United States District Court, D. Connecticut
MEMORANDUM AND ORDER
MICHAEL P. SHEA, U.S.D.J.
Charles Hudson and Aleeshia Bailey Hudson assert claims under
various consumer protection laws against Aisha Babilonia, SLM
Corporation (now Navient Corporation (“Navient
Corp.”)), Sallie Mae Bank, Sallie Mae, Inc. (now
Navient Solutions, Inc. (“NSI”)), and
PFS/Progressive Financial Services, Inc.
(“Progressive”) arising from the theft of Mr.
Hudson’s identity, the use of his identity to obtain a
student loan, and efforts to collect a delinquency on that
loan. Navient Corp., Sallie Mae Bank, and NSI, whom together
I refer to as the “Navient Defendants, ” have
filed a motion for summary judgment (ECF No. 102), and
Progressive has filed a separate motion for summary judgment
(ECF No. 95). In both motions, the defendants seek summary
judgment on all counts. For the reasons explained below, I
grant in part and deny in part both motions.
following facts are undisputed according to the
parties’ Local Rule 56(a) statements.Charles Hudson and
Aleeshia Bailey Hudson live in Windsor, Connecticut. (Bailey
Hudson Dep., Pls.’ Mem. Opp. Ex. 5 at 27.) They do not
own or rent property in Brooklyn, New York. (C. Hudson Dep.,
Pls.’ MSJ Mem. Opp. Ex. 4, at 19.) They carry their own
cell phones and do not answer each other’s phone.
(Id. at 44.)
April 6 and 10, 2012, Defendant Aisha Babilonia completed an
online application for a “Smart Option Student
Loan” in the amount of $15, 000 with NSI.(Correspondence
History, Austin Aff. Ex. A, ECF No. 102-3, at NAV00047-62.)
The application listed Mr. Hudson as a cosigner.
(See Austin Aff. Ex B., ECF No. 102-3, at 42.) After
receiving the application, NSI obtained Mr. Hudson’s
credit report on April 6, 2012. (Correspondence History,
Pls.’ MSJ Opp. Ex. 1, at NAV000074.) NSI approved and
disbursed $15, 000 to Babilonia on June 5, 2012. (Austin Aff.
¶¶ 15, 23.)
NSI Contacts Mr. Hudson Regarding the Babilonia Loan
December 2013, the Babilonia loan was delinquent.
(Id. at ¶ 25.) In an effort to obtain payment
on the loan, NSI again obtained Mr. Hudson’s credit
report on January 2, 2014. (Id. at ¶ 26.) An
NSI representative named Kenn also called Mr. Hudson on
January 8, 2014. (Id. at ¶ 22.) The following
Mr. Hudson: This is Charles.
Kenn: This is Charles Hudson?
Mr. Hudson: Yes.
Kenn: Hi, sir, my name is Kenn. I was trying to contact you.
I’m actually an account manager, I’m calling for
Sallie Mae. This call may be recorded for quality assurance
You’re a cosigner with Aisha, right?
Mr. Hudson: Yeah.
Kenn: Okay. Thank you, sir. I do have a mailing address 1436
Park Place; is that accurate?
Mr. Hudson: Say that again, I’m sorry. . . .
Kenn: I had a mailing address 1436 Park Place? Is that a
correct mailing address?
Mr. Hudson: 436 Park Place in what town?
Kenn: 1436 Park Place in Booklyn.
Mr. Hudson: Oh, okay, yeah.
Kenn: And the reason again for the call is that we do have a
student loan, unfortunately is it in our high risk unit right
now, it’s been behind a few months. To bring that
completely current we do currently have a present amount of
1, 473.56. Did you want to bring that current this month?
Mr. Hudson: Okay. Hold on one second.
Mr. Hudson: I’ve got to take my ear piece off, because
I’m on the road. Did you sp[eak] to Al[eeshi]a,
because she’s going to take care of that.
Kenn: Well, that’s what I had assumed since she is the
principal borrower on the account, but the last time we had
contact with her was back in August. She’s kind of let
the account here linger into delinquency, and at this point
if we can’t get any arrangement on the account,
they’re looking at a possible litigation on the account
Mr. Hudson: Okay.
Kenn: The last time we spoke to her she said she was
unemployed. I don’t know what her status is right now,
but that was in August.
Mr. Hudson: Yes, yes, she is. Let me contact her and see if I
can get in touch wit her here, because she handled that.
Right now I’m on the road.
Kenn: Has she updated the status with you here? Has she
spoken to you about this at all?
Mr. Hudson: No, she hasn’t spoken to me about it.
(January 8, 2014 Call Tr., Austin Aff. Ex. I, ECF No. 102-4,
at 29-31; see also Austin Aff. Ex. H (audio
same day, Ms. Hudson called NSI, and informed Kenn that her
husband had not, in fact, cosigned any student loan. (Bailey
Hudson Dep., Navient MSJ Ex. 3, ECF No. 102-7, at 7- 8.) Mr.
Hudson called Kenn on January 13, 2014, and confirmed that he
had never cosigned a student loan. (January 13, 2014 Call
Tr., ECF No. 56-2.) During that call, Mr. Hudson also
informed Kenn that 1436 Park Place was not his address,
provided Kenn with his Windsor, Connecticut address, and told
Kenn that the Connecticut address NSI had in its file was his
mother’s address. (Id. at 2-4.) Mr. Hudson
also told Kenn that he did not know any Aisha Babilonia, and
that when they spoke on January 8, the only reason he
suggested that he knew of the loan was that he thought Kenn
was referring to his wife, Aleeshia. (Id. at 4.)
Kenn then gave Mr. Hudson the following instructions:
What you want to do to proceed further before this month
ends, because the account here is going to roll into default.
Unfortunately we do not have all of your information, so it
is going to affect your credit. What you want to try to do
right away is go to the nearest police department and file
charges on this, because what I’ll do is I can put it
in as fraud, and when the fraud department calls you to ask
you if you signed for the loan and tell them no,
they’re going to look for a police report. So you want
to try to file charges against this person because if you
don’t know who this is, then your information is here
on the account along with your signatures regarding this
(Id. at 4-5.) Mr. Hudson asked Kenn what phone
number was provided with the loan application, and Kenn
responded with a phone number that Mr. Hudson stated he did
not recognize. (Id. at 5.) Mr. Hudson also asked how
NSI found Mr. Hudson’s actual phone number, to which
Kenn responded, “this number here [referring to Mr.
Hudson’s cell phone number], I actually had to search
to find this number, this wasn’t even on the account.
That other number [that Mr. Hudson did not recognize] was on
the account . . .” (Id. at 5.) Kenn mentioned
two other numbers; the first of which Mr. Hudson did not
recognize, but the second of which Mr. Hudson stated was his
residential landline number. (Id. at 5-6.) Kenn told
Mr. Hudson that he would send him paperwork to complete, and
stated, “I’m going to document this as fraud, so
our fraud department may get in contact with you regarding
this information. . . . They’ll get in contact with
you, and they’ll let you know what you need to do from
there . . .” (Id. at 7.)
February 7, 2014, NSI’s fraud investigation department
mailed Mr. Hudson a letter instructing him to complete and
sign an “Identity Theft Affidavit, ” which was
attached. (Feb. 7, 2014 Letter, Austin Aff. Ex. J.) The
letter further instructed Mr. Hudson to have the affidavit
notarized, and “return it to us along with the required
documents, as indicated in the Instructions for Completing
the Identity Theft Affidavit.” (Id.) Finally,
it stated, “We’ll keep this file active for
thirty (30) days from the date of this letter, ” and
that “You may want to place a fraud alert on your
credit file.” (Id.)
NSI’s Investigation of Mr. Hudson’s Fraud
not receive a response letter from Mr. Hudson letter within
the 30-day window set out in the February 7, 2014 Letter.
(Austin Aff. ¶ 36.) According to NSI’s
correspondence history, an NSI representative spoke with Mr.
Hudson on the phone on March 7, 2014, and during that
conversation, Mr. Hudson informed the representative that he
had submitted a police report and provided a case number.
(Pls.’ MSJ Opp. Ex. 1, at NAV 238.) The NSI
representative’s notes from that call read, “cos
[Mr. Hudson] . . . sd [sic] he never heard of the
borrower… doesn’t [sic] look like the cos is
telling the truth abt [sic] fraud--looks he is trying to get
out of his responsibility.” (Id.)
April 5, 2014, NSI sent Mr. Hudson another letter stating
that the Babilonia loan was “seriously past due and in
jeopardy of default.” (April 5, 2014 Letter, Austin
Aff. Ex. K.) On April 28, 2014, NSI received a letter from
Gregory Osakwe, the Hudsons’ attorney, which stated,
Please be advised that this office represents Charles Hudson.
We are in receipt of your letter dated April 10, 2014 [sic]
demanding payment from our client . . . . Our client denies
that he ever cosigned for this student loan. His identity was
used without his knowledge or consent to obtain this loan. .
. . We have filed a report with the Windsor, Connecticut
Police and the case number is 2014-08190. . . .
Please forward all future correspondences to this office. Do
not attempt to contact our client again.
(April 24, 2014 Letter, Austin Aff. Ex. L.) Attached to the
letter were two pages from the Identity Theft Affidavit, the
first labeled “How the Fraud Occurred, ” in which
the following statements were checked: “I did not
authorize anyone to use my name or personal information to
seek the money, credit, or loans described in this report,
” “I did not sign any applications, loan notes,
credit agreements or loan checks in connection with the
fraudulent loan(s), ” “I did not receive any
benefit or money as a result of the events described in this
report, ” “I do NOT know who used my information
or identification to get money, credit, or loans without my
knowledge or authorization, ” “I am . . . willing
to assist in the prosecution of the person(s) who committed
this fraud, ” and “I am . . . authorizing the
release of this information to law enforcement and other 3rd
parties where applicable, for the purpose of assisting them
in the investigation and/or prosecution of the person(s) who
committed this fraud.” (Id. at 3.) The second
page was a “Signature Statement, ” in which
Charles Hudson’s signature appears under a statement
affirming that the information in the affidavit is true and
correct. (Id. at 5.) A notary stamp and attestation
appears at the bottom of the page. (Id.) In his
affidavit, James M. Austin, Senior Customer Advocate at
Navient, asserts that this information was incomplete because
it was “missing pages, contained no police report, and
lacked pertinent information.” (Austin Aff. ¶ 37.)
Austin fails to describe, however, which pages were missing
and why Attorney Osakwe’s failure to include that
information was material to NSI’s effort to resolve the
11, 2014, NSI again requested Mr. Hudson’s credit
report. (Austin Aff. ¶ 50.) On May 12, an NSI fraud
investigator spoke with Attorney Osakwe and informed him that
the affidavit was incomplete; Attorney Osakwe requested that
NSI send him another Identity Theft Affidavit. (Austin Aff.
¶ 38.) On May 12, 2014, NSI sent Attorney Osakwe and Mr.
Hudson the same letter it sent Mr. Hudson on February 7,
attaching what appears to be a copy of the identity theft
affidavit that Attorney Osakwe sent NSI in April. (May 12,
2014 Letter, Austin Aff. Ex. M.) On July 17, 2014, Attorney
Osakwe returned the identity theft affidavit without adding
any information. (July 17, 2014 Letter, Austin Aff. Ex. N.)
He did, however, attach a copy of an “incident
report” from the Windsor Police Department, dated
February 25, 2014, which detailed Mr. Hudson’s report
of an identity theft. (Id.) Again, Austin asserts
that the affidavit submitted by Attorney Osakwe was
incomplete, but fails to describe what information is missing
and how any missing information was material to its fraud
investigation. (Austin Aff. ¶ 40.) Soon after, NSI
commenced a fraud investigation. (Id.)
“followed up” with Attorney Osakwe twice in an
attempt to obtain further information pertinent to the fraud
investigation, but Attorney Osakwe did not respond except by
threatening to sue NSI. (Austin Aff. ¶
In investigating Mr. Hudson’s fraud claim, NSI
contacted the Windsor Police Department to receive an update
on the Department’s investigation. (Austin Aff. ¶
At some point before early October 2014, NSI completed its
fraud investigation and concluded that there was insufficient
evidence to credit Mr. Hudson’s claim that he had not
signed the Babilonia loan. (See Austin Aff. ¶
deposition, Ms. Hudson could not remember any calls from NSI
that were made to her cell phone during the time NSI serviced
the Babilonia loan. (Bailey Hudson Dep. at 78.) Further,
neither Plaintiff could state whether NSI made calls to their
cell phones using an auto-dialing system or using an
artificial or prerecorded voice. (Id. at 166
(“Q: [N]either you, nor [Mr. Hudson] could say that it
was Sallie Mae [that made calls with pre-recorded voices]? A:
No, I couldn’t. And [Mr. Hudson] couldn’t say
that to you, either? A: No.”); C. Hudson Dep. at 192-93
(“Q: Did you ever receive any prerecorded calls? A:
Plaintiffs’ Credit Agency Dispute
September 26, 2014, Mr. Hudson sent a letter to the three
major credit reporting agencies (“CRAs”), in
which he disputed the Babilonia loan and requested that it be
removed from his report. (Credit Report Dispute Letters, ECF
No. 113-10.) NSI received automated consumer dispute
verification forms (“ACDVs”) on October 7, 9, and
13, 2014, from the CRAs. (Austin Aff. Ex. O.) NSI’s
protocol for responding to ACDVs includes reviewing the ACDV,
validating the accuracy of the information provided by NSI to
the agency, and if the ACDV includes a claim of identity
theft, taking “additional measures to investigate the
matter as appropriate.” (Austin Aff. ¶ 47-48.) In
accordance with that protocol, NSI reviewed its documents
relating to the Babilonia loan and noted that it had obtained
no new information since it previously concluded that the
loan was not fraudulently obtained. (Austin Aff. ¶
October 31, 2014, NSI sent Mr. Hudson a letter stating that
it had received ACDVs indicating that he was disputing the
Babilonia loan, but that NSI had “performed an
investigation and concluded that the information [NSI]
provided regarding this loan to the consumer reporting
agencies is valid.” (October 31, 2014 Letter, Austin
Aff. Ex. P.) It instructed Mr. Hudson, “[i]f you still
believe that . . . the loan is a result of identity theft,
please call our Fraud Department at the number below.
Otherwise, you’ll continue to be responsible for
repayment of the debt and we may continue to report the
information to the consumer reporting agencies.”
Progressive’s Efforts to Collect on the Babilonia
August 24, 2014, NSI forwarded the Babilonia loan account to
Progressive for debt collection. (Gaffney Aff., ECF No. 100,
at ¶ 3.) The account file NSI provided to Progressive,
however, did not indicate that Mr. Hudson had disputed the
loan. (Id. at ¶ 4; Gaffney Aff. Ex. A.) As a
result, prior to beginning its collection efforts,
Progressive was not aware of any facts suggesting that Mr.
Hudson had disputed the loan with NSI. (Gaffney Aff. ¶
5.) Progressive obtained Mr. Hudson’s
credit report on August 25 and 27, 2014. (Id. at
¶ 6; Experian Report, ECF No. 58-8, at 11-12.) It did
not obtain Ms. Hudson’s credit report. (Id.)
Progressive did not furnish any information to any CRA about
Mr. or Ms. Hudson. (Id. at ¶ 7.)
made one phone call to Plaintiffs on August 27, 2014, when a
Progressive representative named Jennifer Cialkowski called
the Hudson’s home landline and spoke to Ms. Hudson.
(Pls.’ MSJ Opp. Ex. 7; C. Hudson Dep., ECF No. 101-1,
at 243-44 (conceding that he never spoke to Progressive), 247
(confirming the phone number called by Progressive on August
27, 2014, was the Hudsons’ landline), 254 (conceding
that he cannot produce any messages received from
Progressive); Bailey Hudson Dep., ECF No. 101-2, at 203
(conceding that she cannot dispute that Progressive made only
one call to Plaintiffs).) The following conversation ensued:
Cialkowski: Hello. Calls are monitored and recorded. This is
Jennifer Cialkowski. Can I speak with Aisha Babilonia or
Ms. Hudson: Aisha Babilonia does not live here. Charles
Hudson does. I’m his wife. The account that
you’re calling about, the attorney has already sent out
all of the information to you guys, and I also gave you guys
information not to call us. Any correspondence you have, you
need to call our attorney. I will give you his number.
Cialkowski: Ok, ma’am. What is the attorney for, so
that I know?
Ms. Hudson: Because the information that was used, we have
nothing to do with it. It is fraudulent. We went to the
police station and filed a police report. All the information