Green v. Experian Information Solutions, Inc. et al
Filing
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ORDER GRANTING DEFENDANTS' MOTION TO DISMISS by Judge William Alsup g[ranting 40 Motion to Dismiss]. Admissions due by NOON on 4/11/2017. (whasec, COURT STAFF) (Filed on 3/28/2017)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California
United States District Court
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In Re:
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EXPERIAN INFORMATION SOLUTIONS
CREDIT REPORTING LITIGATION.
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No. C 16-05674 WHA
No. C 16-05676 WHA
No. C 16-05679 WHA
No. C 16-05694 WHA
No. C 16-05701 WHA
No. C 16-05704 WHA
No. C 16-06315 WHA
No. C 16-06335 WHA
No. C 16-06363 WHA
No. C 16-06372 WHA
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
(IN ALL OF THE ABOVE-LISTED CASES)
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This order holds that under the Fair Credit Reporting Act, 15 U.S.C. 1681 et seq., a
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report of a debt may be stated at the full unpaid balance even if the debt is subject to a confirmed
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Chapter 13 plan wherein the debt will be discharged if and when a specified lesser amount is
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paid. Under the Bankruptcy Act, the full debt remains undischarged until, if ever, the specified
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amount is actually paid. So it remains correct to inform the world at large via the credit report
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of the full unpaid balance. Since the risk persists that the debtor will fail to pay under the
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Chapter 13 plan, it would be misleading to future creditors to report, as plaintiffs’ counsel
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insists in all of these cases, the lesser amount. That would be getting the cart before the horse.
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First, the debtor must perform as specified under the plan, then get a discharge. At that point,
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the debt will go to zero.
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Although our court of appeals has not yet ruled on the issue, every single district judge
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who has ruled has held as above. This order adopts this reasoning, including at least two cases
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rejecting plaintiffs’ main decision In re Luedtke, No. 2-3582-SVK, 2008 WL 295253
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(Bankr. E.D. Wis. July 31, 2008). See, e.g., Newkirk v. Experian Info. Sols., Inc. et al.,
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No. 4:16-CV-05691-SBA, 2017 WL 1078653 (N.D. Cal. Mar. 13, 2017) (Judge Saundra
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Armstrong); Mamisay v. Experian Info. Sols., Inc., No. 16-CV-5684-YGR, 2017 WL 106517
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(N.D. Cal. Mar. 21, 217) (Judge Yvonne Rogers) (rejecting In re Luedtke); Smith v. Experian
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Info. Sols., Inc., No. 16-CV-4653-BLF, 2017 WL 1092377 (N.D. Cal. Mar. 23, 2017)
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(Judge Beth Freeman) (rejecting In re Luedtke); Polvorosa v. Allied Collection Serv., Inc.,
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For the Northern District of California
United States District Court
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No. 2:16-CV-1508 JCM (CWH), 2017 WL 29331 (D. Nev. Jan. 3, 2017).
At oral argument, plaintiffs’ counsel offered a fall-back position, namely that they would
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accept reporting the full unpaid debt so long as the line item also noted that it remained subject
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to a confirmed Chapter 13 plan. In fact, it appears that some creditors do just that. Yes, this
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would put more accurate information in the report and Congress ought to consider an
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amendment to require such notations. But credit reports also include a clear-cut statement up
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front that the debtor is in bankruptcy proceedings, so it takes very little imagination for the
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reader to realize that there may be a plan in place that might lead to a full discharge. At all
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events, the fact remains that the full amount is the actual truthful amount of the debt so long as
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the plan, even if confirmed, remains uncompleted, so there is no basis for insisting as a matter of
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law that such a notation accompany each line item.
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This order makes the same ruling as to the California state law. Cal. Civ. Code § 17825.
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Therefore, this entire action is hereby dismissed. If plaintiffs’ counsel wish to amend to
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make some other claim for relief, such as the wrong dollar amount that accidentally got into the
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report, then they may file a new amended complaint as to such other claim — but counsel’s main
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point about the effect of a confirmed plan is wrong and may not be recycled into a new pleading.
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The deadline for any new pleading in all these cases is APRIL 11, 2017, AT NOON, failing which
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judgment will be entered.
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IT IS SO ORDERED.
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Dated: March 28, 2017.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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For the Northern District of California
United States District Court
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