Berscheid v. Experian Information Solutions, Inc.

U.S. District Court, District of Minnesota March 4, 2024

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
BECKY BERSCHEID,
Civil No. 22-086 (JRT/LIB)
Plaintiff,

v.
ORDER GRANTING IN PART AND
EXPERIAN INFORMATION SOLUTIONS, DENYING IN PART DEFENDANT’S
INC., MOTION FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFF’S MOTION FOR
Defendant. SUMMARY JUDGMENT

Anthony P. Chester, CHESTER LAW PLLC, 8400 Normandale Lake Boulevard,
Suite 920, Bloomington, MN 55437; Ryan D. Peterson, PETERSON LEGAL,
PLLC, 6600 France Avenue, Suite 602, Edina, MN 5545, for Plaintiff.

Chelsea Bollman, JONES DAY, 90 South Seventh Street, Suite 4950,
Minneapolis, MN 55402; Christopher Adam Hall, JONES DAY, 110 North
Wacker, Suite 4800, Chicago, IL 60606, for Defendant.

Plaintiff Becky Berscheid brought this action against Defendant Experian
Information Solutions, Inc. (“Experian”), alleging violations of the Fair Credit Reporting
Act (“FCRA”) after Experian failed to correct information on her credit report regarding a
debt she allegedly owed to Midland Credit Management, Inc. (“Midland”). Midland
sought to collect the debt from Berscheid in state conciliation court, but the state court
dismissed Midland’s claim with prejudice after finding that Midland failed to show that it
owned the account. Experian continued to include the debt on Berscheid’s credit report
despite her multiple disputes to correct the information. Experian and Berscheid now
cross move for summary judgment. Because Berscheid has failed to meet her prima facie
burden for her claim under 15 U.S.C.§ 1681e(b), the Court will grant Experian’s motion

for summary judgment on that claim. Because genuine issues of material fact remain on
the question of the accuracy of the Midland Account, the reasonableness of Experian’s
reinvestigations, and damages for the 15 U.S.C. § 1681i claim, the Court will deny both
parties’ motions for summary judgment on that claim. Accordingly, the § 1681i claim may

proceed.
BACKGROUND
I. FACTS
A. Experian’s Reporting and Reinvestigation Procedures
Experian, a credit reporting agency (“CRA”),1 obtains its consumer credit

information from furnishers. (Am. Compl. ¶ 25, Feb. 11, 2022, Docket No. 7; Decl.
Christina Hamilton (“Hamilton Decl.”) ¶ 8, June 1, 2023, Docket No. 132.) Before Experian
accepts consumer credit data from a furnisher, the furnisher signs a contract to certify

that it will report accurate information to Experian. (Hamilton Decl. ¶¶ 8, 9, Ex. 1 at 2.)
Experian also reviews consumer credit data before processing and periodically reviews its
furnishers to ensure their reliability. (Id. ¶¶ 10, 11.) When a consumer disputes
something in their credit report, Experian will conduct a reinvestigation and either modify

1 Experian is undisputedly a credit reporting agency under the FCRA.
the account or contact the furnisher if more information is needed. (Id. ¶¶ 13, 14, Ex. 2
(“Dispute Guide”) at 7.)

For disputes involving a civil action against a creditor, Experian will delete the
disputed information if the consumer provides a valid court document showing that the
“consumer either prevailed (won) in the action, obtained a judgment in his/her favor, or
the case was dismissed for any reason.” (Dispute Guide at 11; Hamilton Decl. ¶ 27.) A

court document is valid if it meets certain requirements, including Experian’s proof
document authentication guidelines. (Dispute Guide at 11.) Under the guidelines, a
document must have consistent font size throughout, have no spelling or grammatical

errors, and be complete if a public record. (Hamilton Decl. ¶ 17, Ex. 3 at 4.) If not all
criteria are met, Experian will send an industry-standard Automated Consumer Dispute
Verification form (“ACDV”) to the furnisher, along with relevant documents that the
consumer provided regarding the dispute. (Id. ¶¶ 17–18.) After reviewing the ACDV, a

furnisher must certify the information’s accuracy or else update the disputed information.
(Id. ¶¶ 19–20.) If the furnisher does not respond to the ACDV within 30 days, Experian
will delete the disputed information from the consumer’s credit report. (Id. ¶ 19; Dispute
Guide at 10.)

After conducting a reinvestigation, Experian sends a summary of the
reinvestigation to the consumer. (Hamilton Decl. ¶ 21.) If a consumer disputes
information that is no longer appearing on a credit report, it is considered a frivolous
dispute. (Id. ¶ 22.)

B. State Court Action by Midland
Midland brought an action in state court to collect a debt Berscheid owed and
failed to pay, which Credit One Bank, N.A. (“Credit One”) originally owned.2 (Decl. Chelsea
A. Bollman (“Bollman Decl.”) ¶¶ 3–5, Ex. 2 at 31, Ex. 3 at 2, Ex. 4 at 2, June 1, 2023, Docket

No. 129.) At a conciliation court hearing, the state court found that Midland could not
establish proper chain of title to prove that it owned the debt, so therefore dismissed the
action with prejudice in a form order. (Id. ¶ 6, Ex. 5 at 2–3; id. ¶ 7, Ex. 6 at 2.) Because
Midland continued to furnish to nationwide credit bureaus, including Experian, that

Berscheid still owed it money, Experian continued to include the Midland Account on
Berscheid’s credit report. (Hamilton Decl. ¶ 45, Ex. 18 at 6.)
C. Berscheid’s Disputes with Experian
After discovering the Midland Account was still appearing on her report, Berscheid

mailed her first dispute letter to Experian on December 22, 2020. (Decl. Ryan D. Peterson
(“Peterson Decl.”) ¶ 4, Ex. B, June 1, 2023, Docket No. 143; Hamilton Decl. ¶ 26, Ex. 5.)
Berscheid explained that she did not owe Midland money because the state court
judgment dismissed Midland’s claim with prejudice, and she attached a copy of the first

2 In her declaration, Berscheid states that she did not trust Midland and was not sure she
owed it a debt, but the evidence suggests Berscheid owed the debt addressed in the state court
judgment to somebody, so the Court will operate under that assumption.
page of the judgment as proof. (Peterson Decl. ¶ 4, Ex. B at 2, 5; Hamilton Decl. ¶ 26, Ex.
5 at 2, 5.) The bottom left corner of the first page of the state court judgment states,

“Page 1 of 3.” (Peterson Decl. ¶ 4, Ex. B at 5; Hamilton Decl. ¶ 26, Ex. 5 at 5.) Experian
sent an ACDV to Midland to verify the Midland Account. (Hamilton Decl. ¶ 28.)
Thereafter, Midland verified that the Midland Account was accurate, notwithstanding the
state court dismissal. (Id. ¶ 30, Ex. 7 at 2.) Accordingly, Experian emailed the results of

the reinvestigation to Berscheid’s email address, which Berscheid checked “daily” in 2021.
(Id. ¶¶ 28, 32, 43, Ex. 9 at 2; Bollman Decl. ¶ 2, Ex. 1 (“Berscheid Dep.”) at 17.)
Because the Midland Account continued to appear on her report, Berscheid mailed

a second dispute letter to Experian on March 30, 2021, again explaining that she did not
owe Midland money and attaching the first two pages of the state court judgment as
proof. (Decl. Anthony P. Chester (“Chester Decl.”) ¶¶ 4–7, Exs. E–H, June 1, 2023, Docket
No. 145; Hamilton Decl. ¶ 34, Ex. 10 at 2–4; Peterson Decl. ¶ 5, Ex. C at 2–4.) Experian

sent another ACDV to Midland to verify the account. (Hamilton Decl. ¶ 33.) After
receiving no response from Midland for 30 days, Experian deleted the Midland Account
from Berscheid’s report. (Id.) Experian emailed Berscheid on May 3, 2021 to notify her
that the Midland Account had been deleted. (Id. ¶¶ 33, 36, Ex. 12 at 2.)

Apparently mistaken that the Midland Account was still appearing on her report,
Berscheid sent two more disputes to Experian on July 28 and October 4, 2021. (Hamilton
Decl. ¶¶ 37–38, 40–41, Ex. 13 at 2, 6–8, Ex. 15 at 2–3, 7–9.) Because the Midland Account
was no longer appearing on the report, Experian sent communications to Berscheid
stating the same on August 20 and October 19, 2021. (Id. ¶¶ 37, 39, 40, 42, Exs. 14, 16.)

Berscheid claims she did not discover that the Midland Account had been removed from
her report until November 2021. (Decl. Becky Berscheid (“Berscheid Decl.”) ¶ 20, June
22, 2023, Docket No. 151.) Berscheid subsequently brought this action, alleging that
Experian’s conduct caused her emotional distress.

D. Berscheid’s Alleged Harms
Berscheid claims that she has felt angry, stressed, and anxious that Experian was
including the Midland Account on her credit report despite the state court judgment. (Id.
¶¶ 10, 13.) When she gets stressed, Berscheid “get[s] bad headaches almost like

migraines” and “eventually ha[s] to go to the bathroom,” which she attributes to her
Crohn’s/colitis diagnosis. (Id. ¶ 15.) Berscheid claims that her physical symptoms “started
to get really bad” because of the credit reporting, causing her to miss work and lose sleep.
(Id. ¶¶ 17–18.) She describes the difficulties with Experian as “one of the worst and

longest lasting over the last few years.” (Id. ¶ 21.)
To support her emotional distress claim, Berscheid relies on her own testimony
and that of two corroborating witnesses: her partner of 27 years and a coworker. (See

Bollman Decl. ¶¶ 13–14, Ex. 12 (“Schlangen Dep.”) at 6, 17, Ex. 13 (“Meinz Dep.”).)
Berscheid’s partner confirmed Berscheid’s Crohn’s/colitis diagnosis and symptoms as well
as her “rage” and “anger” when talking about Experian’s reporting, but he has not
described a specific time frame wherein these symptoms occurred, nor does he
specifically attribute the symptoms to Experian’s conduct. (Schlangen Dep. at 7, 13, 17.)
Similarly, Berscheid’s coworker confirmed Berscheid’s “really bad” digestive problems,

anxiety, and stress, and that generally the last few years have taken a “toll” on Berscheid.
(Meinz Dep. at 7–8.) However, the coworker also made clear that she knows very little
about Berscheid’s issues with Experian. (Id. at 6.).
Berscheid presented no evidence that she was medically treated for her

symptoms. (Bollman Decl. ¶¶ 9–10, Ex. 8 at 7–8, Ex. 9 at 2–3.) She has not produced
expert testimony regarding her emotional harm. She has also not produced credit
denials, adverse action notices, or other evidence that Experian’s reporting caused her

pecuniary harm. (See id. ¶ 10, Ex. 9 at 2–3.)
II. PROCEDURAL HISTORY
After Berscheid initiated this action against Experian in state court, Experian
removed the case to this Court pursuant to

28 U.S.C. § 1441

. (Notice of Removal, Jan. 14,

2022, Docket No. 1.) Berscheid amended her Complaint to add Midland and TransUnion,
LLC (“TransUnion”), as defendants. (See generally Am. Compl.) She settled with
TransUnion and accepted an offer of judgment from Midland. (See Notice of Settlement,
Mar. 30, 2022, Docket No. 23; Notice of Acceptance of Offer of J., Oct. 28, 2022, Docket

No. 44.) Berscheid’s claims against Experian remain.
Berscheid brings claims against Experian under 15 U.S.C. § 1681n and § 1681o of
the FCRA for negligently and willfully failing to employ reasonable procedures to assure
maximum possible accuracy in her credit report in violation of 15 U.S.C. § 1681e(b) and
failing to conduct a reasonable reinvestigation into her disputes in violation of 15 U.S.C.
§ 1681i. (Am. Compl. ¶¶ 72–73, 75–76.) She seeks actual, statutory, and punitive

damages. (Id. ¶ 81.) Experian moves for summary judgment to dismiss all claims against
it. (Def.’s Mot. Summ. J., June 1, 2023, Docket No. 126.) Berscheid moves for partial
summary judgment on her reasonable reinvestigation claim. (Pl.’s Mot. Summ. J., June 1,
2023, Docket No. 138.)

DISCUSSION
I. STANDARD OF REVIEW
Summary judgment is appropriate when there are no genuine issues of material
fact, and the moving party can demonstrate that it is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the case, and
a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a
verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248

 (1986).  
A court considering a motion for summary judgment must view the facts in the light most 

favorable to the nonmoving party and give that party the benefit of all reasonable 
inferences to be drawn from those facts.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587

 (1986).  The nonmoving party may not rest on mere allegations or 
denials but must show, through the presentation of admissible evidence, that specific 

facts exist creating a genuine issue for trial.  Anderson,

477 U.S. at 256

 (discussing Fed. R. 
Civ. P. 56(e)).  “The mere existence of a scintilla of evidence in support of the plaintiff’s 
position will be insufficient; there must be evidence on which the jury could reasonably 
find for the plaintiff.”

Id. at 252

.                                     

II.  ANALYSIS                                                             
    The FCRA aims to “ensure fair and accurate credit reporting, promote efficiency in 
the banking system and protect consumer privacy.”  Poehl v. Countrywide Home Loans, 
Inc.,

528 F.3d 1093, 1096

 (8th Cir. 2008) (quoting Safeco Ins. Co. of Am. v. Burr,

551 U.S. 47, 52

 (2007)).  The Act requires CRAs to follow certain procedures in furnishing consumer 
credit data and in reinvestigating consumer disputes of information included in credit 
reports.  15 U.S.C. §§ 1681e(b), 1681i.  Berscheid’s Complaint alleges that Experian failed 
to  employ  reasonable  procedures  and  failed  to  reasonably  reinvestigate  after  she 

disputed the Midland Account.                                             
    A.   Reasonableness of Experian’s Procedures                         

    Berscheid alleges that Experian violated the FCRA by negligently and willfully failing 
to employ reasonable procedures to assure maximum possible accuracy in her credit 
report in violation of 15 U.S.C. § 1681e(b).  Only Experian moves for summary judgment 
on this claim.  To survive summary judgment, Berscheid must show that: “(1) Experian 
failed to follow reasonable procedures intended to assure the accuracy of its reports, (2) 

reported inaccurate credit information about her, (3) she suffered harm and (4) Experian’s 
failure to follow reasonable procedures was the cause of her harm.”  Paul v. Experian Info. 
Sols., Inc.,

793 F. Supp. 2d 1098, 1101

 (D. Minn. 2011) (citing cases).   
    The FCRA does not hold CRAs strictly liable for inaccuracies in credit reports, so 
even if the Midland Account was inaccurate to include on Berscheid’s credit report, that 

alone is insufficient.  Hauser v. Equifax, Inc.,

602 F.2d 811

, 814–15 (8th Cir. 1979).  Instead, 
the  inaccuracy  must  have  resulted  from  the  CRA’s  failure  to  “follow  reasonable 
procedures to assure maximum possible accuracy.”  Paul,

793 F. Supp. 2d at 1101

; 15 
U.S.C. § 1681e(b).  A CRA is not liable “where an item of information, received from a 

source that it reasonably believes is reputable, turns out to be inaccurate unless the 
agency receives notice of systemic problems with its procedures.”  Rydholm v. Equifax 
Info. Servs. LLC,

44 F.4th 1105, 1108

 (8th Cir. 2022) (quoting Sarver v. Experian Info. Sols.,

390 F.3d 969, 972

 (7th Cir. 2004)).                                       
    Berscheid claims that Experian failed to employ reasonable procedures to ensure 
accuracy in her credit report but fails to provide sufficient evidence to survive summary 
judgment.  Because Experian believed Midland was a reputable source, Berscheid needed 

to  present  information  that  Experian  had  notice  of  systemic  problems  regarding 
Midland’s reliability, which she did not.

Id. at 1109

.  Her “bare legal conclusions” are 
insufficient as a matter of law.

Id.

  Without providing any indication that Midland was an 
unreliable  source  of  credit  information  before  she  contested  the  Midland  Account, 

Berscheid is unable to satisfy the first element of her § 1681e(b) claim.  Even if Berscheid 
could meet the other elements, she cannot meet her prima facie burden.  Accordingly, 
the Court will grant Experian’s motion for summary judgment on this claim. 
    B.   Reasonableness of Experian’s Reinvestigations                   
    Berscheid alleges that Experian violated 15 U.S.C. § 1681i by negligently and 

willfully failing to conduct a reasonable reinvestigation into her first and second disputes.3  
Experian  and  Berscheid  cross  move  for  summary  judgment  on  this  claim,  although 
Berscheid reserves for trial a determination of her damages.              
    When a consumer disputes information included in their credit report, the FCRA 

requires  CRAs  to  “conduct  a  reasonable  reinvestigation  to  determine  whether  the 
disputed  information  is  inaccurate  and  record  the  current  status  of  the  disputed 
information, or delete the item from the file” within 30 days of receiving the dispute.  15 
U.S.C. § 1681i(a)(1)(A); see also Reed v. Experian Info. Sols., Inc.,

321 F. Supp. 2d 1109, 1113

(D. Minn. 2004) (citing 15 U.S.C. § 1681i(a)(1)(A)). For her § 1681i claim, Berscheid
must demonstrate that: (1) Experian reported inaccurate information in her report that
she disputed, (2) Experian failed to reasonably reinvestigate the information or failed to

confirm, correct, or delete it, and (3) she suffered harm as a result. Reed, 321 F. Supp. 2d
at 1113–14.
1. Accuracy of the Midland Account
The parties dispute whether reporting the Midland Account on Berscheid’s credit
report was technically accurate notwithstanding the state court judgment. The state

3 Berscheid clarified at oral argument that she is not seeking liability for Experian’s
reinvestigations of her third and fourth disputes, since Experian had deleted the Midland Account
from her credit report when she sent the disputes.
court judgment concluded that Midland could not prove that Berscheid owed the debt,
making the debt legally uncollectible. Whether a debt that is technically accurate but

uncollectible should be excluded from a credit report is an open question.
Experian argues that reporting the Midland Account on Berscheid’s credit report
was technically accurate, notwithstanding the state court judgment, because Berscheid
ran up a debt to Credit One, Midland eventually obtained that debt, and Berscheid never

paid Credit One or Midland for the debt.
The Eighth Circuit has yet to resolve the issue,4 but several circuit courts have
found that a technically accurate but misleading report can qualify as inaccurate under

the FCRA. See, e.g., Beseke v. Equifax Info. Servs. LLC,

420 F. Supp. 3d 885

, 891, 901 (D. 
Minn. 2019) (listing circuit cases).  “[E]ven if the information is technically correct, it may 
nonetheless be inaccurate if, through omission, it ‘create[s] a  materially misleading 
impression.’”  Seamans v. Temple Univ.,

744 F.3d 853, 865

 (3d Cir. 2014) (quoting Saunders 

v. Branch Banking & T. Co. of Va.,

526 F.3d 142, 148

 (4th Cir. 2008)).  A misleading report 
is inaccurate when “it is misleading in such a way and to such an extent that it can be 
expected to adversely affect credit decisions.”  Sepulvado v. CSC Credit Servs., Inc.,

158 F.3d 890

, 895 (5th Cir. 1998); see also Dalton v. Cap. Associated Indus., Inc.,

257 F.3d 409, 415

 (4th Cir. 2001) (quoting same).  Whether technically accurate information is so 



    4 See Taylor v. Tenant Tracker, Inc.,

710 F.3d 824

, 827 n.2 (8th Cir. 2013).   
misleading to constitute an actionable inaccuracy under the FCRA is a fact question best 
left for the jury.  See Seamans,

744 F.3d at 865

.                         

    Here, the technical accuracy of the debt does not resolve the issue.  Because 
reporting  that  Berscheid  owes  a  debt  to  Midland  notwithstanding  the  state  court 
judgment could create the misimpression that Berscheid still owes a collectible debt to 
Midland, the question becomes whether this omission is materially misleading.  At a bare 

minimum, Experian could have clarified its report by noting that the debt was legally 
uncollectible.  Failing to include that caveat could negatively impact credit decisions, and 
thus  be  materially  misleading  to  anyone  reading  Berscheid’s  report.    Because  a 

reasonable juror could conclude that reporting the Midland Account was materially 
misleading, the Court finds that Berscheid has raised a genuine issue of material fact on 
the question of accuracy best resolved by a jury.                         
    Moreover, the exception to inaccuracies that require legal analysis does not make 

summary judgment appropriate.  See Chuluunbat v. Experian Info. Sols., Inc.,

4 F.4th 562, 569

 (7th Cir. 2021) (explaining that CRAs are responsible for factual determinations, not 
legal ones, and that “a legal question may [] be resolved as a matter of fact if a tribunal … 
has adjudicated the matter”).  The Seventh Circuit has recently concluded that a CRA is 

not exempt from “taking notice of a previously resolved legal dispute” because that is a 
factual not a legal determination.  Chaitoff v. Experian Info. Sols., Inc.,

79 F.4th 800

, 812–
15 (7th Cir. 2023).  Under this theory, the existence of the state court judgment that 
Berscheid attached to her disputes was a factual question that Experian could have 
resolved by including it on Berscheid’s report.  Thus, the Court declines to grant summary 

judgment on the question of accuracy.                                     
         2.   Experian’s Reinvestigations                                
    The reasonableness of Experian’s reinvestigations after Berscheid’s disputes is also 
contested.   After a consumer disputes information in a credit report, the FCRA requires 

CRAs  to  reasonably  reinvestigate  and  confirm,  correct,  or  delete  the  disputed 
information.  15 U.S.C. § 1681i(a)(1)(A).  In doing so, the CRA must promptly notify the 
furnisher of the disputed information and provide them with “all relevant information 
regarding the dispute” that it receives from the consumer.  Id. § 1681i(a)(2)(A)–(B).  Courts 

have found that the ACDV process to verify disputed information is reasonable.  Edeh v. 
Equifax Info. Servs., LLC,

974 F. Supp. 2d 1220, 1237

 (D. Minn. 2013), aff’d,

564 F. App’x 878

(8th Cir. 2014).

The parties’ arguments question the reasonableness of Experian sending an ACDV
to Midland to verify the accuracy of the Midland Account. Berscheid would like the Court
to conclude that because the state court judgment dismissed Midland’s claim to collect
the debt with prejudice, the judgment was sufficiently clear such that confirming with

Midland was unreasonable. However, the state court judgment did not explicitly
discharge the debt to Midland,5 nor did it allegedly meet Experian’s proof authentication
guidelines.

The Court finds that whether it was reasonable for Experian to question the
meaning and authenticity of the state court judgment raises a genuine issue of material
fact. On the one hand, the state court judgment is signed by a judge and court deputy,
has court filing stamps, and clearly dismisses Midland’s claim to collect the debt from

Berscheid, all suggesting authenticity. The slightly different font sizes in various sections
of the form order do not necessarily raise questions about its validity. Indeed, the Court
wonders what more Experian needed to verify the Midland Account.

However, on the other hand a reasonable juror could conclude that it was
reasonable for Experian to question the authenticity of the state court judgment. The
inconsistent font sizes raise some doubt, but the more damaging evidence is Berscheid’s
omission of the state court judgment pages. Experian’s proof authentication guidelines

state that an incomplete official document raises suspicion about the document’s
authenticity, such that Experian’s policy for immediately deleting disputed information
that concerns a civil action against a creditor no longer applies. Therefore, a genuine issue
of material fact remains as to whether Experian reasonably reinvestigated Berscheid’s

5 Experian renews its argument that it need not conduct legal analysis, however, as
addressed above, the existence of the state court judgment was a factual question that Experian
could have resolved by including it on Berscheid’s credit report. Chaitoff v. Experian Info. Sols.,
Inc.,

79 F.4th 800

, 812–15 (7th Cir. 2023).                               
disputes by sending the ACDVs to Midland to verify the accuracy of the Midland Account.  
As such, neither party is entitled to summary judgment on this issue.     

         3.   Actual Damages                                             
    Consumers are entitled to recover actual damages caused by a furnisher’s violation 
of the FCRA, whether the violation was negligent or willful.  15 U.S.C. §§ 1681n(a)(1)(A), 
1681o(a)(1).  Actual damages under the FCRA include pecuniary harm, such as denial of 

credit opportunities or higher interest rates, as well as emotional distress damages.  Edeh,

974 F. Supp. 2d at 1242

; Taylor v. Tenant Tracker, Inc.,

710 F.3d 824, 828

 (8th Cir. 2013).  
Berscheid has not presented evidence that she suffered loss of credit opportunities or 
similar damages because of Experian’s reporting.  Instead, Berscheid’s damages are based 

entirely on her emotional distress.                                       
    “Mental pain and anxiety can constitute actual damages” under the FCRA, “but 
emotional distress damages must be supported by competent evidence of ‘genuine 

injury,’ which ‘may be evidenced by one’s conduct and observed by others.’”  Taylor,

710 F.3d at 828

 (quoting Carey v. Piphus,

435 U.S. 247

, 264 n.20 (1978)).  A plaintiff’s sole 
testimony may be sufficient to establish emotional distress under the FCRA, but the 
testimony must show a “concrete” and “genuine injury.”  Edeh,

974 F. Supp. 2d at 1244

; 

see also Sherman v. Sheffield Fin., LLC,

627 F. Supp. 3d 1000

, 1017 (D. Minn. 2022) 
(quoting  same).    Whether  a  plaintiff  suffered  a  physical  injury  or  received  medical 
treatment because of the emotional distress are factors that courts will consider in the 
analysis, though they are not dispositive.  Taylor,

710 F.3d at 829

; Sherman, 627 F. Supp. 
3d at 1017.  Courts have denied emotional distress damages under the FCRA where the 
consumer plaintiff “suffered no physical injury, [] was not medically treated for any 

psychological  or  emotional  injury,  and  no  other  witness  corroborated  any  outward 
manifestation of emotional distress.”  Peterson v. Experian Info. Sols., Inc.,

44 F.4th 1124, 1128

 (8th Cir. 2022) (citations omitted); accord Taylor,

710 F.3d at 829

. 
    In  presenting  her  emotional  distress  damages,  Berscheid  relies  on  her  own 

testimony and declaration as well as the testimonies of her partner and coworker.  The 
testimonies generally describe that Berscheid has experienced worsening anxiety and 
depression and flare-ups of her Crohn’s/colitis symptoms since she learned that Experian 

was including the Midland Account on her credit report despite the state court judgment.  
Though the partner and coworker have provided limited details as to whether Experian 
was the cause of Berscheid’s harm, they can attest to the nature and extent of her 
emotional distress over the years.  The Court finds this evidence of Berscheid’s emotional 

distress is “competent evidence of genuine injury” sufficient to create a genuine issue of 
material fact as to the question of damages.  Taylor,

710 F.3d at 828

; see also Hrebal v. 
Seterus, Inc.,

598 B.R. 252, 273

 (D. Minn. 2019).  Even though Berscheid has not presented 
medical expert testimony or evidence that she sought medical treatment, she presented 

enough information to survive Experian’s motion for summary judgment.  Sherman, 627 
F. Supp. 3d at 1017.  Although the evidence is not overwhelming, the Court finds that a 
reasonable juror could credit the testimony and find that Berscheid suffered emotional 
distress at the hand of Experian.  Thus, whether Berscheid suffered actual damages is a 
triable fact question for the jury.  The Court declines to grant summary judgment on this 

issue.                                                                    
         4.   Willfulness                                                
    Berscheid argues that Experian willfully violated 15 U.S.C. § 1681i.  Willfulness is 
not an element of a FCRA claim, but Berscheid may be entitled to statutory or punitive 

damages if Experian’s violation was willful.  15 U.S.C. § 1681n(a)(1)–(2).  She can also 
recover statutory and punitive damages even if she did not suffer actual damages, so long 
as the violation was willful.  Bakker v. McKinnon,

152 F.3d 1007, 1013

 (8th Cir. 1998) 
(“Actual damages are not a statutory prerequisite to an award of punitive damages under 

the  [FCRA].”  (quotation  omitted)  (alteration  in  original)).    To  establish  willful 
noncompliance  with  the  FCRA’s  reinvestigation  requirements,  Berscheid  must 
demonstrate that Experian “knowingly and intentionally committed an act in conscious 

disregard for the rights of others,” though she “need not show malice or evil motive.”

Id.

 
(quoting Cushman v. Trans Union Corp.,

115 F.3d 220, 226

 (3d Cir. 1997)).  Reckless 
conduct involves “an unjustifiably high risk of harm that is either known or so obvious 
that it should be known.”  Safeco Ins. Co. of Am. v. Burr,

551 U.S. 47, 68

(2007) (citations

and internal quotation marks omitted).
Berscheid’s willfulness argument stems mostly from Experian’s policy to delete
accounts associated with debts that have been subject to dismissal with prejudice in state
court. However, at most, Experian’s actions could be attributed to negligence, not
willfulness. Sending ACDVs to furnishers to verify the accuracy of credit information, as
Experian did, does not automatically constitute a willful violation. See Edeh, 974 F. Supp.

2d at 1245–47. Berscheid also claims Experian acted willfully by not allowing its dispute
operators to utilize basic research tools and contact outside sources to reinvestigate
consumer disputes. While Experian could do more to enhance its reinvestigation
procedures, not doing more does not constitute a willful violation of the FCRA. FCRA does

not require CRAs to have the best possible reinvestigation procedures but rather that they
be reasonable. Berscheid has not presented sufficient evidence of a knowing and
intentional violation of the FCRA and is therefore unable to establish willfulness as a

matter of law. As a result, the Court will grant summary judgment to Experian on the
question of willfulness.
CONCLUSION
Because Berscheid has not presented evidence that Experian had notice of

systemic problems regarding Midland’s reliability as a furnisher, her § 1681e(b) cannot
survive summary judgment. The Court will grant summary judgment to Experian on that
claim. Because Berscheid is unable to establish willfulness as a matter of law for her §
1681i claim, the Court will grant summary judgment to Experian on the question of

willfulness. However, there remain genuine disputes of material fact on the question of
accuracy, reasonableness, and damages for the § 1681i claim, so the Court will reserve
those questions for the jury. Accordingly, the Court will deny the parties’ motions for
summary judgment on the § 1681i claim. The case may proceed on the question of
whether Experian negligently violated 15 U.S.C. § 1681i.

ORDER

     Based on the foregoing, and  all the files,  records, and  proceedings herein,  IT IS 
HEREBY ORDERED that: 
     1.  Defendant’s Motion for Summary Judgment [Docket No.  126]  is GRANTED in 

        part and DENIED in part as follows: 

           a.  The Motion is GRANTED as to Defendant’s liability for alleged negligent 
              and willful violations of 15 U.S.C. § 1681e(b); 
           b.  The  Motion  is GRANTED as to  Defendant’s  liability for alleged  willful 
              violations of 15 U.S.C. § 1681i; and 

           c.  The  Motion  is DENIED as to  Defendant’s liability for alleged  negligent 
              violations of 15 U.S.C. § 1681i. 
     2.  Plaintiff's Motion for Summary Judgment [Docket No. 138] is DENIED. 

DATED:  March 4, 2024                             Joon W. (usaaeion 
at Minneapolis, Minnesota.                         JOHN R. TUNHEIM 
                                            United States District Judge 

                                    -20-

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
BECKY BERSCHEID,
Civil No. 22-086 (JRT/LIB)
Plaintiff,

v.
ORDER GRANTING IN PART AND
EXPERIAN INFORMATION SOLUTIONS, DENYING IN PART DEFENDANT’S
INC., MOTION FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFF’S MOTION FOR
Defendant. SUMMARY JUDGMENT

Chelsea Bollman, JONES DAY, 90 South Seventh Street, Suite 4950,
Minneapolis, MN 55402; Christopher Adam Hall, JONES DAY, 110 North
Wacker, Suite 4800, Chicago, IL 60606, for Defendant.

proceed.
BACKGROUND
I. FACTS
A. Experian’s Reporting and Reinvestigation Procedures
Experian, a credit reporting agency (“CRA”),1 obtains its consumer credit

1 Experian is undisputedly a credit reporting agency under the FCRA.
the account or contact the furnisher if more information is needed. (Id. ¶¶ 13, 14, Ex. 2
(“Dispute Guide”) at 7.)

pecuniary harm. (See id. ¶ 10, Ex. 9 at 2–3.)
II. PROCEDURAL HISTORY
After Berscheid initiated this action against Experian in state court, Experian
removed the case to this Court pursuant to

28 U.S.C. § 1441

. (Notice of Removal, Jan. 14,

DISCUSSION
I. STANDARD OF REVIEW
Summary judgment is appropriate when there are no genuine issues of material
fact, and the moving party can demonstrate that it is entitled to judgment as a matter of

477 U.S. 242, 248

 (1986).  
A court considering a motion for summary judgment must view the facts in the light most 

favorable to the nonmoving party and give that party the benefit of all reasonable 
inferences to be drawn from those facts.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587

 (1986).  The nonmoving party may not rest on mere allegations or 
denials but must show, through the presentation of admissible evidence, that specific 

facts exist creating a genuine issue for trial.  Anderson,

477 U.S. at 256

 (discussing Fed. R. 
Civ. P. 56(e)).  “The mere existence of a scintilla of evidence in support of the plaintiff’s 
position will be insufficient; there must be evidence on which the jury could reasonably 
find for the plaintiff.”

Id. at 252

.                                     

II.  ANALYSIS                                                             
    The FCRA aims to “ensure fair and accurate credit reporting, promote efficiency in 
the banking system and protect consumer privacy.”  Poehl v. Countrywide Home Loans, 
Inc.,

528 F.3d 1093, 1096

 (8th Cir. 2008) (quoting Safeco Ins. Co. of Am. v. Burr,

551 U.S. 47, 52

 (2007)).  The Act requires CRAs to follow certain procedures in furnishing consumer 
credit data and in reinvestigating consumer disputes of information included in credit 
reports.  15 U.S.C. §§ 1681e(b), 1681i.  Berscheid’s Complaint alleges that Experian failed 
to  employ  reasonable  procedures  and  failed  to  reasonably  reinvestigate  after  she 

disputed the Midland Account.                                             
    A.   Reasonableness of Experian’s Procedures                         

    Berscheid alleges that Experian violated the FCRA by negligently and willfully failing 
to employ reasonable procedures to assure maximum possible accuracy in her credit 
report in violation of 15 U.S.C. § 1681e(b).  Only Experian moves for summary judgment 
on this claim.  To survive summary judgment, Berscheid must show that: “(1) Experian 
failed to follow reasonable procedures intended to assure the accuracy of its reports, (2) 

reported inaccurate credit information about her, (3) she suffered harm and (4) Experian’s 
failure to follow reasonable procedures was the cause of her harm.”  Paul v. Experian Info. 
Sols., Inc.,

793 F. Supp. 2d 1098, 1101

 (D. Minn. 2011) (citing cases).   
    The FCRA does not hold CRAs strictly liable for inaccuracies in credit reports, so 
even if the Midland Account was inaccurate to include on Berscheid’s credit report, that 

alone is insufficient.  Hauser v. Equifax, Inc.,

602 F.2d 811

, 814–15 (8th Cir. 1979).  Instead, 
the  inaccuracy  must  have  resulted  from  the  CRA’s  failure  to  “follow  reasonable 
procedures to assure maximum possible accuracy.”  Paul,

793 F. Supp. 2d at 1101

; 15 
U.S.C. § 1681e(b).  A CRA is not liable “where an item of information, received from a 

source that it reasonably believes is reputable, turns out to be inaccurate unless the 
agency receives notice of systemic problems with its procedures.”  Rydholm v. Equifax 
Info. Servs. LLC,

44 F.4th 1105, 1108

 (8th Cir. 2022) (quoting Sarver v. Experian Info. Sols.,

390 F.3d 969, 972

 (7th Cir. 2004)).                                       
    Berscheid claims that Experian failed to employ reasonable procedures to ensure 
accuracy in her credit report but fails to provide sufficient evidence to survive summary 
judgment.  Because Experian believed Midland was a reputable source, Berscheid needed 

to  present  information  that  Experian  had  notice  of  systemic  problems  regarding 
Midland’s reliability, which she did not.

Id. at 1109

.  Her “bare legal conclusions” are 
insufficient as a matter of law.

Id.

  Without providing any indication that Midland was an 
unreliable  source  of  credit  information  before  she  contested  the  Midland  Account, 

Berscheid is unable to satisfy the first element of her § 1681e(b) claim.  Even if Berscheid 
could meet the other elements, she cannot meet her prima facie burden.  Accordingly, 
the Court will grant Experian’s motion for summary judgment on this claim. 
    B.   Reasonableness of Experian’s Reinvestigations                   
    Berscheid alleges that Experian violated 15 U.S.C. § 1681i by negligently and 

willfully failing to conduct a reasonable reinvestigation into her first and second disputes.3  
Experian  and  Berscheid  cross  move  for  summary  judgment  on  this  claim,  although 
Berscheid reserves for trial a determination of her damages.              
    When a consumer disputes information included in their credit report, the FCRA 

requires  CRAs  to  “conduct  a  reasonable  reinvestigation  to  determine  whether  the 
disputed  information  is  inaccurate  and  record  the  current  status  of  the  disputed 
information, or delete the item from the file” within 30 days of receiving the dispute.  15 
U.S.C. § 1681i(a)(1)(A); see also Reed v. Experian Info. Sols., Inc.,

321 F. Supp. 2d 1109, 1113

the FCRA. See, e.g., Beseke v. Equifax Info. Servs. LLC,

420 F. Supp. 3d 885

, 891, 901 (D. 
Minn. 2019) (listing circuit cases).  “[E]ven if the information is technically correct, it may 
nonetheless be inaccurate if, through omission, it ‘create[s] a  materially misleading 
impression.’”  Seamans v. Temple Univ.,

744 F.3d 853, 865

 (3d Cir. 2014) (quoting Saunders 

v. Branch Banking & T. Co. of Va.,

526 F.3d 142, 148

 (4th Cir. 2008)).  A misleading report 
is inaccurate when “it is misleading in such a way and to such an extent that it can be 
expected to adversely affect credit decisions.”  Sepulvado v. CSC Credit Servs., Inc.,

158 F.3d 890

, 895 (5th Cir. 1998); see also Dalton v. Cap. Associated Indus., Inc.,

257 F.3d 409, 415

 (4th Cir. 2001) (quoting same).  Whether technically accurate information is so 



    4 See Taylor v. Tenant Tracker, Inc.,

710 F.3d 824

, 827 n.2 (8th Cir. 2013).   
misleading to constitute an actionable inaccuracy under the FCRA is a fact question best 
left for the jury.  See Seamans,

744 F.3d at 865

.                         

    Here, the technical accuracy of the debt does not resolve the issue.  Because 
reporting  that  Berscheid  owes  a  debt  to  Midland  notwithstanding  the  state  court 
judgment could create the misimpression that Berscheid still owes a collectible debt to 
Midland, the question becomes whether this omission is materially misleading.  At a bare 

minimum, Experian could have clarified its report by noting that the debt was legally 
uncollectible.  Failing to include that caveat could negatively impact credit decisions, and 
thus  be  materially  misleading  to  anyone  reading  Berscheid’s  report.    Because  a 

reasonable juror could conclude that reporting the Midland Account was materially 
misleading, the Court finds that Berscheid has raised a genuine issue of material fact on 
the question of accuracy best resolved by a jury.                         
    Moreover, the exception to inaccuracies that require legal analysis does not make 

summary judgment appropriate.  See Chuluunbat v. Experian Info. Sols., Inc.,

4 F.4th 562, 569

 (7th Cir. 2021) (explaining that CRAs are responsible for factual determinations, not 
legal ones, and that “a legal question may [] be resolved as a matter of fact if a tribunal … 
has adjudicated the matter”).  The Seventh Circuit has recently concluded that a CRA is 

not exempt from “taking notice of a previously resolved legal dispute” because that is a 
factual not a legal determination.  Chaitoff v. Experian Info. Sols., Inc.,

79 F.4th 800

, 812–
15 (7th Cir. 2023).  Under this theory, the existence of the state court judgment that 
Berscheid attached to her disputes was a factual question that Experian could have 
resolved by including it on Berscheid’s report.  Thus, the Court declines to grant summary 

judgment on the question of accuracy.                                     
         2.   Experian’s Reinvestigations                                
    The reasonableness of Experian’s reinvestigations after Berscheid’s disputes is also 
contested.   After a consumer disputes information in a credit report, the FCRA requires 

CRAs  to  reasonably  reinvestigate  and  confirm,  correct,  or  delete  the  disputed 
information.  15 U.S.C. § 1681i(a)(1)(A).  In doing so, the CRA must promptly notify the 
furnisher of the disputed information and provide them with “all relevant information 
regarding the dispute” that it receives from the consumer.  Id. § 1681i(a)(2)(A)–(B).  Courts 

have found that the ACDV process to verify disputed information is reasonable.  Edeh v. 
Equifax Info. Servs., LLC,

974 F. Supp. 2d 1220, 1237

 (D. Minn. 2013), aff’d,

564 F. App’x 878

(8th Cir. 2014).

Midland was unreasonable. However, the state court judgment did not explicitly
discharge the debt to Midland,5 nor did it allegedly meet Experian’s proof authentication
guidelines.

79 F.4th 800

, 812–15 (7th Cir. 2023).                               
disputes by sending the ACDVs to Midland to verify the accuracy of the Midland Account.  
As such, neither party is entitled to summary judgment on this issue.     

         3.   Actual Damages                                             
    Consumers are entitled to recover actual damages caused by a furnisher’s violation 
of the FCRA, whether the violation was negligent or willful.  15 U.S.C. §§ 1681n(a)(1)(A), 
1681o(a)(1).  Actual damages under the FCRA include pecuniary harm, such as denial of 

credit opportunities or higher interest rates, as well as emotional distress damages.  Edeh,

974 F. Supp. 2d at 1242

; Taylor v. Tenant Tracker, Inc.,

710 F.3d 824, 828

 (8th Cir. 2013).  
Berscheid has not presented evidence that she suffered loss of credit opportunities or 
similar damages because of Experian’s reporting.  Instead, Berscheid’s damages are based 

entirely on her emotional distress.                                       
    “Mental pain and anxiety can constitute actual damages” under the FCRA, “but 
emotional distress damages must be supported by competent evidence of ‘genuine 

injury,’ which ‘may be evidenced by one’s conduct and observed by others.’”  Taylor,

710 F.3d at 828

 (quoting Carey v. Piphus,

435 U.S. 247

, 264 n.20 (1978)).  A plaintiff’s sole 
testimony may be sufficient to establish emotional distress under the FCRA, but the 
testimony must show a “concrete” and “genuine injury.”  Edeh,

974 F. Supp. 2d at 1244

; 

see also Sherman v. Sheffield Fin., LLC,

627 F. Supp. 3d 1000

, 1017 (D. Minn. 2022) 
(quoting  same).    Whether  a  plaintiff  suffered  a  physical  injury  or  received  medical 
treatment because of the emotional distress are factors that courts will consider in the 
analysis, though they are not dispositive.  Taylor,

710 F.3d at 829

; Sherman, 627 F. Supp. 
3d at 1017.  Courts have denied emotional distress damages under the FCRA where the 
consumer plaintiff “suffered no physical injury, [] was not medically treated for any 

psychological  or  emotional  injury,  and  no  other  witness  corroborated  any  outward 
manifestation of emotional distress.”  Peterson v. Experian Info. Sols., Inc.,

44 F.4th 1124, 1128

 (8th Cir. 2022) (citations omitted); accord Taylor,

710 F.3d at 829

. 
    In  presenting  her  emotional  distress  damages,  Berscheid  relies  on  her  own 

testimony and declaration as well as the testimonies of her partner and coworker.  The 
testimonies generally describe that Berscheid has experienced worsening anxiety and 
depression and flare-ups of her Crohn’s/colitis symptoms since she learned that Experian 

was including the Midland Account on her credit report despite the state court judgment.  
Though the partner and coworker have provided limited details as to whether Experian 
was the cause of Berscheid’s harm, they can attest to the nature and extent of her 
emotional distress over the years.  The Court finds this evidence of Berscheid’s emotional 

distress is “competent evidence of genuine injury” sufficient to create a genuine issue of 
material fact as to the question of damages.  Taylor,

710 F.3d at 828

; see also Hrebal v. 
Seterus, Inc.,

598 B.R. 252, 273

 (D. Minn. 2019).  Even though Berscheid has not presented 
medical expert testimony or evidence that she sought medical treatment, she presented 

enough information to survive Experian’s motion for summary judgment.  Sherman, 627 
F. Supp. 3d at 1017.  Although the evidence is not overwhelming, the Court finds that a 
reasonable juror could credit the testimony and find that Berscheid suffered emotional 
distress at the hand of Experian.  Thus, whether Berscheid suffered actual damages is a 
triable fact question for the jury.  The Court declines to grant summary judgment on this 

issue.                                                                    
         4.   Willfulness                                                
    Berscheid argues that Experian willfully violated 15 U.S.C. § 1681i.  Willfulness is 
not an element of a FCRA claim, but Berscheid may be entitled to statutory or punitive 

damages if Experian’s violation was willful.  15 U.S.C. § 1681n(a)(1)–(2).  She can also 
recover statutory and punitive damages even if she did not suffer actual damages, so long 
as the violation was willful.  Bakker v. McKinnon,

152 F.3d 1007, 1013

 (8th Cir. 1998) 
(“Actual damages are not a statutory prerequisite to an award of punitive damages under 

the  [FCRA].”  (quotation  omitted)  (alteration  in  original)).    To  establish  willful 
noncompliance  with  the  FCRA’s  reinvestigation  requirements,  Berscheid  must 
demonstrate that Experian “knowingly and intentionally committed an act in conscious 

disregard for the rights of others,” though she “need not show malice or evil motive.”

Id.

 
(quoting Cushman v. Trans Union Corp.,

115 F.3d 220, 226

 (3d Cir. 1997)).  Reckless 
conduct involves “an unjustifiably high risk of harm that is either known or so obvious 
that it should be known.”  Safeco Ins. Co. of Am. v. Burr,

551 U.S. 47, 68

(2007) (citations

matter of law. As a result, the Court will grant summary judgment to Experian on the
question of willfulness.
CONCLUSION
Because Berscheid has not presented evidence that Experian had notice of

ORDER

     Based on the foregoing, and  all the files,  records, and  proceedings herein,  IT IS 
HEREBY ORDERED that: 
     1.  Defendant’s Motion for Summary Judgment [Docket No.  126]  is GRANTED in 

        part and DENIED in part as follows: 

           a.  The Motion is GRANTED as to Defendant’s liability for alleged negligent 
              and willful violations of 15 U.S.C. § 1681e(b); 
           b.  The  Motion  is GRANTED as to  Defendant’s  liability for alleged  willful 
              violations of 15 U.S.C. § 1681i; and 

           c.  The  Motion  is DENIED as to  Defendant’s liability for alleged  negligent 
              violations of 15 U.S.C. § 1681i. 
     2.  Plaintiff's Motion for Summary Judgment [Docket No. 138] is DENIED. 

DATED:  March 4, 2024                             Joon W. (usaaeion 
at Minneapolis, Minnesota.                         JOHN R. TUNHEIM 
                                            United States District Judge 

                                    -20-

Reference

Status: Unknown