*1 COMPANY, TRUST GREENWOOD Card Finance
d/b/a
Services, Petitioner, CONLEY, Valerie L.
Valerie n/k/a Respondent. Shaw,
L.
No. 96SC189. Colorado,
Supreme Court
En Banc.
June
Holme, Owen, LLC, & Roberts Brent E. Rychener, Dutcher, Jr., G. Leland Colorado Springs, for Petitioner. Whaley, P.C.,
Richard C. Richard Wha- C. ley, Walsh, Springs, Colorado Richard K. Springs, Respondent. Colorado Opinion Justice MARTINEZ delivered the of the Court. granted
We
Conley
certiorari
the case of
(Colo.
v. Greenwood Trust
This
Conley,
case was initiated
Valerie
(Shaw),
now known as Valerie Shaw
plaintiff below, against Greenwood Trust
Company, doing business as
Card
(Discover),
Finance Services
5-
5-108,
(1992),
the Uniform Con-
sumer
upon
Credit Code. The
record
rely
we
for the facts set forth below consists
complaint,
Discover’s motion for
summary judgment, and uncontested eviden-
5-5-108,
granted
issue on
(1992),
which we
certiorari is:
claim under
2 C.R.S.
where
Whether the
the claim
holding
court of
erred in
is based
the disclosure of false
that 15 U.S.C.
does not
credit information.
opportunities,
credit
support
of and
caused her
lose
tiary
filed
documents
summary judgment motion.
opposition to the
and emotional distress.
caused her mental
reviewing
grant
of sum-
are
Because we
alleged that
conduct in
Shaw also
Discovers
Discover, we de-
mary judgment
in favor of
providing
defamatory
this false
light
in the
most favorable
scribe the facts
“willful, wanton, malicious,
information was
*3
Shaw.
unconscionable,
outrageous,”
and was
damaging
several collection no-
done
the deliberate intent of
Discover sent Shaw
with
on a
regarding a
balance due
tices
reputation.
$1219
also
her credit
Shaw
claimed
during
card
the course of her
Discover credit
reported
that Discover had
it had
September
In
Shaw’s attor-
divorce.
“charged off to its bad debt accounts” the
ney
to Discover that Shaw had never
wrote
debt,
regarded
implying that
it
the
$1219
for,
any charges
applied
possessed, or made
debt to be uncollectible.
card.
with a Discover
complaint
only
specific
stated
one
notification,
reported
Discover
Despite this
5-5-108, 2
legal theory: a violation of section
unpaid
alleged
debt
credit
the
(1992),
prohibits
C.R.S.
unconscionable
report
agencies.
April
An
1992 credit
practices.
collection
The statute does
debt
card,
entry
Equifax has an
for a Discover
unconscionability,
pro-
rather
not define
but
disputed
indicating that Shaw owed the
a
of factors which a fact-finder shall
vides
list
debt,
due,
past
and that the
that it was
$1219
determining
particular
whether a
consider
poor
rating. The Dis-
account had a
credit
entry
statement
practice
cover card
contained the
debt collection
is unconscionable.2
“charged
account.”
off
Among
to be
is caus-
the factors
considered
ing injury
reputation
to the debtor’s
or eco-
February
commenced this action in
5—108(4)(d),
nomic
status.
5—
complaint
of 1993. Her
that Discov-
(1992).
ways
Among the various
such an
defamatory
in-
provided
er
false and
credit
injury may
by disclosing
be inflicted is
infor-
reporting agen-
formation to consumer credit
disputed
damaged
reputation,
credit
mation about a
debt without disclos-
cies which
part:
right
knowledge
provides
pertinent
a
with
or reason to
2. Section 5-5-108
force
know that the
exist;
right
does not
(d) Causing injury
reputation
to the debtor's
(2)
respect to a consumer credit transac-
With
by:
or economic status
tion,
(I) Disclosing
affecting
a matter of law finds that a
if the court as
the
information
reputation for credit worthiness
debtor’s
person
engaged
has
in ... unconscionable
knowledge
the
or reason to know that
collecting
arising
conduct in
a debt
from that
false;
information is
transaction,
may grant
injunction
the court
(II)
communicating
Orally
with the debt-
damages
award the debtor
actual
he
obtaining
employer
or’s
before
final
has sustained.
debtor,
judgment against
except:
As
statute;
verify
permitted by
em-
or to
his
section,
(2)
applying subsection
In
ployment; or to ascertain his where-
given
shall be
to each of the
consideration
abouts;
request
or to
that the debtor con-
factors,
others,
following
among
applicable:
creditor;
tact the
(a) Using
threatening
or
to use force or vio-
(III) Disclosing
person,
to a
with knowl-
lence
the debtor or members of his
edge
person
to know that the
or reason
family;
legitimate
not have a
business need
does
information,
(b)
any way prohib-
or in
Communicating
for the
ited
with the debtor or a
statute,
affecting
by
information
family
frequent
or
member of his
intervals
reputation; or
debtor's credit or other
at unusual hours or under other circum-
(IV)
Disclosing information
stances so that it is a reasonable inference
disput-
be
the existence of a debt known to
primary purpose
of the communica-
without
ed
the debtor
debtor;
tion was to harass the
fact....
(c)
fraudulent,
Using
deceptive, or mislead-
(e)
knowledge
Engaging in conduct with
ing representations such as a communica-
restrained or en-
that like conduct has been
process
legal
tion
simulates
or which
joined by a court in a civil action
authorized,
gives
appearance
being
against any person
administrator
issued,
gov-
approved by
government,
or
injunctions against
provisions
on
attorney
agency,
when it
agreements
ernmental
or
at law
fraudulent or unconscionable
5-6-111).
not,
(section
attempting
threatening
to en-
conduct
by telephone.
disputed.
telemarketing
it
5-5-
ing
fact
card
form
(1992).
108(4)(d)(IV),
signed by
2 C.R.S.
was not
Shaw. Discover included a
copy
deposition,
in which
she stat-
answer,
it
admitted
telemarketing
ed
form
“a
must be
disputed
its bad
charged
had
debt off to
lie,”
applied
because she never
for a Discover
accounts,
deny having
did not
re-
debt
copy
card. Discover also submitted a
agencies.
credit
ported this fact to
report-
form which sent to consumer credit
to con-
It later sent a “universal data form”
ing
agencies
agencies, asking those
to delete
reporting agencies instructing them to
sumer
reported debt
previously
from Shaw’s
delete
[from
as]
Shaw’s “name
the debt
report
“legal
because
settlement.”
legal
result of
settlement.”3 Discover
[a]
qual-
that its actions were
asserted
response
In her
to Discover’s
immunity
ified
under the federal Fair Credit
*4
motion,
judgment
Shaw asserted that
Act,
Reporting
15 U.S.C.
qualified immunity
only applied
of the FCRA
(FCRA).
by
report-
to information
consumer
disclosed
Section
of the
in
FCRA states
others,
ing agencies
apply
and did not
part
may bring
“no
pertinent
that
consumer
information which Discover disclosed to con-
any
proceeding
action or
in the nature
reporting agencies.
argued
sumer
Shaw also
of
negli-
privacy,
of
invasion
or
applicable,
were
even
FCRA
gence
respect
with
of
infor-
by §
claim would not be barred
any
against
person
...
mation
who furnishes
Discover
with
because
acted
malice. Shaw
reporting agency
information to a consumer
copy
Equifax report
submitted a
of the
except
...
as to false information furnished
that even
showed
after she had notified Dis-
injure
with malice or willful intent
such
debt,
cover that she did not owe the
Discover
1681h(e) (1994) (em-
consumer.” 15 U.S.C.
reported
“charged
still
that it had
off” the
added).4
phasis
Discover
it
asserted
debt as uncollectible. Shaw maintained that
immune
this
it
was
statute because
did
this action demonstrated Discover’s malicious
injure
act
not
with
or willful
malice
disregard
uneonscionability
and willful
of the
disclosing
in
Shaw
information
5-5-108(4)(d)(IV),
in subsection
factor
disputed
debt.
requires
report
debt
collectors
the fact
disputed
debt is
a
when
infor-
summary judgment
Discover moved for
on
about
doing,
mation
the debt.
so
Shaw
immunity,
the basis of
well
this federal
as
as
that if
qualified immunity
conceded
longer
of the
other reasons which are no
at
motion,
applicable,
were
support
issue.5 In
of its
FCRA
then her entire claim
Discover
premised
telemarketing
indicating
submitted a
form
under section 5-5-108 was
applied
Shaw had
for a
Discover
Discover’s
willful violation of subsec-
5-5-108,
(1992).
2 C.R.S.
on
a
based
disclosed
itser
information
of
report
against
consumer
to or
consumer
action,
asking
3. A line on the universal data
form
whom
user has taken adverse
based
change
report, except
“reason
or
ad-
or
for deletion
status
in whole
on the
toas
verse to
was
favorable”
filled out: "Deletion of
false information furnished with malice or
Conley’s
injure
Valerie
intent
legal
the result
settle-
willful
such consumer.
name
of
1681h(e) (1994
Supp.).
ment.”
&
15 U.S.C.A.
The underlined text
added
1996 amend-
ment,
104-208,
3009.,
see Pub.L. No.
110 Stat.
entirety:
4. Section
states
directly applicable
and is therefore not
to this
Except
provided
as
In and
sections 168
case.
title,
bring any
1681o of
no
this
consumer
proceeding
action or
in the nature
defama-
5.Discover
also asserted a statute of limitations
tion,
privacy,
negligence
withdrew,
invasion of
that it
defense
later
it asserted
respect
to the
protections
information
enjoy
could
that Shaw
any
reporting agency, any
any
consumer
user of
owing
section 5-5-108 because she denied
information,
any person
in-
who furnishes
debt and was therefore not a "debtor” under that
reporting agency,
rejected
formation to a consumer
appeals
argu-
The court
statute.
this
Conley,
based
"bordering
disingenuity.”
on information disclosed
ment
on
1681h,
title,
1681g,
qualified immunity
or 1681m of this
at 309.
923 P.2d
defense
5-5-108(4)(d)(IV).6
an action under section 5-5-108 is not an
tion
action ‘in the
nature
defamation [or]
purpose
ruling
Diseover’s
For the
on
privacy’;
invasion of
it
is an action to
summary judgment,
the trial
motion for
And,
statutory right.
enforce a
its en-
required
disputed
court was
to resolve
issues
dependent upon proof
forcement is not
light
to the
of fact
most favorable
Rather,
requires
common law tort.
56;
nonmoving party. C.R.C.P.
see McCon-
a consideration of numerous factors to de-
Co.,
Paul Fire
Ins.
nell v. St.
& Marine
termine whether a creditor’s actions have
(Colo.1995).
109, 111
P.2d
The trial court
been unconscionable.
held,
any explanation,
without
there
disputed
granted Conley,
were no issues of
fact and
Having
mg reporting see also U.S.C. “consumer add- ed). York, Inc., immunity provision may Many’s New 775 F.2d This Rush v. therefore Cir.1985) Discover, (11th apply 1554, (department pro- to Shaw’s action store 1557 vided that the action “based on information was not a consumer which extended credit 1681h, 1681g, disclosed to section Surety reporting agency); Accep Mitchell (D.Colo. 1681m” 497, of the FCRA. F.Supp. Corp., tance 500 1993) (debt agency collection a con “Requirements 1681m entitled Section reporting agency); Mitchell sumer v. First reports.” on users of That consumer Dozier, F.Supp. Nat’l Bank states, pertinent part: (M.D.Ala.1981)(bank which did no more than (b) reports Adverse action based on reporting furnish to a consumer information persons reporting other than consumer agency was not a consumer itself agencies case, agency). purposes For personal, family Whenever credit “person is a who furnishes information ato involving purposes household a consumer agency"’ consumer is denied ... because of ob- information FCRA, in particular. See person tained other than a con- Mitchell, Mitchell, 501; F.Supp. at reporting agency bearing upon sumer 176; F.Supp. at see also Laracuente v. Lara ..., consumer’s worthiness the user cuente, J.Super. 252 N. 599 A.2d of such shall ... information disclose the (Law Div.1991). ais consumer under nature of the information the consumer. the FCRA. 1681m(b) (emphasis 15 U.S.C. add- qualified immunity provision ed). provides: FCRA opposing judg- the motion for Except provided sections 1681n and ment, sup- Shaw has offered no evidence in title,8 no 1681o of this consumer port damage of her than *6 claims other to her bring any proceeding or action the na reputation. only evidence which Shaw privacy, ture of invasion of or reputation has how offered to show has negligence respect with of report damaged Equifax been is the from any against report information consumer opposing debt. In shows the false ing agency, information, any of user or summary judgment, motion for Shaw has not
person who offered, argued, alleged any other evi- furnishes information agency, consumer based on in reputation dence to how her show has been pursuant injured. disclosed to section Because action is based formation 1681h, title, 1681g, except or 1681m this solely upon information which Discover dis- of as to false information furnished with mal reporting agency, closed to a consumer it injure 1681m(b) ice or willful purview § intent such consum falls within of the er. FCRA.9 1681m, 5-5-108(4)(d)(IV) 1681g although § § violation of ant subsection in this to either it litigation. explain present does not how the facts fit into either of those of the FCRA. sections
8. Sections 1681n 1681o create causes of 1681g, Section entitled "Disclosures to con- reporting agencies sumers,” action consumer apply precise- does not here. It details willfully negligently comply fail ly with types report- what of information a consumer requirements. the FCRA's Because ing Discover is agency must disclose to a consumer who reporting agency, Here, not a consumer it is requests not report. allega- her credit Mitchell, provisions. F.Supp. to these See 505 tions are not based on information which a con- 177; Laracuente, 969-70; her, A.2d at 599 Pulver v. reporting agency sumer disclosed to but are Servs., 622, Cal.App.3d Avco Pin. 182 227 Cal. based on information which Discover disclosed 491, Rptr. (1986). 496 reporting agencies. to consumer Shaw's suit is pursuant thus not based on information disclosed Inc., 1681g. Sys., § Discover concedes that did not disclose the But Bloom v. I.C. 972 cf. 1067, (9th Cir.1992) instant (reaching information about Shaw's F.2d debt 1069 pursuant through § § § immunity 1681g, although 1681h. maintains that its pursu- explaining 1681g applied). information must have been disclosed how implicit action is an We conclude that Shaw’s based there is barrier within federal area; information disclosed regulation particular law to state in a 1681m(b), qualified and as a result legislation comprehen- when federal is so immunity provisions appli- are occupy regula- sive as to field entire cable to now turn to the these claims.10 We tion; or law when state stands as an obsta- question of whether and to what extent accomplishment cle to the and execution of preempts Shaw’s claim under sec- objectives Congress. the full tion 5-5-108. Airlines, (citing Id. at 1004 Frontier Inc. v . Lines, Inc., F.Supp. United Air 758
III.
(D.Colo.1989)).
1407
authority of a
federal statute to
preempt a
state statute is derived
Health,
In Department
began
this court
Supremacy Clause of the United States Con-
analysis
preemption
doctrine with
commonly
stitution and is
referred to as the
assumption
police pow-
that historic state
preemption
preemption
doctrine. The
doc-
abrogated by
ers should not be
federal law
uniformity
trine reflects a desire for
of laws
purpose
clearly
unless that
indicated
concern,
providing
areas of national
Thus,
federal statute.
1148 561, Marriage Heupel, P.2d A. In re (Colo.1997) (citations quotation and internal that “an The court held action omitted). marks under section is not an action ‘in the 5-5-108 privacy’; nature of defamation invasion of [or] Here, Congress explicitly stated the statutory right.” it is an action to enforce a precise degree to which it intended the Conley v. Greenwood Trust 923 P.2d preempt state law. 1681t FCRA Section (Colo.App.1996). do not view this We provides that the FCRA is not FCRA legislature’s distinction as A determinative. intended to codify only decision to what was once a com- annul, alter, affect, any exempt person necessarily mon law cause of action does not provisions subchapter of this change of action. the character of cause complying any with the laws of State instance, legislature simply For could enact collection, distribution, respect to the with the definition of defamation from a source of consumers, any or use of information on law, black-letter such as the Second Restate- except the extent those laws are Torts, thereby ment of convert the com- any provision inconsistent with statutory mon law tort of defamation into a subchapter, only and then to the extent of changing of action without cause the nature inconsistency. of the tort.11 added). (emphasis 15 U.S.C. 1681t The court of also held that Congress clearly expressed thus its intent enforcement of section 5-5-108 “is not de- not to the field of state credit re- pendent upon proof of common law tort.” porting legislation and debt collection true, ignores question Id. While this is Arizona, the FCRA. See Credit Data Inc. of whether an action under section 5-5-108 (9th Cir.1979). Arizona, 602 F.2d might “in nature be of defamation.” We result, As a preempt- section 5-5-108 will be law, recognized have common “[a]t only outright ed extent that it is in tort of defamation existed to redress and actual conflict with the FCRA. compensate individuals who suffered serious reputations harm to their due to the careless preemptive provision of the FCRA at or malicious communications others.” 1681h(e), issue here is in per- which states Stewart, Keohane v. part: tinent (Colo.1994). Here, against Shaw’s action may bring any no pro- consumer action or solely Discover is based on subsection 5-5- ceeding in ... the nature 108(4)(d)(IV), of defamation prohibits unconscionable any person ... who furnishes in- practices debt collection to a reporting agency, formation consumer reputation cause to the debtor’s except ... false information fur- [disclosing economic status ... infor- nished with malice or intent willful mation the existence of a debt injure such consumer. disputed by to be known the debtor with- out that fact. 1681h(e) (1994) (emphasis U.S.C. add- *8 ed). 5-5-108(4)(d)(IV), appeals § (empha- The court determined that 2 C.R.S. added). preempted 5-5-108 was not the sis This subsection of the statute language above it practices because was not an action addresses debt collection which in injury repu- the nature of defamation. conclude to a We cause consumer’s economic solely injury reputation, that an action to tation due to a debt collector’s careless or by disclosing a debt to a credit malicious communications to others. The agency without proscribes specific type the debt is subsection thus disputed, is an in the action nature of defa- defamation: defamation false credit re- Keohane, mation. porting. P.2d at 1297. 882 Cf. (1995); 12, legislatures §§ 11. Some state have enacted the tort Okla. Stat. Ann. tit. 1441 to -1442 - (West 1993); legal §§ defamation into their codes. See Ga. S.D. Codified Laws 20-11-1 to (Michie (Michie 1995); Supp. §§ Code Ann. to -4 4 51-5-1 1982 & Tex. Civ. Prac. & Rem.Code 1996); (1993). §§ § Mont.Code Ann. 27-1-801 to -803 73.001 1988). Finally, appeals the court of moving party held that sec- has the initial bur requires tion 5-5-108 a consideration of nu- genuine den show that there is no issue of merous factors determine whether a credi- Lines, material fact. See Continental Air tor’s actions have been Keenan, unconscionable. We 708, (Colo.1987). Inc. v. 731 P.2d 712 agree that a claim under section 5-5-108 However, moving party once the has met its presents numerous factors to consider production, initial burden of the burden shifts determining in whether a creditor’s debt col- nonmoving party to establish that practice lection is unconscionable would not there ais triable issue of fact. See Ginter v. However, in be the nature of defamation. Palmer, 203, 206, 583, 196 Colo. 585 P.2d 585 presents only claim Shaw’s one factor to (1978). nonmoving party “must receive reputation by failing consider: the benefit of all favorable inferences that disputed disclose that the debt was when may reasonably be undisput drawn from the reporting agen- the debt to credit Tires, Tapley Big ed facts.” v. Golden O 5-5-108(4)(d)(IV). single cies. This factor (Colo.1983). 676, P.2d All doubts as to is in the nature defamation. An action whether an issue of fact exists must be re alleges only this one un- factor as an moving party. solved See Dom practice conscionable debt collection is an Babcock, (Colo. inguez 362, 727 P.2d in action the nature of defamation. 1986). extremely Even it is doubtful that a genuine exists, summary issue of fact judg- conclude that
We the court of appropriate. ment is not See Abrahamsen v. determining erred in that Shaw’s claim was Mountain States Tel. & Tel. not “in the nature” of Colo. defamation and there- 422, 428, (1972). preemptive fore not More- provisions over, 1681h(e) party because neither FCRA, disputed has because Shaw’s competence admissibility solely claim of the evidentia- is based on subsection 5-5- ry 108(4)(d)(IV). support materials offered in of and in
opposition summary motion, judgment B. we consider all of this record evidence in 56(e). analysis. our C.R.C.P. Although § Cf. preempts state ac- defamation, tions the nature of specifi- The triable issue this case cally exempts actions based on “false infor- false, whether Discover defamatory disclosed mation furnished with malice or willful intent reporting agencies. information to consumer injure consumer.” [the] Shaw preempts Because claim in “willful,wanton, Diseover’s conduct was mali- negligent nature of the issue cious, unconscionable, outrageous.” Dis- is whether Discover defamed Shaw with mal cover denied such conduct in its answer. interpreting ice or willful intent. Cases By granting Discover’s motion for term “malice” have borrowed judgment comment, without the trial court the definition used in other federal caselaw specifically did not address whether Discover dealing knowledge with defamation: that a produced had some evidence that it lacked disregard statement is false or reckless intent, malice or willful or whether had whether a statement is false or not. See produced any contrary put evidence Inc., Equifax, Thornton v. 619 F.2d dispute. By matter into holding that (8th Cir.1980) (citing New York Times v. action, FCRA did not Sullivan, 254, 279-80, 376 U.S. 84 S.Ct. court of likewise did not address this 725-26,11 (1964)). L.Ed.2d 686 opinion. issue 5-5-108(4)(d)(IV) Summary judgment is a drastic requires Subsection *9 remedy except and is never warranted on a when a debt collector discloses information showing clear genuine that there exists no a the existence of debt known to any issue to debtor, as material fact and that disputed the be the it must also dis- moving party judgment is entitled to as a disputed. close the fact that the debt is It is Churchey matter of law. Adolph acknowledge See v. this failure to the fact of the (Colo. Coors dispute may P.2d 1339-40 defamatory. which be If Dis- disclosing dispute. It dispute, with- without the be disclose to Shaw’s cover failed “charged account” nota- injure, when it inferred from the off or willful out malice undisputed could not alleged that an debt be the tion information about communicated Also, “legal the settlement” nota- agencies, then Dis- collected. to credit debt raise immunity the universal form could enjoy qualified under tion on data cover would acknowledged the Only if that Shaw exis- Dis- inference defamation. the FCRA validity of when Discover malice tence or the debt report dispute to cover failed the thing. that no such injure to claim knew Shaw had done intent can Shaw’s or willful 5-5-108(4)(d)(IV) pre- disclosures fail to communicate the avoid These subsection dispute. repeated summary judgment. fact of Shaw’s failure survive emption and disputed, Hence, presented disclose that debt is after disputed factual issue to advised, dispute genuine being malice or so raises a as Discover acted with is whether malice injure whether Discover acted with reported to to intent when willful 1681h(e). §in conclude that defined We reporting that the debt without debt entering total trial court erred disputed. judgment in favor of Discover. reveals after Shaw’s attor- The record that dispute, express opinion no ney wrote to Discover about as to whether these We reported Equifax to still alleged Discover Shaw violations subsection 5-5- 108(4)(d)(IV) entry reputa- disputed actually injured This owed the debt. $1219 report tion, includes the notation violations Shaw’s credit or whether these subsection, by themselves, in- “charged later narrow off account.” Discover this one reporting agencies structed these are sufficient constitute an unconscionable practice as] “name the debt entitles [from delete Shaw’s debt collection which legal merely settlement.” under the statute.12 We hold [a] result to relief allegations may fit these within the ambiguous. highly These documents are 1681h(e), in exception “malice” competent record There is no evidence of they preempted will not case be “charged what off account” which reveals and must Discovers motion FCRA survive report notation in Shaw’s consumer credit summary judgment. Likewise, actually of infer- means. a number in- could be drawn from Discovers ences IV. to delete name due to struction “legal settlement.” conclude the federal Fair Credit We Act light Reporting applies taken most favorable to this case because
When
however,
Shaw,
solely
suggests
the claim is based
on information
evidence
actually
dispute
report-
which Discover disclosed to consumer
knew about Shaw’s
reported
Equifax
ing agencies
as an
but
the debt to
Shaw’s credit
nonetheless
5-5-108,
pay
employer
employees
is derived
had failed to
their
12. Section
Credit Code
disclosing
from the 1974 Uniform Consumer
bills without also
that bills were dis-
Uniform
5.108
Act. See 7A
Laws Annotated
puted;
provisions
conduct violated various
1985).
(West
The official comment states
5.108, including provision
§of
Florida’s version
statutory language
incorporate
is meant
prohibiting
debt without
the disclosure of a
dis-
unconscionability principles
Uniform
from the
closing
disputed);
the fact that
State
the debt is
prevent “op-
goal
Commercial Code. The
is to
Volteta,
108 Misc.2d
ly
fail-
entered to the extent
Discovers
I.
disputed
ure
disclose that
debt was
disputed
This case concerns a
credit card
injure.
was without malice willful intent to
$1,219
debt. Discover claims that Shaw owes
may
Such a failure
not be
as a
considered
card,
on her Discover
but Shaw maintains
factor to determine whether it was an uncon-
for,
applied
possessed,
never
she
Summary
practice.
scionable debt collection
any charges
made
with the Discover card.
judgment
properly
was not
entered to the
debt,
alleged unpaid
As a
result
Dis
extent that Discovers failure to disclose that
report agencies
several
cover notified
credit
disputed
debt was
was with malice
past
the debt was
and that
due
injure.
willful intent to
poor
rating.
account had
Shaw filed
court
We therefore return this case to the
suit, asserting that
actions
Diseover’s
violat
appeals
remand
district court
responded
ed section 5-5-108. Discover
and
proceedings
further
on Shaw’s state statuto-
subsequently
filed a motion for
ry
remand,
Upon
claim.
de-
the court shall
judgment
qualified
which it
in
immu
claimed
report
termine
Discovers
whether
failure to
1681h(e).
nity pursuant
trial
The
court
dispute
intent
was with malice or willful
granted
summary judgment
the motion for
injure.
so,
If
court
shall determine
explanation.
appeals
without
The court
injured
reputa-
whether this conduct
reversed, holding
did not
tion so as to
constitute
unconscionable
grant
immunity
level of
practice.
debt collection
5-5-108
Shaw’s section
claim and
improperly
5-5-108 claim was
dismissed.
VOLLACK, C.J.,
part
concurs in
v.
Conley
See
Greenwood Trust
923 P.2d
SCOTT, J.,
part,
joins in
dissents in
(Colo.App.1996).
concurrence and dissent.
SCOTT, J.,
concurs
and dissents
II.
VOLLACK, C.J., joins
part, and
in the
Supremacy
of the Unit-
Under
Clause
concurrence and dissent.
Constitution,
ed States
federal
law
concurring
Chief Justice
VOLLACK
legislation
governing
state
the same
dissenting
part:
part and
Const,
VI,
subject matter. See
art.
cl.
U.S.
F.C.C.,
2;
majority
Pub.
v.
affirms
court of
Louisiana
Serv. Comm’n
355, 368,
1890, 1898,
erroneously
trial
and holds that
court
U.S.
S.Ct.
(1986);
Ervin,
summary judgment
entered
the L.Ed.2d 369
Amoco
Co.
Oil
(Shaw).
(Colo.1995).
majority
Preemption
plaintiff, Valerie Shaw
Congress expressly
also
holds
its intent
reverses the court
occurs
states
5-5-108,
(1992),
subject.
regulation
preclude
See
1681h(e) (1994)
Comm’n,
preempted by
Pub. Serv.
of
it is an action to
a
enforce
dissenting
part:
And,
in
statutory right.
its enforcement is
dependent
proof
common
agree
I
majority
with the
5-5-
Rather,
requires
law tort.
a consider-
108,
(1992),
adopted by
ation of numerous factors to determine
Assembly
“prohibit[]
Colorado General
whether
creditor’s actions have
un-
been
practices.”
unconscionable debt collection
conscionable.
Maj. op.
I
agree
at 1143.
also
that Valerie L.
(alteration
Conley,
origi-
with or in or actual conflict” with (FCRA), Credit Act Reporting Federal III. 1148, maj. op. solely nor is it “an action abandoned common law defama- injury reputation,” id. at I must tion prior presenting claim her case respectfully majority’s dissent from the de- Therefore, appeals. court of her cause preempted. that state law termination solely upon action is based section 5-5-108. my view, view, In 5-5-108, brought pursu- my a cause action under section a trial fundamentally ant injunction, to section 5-5-108 is dif- court issue an in the absence alleging ferent damages, enjoin from a tort claim defamation. of actual future violations distinguishing When the prohibit features are viewed of section 5-5-108 and to what FCRA, complaint 1681t combination with a “continuing describes as provides congressional Moreover, leave disagree course of conduct.” I intact, regulatory majority’s statutes this field it with the determination becomes solely clear that cause of action falls Shaw’s claim under subsection 5- 5-108(4)(d)(IV). proceed. should be maj. op. allowed to For this rea- See at 1142. While son, I would the court join affirm and I I separately, write also in Chief Justice Colorado, prove 1. In plaintiff bility irrespective special must the follow of the statement ing asserting a elements in cause of action for damages damages special existence of (1) defamatory defamation: statement concern plaintiff publication. caused See another; (2) (3) ing published party; to a third Court, District Williams v. 911 n. 4 amounting negligence with fault to at least on (Colo. 1993). part publisher; either actiona- injury reputa- an action for concurring defamation is opinion, separate Vollack’s injury to only. claim for tion Even Shaw’s part. dissenting in reputation was in the nature of defamation I. she prohibited 15 U.S.C. permissible claim for still have a would “a claim majority determines to her economic status. 5—108(4)(d)(IV)is solely subsection 5— prohibited and is nature of defamation in the result, majori- agree I with the As a do not that malice to the extent *13 by 15 U.S.C. prohibit- claim is ty’s conclusion that Shaw’s Maj. injure is absent.” or willful view, my In by 15 ed U.S.C. view, majority mis- my In op. at 1142. our majority collapsing the law of is complaint by the defendant’s eharacterizes majority cause of action. The into a federal falling “solely under subsection limiting it to trial court to the case to the decides return fact, 5—108(4)(d)(IV).” paragraph In Id. 5— or willful intent consideration of “malice jury filed complaint and demand eight of the language injure.” Maj. op. at 1142. This to 1993, 9, alleges “Defen- February on I cannot appear not in section 5-5-108. does al- as herein actions and omissions dant’s majority’s equate a support decision to as a violation of 5-5- leged actionable are claim under section 5-5-108 for state law (See Ap- 108, complaint attached as C.R.S.” injury status the FCRA to economic A.) Furthermore, in Shaw’s Re- pendix showing requiring a of will- defamation claim Summary Motion for sponse to Defendant’s proving such ful and wanton conduct because Motion), on (Response she relies Judgment subjects plaintiffs to an unnecessari- conduct entirety than in its rather section 5-5-108 any statutory ly high without au- standard (4)(d)(IV) upon just the subsection thority doing so. analysis. majority focuses Thus, majority improperly limits sub- II. (4)(d)(IV) despite the reputation to Stewart, P.2d In Keohane v. 882 that “consideration mandate statute’s clear “[djefamation (Colo.1994), we held [section 5-5- given to each shall be individual a communication that holds an 108(4)(d)] is factors, 5- among others-” (4)(d) (Emphasis ...” (1992). up contempt to or ridicule. 5-108(4), 2 Subsection added.) Keohane, In we further stated that cause or requires of acts consideration law, tort of defamation common “‘[a]t injury to a consumer’s threaten cause compensate and individu- Therefore, existed to redress contrary to the economic status. rep- als who suffered serious harm to their determination, reputation is not majority’s careless or malicious utations due to the failing In only aspect claim. of Shaw’s Maj. op. of others.’” communications aspects of Shaw’s com- address the other 1297) Keohane, 882 P.2d at effect, (quoting preempts majority, in not plaint, the added). “Additionally, defamato- (emphasis subsection, judgment just allows its but ry egregious so and intoler- statements are read to all claims action applicable to be as an, destroys 5-5-108(2), [sic] able because the statement applied through under section reputation: characteristic individual’s factors in subsec- consideration of the several that, 5-5-108(4). bought, and one once which cannot be tion lost, extremely difficult to restore.” Keo- Motion, Response In she lists the added). hane, (emphasis P.2d at 1298 argu- support omissions that acts and Erickson, six, writing for In footnote Justice knowingly furnished false ment that Discover majority, aptly Justice notes Chief acts includes credit information. The list of Othello, III, Rehnquist’s act reference to injury threatening “[clausing to cause scene 3: reputation or economic status Plaintiffs (IV).” woman, my dear 5-5-108(4)(d)(I),(III) name in man and Good violation of lord, It the trial important to note that before jewel souls.
court, Is the immediate of their reputation to her Shaw claimed trash; my purse my opinion, steals steals Who her economic status. something, nothing; deny sound business made ‘Tis decisions are his, mine, similarly credit or loans is ‘Twas ‘tis and has been slave defamation. Yet, thousands; following majority’s rationale to its conclusion, my name natural one good he that from me is left assume that But filches him, credit, which not a denial Robs me of that enriches based on erroneous credit information, is, fact, poor publication And makes me indeed. up “contempt holds one ridicule.” (citing v. Lorain Id. Milkovich Journal more, I disagree. Without 2695, 2702, S.Ct. 497 U.S. (1990)). L.Ed.2d I read section 5-5-108 to reach business conduct or decisions that affect the economic Here, concedes, majority “Shaw as the consumer, well-being status and of a but not ... [and] commenced this action publication “egregious of statements ... provided false credit informa up so as one intolerable” to hold to “con- reporting agencies tion consumer credit facts, tempt or ridicule.” Under these unlike opportu ... to lose credit caused her *14 majority, complaint I do not read Shaw’s Maj. alleged op. at 3. nities-” “Shaw only reputation. to claim to More- injured ‘reputation or that Discover had her over, I not do understand the General As- by ‘disclosing economic status’ information sembly’s adoption of the statute to authorize of a to the existence debt known only a civil action in the nature defama- disputed by the debtor without be ” example, any ignoring tion. For action to Shaw, by fact.’ that Id. at 9. These claims conduct, who, enjoin plaintiff a while interest reading fair our given proce under rules of low, rates are is denied based on credit adopt pleading, and not dure notice form information, communication false credit 8(a)(2) 9(b); C.R.C.P. & see Rosen see also may bring i.e., an damages, action for actual Inc., Reynolds, v. Dean P.2d thal Witter plaintiff the difference between what the had (Colo.1995), suggest 1099-1100 do not (in interest) pay acquired to for the loan later ridicule,” up “contempt was held and paid what she would have at the time she “suffer[ ] caused to serious harm [her] was illegally credit denied not to recov- ],” reputation[ or that Discover made state- —but reputation. er for harm serious to one’s egregious “so and as to ments intolerable” so part false Where the information is of a Keohane, “destroy” reputation. continuing course of conduct without actual essence, Jus- P.2d 1297-98. In like Chief damages, expect I plaintiff would a successful Vollack, tice I see a fail to defamation action. injunctive is entitled to relief —even Nor, my opinion, in can one be constructed widely false information is not disseminated. designed out a statute not to a create remedy especially appropri- Such a would be defamation,” cause of action “in the nature of engaged it ate where defendant admits but, rather, state intended establish a the violative conduct but maintains its actions public policy protects un- citizens from protected any are immune from consum- practices. conscionable reach, Simply er’s as here. does Discover essence, designed section 5-5-108 is stated, credit, denial of the unconscionable collecting deter “unconscionable conduct only unlike does not act to im- “grant and courts to debt” authorizes pugn reputation. one’s ... injunction and award actual dam- 5-5-108(2) ages ... (emphasis sustained.” III. added). However, statutory is not mech- it designed power I legitimate Finally, anism to thwart and do not doubt the Con decisions, prop- gress legislation prevent sound business such as to enact those hence, erly rejects regulation supremacy made who an unwor- lender one, However, applicant clause, thy for a loan. No least not state law. Shaw, suggests recently Marriage that the denial of a loan or we noted in In re Heu “ (Colo.1997), pel, tan- ‘In other business decision amounts to or is the ab command, more, express pro- congressional tamount to Without sence of an defamation. viding pre-empted actually false law information state law is if that ... or if federal law federal law
conflicts with legislative occupies a field as to thoroughly so vs. Congress inference make reasonable COMPANY, GREENWOOD TRUST d/b/a supplement for the States to left room no ” (quoting Cipol at 564 Heupel, 936 P.2d it.’ FINANCIAL DISCOVER CARD SER- Inc., 504, 515, Group, Liggett lone v. U.S. Defendant VICES (1992)). 2617,120 L.Ed.2d 407 S.Ct. Therefore, agree majority I with the while Plaintiff, through attorney, by and preempted only will be that “section 5-5-108 Whaley, Complaint Richard for her C. outright or actual is the extent states: Reporting Credit [Federal conflict with the necessary 1. all That at times to this 1147,1 Act],” maj. find conflict in a op. at no action, Plaintiff was a resident El Paso designed protect public state law County, Colorado. practices collection and a fed- unconscionable prohibits, plain lan- eral statute necessary 2. That at all times to this in the actions nature of defama- guage, civil action, acts omissions of De- damages proper be tion. While fendant form the basis of this Com- injury to reputation no remedy where County, plaint place took in El Paso Colora- proved, I must note economic status do. injunctive permit relief to statute does belief, Upon information and Defen- prevent which are of a future violations Corporation good dant a Delaware *15 continuing course of conduct. standing, in conducting business State conclude, appeals, I as did the court of that Colorado. oppor- “los[s] for complaint 4. claimed that Defendant has Plaintiff is tunity” not of a similar nature as a com- $1,219.82 by indebted to it in the amount of reputation.” plaint “solely for virtue its issuance of Discover Card # 6011-0096-9750-6066. IV. 5. repeatedly Defendant has been advised Accordingly, and for the forth reasons set card, applied that Plaintiff for never such part Chief Justice Vollack’s concurrence possession, never had such card her never part, agree I and the trial dissent whatsoever, any purpose used such card for erroneously granted court Discovers motion and is not indebted to Defendant because of judgment, and respectfully for I by credit extended it for the of such use majority’s opin- from that dissent by any person. card ion holds 5-5- notice, Despite 6. such advisement and 108(4)(d)(IV) preempted by the FCRA. repeatedly payment Defendant sent demand say I am authorized that Chief Justice Plaintiff, notices to and threatened suit if joins in this and dis-
VOLLACK concurrence pay Plaintiff did not the amount demanded sent. Further, reported her. has Defendant reporting agencies various credit that it has APPENDIX A charged off to its debt accounts bad the sum COURT, EL DISTRICT COUNTY OF $1,219.00 non-payment said sum PASO, OF STATE COLORADO by Plaintiff. Case No. 93CV0287Division No. 6 7. That at all times relevant sub-
ject Complaint, matter of Defendant legal knew that Plaintiff had no debt obli- COMPLAINT AND JURY DEMAND gation to it on the Discover Card. actions 8. That Defendant’s and omis- CONLEY, L. VALERIE n/k/a sions as are as a herein actionable 5-5-108, VALERIE L. Plaintiff violation of SHAW false, defamatory credit infor- That the 9. remains in Plaintiffs credit file to this
mation
date, continuing and as such constitutes of conduct. conduct
course Such Defen- was, willful, wanton, and remains mali-
dant
cious, unconscionable, outrageous; done and to be done continues with the severe, irreparable intent to cause
deliberate
damage reputation. to Plaintiffs credit proximate As a direct and result of alleged, conduct as herein Plain-
Defendant’s severe, irreparable damage
tiff has suffered reputation, opportu-
to her credit lost credit
nities, and mental and emotional distress.
WHEREFORE, prays judg- Plaintiff in her
ment behalf and Defendant in compensate adequately amount her for damages, provided interest as statute arose,
from the date the of action cause
exemplary damages, attorney’s fees C.R.S., action,
§to 5-5-108 of this costs
such other and further relief as to the Court appropriate. seem
PLAINTIFF TRIAL DEMANDS BY FOR ALL SO JURY ISSUES TRIABLE. Counsel, Linda Donnelly, Disciplinary submitted, Respectfully Gleason, John Deputy Disciplinary S. Coun- *16 RICHARD C. WHALEY # 17134 sel, Denver, Complainant. Attorney for Plaintiff Newall, Frederick Springs, Colorado W. Ave. So. Cascade Attorney-Respondent. Springs, Colorado CO 80903
(719) 473-3232
PER CURIAM. respondent The and the assistant disci- plinary stipulation, counsel executed agreement, and admission conditional of mis- conduct C.R.C.P. 241.18. The agreed parties conditional PEOPLE of the State of admission Colorado, Complainant, discipline range public in the of a censure thirty-day practice to a suspension from the approving of law. the conditional admis- BUCKINGHAM, Patrick W. sion, inquiry supreme panel of the court Attorney-Respondent. grievance recommended that the committee No. 97SA146. respondent publicly accept be censured. We panel’s the conditional and the admission Colorado, Supreme Court recommendation. En Banc. June I. respondent practice admitted to
law this state in 1979. The conditional