MYERS v. EQUIFAX INFORMATION SERVICES, LLC et al

Filing 229

ORDER - The CRAs' Motion for Summary Judgment, 176 , is GRANTED as to Mr. Myers' claim that the CRAs violated § 1681e(b) and that it did so willfully under § 1681n; Mr. Myers has abandoned any claim under § 1681n; The CRA s' Motion for Summary Judgment, 176 , is DENIED AS MOOT as to Mr. Myers' claim for actual damages or any claim under § 1681o; Mr. Myers' Motion for Class Certification, 164 , is DENIED; and the class claims are DISMISSED WITHOUT PREJUDICE. Final judgment shall enter accordingly. (SEE ORDER.) Signed by Judge Jane Magnus-Stinson on 9/16/2022. (JSR)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JOHN D. MYERS, JR.,
Plaintiff,
vs.
EQUIFAX INFORMATION SERVICES, LLC,
EXPERIAN INFORMATION SOLUTIONS, INC., and
TRANS UNION, LLC,
Defendants.

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No. 1:20-cv-00392-JMS-DLP

ORDER
Plaintiff John Myers, Jr. took out an automobile loan with Ally Financial ("Ally") and
subsequently filed a Voluntary Petition for Chapter 7 Bankruptcy. During the course of the
bankruptcy, he believed that he had reaffirmed the debt and continued making the monthly
payments, but Ally believed that the debt had been discharged in the bankruptcy. Defendants,
credit reporting agencies Equifax Information Services, LLC ("Equifax"), Experian Information
Solutions, Inc. ("Experian"), and Trans Union, LLC ("Trans Union") (collectively, "the CRAs"),
all reported Mr. Myers' Ally loan as "discharged" rather than "reaffirmed." Mr. Myers initiated
this litigation against the CRAs, setting forth various individual and class claims under the Fair
Credit Reporting Act, 15 U.S.C. § 1681, et seq. ("FCRA"). Mr. Myers has filed a Motion for Class
Certification, [Filing No. 164], and the CRAs have filed a Motion for Summary Judgment, [Filing
No. 176], both of which are ripe for the Court's decision.

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I.

THE CRAS' MOTION FOR SUMMARY JUDGMENT 1
A.

Standard of Review

A motion for summary judgment asks the Court to find that a trial is unnecessary because
there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(a). On summary judgment, a party must show the Court
what evidence it has that would convince a trier of fact to accept its version of the events. Johnson
v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). "'Summary judgment is not a time to be
coy.'" King v. Ford Motor Co., 872 F.3d 833, 840 (7th Cir. 2017) (quoting Sommerfield v. City of
Chicago, 863 F.3d 645, 649 (7th Cir. 2017)). Rather, at the summary judgment stage, "[t]he parties
are required to put their evidentiary cards on the table." Sommerfield, 863 F.3d at 649.
The moving party is entitled to summary judgment if no reasonable fact-finder could return
a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The
Court views the record in the light most favorable to the non-moving party and draws all reasonable
inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir.
2008). It cannot weigh evidence or make credibility determinations on summary judgment
because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630
(7th Cir. 2011).

1

As the Court noted in its June 7, 2022 Order, class certification issues are generally decided
before summary judgment issues, but that is not always the case. See Cowen v. Bank United of
Texas, FSB, 70 F.3d 937, 941 (7th Cir. 1995) ("It is true that Rule 23(c)(1) of the civil rules requires
certification as soon as practicable, which will usually be before the case is ripe for summary
judgment. But 'usually' is not 'always,' and 'practicable' allows for wiggle room."). Having
reviewed the parties' summary judgment briefs, the Court finds it prudent to decide the Motion for
Summary Judgment first because it raises issues particular to Mr. Myers' individual claims that
bear on the appropriateness of class certification.
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Each fact asserted in support of or in opposition to a motion for summary judgment must
be supported by "a citation to a discovery response, a deposition, an affidavit, or other admissible
evidence." S.D. Ind. L.R. 56-1(e). And each "citation must refer to a page or paragraph number
or otherwise similarly specify where the relevant information can be found in the supporting
evidence." Id. The Court need only consider the cited materials and need not "scour the record"
for evidence that is potentially relevant. Grant v. Trustees of Ind. Univ., 870 F.3d 562, 572-73
(7th Cir. 2017) (quotations omitted); see also Fed. R. Civ. P. 56(c)(3); S.D. Ind. L.R. 56-1(h).
Where a party fails to properly support an assertion of fact or fails to properly address another
party's assertion of fact, the Court may consider the fact undisputed for purposes of the summary
judgment motion. Fed. R. Civ. P. 56(e)(2).
In deciding a motion for summary judgment, the Court need only consider disputed facts
that are material to the decision. A disputed fact is material if it might affect the outcome of the
suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In
other words, while there may be facts that are in dispute, summary judgment is appropriate if those
facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir.
2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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B.

Statement of Facts 2
1.

The CRAs' Function

The CRAs obtain information from subscribers (also called furnishers) and public records
vendors regarding a consumer's credit data, and compile the data into a credit report. [Filing No.
177-2 at 3; Filing No. 177-2 at 7; Filing No. 177-3 at 3-4; Filing No. 177-4 at 3.] Furnishers are
typically creditors or other entities that have a credit relationship with the consumer. [Filing No.
177-4 at 3.] A credit report is a report that a CRA prepares about a consumer and provides to third
parties for purposes of extending credit, employment, or insurance. [Filing No. 177-2 at 3; Filing
No. 177-4 at 3.] A consumer disclosure is a report that a CRA prepares and provides to the
consumer who is the subject of the information, so that the consumer can review the accuracy of
the information. [Filing No. 177-2 at 3.]
A consumer's credit file contains tradeline information related to entities that have a credit
relationship with the consumer. [Filing No. 177-2 at 3; Filing No. 177-3 at 5.] The CRAs also
report public record information about consumers – including public record bankruptcy
information – that they receive from public records vendors. [Filing No. 177-2 at 3; Filing No.
177-3 at 5; Filing No. 177-4 at 4.]
2.

The CRAs' Procedures Relating to Bankruptcies

In determining whether a consumer has been a party to a bankruptcy, the CRAs receive
high level information from their public records vendors, including the consumer's name, the type

2

Mr. Myers objects to the Court's consideration of numerous facts that the CRAs set forth in
support of their Motion for Summary Judgment. [See Filing No. 219 at 6-9.] The Court has
considered Mr. Myers' objections, has declined to include certain facts, has included some facts as
background information only (e.g., the CRAs' reporting of Mr. Myers' Ally debt after the lawsuit
was filed), and has included other facts to which Mr. Myers objects when it found those facts
relevant to the Court's analysis of the issues (e.g., the onboarding and vetting process CRAs use
for furnishers).
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of bankruptcy filed (i.e., Chapter 7 or Chapter 13), the date the consumer filed the bankruptcy, and
the court in which the consumer filed the bankruptcy. [Filing No. 177-2 at 7; Filing No. 177-3 at
5; Filing No. 177-4 at 4.] The vendors also inform the CRAs when a bankruptcy has been
discharged or dismissed, but the data the vendors provide does not include information about
particular tradelines. [Filing No. 177-2 at 7.] In order to learn that a particular account was
reaffirmed 3 and not discharged in bankruptcy, the CRAs rely on data furnishers and consumers.
[Filing No. 177-2 at 6; Filing No. 177-3 at 5-6; Filing No. 177-4 at 4-5; Filing No. 177-5 at 44-45;
Filing No. 178-11 at 32-33; Filing No. 178-12 at 18-19; Filing No. 178-12 at 22-23.] However,
Trans Union and Experian also provide their agents with instructions related to using the Public
Access to Court Electronic Records service ("PACER") to access bankruptcy records. [See Filing
No. 217-3; Filing No. 217-4.]
a.

Reaffirmation Information From Data Furnishers

Before the CRAs will accept information from a particular data furnisher, the furnisher
goes through a vetting process. Experian "conducts investigative activities such as inspection of
the business premises, verification of business license, and conflict checks" as part of its vetting
process. [Filing No. 177-2 at 3.] Experian's subscribers also sign a contract requiring them to take
steps to ensure that they only report accurate information. [Filing No. 177-2 at 3.] Equifax "will
provide consumer reports and accept consumer credit data only from those data furnishers Equifax
has determined are reasonably reliable based upon Equifax's own investigation, the data furnisher's

3

"Under the bankruptcy code, 'reaffirmation' is a process that allows the debtor in bankruptcy to
keep his property in exchange for making regular monthly payments on the loan going forward….
If the debtor chooses this option, the debt is essentially omitted from the discharge of debts that
the debtor normally receives in a Chapter 7 bankruptcy." Dixon v. Green Tree Servicing, LLC,
2015 WL 2227741, at *1 (N.D. Ind. May 11, 2015).
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reputation in the community, and/or Equifax's longstanding business relationships with them," and
each data furnisher signs an agreement certifying that it will comply with the requirements of the
FCRA. [Filing No. 177-3 at 3-4.] Equifax does not police data furnishers to ensure that they are
timely updating account information relevant to bankruptcy reporting. [Filing No. 217-2 at 1617.] Trans Union investigates furnishers before agreeing to accept data from them, does not accept
data from furnishers who it believes are unreliable, and contractually requires furnishers to only
report accurate information. [Filing No. 177-4 at 3.] If at any point a CRA learns that a furnisher
is not providing accurate information, it takes immediate steps to remediate, up to and including
terminating its relationship with the furnisher. [Filing No. 177-5 at 34-36; Filing No. 178-11 at
20.]
Furnishers are required to report data to the CRAs pursuant to an industry-wide manual
called the Credit Reporting Resource Guide ("CRRG") and in a format called Metro 2. [Filing No.
177-2 at 3; Filing No. 177-3 at 4; Filing No. 177-4 at 3.] The CRRG explains that furnishers are
to report accounts that are reaffirmed, included in, or discharged in bankruptcy using Consumer
Information Indicators ("CIIs"). [Filing No. 177-2 at 4; Filing No. 177-4 at 4.] If an account is
included in a consumer's Chapter 7 bankruptcy petition, the data furnisher uses a CII of "A" and a
CII of "E" to indicate that the debt was included in the bankruptcy and has been discharged. [Filing
No. 177-2 at 4; Filing No. 177-3 at 5-6; Filing No. 177-4 at 4.] If an account was reaffirmed, the
data furnisher uses a CII of "R." [Filing No. 177-2 at 4-5; Filing No. 177-3 at 7; Filing No. 177-4
at 4.] If a data furnisher updates a report to reflect a CII of "R" where the furnisher previously

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reported a CII of "A" or "E," the CRA will update the account to reflect that status. [Filing No.
177-2 at 4-5; Filing No. 177-3 at 8; Filing No. 177-4 at 6.] 4
b.

Reaffirmation Information From Consumers

The CRAs will only receive a copy of a reaffirmation agreement if it is provided by a
consumer. [Filing No. 177-2 at 5; Filing No. 177-4 at 4-5; Filing No. 178-12 at 18.] If an account
is being reported as discharged in bankruptcy and the consumer provides a copy of the
reaffirmation agreement to the CRAs, the CRAs will either automatically update the tradeline to
report the debt as reaffirmed in bankruptcy (regardless of what the data furnisher is reporting), or
reinvestigate the status of the debt with the furnisher. [Filing No. 177-2 at 4; Filing No. 177-3 at
6; Filing No. 177-4 at 4-5; Filing No. 178-12 at 27.] If a consumer provides inadequate documents
to a CRA (or does not provide any documents) to support their claim that an account should be
reported as reaffirmed in bankruptcy, the CRA will thoroughly review the dispute and contact the
data furnisher to verify the accuracy of its reporting through the Automated Consumer Dispute
Verification ("ACDV") process. [Filing No. 177-3 at 6; Filing No. 177-4 at 4-5; Filing No. 178-

4

Mr. Myers states in his "Statement of Material Facts in Dispute" that "[r]eaffirmation
information, however, has never been sought by the CRAs from the bankruptcy courts or from
their public record vendors," citing to deposition testimony from the CRAs' various
representatives. But the cited record evidence is either inconclusive or does not stand for that
proposition. For example, Experian representative Kimberly Cave testified that she did not know
if a vendor has the ability to provide Experian with reaffirmation information. [Filing No. 217-5
at 4.] James Garst of Trans Union testified generally regarding the information its vendor, LCI,
provides to Trans Union relating to bankruptcies and then stated that he did not know if Trans
Union could request more information from LCI and that he did not know if Trans Union had ever
asked LCI for more information related to a reaffirmed account. [Filing No. 217-7 at 4-5.] The
cited portion of Lynn Prindes' deposition transcript includes Ms. Prindes being asked whether she
knew if Trans Union's vendor provides Trans Union with information regarding debts reaffirmed
in bankruptcy, her counsel objecting, and then Ms. Prindes testifying that she did not know the
answer. [Filing No. 217-6 at 4.] And Mr. Myers relies on information from pages 11-13 of Lisa
Willis's deposition transcript, but did not submit pages 11 or 12 with his exhibit. [See Filing No.
217-2.] Mr. Myers' counsel is cautioned that citations to the record must properly support the
proposition for which they are cited.
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12 at 27.] If the data furnisher then advises the CRA that the account should be reported as
reaffirmed, the consumer's credit report will be updated to reflect that. [Filing No. 177-3 at 8;
Filing No. 177-4 at 4-5; Filing No. 178-12 at 27.]
c.

Automated Procedures Related to Reaffirmations

In addition to relying on data furnishers and consumers, the CRAs have developed and
implemented an automated procedure to update accounts to be reported as discharged following
entry of a Chapter 7 bankruptcy discharge order. [Filing No. 177-4 at 5-6; Filing No. 178-12 at
23.] This procedure, called a bankruptcy "scrub," was developed pursuant to an injunction entered
in White v. Experian Information Solutions, Inc., 2008 WL 11518799 (C.D. Cal. Aug. 19, 2008)
(the "White Injunction"). [Filing No. 177-2 at 4; Filing No. 177-3 at 6-7; Filing No. 177-4 at 5-6.]
Pursuant to the White Injunction, if a furnisher is already reporting to a CRA that an account was
included in bankruptcy, the CRA will either retain that reporting during the pendency of the
bankruptcy and update the reporting to reflect that the account was discharged in bankruptcy once
the discharge order is entered, or simply retain the "included in bankruptcy" status post-discharge.
[Filing No. 177-2 at 5; Filing No. 177-3 at 7-8; Filing No. 177-4 at 6.] The scrub was not triggered
in Mr. Myers' situation because Ally was already reporting the account as included in his
bankruptcy. [Filing No. 177-2 at 5; Filing No. 177-3 at 7-8; Filing No. 177-4 at 6.]
3.

Mr. Myers' Chapter 7 Bankruptcy

In 2013, Mr. Myers took out an automobile loan with Ally secured by a 2013 Chevrolet
Silverado. [Filing No. 51 at 3.] On November 7, 2018, he filed a Voluntary Petition for Chapter
7 Bankruptcy in the United States Bankruptcy Court for the Southern District of Indiana. In re

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John D. Myers & Jennifer Dian Myers, No. 1:18-bk-08492-JMC-7 (Bankr. S.D. Ind.). 5 On his
Bankruptcy Petition, Mr. Myers listed multiple creditors including Ally (secured by the 2013
Chevrolet Silverado). [Filing No. 178-2 at 9-21.]
Mr. Myers intended to reaffirm the Ally debt because he used the Chevrolet Silverado to
get to work and he knew it would be difficult to obtain another vehicle after filing for bankruptcy.
[Filing No. 178-3 at 34-36.] He also intended to reaffirm a debt with Huntington National Bank
("Huntington") that was secured by a 2013 Chevrolet Equinox because his wife used the Equinox
to get to work, and a debt with Loancare Servicing ("Loancare") secured by Mr. Myers' personal
residence so that his family could remain in their home. [Filing No. 178-3 at 36.]
The meeting of the creditors took place on December 10, 2018, and on December 20, 2018,
Huntington filed a reaffirmation agreement it had entered into with Mr. Myers. [Filing No. 178-1
at 3.] An order discharging Mr. Myers' Chapter 7 bankruptcy was entered on January 9, 2019, but
the discharge was vacated and the case was re-opened on January 10, 2019 because it was "closed
in error." [Filing No. 178-1 at 4; Filing No. 21 in In re Myers, No. 1:18-bk-08492-JMC-7 (Bankr.
S.D. Ind.).] On January 14, 2019, LoanCare filed a reaffirmation agreement it had entered into
with Mr. Myers. 6 [Filing No. 178-1 at 5.]
On February 8, 2019, Mr. Myers filed a motion seeking to defer entry of the bankruptcy
discharge so that he could file a reaffirmation agreement with Ally. [Filing No. 178-1 at 5; Filing
No. 216-1.] The Bankruptcy Court granted Mr. Myers' motion on February 11, 2019, [Filing No.
178-1 at 5; Filing No. 216-2], and Mr. Myers filed a reaffirmation agreement with Ally on March

5

The Court "may take judicial notice of matters of public record." Milwaukee Police Ass'n v.
Flynn, 863 F.3d 636, 640 (7th Cir. 2017) (quotation and citation omitted).

6

The reaffirmation agreement was filed by Mid America Mortgage, Inc. ("Mid America"), but
related to Mr. Myers' Loancare debt secured by his residence.
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1, 2019, [Filing No. 178-1 at 5; Filing No. 216-3]. Mr. Myers' bankruptcy was discharged on
March 22, 2019 and the case was closed. [Filing No. 178-1 at 6.] The Discharge Order did not
list which of Mr. Myers' debts were discharged versus reaffirmed. [See Filing No. 178-5 at 2.]
4.

Notice of the Bankruptcy Disposition to the CRAs

Notice of Mr. Myers' bankruptcy discharge was issued to the Bankruptcy Noticing Center
on March 24, 2019. [Filing No. 178-1 at 6.] The CRAs, who were listed on Mr. Myers' bankruptcy
petition, received notice of the discharge from the Bankruptcy Noticing Center. [Filing No. 1786.] The notice consisted of a copy of the Order of Discharge, but not a copy of the whole
bankruptcy docket, any reaffirmation agreements, or any other filings. [Filing No. 178-6.]
5.

Disagreement Between Mr. Myers and Ally Regarding the Loan Status

After the bankruptcy discharge, Mr. Myers found that it was very difficult to make
payments on the Ally loan because Ally believed that the debt had been discharged. [Filing No.
178-3 at 47-48.] Each time Mr. Myers called Ally to make a monthly payment, he was told that
the debt had not been reaffirmed. [Filing No. 178-3 at 52-53.] An internal Ally note on Mr. Myers'
account stated that Mr. Myers had failed to reaffirm the debt because he had not filed the
reaffirmation agreement within 60 days of the creditors' meeting. [Filing No. 177-1.] Because
Ally believed that the debt had been discharged, Mr. Myers was not able to make his monthly
payments online but instead had to repeatedly call Ally's bankruptcy department. [Filing No. 1783 at 47-48.] During his phone calls with Ally, Mr. Myers reiterated his belief that the loan had
been reaffirmed. [Filing No. 178-3 at 114-15.] Mr. Myers has continued making payments on the
Ally loan, but the disagreement between Mr. Myers and Ally regarding whether the loan was
reaffirmed in the bankruptcy remains. [Filing No. 178-3 at 81-82; Filing No. 178-3 at 149-50.] 7

7

The Court notes that Mr. Myers has not named Ally as a defendant in this case.
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6.

The CRAs' History With Ally

In connection with Mr. Myers' Motion for Class Certification, the CRAs were each ordered
to produce a randomly selected list of 100 consumers who had a Chapter 7 bankruptcy on file, and
had an Ally account on file that was current at the time the bankruptcy was filed and for which
there was a bankruptcy indicator. [Filing No. 122 at 1.] Of the 300 individuals whose information
was provided, Ally accurately reported their account for 291 individuals, or 97% of the time.
[Filing No. 165-7 at 4; Filing No. 165-8 at 3; Filing No. 165-9 at 4; Filing No. 180-1 at 3.] For
the remaining nine individuals in which Ally's reporting was not facially consistent with the
bankruptcy docket, eight were confirmed as accurate through a more thorough review of the
bankruptcy docket. [Filing No. 179-14 at 45-50.] Only one of the 300 consumers had a difference
between the reporting of their Ally account and the bankruptcy docket that was not easily
explained, but that consumer's bankruptcy case involved unique issues including that it was jointly
filed with a spouse, that the Ally debt was listed as "community debt," and that it involved
"complex legal issues." [Filing No. 179-14 at 50; see also Filing No. 217-2 at 37 (Equifax's
Litigation Support Consultant testifying: "Q: Is Ally Financial a reliable furnisher of consumer
credit information? A: Yeah, as I mentioned earlier, in my 25 years here, I've not heard anything
that, heard or seen anything that says otherwise.").]
7.

The CRAs' Reporting of Mr. Myers' Ally Account
a.

Equifax

On October 8, 2019 – after the bankruptcy discharge, but before this lawsuit was filed –
Equifax provided Mr. Myers with a copy of his consumer disclosure at his request. [Filing No.
177-6.] Equifax reported the Ally account as included in Mr. Myers' bankruptcy because as of
September 30, 2019, Ally reported to Equifax that this was the case. [Filing No. 177-3 at 8; Filing

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No. 177-6 at 8.] The Ally account was one of numerous other accounts and three collections on
Mr. Myers' Equifax consumer disclosure that might be considered negative by a potential creditor.
[Filing No. 177-6 at 7-25.] Equifax was also reporting Mr. Myers' discharged bankruptcy. [Filing
No. 177-6 at 7.] Mr. Myers' Huntington and Loancare accounts, which had been reaffirmed, were
reported as open and never late with a recent balance. [Filing No. 177-6 at 13-17.]
The first page of Equifax's consumer disclosure states:
Thank you for requesting your credit file, commonly called a Consumer Credit
Report. Your credit file contains information received primarily from companies
which have granted you credit and from public record sources. Great care has been
taken to report this information correctly. Please help us in achieving even greater
accuracy by reviewing all of the enclosed material carefully.
If there are items you believe to be incorrect, you may be able to initiate an
investigation request via the Internet 24 hours a day, 7 days a week at:
www.equifax.com/personal/disputes
Using the Internet to initiate an on-line investigation request will expedite the
resolution of your concerns.
Or you may complete the enclosed Research Request Form and return it to:
Equifax Information Services LLC
P.O. Box 105314
Atlanta, GA 30348
NOTE: Sending the Research Request Form to any other address will delay
the processing of your request.
Please note, when you provide documents, including a letter, to Equifax as part of
your dispute, the documents may be submitted to one or more companies whose
information are the subject of your dispute.
Under the FACT Act, you have the right to request and obtain a copy of your
credit score. To obtain a copy of your credit score, please call our automated
ordering system at: 1-877-SCORE-11.
[Filing No. 177-6 at 3 (emphasis in original).] Mr. Myers never disputed his Ally account with
Equifax. [Filing No. 178-3 at 137-40.]
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After Mr. Myers filed this lawsuit, Equifax initiated a reinvestigation of the Ally account
on February 7, 2020, and sent an ACDV to the furnisher to confirm that Ally was accurately
reporting Mr. Myers' account. [Filing No. 177-5 at 17-18; Filing No. 179-2 at 2.] On February
27, 2020, Ally responded to Equifax's ACDV request and confirmed that Mr. Myers' account was
accurately reported as included in the bankruptcy, as denoted by the CII of "A." [Filing No. 1775 at 25-27; Filing No. 179-2 at 2.]
b.

Experian

Experian provided one consumer disclosure to Mr. Myers, at his request, between the
discharge of Mr. Myers' bankruptcy and the filing of this lawsuit. [Filing No. 177-7.] As of the
date of the consumer disclosure – October 8, 2019 – Experian was reporting the Ally account as
discharged in bankruptcy and "[n]ever late." [Filing No. 177-7 at 3.] Experian was not reporting
a monthly payment amount or the recent balance. [Filing No. 177-7 at 3.] The Ally account was
one of numerous accounts on Mr. Myers' Experian credit disclosure that might be considered
negative by a potential creditor. [Filing No. 177-7 at 3-10.] Additionally, Experian was reporting
Mr. Myers' bankruptcy. [Filing No. 177-7 at 2.] Experian was not reporting the Huntington or
Loancare accounts as discharged in bankruptcy, and they were both reported positively as open
and never late with recent balances. [Filing No. 177-7 at 7-8.]
The Experian consumer disclosure provided to Mr. Myers stated:
Before contacting us, please review this report carefully. If you disagree with an
item, you may dispute it. We will process disputes generally by sending your
dispute to the furnisher of the information or to the vendor who collected the
information from a public record.
The fastest and easiest way to dispute most information that you disagree with is
by creating your member login at experian.com/disputes. Keep track of any
changes and dispute notifications online. You can also call with disputes or
questions at 800 509 8495, M – F 9am – 5pm in your time zone, or submit your
dispute in writing by mailing to Experian, NCAC, P.O. Box 2002, Allen TX 75013.
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Be advised that written information or documents you provide with respect to your
disputes may be shared with all creditors with which you are disputing.
[Filing No. 177-7 at 2.] The consumer disclosure further provided:
You have the right to dispute incomplete or inaccurate information. If you identify
information in your file that is incomplete or inaccurate, and report it to the
consumer reporting agency, the agency must investigate unless your dispute is
frivolous. See www.consumerfinance.gov/learnmore for an explanation of dispute
procedures.
[Filing No. 177-7 at 13.] The consumer disclosure attached a blank Dispute Form, which stated:
"Use this form for any disputes you wish to submit by mail." [Filing No. 177-7 at 16.]
Mr. Myers never submitted a dispute to Experian regarding the reporting of the Ally
account and never provided Experian with a copy of the Ally reaffirmation agreement. [Filing No.
178-3 at 49; Filing No. 179-4 at 4.] Instead, Mr. Myers relied on his attorneys to fix Experian's
reporting of the Ally account. [Filing No. 178-3 at 28.]
When Equifax sent the ACDV to Ally to confirm that it was accurately reporting Mr.
Myers' Ally account, Ally sent a carbon copy of its response to the ACDV to Experian on February
27, 2020. [Filing No. 178-11 at 8-12; Filing No. 179-5 at 2-3.] The carbon copy of the ACDV
response contained the CII of "A" for the Ally account, meaning that it had been included in Mr.
Myers' bankruptcy petition. [Filing No. 178-11 at 12-13; Filing No. 179-5 at 2.] Experian updated
its reporting of the Ally account the following day to reflect that the account was included in the
bankruptcy petition, rather than that it had been discharged. [Filing No. 179-5 at 2.] On March
31, 2020, Experian also sent its own ACDV to the data furnisher to confirm the accuracy of its
reporting, and Ally confirmed that the account should continue reporting as included in the
bankruptcy petition. [Filing No. 179-6.]

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c.

Trans Union

Trans Union provided Mr. Myers with a copy of his consumer disclosure on October 8,
2019, at his request. [Filing No. 177-8.] At that time, Trans Union was reporting the Ally account
as included/discharged in Mr. Myers' bankruptcy, with timely payments both during the pendency
of the bankruptcy and thereafter. [Filing No. 177-8 at 5.] Trans Union was not reporting a monthly
payment amount or the recent balance of the Ally account. [Filing No. 177-8 at 5.] The Ally
account was one of numerous accounts on Mr. Myers' consumer disclosure that might be
considered negative by a potential creditor. [Filing No. 177-8.] Trans Union was reporting Mr.
Myers' discharged bankruptcy, [Filing No. 177-8 at 4], and was reporting that the Huntington and
Loancare accounts were open and never late with balances (and not as discharged in the
bankruptcy), [Filing No. 177-8 at 11-12].
The Trans Union consumer disclosure provided to Mr. Myers stated:
If you believe an item of information to be incomplete or inaccurate, please alert us
immediately. We will investigate the data and notify you of the results of our
investigation.
To make it easier to request an investigation, you can now submit your request
online, 24 hours a day, 7 days a week. You must have an active email address to
use the online service. Please note that your email address will only be used for
communicating with you regarding your request and the results of our investigation.
Your email address will not be shared with any non-TransUnion entities.
To submit an online request for investigation:
Step 1. Go to the TransUnion online investigation service at http://transunion.com/
disputeonline
Step 2. Follow the instructions provided by the web site.
Once submitted, you will receive online confirmation of your request. You will
also be notified by email when we complete our investigation and your results will
be available online. You can check the status of your investigation online by
logging into your account.

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Thank you for helping ensure the accuracy of your credit information.
[Filing No. 177-8 at 2 (emphasis in original).]
Mr. Myers never contacted Trans Union regarding the reporting of the Ally account.
[Filing No. 178-3 at 49; Filing No. 178-3 at 160-61.] Instead, Mr. Myers relied upon his attorney
to fix the way in which Trans Union was reporting the Ally account. [Filing No. 178-3 at 28;
Filing No. 178-3 at 161.]
On February 10, 2020, after Mr. Myers filed this lawsuit, Trans Union sent Ally an ACDV8
and explained that "[t]he account was reaffirmed in bankruptcy case number 18 08492 JMC 7 filed
in the Southern District of Indiana." [Filing No. 179-8.] In response, Ally confirmed that the
account was not reaffirmed, but was instead included in the bankruptcy, and added a note that Mr.
Myers disagreed with Ally's position. [Filing No. 179-9 at 5.] In any event, Trans Union deleted
the Ally account from Mr. Myers' file on March 10, 2020. [Filing No. 179-10 at 5.]
8.

Mr. Myers' Efforts to Obtain Credit Post-Bankruptcy Discharge

After Mr. Myers' bankruptcy was discharged, he applied for several new credit cards in an
attempt to repair his credit. [Filing No. 178-3 at 61.] At that time, he feared that he might have
trouble rebuilding his credit due to the bankruptcy. [Filing No. 178-3 at 61-62; Filing No. 178-3
at 105-06; Filing No. 178-3 at 163.] Mr. Myers knew that a Chapter 7 bankruptcy is a major
derogatory event, but this and his fear of being rejected for new credit cards or loans did not deter
him from applying. [Filing No. 178-3 at 13; Filing No. 178-3 at 19-20; Filing No. 178-3 at 41-42;
Filing No. 178-3 at 62-63.] After the bankruptcy discharge, Mr. Myers opened several new
accounts and purchased numerous items including a new television and a new car. [Filing No.

8

Experian also received a carbon copy of this ACDV, which again confirmed for Experian that
the Ally account should be reported as included in Mr. Myers' bankruptcy petition.
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178-3 at 11-12; Filing No. 178-3 at 128-30; Filing No. 178-3 at 147.] He also received several
credit denials, but was never told that the denials related to the CRAs' reporting of the Ally account
– only that the denials stemmed from his bankruptcy. [Filing No. 178-3 at 62-63; Filing No. 1783 at 108; Filing No. 178-3 at 122-23; Filing No. 178-3 at 154-55.] When purchasing a new car in
May 2021, the automobile dealership asked Mr. Myers if he had surrendered the 2013 Chevrolet
Silverado that secured the Ally account, Mr. Myers explained that he had not surrendered it, and
he was approved to purchase a 2021 GMC Acadia the same day. [Filing No. 178-3 at 13-15.] The
Home Depot denied Mr. Myers credit, noting that the denial was based on the reporting of his
Chapter 7 bankruptcy on his Experian credit report, but did not reference the Ally account or any
specific account that had been discharged in the bankruptcy. [Filing No. 177-9.]
9.

The Lawsuit

Mr. Myers initiated this lawsuit in Rush County Superior Court on January 13, 2020 and
Trans Union removed the case to this Court, with the consent of Equifax and Experian, on February
4, 2020. [Filing No. 1; Filing No. 1-2.] Mr. Myers filed the operative Amended Complaint on
July 30, 2020, in which he asserts individual and class claims for violations of § 1681e(b) of the
FCRA. [Filing No. 51 at 9.] On behalf of himself and putative class members, he seeks statutory
damages ranging from $100 to $1,000 under § 1681n(a)(1)(A), punitive damages under §
1681n(a)(2) for each violation, and attorneys' fees and costs under § 1681n and 1681o. [Filing No.
51 at 9.] Mr. Myers seeks to represent a class of "[a]ll consumers in the United States whose
consumer reports inaccurately reported reaffirmed accounts as included or discharged in the
consumer's bankruptcy and disclosed to a third party." [Filing No. 164 at 9.] He also seeks to
represent the following sub-classes:
All consumers in the United States whose consumer reports inaccurately reported
reaffirmed accounts as included or discharged in the consumer's bankruptcy when
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the information furnisher was reporting payments being made during and/or after
the bankruptcy and disclosed to a third party.
All consumers in the United States whose consumer reports inaccurately reported
reaffirmed accounts as included or discharged in the consumer's bankruptcy when
the bankruptcy file shows Bankruptcy Form 427 and/or the reaffirmation agreement
was filed and where this information was disclosed to a third party.
[Filing No. 164 at 9-10.]
C.

Discussion
1.

Scope of Mr. Myers' Claims

At the outset, the Court considers the scope of Mr. Myers' claims. Specifically, along with
a claim for willful violation of § 1681e(b) under § 1681n, Mr. Myers asserts a claim for negligent
violation of § 1681e(b) in his Amended Complaint pursuant to § 1681o, [Filing No. 51 at 9 (Mr.
Myers alleging that the CRAs "are liable to [him] for willfully and negligently violating the
requirements imposed…under…§ 1681e(b)" and seeking attorneys' fees and costs under §
1681o)]. However, the Court finds that he has abandoned his negligence claim for two reasons.
First, Mr. Myers appears to only seek attorneys' fees and costs under § 1681o, [see Filing No. 51
at 9], but he must show that he has suffered actual damages to succeed on a § 1681o claim in the
first instance, Persinger v. Southwest Credit Sys., L.P., 20 F.4th 1184, 1194 (7th Cir. 2021).
Because he must show that he suffered actual damages to recover under § 1681o for negligent
violation of § 1681e(b), his negligent violation claim fails. Second, Mr. Myers does not mention
his claim for negligent violation of the FCRA in his Statement of Claims, [see Filing No. 116],
which also results in abandonment of that claim. Jackson v. Regions Bank, 838 Fed. App'x 195,
198 (7th Cir. 2021) (affirming this Court's treatment of claims not preserved in the Statement of
Claims as abandoned). Because Mr. Myers has abandoned any claim for actual damages, the Court

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DENIES AS MOOT the CRAs' Motion for Summary Judgment to the extent it relates to a claim
for actual damages or for any claim under § 1681o.
2.

Standing

Before the Court considers the substance of Mr. Myers' remaining claims, it must determine
whether Mr. Myers has standing to sue, which is a jurisdictional requirement. Persinger, 20 F.4th
at 1189 (courts "have an independent obligation to inspect, and remain within, jurisdictional
boundaries") (quotation and citation omitted). Standing is a threshold issue, and the Court must
discuss it at the outset. Bazile v. Finance System of Green Bay, Inc., 983 F.3d 274, 278 (7th Cir.
2020). To have standing to sue in federal court under Article III, a plaintiff must establish: "(i)
that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that
the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by
judicial relief." TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
"Because standing is an essential ingredient of subject-matter jurisdiction, it must be
secured at each stage of the litigation." Bazile, 983 F.3d at 278. Although at the pleading stage
"general factual allegations of injury resulting from the defendant's conduct may suffice," Lujan,
504 U.S. at 561, "[o]nce the allegations supporting standing are questioned as a factual matter –
either by a party or by the court – the plaintiff must support each controverted element of standing
with 'competent proof,'" Bazile, 983 F.3d at 278 (quoting McNutt v. Gen. Motors Acceptance Corp.
of Ind., 298 U.S. 178, 189 (1936)). "Competent proof" means "a showing by a preponderance of
the evidence, or proof to a reasonable probability, that standing exists." Retired Chi. Police Ass'n
v. City of Chicago, 76 F.3d 856, 862 (7th Cir. 1996). Significantly, "a named plaintiff cannot
acquire standing to sue by bringing his action on behalf of others who suffered injury which would

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have afforded them standing had they been named plaintiffs," and "a person cannot predicate
standing on injury which he does not share." Payton v. County of Kane, 308 F.3d 673, 682 (7th
Cir. 2002) (quotation and citation omitted). In short, "[s]tanding cannot be acquired through the
back door of a class action." Id. (quotation and citation omitted).
The parties do not explicitly address whether Mr. Myers has standing, but the CRAs argue
in their Motion for Summary Judgment that Mr. Myers has not presented competent evidence that
the CRAs' reporting of the Ally loan as discharged, rather than his poor credit history and
bankruptcy discharge, caused him any injury in fact. [Filing No. 182 at 31-32.] The CRAs note
Mr. Myers' deposition testimony that he knew when he filed for bankruptcy that it would damage
his credit for years and make it harder to obtain new credit, and also point to Mr. Myers' lack of
evidence that any credit denials were connected to the CRAs' reporting of the Ally loan. [Filing
No. 182 at 32.] As for emotional distress damages, the CRAs argue that any stress Mr. Myers
suffered related to the Ally loan was from Ally insisting that the debt was discharged, and not from
anything the CRAs did. [Filing No. 182 at 32-33.] They contend that Mr. Myers never even
disputed the CRAs' reporting of the Ally loan as discharged, instead leaving resolution of the issue
up to his attorneys. [Filing No. 182 at 33.] The CRAs claim that the "garden-variety" stress Mr.
Myers claims he suffered is not enough to show that he suffered emotional distress or a legally
cognizable injury. [Filing No. 182 at 33.] In short, the CRAs argue that Mr. Myers has not
established a causal relationship between the violation of the FCRA and the loss of credit or some
other harm. [Filing No. 182 at 34.]
In his response, Mr. Myers argues that he need not establish that he suffered actual damages
to seek statutory damages for willful noncompliance with the FCRA. [Filing No. 219 at 35.]
The CRAs reiterate their arguments in their reply. [Filing No. 226 at 16.]

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Even though Mr. Myers has not presented any evidence that he suffered actual damages
for purposes of recovering for a negligent violation of the FCRA under § 1681o, he can still seek
statutory and punitive damages under § 1681n for a willful violation of the FCRA. See Meyers v.
Nicolet Rest. Of De Pere, LLC, 843 F.3d 724, 725 (7th Cir. 2016) ("Each willful violation entitles
consumers to recover either 'any actual damages sustained…as a result' of the violation or statutory
damages of between $100 and $1,000.") (quoting 15 U.S.C. § 1681n(a)(1)(A) (emphasis added)).
Importantly, though, Mr. Myers still must show that he suffered an injury-in-fact in order to seek
redress for a willful violation. McIntyre v. RentGrow, Inc., 34 F.4th 87, 93 n.2 (1st Cir. 2022)
("Even without a showing of actual damages, a plaintiff who seeks to press a willful
noncompliance claim [under the FCRA] must show an injury in fact sufficient to support
standing.") (citing Trans Union LLC v. Ramirez, 141 S. Ct. 2190, 2200 (2021)).
In Spokeo, Inc. v. Robins, the Supreme Court held that a "bare procedural violation [of the
FCRA] divorced from any concrete harm" does not satisfy the injury-in-fact requirement of Article
III. 578 U.S. 330, 341 (2016). The Supreme Court also found, however, that "the risk of real
harm" can satisfy the requirement of concreteness where the violation of the FCRA is of a right
granted by the statute and the plaintiff "need not allege any additional harm beyond the one
Congress has identified." Id. at 342 (emphasis omitted). Subsequently, the Supreme Court held
that a plaintiff has standing to sue for an FCRA violation where a misleading credit report was
provided to a third party, because this dissemination constituted "concrete reputational harm."
Ramirez, 141 S. Ct. at 2200; see also Chuluunbat v. Experian Info. Solutions, Inc., 4 F.4th 562,
566 n.3 (7th Cir. 2021) (plaintiffs had standing to assert FCRA claims where they had all alleged
that their credit reports were accessed by third parties).

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The record evidence in this case shows – and the CRAs have not disputed – that all of the
CRAs disseminated Mr. Myers' credit report to third parties during the time that the CRAs were
reporting the Ally loan as discharged instead of reaffirmed. [See Filing No. 177-6 at 26 (Equifax
consumer disclosure reflecting that numerous potential creditors requested (and were provided)
Mr. Myers' credit report from the time his bankruptcy was discharged to the time he filed this
lawsuit); Filing No. 177-7 at 10 (Experian consumer disclosure showing the same for Experian);
Filing No. 177-8 at 15-18 (Trans Union consumer disclosure showing the same for Trans Union).]
Under Spokeo and Ramirez, the Court finds that, because Mr. Myers' allegedly inaccurate credit
report was disseminated to third parties, he has standing to assert his claims under the FCRA. The
Court next considers the merits of those claims.
3.

Whether the CRAs Violated § 1681e(b)

Mr. Myers claims that the CRAs willfully violated the FCRA, which requires him to prove
that they acted "with actual knowledge or reckless disregard for the FCRA's requirements."
Persinger, 20 F.4th at 1195 (citing Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57 (2007)). This
"raises a sequencing issue," where "[c]ourts may pass over the antecedent question of whether a
violation occurred, moving directly to whether the defendant negligently or willfully violated the
statute," which "is akin to the sequencing dilemma courts face in qualified immunity cases."
Persinger, 20 F.4th at 1196. The Court will follow the Supreme Court's approach in Safeco and
the Seventh Circuit's approach in Persinger, however, and first considers whether the CRAs have
violated the FCRA.
15 U.S.C. § 1681e(b) provides that "[w]henever a consumer reporting agency prepares a
consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the
information concerning the individual about whom the report relates." In order for Mr. Myers to

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succeed on his FCRA claim, he must show that the CRAs' consumer reports contained inaccurate
information. See Walton v. BMO Harris Bank N.A., 761 Fed. App'x 589, 591 (7th Cir. 2019)
(holding that a CRA "cannot be held liable as a threshold matter [under § 1681e(b)] if it did not
report inaccurate information"). Additionally, the FCRA "is not a strict liability statute," id. at
591, and "does not require unfailing accuracy from consumer reporting agencies," Denan v. Trans
Union LLC, 959 F.3d 290, 294 (7th Cir. 2020). If a CRA followed "reasonable procedures to
assure maximum possible accuracy," but reported inaccurate information anyway, it is not liable
under the FCRA. Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994). Additionally,
"[n]either the FCRA nor its implementing regulations impose…a duty [upon CRAs] to determine
the legality of a disputed debt." Denan, 959 F.3d at 295.
The CRAs argue that they did not violate § 1681e(b) for three reasons: (1) they accurately
reported the Ally account as discharged in bankruptcy; (2) determining whether the Ally loan was
successfully reaffirmed and, consequently, inaccurately reported, would require the type of legal
analysis that they are not obligated to undertake; and (3) they were entitled to rely on information
furnished by Ally. The Court considers each reason in turn.
a.

Whether the CRAs Accurately Reported Mr. Myers' Ally Account

The CRAs initially argue that they correctly reported Mr. Myers' account, so his FCRA
claim fails as a matter of law. [Filing No. 182 at 19-22.] They assert that Mr. Myers' reaffirmation
agreement with Ally did not comply with the deadlines set forth in the Bankruptcy Code and the
Federal Rules of Bankruptcy Procedure because: (1) it was filed more than 60 days after the
creditors' meeting, in violation of FRBP 4008(a); and (2) it was filed after the bankruptcy court
initially entered its January 9, 2019 discharge order, in violation of 11 U.S.C. § 524(c)(1). [Filing
No. 182 at 20-22.]

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In his response, Mr. Myers argues that he complied with the Bankruptcy Code in filing his
reaffirmation agreement. [Filing No. 219 at 17-20.] He contends that the Federal Rules of
Bankruptcy Procedure allow a debtor to seek an extension of the grant of the discharge, which then
extends the debtor's time for filing a reaffirmation agreement, and notes that he sought such an
extension, the bankruptcy court granted an extension, and he filed his reaffirmation agreement
with Ally by the extended deadline. [Filing No. 219 at 17-18.]
The CRAs argue in their reply that strict compliance with the Bankruptcy Code and the
Federal Rules of Bankruptcy Procedure is required, and that Mr. Myers did not request an
extension of the deadline to file a reaffirmation within 60 days of the creditors' meeting as required
by Rule 4008(a), nor did the bankruptcy court extend that deadline. [Filing No. 226 at 5.]
Two provisions govern the timing of the filing of a reaffirmation agreement. First, 11
U.S.C. § 524(c)(1) provides that a reaffirmation agreement "is enforceable only to any extent
enforceable under applicable nonbankruptcy law, whether or not discharge of such debt is waived,
only if – (1) such agreement was made before the granting of the discharge." Second, FRBP
4008(a) provides that "[a] reaffirmation agreement shall be filed no later than 60 days after the
first date set for the meeting of creditors under § 341(a) of the Code." A review of the docket in
Mr. Myers' bankruptcy reflects the following events related to the filing of the reaffirmation
agreement with Ally:
•

December 10, 2018: The creditors' meeting took place. [Filing No. 178-1 at
3];

•

January 9, 2019: The bankruptcy court entered the first Discharge Order.
[Filing No. 178-1 at 4];

•

January 10, 2019: The bankruptcy court entered an "Administrative Order
Reopening Bankruptcy Case, Order Vacating Final Decree and Notice of
Reappointment of Trustee." [Filing No. 178-1 at 4.] The Order, accessed only
by clicking on the docket entry, states: "This case was closed in error on January
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9, 2019." [Filing No. 21 in In re Myers, No. 1:18-bk-08492-JMC-7 (Bankr.
S.D. Ind.)];
•

February 8, 2019: Mr. Myers filed a Motion to Defer Entry of Discharge,
requesting that the bankruptcy court defer entry of discharge "until after
February 22, 2019 to allow Debtors and Ally Financial to sign and file
reaffirmation agreement." [Filing No. 30 in In re Myers, No. 1:18-bk-08492JMC-7 (Bankr. S.D. Ind.)];

•

February 11, 2019: The bankruptcy court granted Mr. Myers' Motion to Defer
Entry of Discharge, deferring discharge to March 13, 2019. [Filing No. 178-1
at 5];

•

March 1, 2019: Mr. Myers filed his reaffirmation agreement with Ally. [Filing
No. 178-1 at 5]; and

•

March 22, 2019: The bankruptcy court entered the discharge order. [Filing No.
178-1 at 6].

While the January 9, 2019 order of discharge was entered in error, the face of the docket
indicates that the Ally reaffirmation agreement was filed more than 60 days after the creditors'
meeting. 9 [See Filing No. 178-1.] But Mr. Myers claims that the deadline for extending entry of
the discharge also extended any obligation he had to file the reaffirmation agreement within 60
days of the creditors' meeting.
The Court notes that neither Mr. Myers' Motion to Defer Entry of Discharge nor the
bankruptcy court's Order granting that motion mention extending the deadline imposed by FRBP
4008(a). However, the Court also recognizes that the reaffirmation agreement between Mr. Myers
and Ally is reflected on the bankruptcy docket, [Filing No. 178-1 at 5], and that the docket does
not reflect that the bankruptcy court rejected the reaffirmation agreement due to a timing issue.

Internal Ally notes indicate that, at least as of December 31, 2019, Ally believed the reaffirmation
agreement was not timely filed because it was filed more than 60 days after the creditors' meeting,
in violation of FRBP 4008(a). [Filing No. 177-1 at 2 ("debtor failed to reaffirm per SOI, no motion
to extend A/S by trustee, A/S termination per 362H, no order coming, 341 meeting: 121018, reaff
deadline per Rule 4008A 020819.").]
9

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The CRAs' expert witness, Judge William Houston Brown, explained in his expert report, however,
that:
Unless some dispute about [a reaffirmation agreement] is presented to the
bankruptcy court through motion practice, the parties' reaffirmation agreement is
simply filed with the court clerk and would appear on the case docket entries. But
the filing of the document does not mean that any questions about validity or
enforceability of the agreement have been resolved. Filing is an administrative act
by the clerk and not an adjudication by the court that the reaffirmation is valid or
in compliance with all Code requirements.
[Filing No. 179-14 at 20.]
The docket in the bankruptcy case reflects two realities: the reaffirmation agreement was
on the docket, but was filed was filed more than 60 days after the creditors' meeting. The mere
existence of the reaffirmation agreement on the bankruptcy docket does not necessarily establish
that the reaffirmation agreement was valid, particularly given the tardy timing. But this Court
declines to decide whether the reaffirmation agreement was valid – an issue that is properly
decided by the bankruptcy court, but for which neither Mr. Myers nor Ally sought clarification.
See Cosgriff v. Cnty. of Winnebago, 876 F.3d 912, 915 (7th Cir. 2017) (applying principles of
comity to bar plaintiff from bringing certain claims in federal court that were more properly
decided by another tribunal). Instead, the Court assumes for purposes of deciding the CRAs'
Motion for Summary Judgment that the reaffirmation agreement between Mr. Myers and Ally was
valid. The Court goes on to consider whether the CRAs violated the FCRA by not reporting the
Ally account as reaffirmed.
b.

Whether Reporting the Reaffirmation Required a Legal
Determination That the CRAs Were Not Obligated to Undertake

The CRAs argue that they cannot be held liable for a violation of § 1681e(b) of the FCRA
because any inaccuracy in their reporting of the Ally account involves two legal issues that are
"not suitable for resolution by the CRAs," including a contract dispute between Mr. Myers and
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Ally and a dispute regarding the validity of the reaffirmation agreement in the bankruptcy
proceeding. [Filing No. 182 at 23-24.] The CRAs argue that Mr. Myers' "own actions confirm
the legal nature of his dispute with Ally: when Ally informed [Mr. Myers] that his debt was not
reaffirmed, he contacted attorneys to address the issue." [Filing No. 182 at 24.] They also note
that resolving the dispute as to whether the reaffirmation agreement is valid "turns on complex
questions of bankruptcy law that far exceed the competencies of [the CRAs]." [Filing No. 182 at
24 (quotation, citation, and alteration omitted).] The CRAs assert that Mr. Myers could have
obtained a binding resolution of his dispute with Ally from the bankruptcy court and that, if he had
done so, the CRAs would have been competent to ascertain how to report the Ally account. [Filing
No. 182 at 25.]
Mr. Myers argues in his response that "[t]he distinction between 'legal' and 'factual'
inaccuracies…is a false one and is not found within the text of [§ 1681e(b)]." [Filing No. 219 at
23.] He asserts that the CRAs could determine whether a debt has been reaffirmed "by simply
referring to the same electronic dockets from which [they] obtain other details of a bankruptcy
they voluntarily report." [Filing No. 219 at 24.] He argues that the CRAs' position that reporting
the Ally account as reaffirmed would require complex legal analysis is not credible because "they
are reporting the debt as discharged in bankruptcy, which in itself is the same legal analysis they
claim they cannot do," and the reaffirmation was filed on an Official Bankruptcy Form 427, which
"appears on the docket and is readily searchable as illustrated by the annual governmental report."
[Filing No. 219 at 25.] He contends that simply determining whether he filed a reaffirmation
agreement does not require any legal determination, and that the CRAs have never undertaken
such an analysis and "never sought this…information from the bankruptcy courts or their public
records vendors." [Filing No. 219 at 27.] He notes that some of the CRAs provide their employees

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with instructions for verifying bankruptcy information using PACER and that "it is not credible
for [the CRAs] to suggest that this is work reserved for judges and lawyers and wash its hands of
any responsibility for reporting some bankruptcy public record information but not information
about reaffirmations of debt appearing on their credit reports." [Filing No. 219 at 28.]
In their reply, the CRAs argue that they "receive high-level information related to consumer
bankruptcies from their respective public records vendors, such as the consumer's name, the type
of bankruptcy filed…, the date the consumer filed bankruptcy, the court in which the consumer
filed for bankruptcy, and whether the bankruptcy was discharged or dismissed." [Filing No. 226
at 7.] They contend that going a step further and reviewing the bankruptcy docket for reaffirmation
agreements would require them to "analyze each reaffirmation agreement, attempt to match it with
a debt in the consumer's file, and determine whether the agreement complied with applicable
bankruptcy law." [Filing No. 226 at 7.] They assert that filing a reaffirmation agreement is not
the same as reaffirming a debt, because the reaffirmation agreement must actually comply with §
524(c) to be effective. [Filing No. 226 at 7-8.] The CRAs argue that the FCRA does not require
them to analyze whether a reaffirmation agreement is valid under applicable bankruptcy rules, and
note that Ally told them that the debt had not been reaffirmed and that Mr. Myers is asking them
to "override direct information from one of the only two parties to the agreement." [Filing No.
226 at 8-9.]
In Denan, the Seventh Circuit Court of Appeals considered whether Trans Union violated
§ 1681e(b) when it reported a debt that the consumer argued was illegally issued, but that the
creditor had verified. 959 F.3d 290. In finding that Trans Union had not violated § 1681e(b), the
Seventh Circuit explained the role of furnishers and CRAs as follows:
The FCRA imposes duties on consumer reporting agencies and furnishers in a
manner consistent with their respective roles in the credit reporting market.
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Furnishers – such as banks, credit lenders, and collection agencies – provide
consumer data to consumer reporting agencies. In turn, those agencies compile the
furnished data into a comprehensible format, allowing others to evaluate the
creditworthiness of a given consumer. Consumer reporting agencies and
furnishers, though interrelated, serve discrete functions: furnishers report data to
incentivize the repayment of debts, while consumer reporting agencies compile and
report that data for a fee. What results is a credit reporting system, producing a vast
flow and store of consumer information. For example, according to the Consumer
Financial Protection Bureau, each of the nationwide consumer reporting agencies
receive information from furnishers on over 1.3 billion consumer credit accounts
or trade lines on a monthly basis.
Denan, 959 F.3d at 294. The Seventh Circuit went on to note that requiring a CRA to "verify [a
consumer's] debt liability" would "attempt to graft responsibilities of data furnishers and tribunals
onto a consumer reporting agency. Only furnishers are tasked with accurately reporting liability.
And it makes sense that furnishers shoulder this burden: they assumed the risk and bear the loss of
unpaid debt, so they are in a better position to determine the legal validity of a debt…. [CRAs]
collect consumer information supplied by furnishers, compile it into consumer reports, and provide
those reports to authorized users." Id. at 295. It concluded that determining the validity of the
plaintiff's debt involved three legal issues – whether the choice-of-law provision in the loan
agreements was enforceable, whether the loans were void under the applicable state laws, and
whether tribal sovereign immunity shielded various parties from the application of those states'
laws – and that "[t]he power to resolve these legal issues exceeds the competencies of consumer
reporting agencies." Id.
While cases refusing to impose a duty on CRAs to determine the legality of a debt generally
involve questions of the validity of a debt, the Court finds the situation here – the validity of the
reaffirmation agreement – to be analogous. As the Seventh Circuit has explained, factual issues
for which CRAs are responsible to accurately report include, for example, "the amount a consumer
owes, and what day a consumer opened an account or incurred a payment." Chuluunbat, 4 F.4th

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568. In contrast, a legal issue requires a CRA to "make [a] legal determination[ ] about the facts
or legal judgments." Id. Here, it is true that the filing of the reaffirmation agreement is a factual
issue, ascertainable from a quick review of Mr. Myers' bankruptcy docket. But the mere filing of
the reaffirmation agreement does not necessarily mean that it was valid. Indeed, Ally told the
CRAs that the loan had not been reaffirmed and Ally's internal records indicate that it compared
the date of the creditors' meeting with the date the reaffirmation agreement was filed and
determined that the reaffirmation agreement was filed late and was not valid. Any further
determination regarding the reaffirmation agreement's validity would require the CRAs to delve
into applicable bankruptcy rules to determine whether Mr. Myers' motion to extend the deadline
for discharge also operated to extend the 60-day deadline related to the creditors' meeting. This is
a legal determination that requires the CRAs to apply law to the facts, that "exceeds the
competencies" of the CRAs, and that is one which the CRAs are not required to make under the
FCRA. Denan, 959 F.3d at 295. Accordingly, the Court finds that the CRAs did not violate §
1681e(b) by reporting the Ally account as discharged instead of reaffirmed.
c.

Whether the CRAs Were Entitled to Rely Upon Information From
Ally

In the interest of thoroughness, the Court also considers whether the CRAs were entitled
to rely on information from Ally in reporting Mr. Myers' Ally account as discharged. The CRAs
argue in support of their Motion for Summary Judgment that "CRAs comply with Section 1681e(b)
as a matter of law by correctly reporting information provided to them by furnishers absent prior
notice that the information is inaccurate or comes from an unreliable source." [Filing No. 182 at
26.] They note that Mr. Myers seeks to hold them responsible for assuming that there was a dispute
regarding the Ally account (absent Mr. Myers ever disputing the account with the CRAs) and then
ignoring the information they received from Ally. [Filing No. 182 at 26.] They argue that Ally's
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reporting of the account matched the other information in Mr. Myers' credit file, including that he
had received a discharge from Chapter 7 bankruptcy and had discharged several other prebankruptcy debts, and the CRAs had no reason to question the accuracy of the information Ally
had provided. [Filing No. 182 at 27.] The CRAs point to evidence that they were not aware of
any prior issues with creditors not accurately reporting reaffirmed accounts, and note that the
CRAs provided a random sample of 100 consumers each whose Ally debts were current at the
time of their Chapter 7 bankruptcy and for which there was a bankruptcy indicator on their account,
that "Ally is close to perfect when it comes to reporting the status of consumers' debts following
Chapter 7 bankruptcy," and that "[o]f the 300 consumers sampled, Ally reported debts as
reaffirmed when the consumer filed what appeared to be a valid reaffirmation agreement, and as
discharged when they did not." [Filing No. 182 at 28.]
In response, Mr. Myers argues that the CRAs "already report the docket number and
jurisdiction of every bankruptcy, so there is no additional effort involved in viewing docket entries
that [use] the same sources. At the very least, this presents a triable issue as to whether [the CRAs]
acted reasonably in reporting some, but not all, material information regarding [Mr. Myers']
bankruptcy." [Filing No. 219 at 25.] Mr. Myers contends that the CRAs are capable of using
PACER to determine whether a reaffirmation agreement has been filed, and that the information
regarding Mr. Myers' bankruptcy was available from a single source that the CRAs already review
to provide certain bankruptcy information. [Filing No. 219 at 27-28.]
In their reply, the CRAs reiterate their arguments regarding the accuracy of information
from Ally in the past and the sample of creditors with Ally accounts, the vast majority of which
were reported accurately. [Filing No. 226 at 10-11.] They assert that Mr. Myers "falsely equates
filing a reaffirmation agreement with successfully reaffirming a debt," and that "[t]he two are not

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the same, and assuming that a debt is reaffirmed whenever a reaffirmation agreement is
filed…would systematically and predictably cause the CRAs to report that consumers remain
liable for discharged debts." [Filing No. 226 at 12.] The CRAs argue that Mr. Myers does not
allege that Ally is unreliable, nor does he present evidence that this is the case. [Filing No. 226 at
13.] 10
As for Mr. Myers' argument that the CRAs already report certain information from the
bankruptcy docket so should be required to also look at whether a reaffirmation agreement has
been filed, the facts of this case demonstrate that the issue is not that simple. As the CRAs' expert,
Judge Brown, explained in his report, the filing of a reaffirmation agreement in a bankruptcy is
"an administrative act by the clerk and not an adjudication by the court that the reaffirmation is
valid or in compliance with all Code requirements." [Filing No. 179-14 at 20.] He also explains
that a debtor may rescind a reaffirmation agreement within 60 days of the filing of the reaffirmation
agreement or entry of discharge, whichever is later. [Filing No. 179-14 at 20.] All this to say that
the mere presence of a reaffirmation agreement on the docket may not tell the whole story
regarding whether the reaffirmation agreement is valid. Indeed, the Court can conceive of
situations where Mr. Myers' approach – to report a debt as reaffirmed based on the presence of the
reaffirmation agreement on the docket alone – could lead to inaccurate reporting. For example, if

10

The CRAs also filed a Notice of Supplemental Authority, advising the Court of an Eighth Circuit
case involving a § 1681e(b) claim related to the reporting of a debt following bankruptcy discharge
that was decided after briefing on the Motion for Summary Judgment was complete, [Filing No.
227], and Mr. Myers filed a Response to Defendants' Notice of Supplemental Authority, [Filing
No. 228]. Aside from the fact that the Court is not inclined to rely upon Eighth Circuit authority
when the Seventh Circuit has provided clear guidance on the issues involved in this case, neither
the Federal Rules of Civil Procedure nor this Court's Local Rules provide for the filing of
"supplemental authority" once briefing of a motion is complete, and the parties did not seek leave
of Court for their filings. Further, the Court assures the parties that it conducts its own research
on the issues presented in the cases on its docket and cautions the parties to avoid the practice of
providing supplemental authority after briefing on a motion has closed going forward.
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the creditor has not signed the reaffirmation agreement or if the debtor later rescinds the
reaffirmation agreement, these circumstances may not be reflected on the docket. And while
anomalies may exist regarding discharge orders, this case is not about the reporting of discharged
debts and Mr. Myers has not presented record evidence that CRAs do not require their vendors
and furnishers to provide accurate information using the Metro 2 format – which includes
instructions for reporting reaffirmations.
In any event, here the CRAs have shown as a matter of law that they reasonably relied on
information from Ally regarding Mr. Myers' account, which the Seventh Circuit has found shields
them from liability under § 1681e(b). Specifically, in connection with determining whether the
plaintiff had suffered damages, the Seventh Circuit has held that liability to reinvestigate a
tradeline under the FCRA is not triggered when the CRA had no reason to believe that the furnisher
was an unreliable source. Ruffin-Thompkins v. Experian Info. Solutions, Inc., 422 F.3d 603, 608
(7th Cir. 2005). Further, in Sarver v. Experian Info. Solutions, the Seventh Circuit considered
whether a consumer could succeed on a § 1681e(b) claim where only one account was reported as
included in bankruptcy and the consumer claimed that "[this] anomaly should have alerted
Experian…to the fact that the report was inaccurate." 390 F.3d 969, 972 (7th Cir. 2004). The
Seventh Circuit disagreed, stating:
What [plaintiff] is asking…is that each computer-generated report be examined for
anomalous information and, if it is found, an investigation be launched. In the
absence of notice of prevalent unreliable information from a reporting lender,
which would put Experian on notice that problems exist, we cannot find that such
a requirement to investigate would be reasonable given the enormous volume of
information Experian processes daily.
Id.
Here, Mr. Myers has not presented any evidence to counter the CRAs' evidence that Ally
was a trusted furnisher with no past issues regarding failing to provide accurate information. [See
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Filing No. 165-7 at 4; Filing No. 165-8 at 3; Filing No. 165-9 at 4; Filing No. 180-1 at 3; Filing
No. 217-2 at 11-12; Filing No. 217-2 at 37.] Moreover, the sampling of Ally account information
shows that Ally accurately reported post-bankruptcy information about consumers' debts in 291 of
300 instances, that 8 of those cases were explained after a closer review of the individual's
bankruptcy docket, and that only one case was a discrepancy that was not easily explained but that
it involved numerous "complex legal issues." [Filing No. 179-14 at 40-50.]
Additionally, while a consumer is not required to dispute an account with a CRA before
bringing a lawsuit under the FCRA, 11 it strikes the Court as even more demanding to require CRAs
to delve into the issue of whether Mr. Myers' reaffirmation agreement with Ally was valid when it
had no notice whatsoever from Mr. Myers that he disputed the reporting of the Ally account as
discharged until he filed this lawsuit. Ally confirmed that the debt had been discharged in
bankruptcy, Mr. Myers had not disputed that position to the CRAs, and the CRAs had no reason
to believe that Ally's information was inaccurate. The FCRA does not require more of the CRAs
under the circumstances presented in this case, and the Court finds that the CRAs were entitled to
rely on the information from Ally regarding Mr. Myers' account such that they are not liable as a
matter of law under § 1681e(b).
In sum, assuming without deciding that reporting Mr. Myers' Ally loan as discharged was
inaccurate, the Court finds that the CRAs did not violate § 1681e(b) because discovering that the
reporting was inaccurate would require a legal determination that the FCRA does not require the
CRAs to make, and because the CRAs were entitled to rely upon information provided from Ally

11

The Seventh Circuit has noted, however, that "a consumer disputing the legal validity of a debt
that appears on her credit report should first attempt to resolve the matter directly with the creditor
or furnisher, which stands in a far better position to make a thorough investigation of a disputed
debt than the [consumer reporting agency] does on reinvestigation." Denan, 959 F.3d at 297
(quotation and citation omitted).
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that the loan had been discharged in bankruptcy. The Court GRANTS the CRAs' Motion for
Summary Judgment, [Filing No. 176], on Mr. Myers' § 1681e(b) claim. However, the Court will
go on to consider whether, even if the CRAs violated § 1681e(b), Mr. Myers has shown that the
CRAs did so willfully.
4.

Whether the CRAs Willfully Violated § 1681e(b)

In support of their Motion for Summary Judgment, the CRAs argue that their procedures
for reporting debts following a consumer's discharge from Chapter 7 bankruptcy are governed by
the White Injunction, which provides that "when a furnisher reports that a consumer has discharged
a debt in bankruptcy, the information supplied by the furnisher controls." [Filing No. 182 at 30.]
They contend that they "perfectly followed the White Injunction in this case" because "[t]hey did
not assume that [Mr. Myers] discharged his current-status Ally loan in bankruptcy and reported it
as discharged in bankruptcy only because Ally instructed them to do so." [Filing No. 182 at 30.]
The CRAs cite numerous cases which they contend hold that compliance with the White Injunction
defeats a willfulness claim. [Filing No. 182 at 30.] The CRAs also reiterate their arguments that
they accurately reported the information provided by Ally, and that they had no reason to doubt
the accuracy of that information. [Filing No. 182 at 30-31.]
In response, Mr. Myers argues that willfulness is generally a question for the jury and that
an Eastern District of California case, Gadomski v. Equifax Info. Services, LLC, 2020 WL 3841041
(E.D. Cal. July 8, 2020), has "put [the CRAs] on notice that failure to check public records violates
the FCRA." [Filing No. 219 at 30.] Mr. Myers asserts that the following circumstances indicate
that the CRAs' actions were willful: (1) the CRAs do not require their data furnishers to notify
them when a debt is reaffirmed; and (2) the CRAs do not look for reaffirmation agreement
information on the same docket that they use to obtain bankruptcy discharge information even

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though the information is accessible to them and to the bankruptcy vendors through PACER.
[Filing No. 219 at 31-32.] Mr. Myers also argues that the White Injunction does not provide the
CRAs with a defense to his willfulness claim because White "did not involve the failure to report
publicly available bankruptcy information." [Filing No. 219 at 34.] Mr. Myers contends that
"Ally's reliability as a furnisher is not the issue; rather, the issue is whether it was reasonable for
[the CRAs] to also disregard the public bankruptcy records, especially when the two sources of
information were in direct conflict." [Filing No. 219 at 34-35.]
In reply, the CRAs note that Gadomski did not relate to reaffirmation agreements and was
decided on the pleadings, without considering evidence that the furnisher consistently provided
accurate post-bankruptcy information to the CRAs and evidence that the public records available
in PACER were consistent with the CRAs' reporting. [Filing No. 226 at 14.] The CRAs argue
that they each require furnishers to report accurate information and to use the Metro 2 reporting
format and follow the CRRG, which "contains detailed instructions for reporting debts that have
been reaffirmed." [Filing No. 226 at 15.] Finally, they argue that Mr. Myers "points to no authority
suggesting that Section 1681e(b) requires the CRAs to instruct furnishers on how they must
comply with their independent obligation to provide accurate information about a consumer's
liability for a debt." [Filing No. 226 at 15.]
Section 1681n of the FCRA provides that:
Any person who willfully fails to comply with any requirement imposed under this
subchapter with respect to any consumer is liable to that consumer in an amount
equal to the sum of –
(1)(A) any actual damages sustained by the consumer as a result of the
failure or damages of not less than $100 and not more than $1,000;
***
(2) such amount of punitive damages as the court may allow; and
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(3) in the case of any successful action to enforce any liability under this
section, the costs of the action together with reasonable attorney's fees as
determined by the court.
15 U.S.C. 1681n(a). The Supreme Court has explained that the term "willfully" as used in § 1681n
includes both knowing and reckless violations of the FCRA. Safeco Ins. Co. of America, 551 U.S.
at 56-60. Specifically, it found that a CRA acts in reckless disregard of the FCRA when its action
is "not only a violation under a reasonable reading of the statute's terms, but shows that the
company ran a risk of violating the law substantially greater than the risk associated with a reading
that was merely careless." Id. at 69. So, "only a reading that is 'objectively unreasonable' can be
deemed a 'willful' violation." Van Straaten v. Shell Oil Prods. Co. LLC, 678 F.3d 486, 489 (7th
Cir. 2012) (quoting Safeco Ins. Co. of America, 551 U.S. at 69).
Mr. Myers' willfulness argument is based on the CRAs' reporting of some information from
the bankruptcy docket, but its failure to report other information including the Ally reaffirmation
agreement. But even if this failure to inspect the bankruptcy docket and report the reaffirmation
agreement was a violation of § 1681e(b) – and it is not – Mr. Myers has not shown that this failure
was willful. The Gadomski decision does not provide "notice" to the CRAs that they needed to
dig into Mr. Myers' bankruptcy case to determine whether the reaffirmation agreement was valid,
as Mr. Myers asserts. There, the plaintiff alleged that a creditor had charged off an account before
she filed for bankruptcy, and that the CRA reported the account as due and owing instead of
discharged in bankruptcy. Gadomski, 2020 WL 3841041, at *1. The Gadomski court found that
plaintiff's allegations that had the defendant checked PACER or LexisNexis, it would have seen
the results of plaintiff's bankruptcy and updated her records was sufficient to allege a § 1681e(b)
violation at the pleadings stage. Id. at *5. It denied the CRA's motion to dismiss, noting that it
had to take plaintiff's allegations as true and draw all reasonable inferences in her favor. Id. The
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Gadomski decision – which is not binding on this Court in any event – did not deal with a CRA's
duty to determine the validity of a reaffirmation agreement and was decided at the pleadings stage,
and the Court finds that it is not a basis for finding that the CRAs here willfully violated § 1681e(b).
Moreover, as discussed above, had the CRAs each reviewed Mr. Myers' bankruptcy docket
on their own, they may not have reached the result that Mr. Myers hopes. Reviewing the docket
may have led the CRAs to reach the same conclusion as Ally, because such a review shows that
the reaffirmation agreement was filed more than 60 days after the creditors' meeting, and does not
show that the 60-day deadline was ever extended. [See Filing No. 178-1.]
Additionally, the Court rejects Mr. Myers' argument that the CRAs did not require their
furnishers to provide reaffirmation information. The CRAs generally require their furnishers to
provide accurate information and to comply with the CRRG, which instructs furnishers on how to
report debts that have been reaffirmed. [Filing No. 177-2 at 3-5; Filing No. 177-3 at 4-8; Filing
No. 177-4 at 3-6; Filing No. 225-1 at 16; Filing No. 225-1 at 19.] And the fact that Ally had a
history of providing accurate information, and that the CRAs were not on notice of any issues with
Ally's information, lead the Court to conclude that the CRAs did not act willfully. Even assuming
that the CRAs violated § 1681e(b), the Court finds that Mr. Myers has not presented sufficient
evidence from which a reasonable jury could conclude that such a violation was willful and
GRANTS the CRAs' Motion for Summary Judgment, [Filing No. 176], on that issue.
In sum, the Court GRANTS the CRAs' Motion for Summary Judgment, [Filing No. 176],
to the extent it finds that Mr. Myers has not presented evidence from which a reasonable jury could
conclude that the CRAs violated § 1681e(b) by reporting the Ally loan as discharged instead of
reaffirmed or that, even if they had violated § 1681e(b), they did so willfully. The CRAs' Motion

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for Summary Judgment, [Filing No. 176], is DENIED AS MOOT as it relates to Mr. Myers' claim
for actual damages or any claim under § 1681o because Mr. Myers has abandoned any such claim.
II.

MR. MYERS' MOTION FOR CLASS CERTIFICATION
Mr. Myers seeks certification of the following class and sub-classes:
All consumers in the United States whose consumer reports inaccurately reported
reaffirmed accounts as included or discharged in the consumer's bankruptcy and
disclosed to a third party.
All consumers in the United States whose consumer reports inaccurately reported
reaffirmed accounts as included or discharged in the consumer's bankruptcy when
the information furnisher was reporting payments being made during and/or after
the bankruptcy and disclosed to a third party.
All consumers in the United States whose consumer reports inaccurately reported
reaffirmed accounts as included or discharged in the consumer's bankruptcy when
the bankruptcy file shows Bankruptcy Form 427 and/or the reaffirmation agreement
was filed and where this information was disclosed to a third party.
[Filing No. 164 at 9-10.] He argues that the class is readily ascertainable and that the requirements
of Fed. R. Civ. P. 23(a) – numerosity, commonality, typicality, and adequacy of representation –
and of Rule 23(b)(3) and (c)(4) are met. [Filing No. 164 at 19-32.]
The CRAs argue in response that Mr. Myers' class and sub-classes do not meet the
requirements of Rule 23(a)(1) or (b)(3), that Mr. Myers is subject to unique defenses that render
his claims atypical, and that the class and sub-classes are impermissible fail-safe classes, among
other things. [See Filing No. 183-1.]
Mr. Myers addresses the CRAs' arguments in his reply. [Filing No. 205.]
The Court can make short shrift of Mr. Myers' Motion for Class Certification. Because
Mr. Myers no longer has any viable individual claims against the CRAs, he is not an adequate
class representative. Chavez v. Ill. State Police, 251 F.3d 612, 630 (7th Cir. 2001) ("[I]f the court
determines that the named plaintiffs' claims lack merit, such a decision 'ordinarily, though not
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invariably,…disqualifies the named plaintiffs as proper class representatives,' thus resolving the
issue of class certification.") (quoting Cowen, 70 F.3d at 941); Roginson v. Sheriff of Cook Cnty.,
167 F.3d 1155, 1157-58 (7th Cir. 1999) ("The point is not that a plaintiff is disqualified as class
representative if he may fail to prove his case or if the defendant may have good defenses…. But
if his claim is a clear loser at the time he asks to be made class representative, then approving him
as class representative can only hurt the class.").
Additionally, the Court's decision on Mr. Myers' individual claims was highly factintensive, both on the issue of whether the CRAs violated § 1681e(b) and regarding whether any
violation was willful. The individualized nature of the Court's inquiry renders Mr. Myers' class
claims inappropriate for class treatment because individualized issues would predominate over any
common issues. See Gorss Motels, Inc. v. Brigadoon Fitness, Inc., 29 F.4th 839, 843-49 (7th Cir.
2022) (affirming district court's denial of motion for class certification where individualized issues
predominated over common ones). For this reason and because Mr. Myers is not an adequate class
representative, the Court DENIES Mr. Myers' Motion for Class Certification. [Filing No. 164.]
Because the Court is granting the CRAs' Motion for Summary Judgment on Mr. Myers'
individual claims and denying his Motion for Class Certification, the Court DISMISSES
WITHOUT PREJUDICE the putative class claims. See Corrigan v. Domestic Linen Supply Co.,
Inc., 2012 WL 2977262, at *5 (N.D. Ill. July 20, 2012) (where named plaintiffs were required to
arbitrate their claims and so could not represent a class, class claims were dismissed without
prejudice); Perry v. Martin, 2013 WL 6331474, at *5 (E.D. Mo. Dec. 5, 2013) ("Because this
Court is granting summary judgment in favor of the defendants on all of plaintiff's individual
claims, there is no longer a plaintiff for purposes of seeking to proceed on the class action

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allegations. As a result, this Court will dismiss the class action claim. The dismissal is without
prejudice.").
III.

CONCLUSION
For the foregoing reasons:
•

The CRAs' Motion for Summary Judgment, [176], is GRANTED as to Mr.
Myers' claim that the CRAs violated § 1681e(b) and that it did so willfully under
§ 1681n;

•

Mr. Myers has abandoned any claim under § 1681n;

•

The CRAs' Motion for Summary Judgment, [176], is DENIED AS MOOT as
to Mr. Myers' claim for actual damages or any claim under § 1681o;

•

Mr. Myers' Motion for Class Certification, [164], is DENIED; and

•

The class claims are DISMISSED WITHOUT PREJUDICE.

Final judgment shall enter accordingly.

Date: 9/16/2022

Distribution via ECF only to all counsel of record

41