice, she decided to voluntarily surrender her car because it was no longer running and “at that point” it was “too costly for [her] to continue to have it [her] possession[.]” . . .She also acknowledged that she had read and understood the NOI and knew that she would be liable for any deficiency in the event the car sold for less than what she owed, but she nevertheless had no intention of paying off the loan balance to redeem the vehicle or to seek reinstatement of the Agreement. . . Thus, it is clear that Plaintiff cannot show that she suffered any harm attributable to AmeriCredit’s actions.
The Court also rejected Plaintiff’s UCL claim based on FCRA as lacking evidentiary support, explaining:
Equally misplaced is Plaintiff’s reliance on the credit agency reports as a basis for her claim of injury. As an initial matter, this claim of injury is unpled, and thus, is not properly before the Court. Although the FAC expressly alleges that Plaintiff suffered a monetary loss by allegedly having “paid some of AmeriCredit’s deficiency claim,” FAC ¶ 20, there is no allegation that Plaintiff was injured by virtue of the information reported to the credit bureaus. Indeed, Plaintiff was not aware of this alleged injury until March 2010, when she received a copy of her credit report. Bankston Decl. ¶ 10. It is well settled that a party cannot avoid summary judgment by alleging facts in an opposition that were not alleged in the pleadings. [citations omitted. Ed.] ¶ Even if Plaintiff had actually pled that she was injured as a result of AmeriCredit having reported the charge-off to the credit bureaus, she has presented no admissible evidence to support that contention. Under the best evidence rule, proof of what the credit report stated must be established by the report itself. See Fed .R.Evid. 1002 (“To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required,….”); Fed.R.Evid. 1004 (setting forth requirements for considering “other evidence” otherwise subject to Rule 1002). However, Plaintiff neither attached an original or a copy of the report, nor has she explained her failure to do so. Plaintiff merely purports to summarize the report by claiming that it “confirmed” that AmeriCredit had reported a charge-off in the amount of $15,117.00. Bankston Decl. ¶ 10. Plaintiff’s conclusory and vague assertion that AmeriCredit reported her delinquency as a charge-off is inadmissible hearsay that cannot be considered in connection with a summary judgment motion. [citations omitted. Ed.] That flaw notwithstanding, Plaintiff has failed to proffer any evidence that she suffered any actual loss of money or property as a result of AmeriCredit’s alleged report to the credit bureaus. See Birdsong v. Apple, Inc., 590 F.3d 955, 961 (9th Cir.2009) (holding that a hypothetical injury is insufficient to establish standing under the UCL).