In Richmond v. Medicredit, Inc., No. 5:21-CV-00068-KDB-DSC, 2022 U.S. Dist. LEXIS 130092, at *8 (W.D.N.C. July 22, 2022), Judge Bell denied an FDCPA defendant’s summary judgment motion.
The Court finds that there is a genuine issue of material fact as to whether Medicredit reported Richmond’s debts as disputed to the credit reporting agencies (“CRAs”). The FDCPA protects consumers from certain unfair debt collection practices. See 15 U.S.C. § 1692(a); United States v. Nat’l Fin. Servs., Inc., 98 F.3d 131, 135 (4th Cir. 1996). A debt collector may not “communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.” 15 U.S.C. § 1692e(8). “Communication” is defined as “the conveying of information regarding a debt directly or indirectly to any person through any medium,” id. § 1692a(2), and encompasses communications with CRAs. See, e.g., Wilhelm v. Credico, Inc., 519 F.3d 416, 417-18 (8th Cir. 2008); Brady v. Credit Recovery Co., 160 F.3d 64, 66-67 (1st Cir. 1998); King v. Asset Acceptance, LLC, 452 F.Supp.2d 1272, 1282 (N.D.Ga.2006); O’Fay v. Sessoms & Rogers, P.A., No. 5:08-CV-615-D, 2010 U.S. Dist. LEXIS 104307, 2010 WL 9478988, at *7 (E.D.N.C. Feb. 9, 2010). “When [Medicredit] received notice in September 2020 that Richmond disputed her debt, [Medicredit] had two choices: not communicate with credit reporting agencies about the debt or communicate with credit reporting agencies about the debt and report that [Plaintiff] disputed the debt.” O’Fay, No. 5:08-CV-615-D, 2010 U.S. Dist. LEXIS 104307, 2010 WL 9478988, at *8. Although the Fourth Circuit has yet to decide if a credit report can be evidence of the absence of the reporting of a disputed debt sufficient to avoid summary judgment, Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147 (9th Cir. 2009), is instructive. In Gorman, a bank moved for summary judgment on a similar FDCPA claim on the grounds that the plaintiff had failed to introduce sufficient admissible evidence to show that it failed to report a debt as disputed to CRAs. Id. at 1164. The Ninth Circuit denied the defendant’s motion after finding that the plaintiff’s credit reports contained no notice of dispute, and the dispute verification form that the bank sent to the CRAs “contained no notice that the debt was disputed….” Id. at 1164-65. The court concluded that this evidence was sufficient to create an issue of fact as to whether the defendant failed to inform the CRAs that the plaintiff disputed the debt. Id. at 1165. Like the plaintiff in Gorman, Richmond has shown that her Experian credit report contains no notice that she disputed the debts. Moreover, Medicredit’s internal records show that the debts reported to the CRAs did not contain any notation of “disputed by the consumer.” (Doc. No. 44- 11). Medicredit contends that the internal records cited by Richmond do not indicate that the debts were not reported as disputed. (Doc No. 43 at 4). However, the only evidence that Medicredit offers to show that it reported Richmond’s debts as disputed is an undated excel spreadsheet (see Doc. No. 44-7 at p. 85, ln. 9-12), which was generated in anticipation of this lawsuit. (Id. at p. 82, ln. 1-14). In sum, neither party offers direct evidence of what Medicredit did or did not report to the CRAs. Medicredit correctly points out that Richmond’s credit reports are not definitive proof that Medicredit failed to report her debts as disputed, and Richmond concedes the same. Doc. No. 42. at 15. Nevertheless, the Court finds the Ninth Circuit’s holding in Gorman persuasive and will consider the absence of a notation of Richmond’s dispute in her credit report along with the lack of any dispute notation in the debts Medicredit reported to the CRAs in finding that there are genuine issues of material fact as to whether Medicredit informed the CRAs that Richmond disputed the debts in question. Therefore, both parties’ motions for summary judgment with respect to Medicredit’s reporting the debts as disputed will be denied.