In Bailey v. Santander Consumer USA, 2012 WL 37537 (M.D.N.C. 2012), Judge Auld found that a FCRA Plaintiff’s failure to oppose an MSJ filed by a furnisher was, by itself, insufficient grounds to award ‘reverse’ attorneys’ fees against the Plaintiff under FCRA.  Judge Auld explained: 


Santander also contends that it is entitled to relief in the form of attorney’s fees because Plaintiff filed the Complaint “in bad faith or for purposes of harassment,” 15 U.S.C. §§ 1681n(c), 1681o(b). (See Docket Entry 30 at 9.) This contention requires the Court to find that Plaintiff “filed an action that was frivolous, unreasonable, or without foundation.”   Smith v. HM Wallace, Inc., No. 08–22372–CIV, 2009 WL 3179539, at *2 (S.D.Fla. Oct. 1, 2009) (unpublished); see also In re Countrywide Financial Corp. Customer Data Sec. Breach Litigation, No. 3:08–MD–01998, 2010 WL 5147222, at *4 (W.D.Ky. Dec. 13, 2010) (unpublished) (citing same). “Bad faith is ‘not simply bad judgment or negligence, but implies the conscious doing of a wrong because of a dishonest purpose or moral obliquity; … it contemplates a state of mind affirmatively operating with furtive design or ill will.’ “ Shah v. Collecto, Inc., No. Civ.A.2004–4059, 2005 WL 2216242, *14 (D.Md. Sept. 12, 2005) (unpublished) (quoting Black’s Law Dictionary 139 (6th ed.1990)); see also In re 1997 Grand Jury, 215 F.3d 430, 436 (4th Cir.2000) (citing same bad faith definition in analysis of sanctions related to criminal complaint filing).    *4 Furthermore, this determination must focus on the plaintiff’s mental state at the time of filing. See Rogers v. Johnson–Norman, 514 F.Supp.2d 50, 52 (D.D.C.2007) (“It is not enough to show that the ‘pleading, motion, or other paper’ in question ‘later turned out to be baseless.’ “ (quoting Ryan v. Trans Union Corp., No. 99–216, 2001 WL 185182, at *6 (N.D.Ill. Feb. 26, 2001) (unpublished))). The moving party bears the burden to show entitlement to fees. See Eller v. Experian Info. Solutions, Inc., Civil Action No. 09–cv–00040–WJM–KMT, 2011 WL 3365955, at *18 (D.Colo. May 17, 2011) (unpublished) (“It appears the burden is on the party moving for fees under Sections 1681n or 1681o to demonstrate that they are warranted.”); DeBusk v. Wachovia Bank, No. CV 06–0324–PHX–NVW, 2006 WL 3735963, *4 (D.Ariz. Nov. 17, 2006) (unpublished) (“It is the burden of the party moving for fees under § 1681n(c) to demonstrate that they are warranted.”).    As grounds for the Court to find the required mens rea, Santander contends that “[t]he [a]ccount is and always was [Plaintiff]’s [a]ccount. She knew that when she filed the Complaint. She knows that she bought the [v]ehicle and made payments under the Contract that she signed after receiving approval on the Credit Application that she signed.” (Docket Entry 30 at 9.) The Court should find these inferences from the record insufficient to establish that Plaintiff filed this action in bad faith or for the purpose of harassment, rather than due to confusion or mistake. Accordingly, to the extent Santander requests relief under 15 U.S.C. §§ 1681n(c) and 1681o(b), the instant Motion should be denied.