Llewellyn v. Allstate Home Loans, Inc., 2013 U.S. App. LEXIS 6267

Plaintiff Llewellyn sued Ocwen Loan Servicing LLC and Nomura Credit and Capital, Inc. alleging FCRA and FDCPA violations and outrageous conduct; CMS was also named for outrageous conduct.
Loan originally funded in 2006; Ocwen servicing began May 2006, with the loan then current at service transfer; refinancing occurred June 2006 with funds sent to previous servicers.
After refinancing, Ocwen did not receive payoff funds; Ocwen issued past-due notices and a foreclosure referral; OCC and CMS later halted foreclosure activities and investigated disputing debts.
Plaintiff provided HUD settlement statements and correspondence showing refinance payoff went to EPMI/Allstate, not Ocwen; Ocwen continued reporting negative credit first through 2006.
CMS sent a debt validation letter in September 2006; over the ensuing months, Ocwen and NCC Servicing continued to handle the dispute and credit reporting; Ocwen later reported reversals, and CMS stated the file would be closed.
Plaintiff filed suit January 29, 2008; district court granted summary judgment to defendants on all claims except FCRA emotional damages on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Ocwen violated FCRA § 1681s-2(b).	Llewellyn relies on ongoing reporting and delay in correction.	Defendants complied or the delay was not willful; disputes were not proven.	Partially reversed: emotional-damages theory remanded; other FCRA aspects affirmed to resolution
Whether the Ocwen Defendants' FCRA reporting was willful.	Delay after CMS letter shows willfulness.	No willful conduct proven; delay due to investigation remedies and policy.	Willfulness not shown; remand on emotional-damages theory remains
Whether the Ocwen Defendants' reporting created a materially misleading impression under FCRA § 1681s-2(b)(1)(D).	Misleading reporting occurred by omitting dispute information.	Accuracy and completeness argued; may still be misleading.	Dispute fact questions remain; summary judgment on this ground not appropriate
Whether Ocwen qualifies as a ‘debt collector’ under the FDCPA for actions after October 20, 2006.	Ocwen acted as NCC’s agent and thus as a debt collector.	No evidence of agency; no FDCPA liability.	Ocwen entitled to summary judgment on FDCPA claim
Whether CMS violated the FDCPA through a time-barred or cognizable action.	Threat of foreclosure and failure to reverse reports after dispute could be FDCPA violations.	Claims time-barred or not within FDCPA scope; unsupported.	CMS entitled to summary judgment; no post-2007 FDCPA violation shown

Pinson v. Equifax Credit Info. Servs., Inc., 316 F. App’x 744 (10th Cir. 2009) (outlines § 1681o and § 1681n damages framework)
Birmingham v. Experian Info. Solutions, Inc., 633 F.3d 1006 (10th Cir. 2011) (willful violation standard under FCRA)
Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303 (10th Cir. 2005) (hearsay rule on summary judgment; inadmissible hearsay cannot defeat SG)
Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235 (4th Cir. 2009) (emotional distress evidence sufficiency standard)
Bagby v. Experian Info. Solutions, Inc., 162 F. App’x 605 (6th Cir. 2006) (emotional distress detail requirement in some circuits)
Bach v. First Union Nat’l Bank, 149 F. App’x 361 (6th Cir. 2005) (injury detail sufficiency for emotional distress)
Stevenson v. TRW Inc., 987 F.2d 288 (5th Cir. 1993) (reckless conduct standard for willfulness under FCRA)
Carney v. City & Cnty. of Denver, 534 F.3d 1269 (10th Cir. 2008) (avoid unwarranted inferences in summary judgment)
Saunders v. Branch Banking & Trust Co. of Va., 526 F.3d 142 (4th Cir. 2008) (deceptive reporting can be actionable if misleading)
Boggio v. USAA Fed. Sav. Bank, 696 F.3d 611 (6th Cir. 2012) (misleading impression standard under FCRA)