Wolford v. Equifax Information Services, LLC et al

Filing 26

ORDER Granting 24 Stipulation to File First Amended Complaint. First Amended Complaint deadline: 12/29/2017. Signed by Magistrate Judge Cam Ferenbach on 12/20/2017. (Copies have been distributed pursuant to the NEF - MR)

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Matthew I. Knepper, Esq.
Nevada Bar No. 12796
Miles N. Clark, Esq.
Nevada Bar No. 13848
KNEPPER & CLARK LLC
10040 W. Cheyenne Ave., Suite 170-109
Las Vegas, NV 89129
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]
David H. Krieger, Esq.
Nevada Bar No. 9086
HAINES & KRIEGER, LLC
8985 S. Eastern Ave., Suite 350
Henderson, NV 89123
Phone: [phone]
Fax: [phone]
Email: [e-mail]

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Attorneys for Plaintiff

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DANIEL C. WOLFORD, and all similarly
situated individuals,
Plaintiff,

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vs.

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Case No.: 2:17-cv-02140-JAD-VCF

STIPULATION AND ORDER TO
FILE FIRST AMENDED
COMPLAINT

EQUIFAX INFORMATION SERVICES, LLC;
EXPERIAN INFORMATION SOLUTIONS,
INC.; and TRANS UNION LLC,

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Defendants.
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PLEASE TAKE NOTICE that pursuant to Federal Rule of Civil Procedure 15(a)(2), LR

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7-1, and LR IA 6-2, the parties have stipulated to Plaintiff filing his proposed First Amended

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Complaint, attached hereto as Exhibit 1.

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[PROPOSED] STIPULATION AND ORDER TO FILE FIRST AMENDED COMPLAINT - 1

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IT IS SO STIPULATED.

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December 20, 2017

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/s/ Matthew I. Knepper
Matthew I. Knepper, Esq.
Nevada Bar No. 12796
Miles N. Clark, Esq.
Nevada Bar No. 13848
KNEPPER & CLARK LLC
Email: [e-mail]
Email: [e-mail]

/s/ Jennifer L. Braster
Jennifer L. Braster, Esq.
Nevada Bar No. 9982
Andrew J. Sharples, Esq.
Nevada Bar No. 12866
NAYLOR & BRASTER
Email: [e-mail]
Email: [e-mail]

David H. Krieger, Esq.
Nevada Bar No. 9086
HAINES & KRIEGER, LLC
Email: [e-mail]
Counsel for Plaintiff

Andrew Michael Cummings, Esq.
JONES DAY
3161 Michelson Drive, Ste. 800
Irvine, CA 92612
Email: [e-mail]

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Counsel for Experian Information Solutions,
Inc.

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/s/ Bradley T. Austin
Bradley T. Austin, Esq.
Nevada Bar No. 13064
SNELL & WILMER LLP
3883 Howard Hughes Pkwy., Ste. 1100
Las Vegas, NV 89169
Email: [e-mail]
Counsel for Defendant
Equifax Information Services, LLC

/s/ Jason Revzin
Jason Revzin, Esq.
Nevada Bar No. 8629
Lewis Brisbois Bisgaard & Smith LLP
6385 S. Rainbow Blvd., Suite 600
Las Vegas, NV 89118
Email: [e-mail]
Counsel for Defendant Trans Union LLC

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ORDER GRANTING

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STIPULATION AND ORDER TO FILE FIRST AMENDED COMPLAINT

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IT IS SO ORDERED.
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IT IS HEREBY ORDERED that
Plaintiff must file the First Amended
Complaint on or December 29, 2017.

________________________________________
UNITED STATES MAGISTRATE JUDGE
December 20, 2017
Dated: _______________

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[PROPOSED] STIPULATION AND ORDER TO FILE FIRST AMENDED COMPLAINT - 2

Exhibit 1
Proposed First Amended Complaint

David H. Krieger, Esq.
Nevada Bar No. 9086
HAINES & KRIEGER, LLC
8985 S. Eastern Ave., Suite 350
Henderson, NV 89123
Phone: [phone]
FAX: [phone]
Email: [e-mail]
Matthew I. Knepper, Esq.
Nevada Bar No. 12796
Miles N. Clark, Esq.
Nevada Bar No. 13848
KNEPPER & CLARK LLC
10040 W. Cheyenne Ave., Suite 170-109
Las Vegas, NV 89129
Phone: [phone]
FAX: [phone]
Email: [e-mail]
Email: [e-mail]
Attorneys for Plaintiff
DANIEL C. WOLFORD
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
:
:
:
Plaintiff,
:
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v.
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DITECH FINANCIAL, LLC fka GREEN
:
TREE SERVICING, LLC, a Delaware limited :
:
liability corporation, EQUIFAX
INFORMATION SERVICES, LLC;
:
EXPERIAN INFROMATION SOLUTIONS, :
:
INC.; AND TRANS UNION LLC,
:
Defendants.
DANIEL C. WOLFORD,

Civil Action No.:

FIRST AMENDED COMPLAINT FOR
DAMAGES PURSUANT TO THE FAIR
CREDIT REPORTING ACT, 15 U.S.C. §
1681, ET SEQ.
JURY TRIAL DEMANDED

JURISDICTION AND VENUE
1.

This Court has federal question jurisdiction because this case arises out of violation of
federal law. 15 U.S.C. §1681 et seq.; 28 U.S.C. §1331; Smith v. Community Lending, Inc.,
773 F.Supp.2d 941, 946 (D. Nev. 2011).

2.

This action arises out of each Defendant’s violations of the Fair Credit Reporting Act, 15
U.S.C. §§ 1681-1681(x) (“FCRA”).

3.

Venue is proper in the United States District Court for the District of Nevada pursuant to
28 U.S.C. § 1391(b) because Plaintiff is a resident of Clark County, the State of Nevada
and because Defendants are subject to personal jurisdiction in the County of Clark, State
of Nevada as it conducts business there. Venue is also proper because, the conduct giving
rise to this action occurred in Nevada. 28 U.S.C. § 1391(b)(2). Further, the Defendants
have a registered agent of service in Nevada and is listed with the Nevada Secretary of
State as a foreign limited liability company doing business in Nevada.
INTRODUCTION

4.

The United States Congress has found the banking system is dependent upon fair and
accurate credit reporting. Inaccurate credit reports directly impair the efficiency of the
banking system, and unfair credit reporting methods undermine the public confidence,
which is essential to the continued functioning of the banking system. Congress enacted
the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA”), to insure fair and
accurate reporting, promote efficiency in the banking system, and protect consumer
privacy. The FCRA also imposes duties on the sources that provide credit information to
credit reporting agencies, called “furnishers.”

5.

The FCRA protects consumers through a tightly wound set of procedural protections from
the material risk of harms that otherwise flow from inaccurate reporting. Thus, through
the FCRA, Congress struck a balance between the credit industry’s desire to base credit
decisions on accurate information, and consumers’ substantive right to protection from

damage to reputation, shame, mortification, and the emotional distress that naturally
follows from inaccurate reporting of a consumer’s fidelity to his or her financial
obligations.
6.

DANIEL C. WOLFORD (“Plaintiff”), by Plaintiff’s attorneys, brings this action to
challenge the actions of EQUIFAX INFORMATION SERVICES, LLC (“Equifax”),
TRANS UNION, LLC (“TransUnion”), EXPERIAN INFORMATION SOLUTIONS,
INC. (“Experian”) (or jointly as “CRA Defendants”), and DITECH FINANCIAL, LLC
fka GREEN TREE SERVICING, LLC, a Delaware limited liability corporation
(collectively, “Defendants”) with regard to erroneously reporting incomplete and
inaccurate credit information.

7.

Defendants failed to properly investigate Plaintiff’s credit report disputes, damaging
Plaintiff’s creditworthiness and “failing to follow reasonable procedures to assure
maximum possible accuracy of the information concerning the individual about whom the
report relates” as statutorily mandated pursuant to 15 U.S.C. §1681e(b).

8.

Further, Defendants named herein also failed to comply with their duties under 15 U.S.C.
§1681i(a)(1), which requires that credit reporting agencies “conduct a reasonable
reinvestigation to determine whether the disputed information is inaccurate and record the
current status of the disputed information.”
PARTIES

9.

Plaintiff is a natural person residing in the County of Clark, State of Nevada. In addition,
Plaintiff is a “consumer” as that term is defined by 15 U.S.C. § 1681a(c).

10.

Upon information and belief, Defendant DITECH FINANCIAL LLC (“Ditech”) is a
Delaware limited liability corporation with its principle place of business in Florida, and at
all times relevant conducted business in Nevada.

11.

Defendant Equifax regularly assembles and/or evaluates consumer credit information for
the purpose of furnishing consumer reports to third parties, and uses interstate commerce
to prepare and/or furnish the reports. Equifax is a “consumer reporting agency” (or

“CRA”) as that term is defined by 15 U.S.C. § 1681a(f), doing business with its principal
place of business in Georgia.
12.

Defendant Experian regularly assembles and/or evaluates consumer credit information for
the purpose of furnishing consumer reports to third parties, and uses interstate commerce
to prepare and/or furnish the reports. Experian is a “consumer reporting agency” as that
term is defined by 15 U.S.C. § 1681a(f), doing business in Nevada, with a principal place
of business in Ohio.

13.

Defendant TransUnion regularly assembles and/or evaluates consumer credit information
for the purpose of furnishing consumer reports to third parties, and uses interstate
commerce to prepare and/or furnish the reports. TransUnion is a “consumer reporting
agency” as that term is defined by 15 U.S.C. § 1681a(f), doing business in Nevada.

14.

Unless otherwise indicated, the use of Defendants’ name in this Complaint includes all
agents, employees, officers, members, directors, heirs, successors, assigns, principals,
trustees, sureties, subrogees, representatives, and insurers of Defendants’ named.
GENERAL ALLEGATIONS

15.

On or about July 31, 2011, Plaintiff filed for Chapter 13 Bankruptcy in the United States
Bankruptcy Court for the District of Nevada pursuant to 11 U.S.C. §1301 et seq. Plaintiff’s
case was assigned Case Number 11-22171-mkn (the “Chapter 13” or “Bankruptcy”).

16.

At the time the Bankruptcy was filed, the Plaintiff owned real property located at 572
Broomspun Street, Henderson, Nevada 89015 (the “Property”).

17.

The Property was subject to a first mortgage deed of trust which was being serviced by
BAC HOME LOAN SERVICING, INC. (“BAC”), but on information and belief, the
mortgage service rights with an account number ending 2671, transferred to Ditech, on or
about December 1, 2011 (“Ditech Account”).

18.

On February 29, 2012, the Court entered an order confirming Chapter 13 Plan No. 3 which
directed the Plaintiff to maintain all timely post-petition mortgage payments to BAC (the
“Confirmation Order”).

19.

A confirmed plan constitutes a new contract between the debtor and creditors and a
creditor's rights are defined by the confirmed plan. Consequently, a pre-petition claim
provided for in a confirmed plan is no longer a pre-petition claim. The claim is a right to
payment arising from the confirmed plan. Padilla v. Wells Fargo Home Mortg., Inc. (In re
Padilla), 379 B.R. 643, 649, 2007 Bankr. LEXIS 2655, *1 (Bankr. S.D. Tex. 2007).

20.

Plaintiff made all payments required under the Confirmation Order, which included all
payments due under the Ditech Account.

21.

On or about July 28, 2016, the Chapter 13 Trustee filed a Notice of Final Cure Payment
(“NFC”) finding that the amount required to cure any pre-bankruptcy default to Ditech was
paid in full; and also finding that the Plaintiff was current on all monthly payments which
became due to Ditech after filing the Bankruptcy through the date of the NFC (the “NFC
Findings”).

22.

Ditech filed a Response to the NFC Findings (“NFC Response”) on August 11, 2016
agreeing with Chapter 13 Trustee’s NFC Findings and deeming that all payments due after
the Chapter 13 filing were timely paid.

23.

To date, Ditech has not moved to set-aside the Chapter 13 Trustee’s NFC findings and the
NFC Findings remain binding.

24.

Then, after dutifully completing all payments required to all creditors under the
Confirmation Order (including BAC and then Ditech), the Bankruptcy Court entered an
order discharging the Plaintiff on October 7, 2016 (the “Discharge”).

25.

As evidenced by 1) the Confirmation Order, 2) Discharge and 3) lack of any bankruptcy
court orders indicating the contrary during the pendency of the Plaintiff’s Chapter 13 filing,
the Plaintiff made timely payments to each and every creditor after filing Chapter 13 as
required by law to present.

26.

To the extent that the Plaintiff’s creditors (in particular Ditech) chose to furnish data to a
CRA consistent with the terms of the Confirmation Order, such data should have been
included in the Plaintiff’s “consumer file”.

27.

Pursuant to 15 U.S.C. §1681g(a)(1), “[e]very consumer reporting agency shall, upon
request, clearly and accurately disclose to the consumer…[a]ll information in the
consumer’s file at the time of the request,” subject to the Plaintiff providing “proper
identification” pursuant to 15 U.S.C. §1681h(a)(1).

28.

“The term ‘file’, when used in connection with information on any consumer, means all of
the information on that consumer recorded and retained by a consumer reporting agency
regardless of how the information is stored.” 15 U.S.C. §1681a(g).

29.

In the current matter, the Defendant CRAs failed to comply with their statutory obligation
to provide the Plaintiff all information in the Plaintiff’s consumer file thereby violating the
above defined statutory obligations.

30.

Additionally, Defendants’ conduct described herein also failed to comply with the
Consumer Data Industry Association (“CDIA”)’s Metro 2 reporting standards (“Metro 2”),
which provides guidance for credit reporting and FCRA compliance.

31.

The CDIA publishes the Metro 2 reporting standards to assist furnishers and CRAs (like
the Defendants) with their compliance requirements under the FCRA.

32.

Courts rely on such guidance to determine furnisher liability. See e.g. In re Helmes, 336
B.R. 105, 107 (Bankr. E.D. Va. 2005).

33.

On information and belief, Defendants herein adopted the Metro 2 reporting standards and
at all times relevant implemented the Metro 2 format as an integral aspect of its respective
duties under the FCRA to have in place adequate and reasonable policies and procedures
to handle investigations of disputed information.

34.

The Metro 2 format guidelines for credit reporting are nearly identical for reports made
during the “Month BK Filed,” “Months Between Petition Filed and BK Resolution,” “Plan
Confirmed” and, in this case “Plan Completed – All payments made according to plan –
consumer continues to make payments on Secured Debt (example: mortgage)” for Chapter
13 Debtors and furnishers who choose to report post-bankruptcy credit information to

CRAs.

See e.g., 2015 CDIA Credit Reporting Resource Guide (“2015 Metro 2”),

Frequently Asked Question 28(a), at pages 6-21 through 6-22.
35.

Thus, many of the consumer reporting fields should be reported the same way both during
and after a bankruptcy proceeding, id., with the following relevant exceptions:

a. Current Balance
i. For the “Month BK Filed” and “Months Between Petition Filed & BK Resolution,”
Metro 2 instructs the furnisher to report the outstanding balance amount. Id.
ii. However, for the “Plan Confirmed” period, Metro 2 instructs the furnisher to report the
“Chapter 13 plan balance, which should decline as payments are made.” Id. at 622.
iii. And, for Current Balance reporting when “Plan Completed – All payments made
according to plan – no further obligation,” Metro 2 instructs the furnisher to report a
current balance of “Zero.”
iv. Plan Completed – All payments made according to plan – consumer continues to make
payments on Secured Debt (example: mortgage) Metro 2 instructs the furnisher to
report the “Outstanding balance amount.” Id.

b. Scheduled Monthly Payment Amount:
i. For the “Month BK Filed” and “Months Between Petition Filed & BK Resolution,”
Metro 2 instructs the furnisher to report the “contractual monthly payment amount.”
Id. at 6-21.
ii. However, for the “Plan Confirmed” period, Metro 2 instructs the furnisher to report the
“Chapter 13 Payment Amount.” Id. at 6-22.
iii. And, for Scheduled Monthly Payment Amount reporting when “Plan Completed – All
payments made according to plan – no further obligation,” Metro 2 instructs the
furnisher to report a current balance of “Zero.” Id.
iv. Plan Completed – All payments made according to plan – consumer continues to make
payments on Secured Debt (example: mortgage) Metro 2 instructs the furnisher to
report the outstanding balance amount “updated contractual monthly payment
amount.”

c. Account Status:
i. For the “Month BK Filed”, “Months Between Petition Filed & BK Resolution,” “Plan
Confirmed” and “Plan Completed – All payments made according to plan – no further
obligation,” Metro 2 instructs the furnisher to report the “status at time of petition.”
ii. However, for the “Plan Completed – All payments made according to plan – consumer
continues to make payments on Secured Debt (example: mortgage)” Metro 2 instructs
the furnisher to report “status that applies.” Id. at 6-22.

d. Payment History:
i. For the “Month BK Filed” and “Months Between Petition Filed & BK Resolution,”
Metro 2 instructs the furnisher to report the “contractual monthly payment amount.”
Id. at 6-21.
ii. However, for the “Plan Confirmed” period, Metro 2 instructs the furnisher to report the
“Chapter 13 Payment Amount.” Id. at 6-22.
iii. And, for Scheduled Monthly Payment Amount reporting when “Plan Completed – All
payments made according to plan – no further obligation,” Metro 2 instructs the
furnisher to report a current balance of “Zero.” Id.
iv. And, as applicable here, for “Plan Completed – All payments made according to plan
– consumer continues to make payments on Secured Debt (example: mortgage)” Metro
2 instructs the furnisher to report the outstanding balance amount “first month,
increment first position with value ‘D’; in subsequent months, increment based on
prior month’s status.”
36.

The Metro 2 Format’s instructions require identical reporting for FAQ 28a’s field “Date of
Account Information”, which should equal the “current month’s date.”

37.

Despite the Metro 2 Format’s instructions, the Defendants named herein failed to conform
to the Metro 2 Format when reporting on Plaintiff’s accounts after the Plaintiff filed
Bankruptcy as further set forth below.

38.

In turn, the CRA Defendants rereported inaccurate and incomplete information,
respectively, thus violating their respective duties to follow reasonable procedures to assure
maximum possible accuracy under 15 U.S.C. § 1681e(b) when providing a cconsumer with
a disclosure of his consumer file.

39.

To this end, the incomplete reporting provided to the Plaintiff as described herein departed
from the credit industry’s own reporting standards and was not only inaccurate and
incomplete, but also materially misleading under the CDIA’s standards as well.

40.

A "materially misleading" statement is concerned with omissions to credit entries, that in
context create misperceptions about otherwise may be factually accurate data. Gorman v.
Wolpoff & Abramson, LLP, 584 F.3d 1147, 1163 (9th Cir. 2009).

THE EQUIFAX VIOLATIONS
Ditech Failed on investigation of Plaintiff’s Dispute to Report Complete Information about
the Ditech Account No. Ending 2671
41.

Plaintiff requested and received a consumer disclosure from Equifax dated November 29,
2016 identified by Equifax Confirmation No. 6334048673 (the “Equifax Disclosure”).

42.

Specifically, on information and belief, the Equifax Disclosure indicated that positive data
Ditech should have been reporting was suppressed or missing altogether, thereby depriving
the Plaintiff of positive credit data which would have provided the Plaintiff a true “fresh
start” after filing Bankruptcy. That is, the material omission of Plaintiff’s post-discharge
positive payment history on his mortgage was patently incorrect because he was in fact
making timely monthly payments on the Ditech Account (“Positive Suppressed Data”).

43.

This failure caused the Plaintiff’s Credit File to include materially misleading omissions,
which in context created misperceptions about the Plaintiff’s timely (yet unreflected)
monthly payments to Ditech.

44.

Accordingly, on or about June 21, 2017, pursuant to 15 U.S.C. §1681i(a)(1), Plaintiff
disputed Equifax’s incomplete reporting by notifying Equifax, in writing, of the incomplete
and inaccurate credit information contained in the Plaintiff’s Equifax Disclosure.

45.

Specifically, Plaintiff sent a letter, certified, return receipt, to Equifax (the “Equifax
Dispute Letter”), requesting the above incomplete and materially misleading omissions be
corrected to include the Positive Suppressed Data.

46.

The Plaintiff included proof of the Positive Suppressed Data, which was provided directly
by Ditech to the Plaintiff in response to Plaintiff’s request for information pursuant to 12
C.F.R. §1024.36 (the “RFI Response”).

47.

In part, the Equifax Dispute Letter stated:
Attached is a copy of my driver’s license and other documentation to prove my
identity. Your company provided me with a consumer credit file which is attached.
As you can see from your credit file and attached documents, I have a mortgage
account with DITECH (Account No. 2671) and you are not reporting complete

information about this account. Specifically, I obtained information from
DITECH in which DITECH provided proof (attached) it furnished to you that I
was “current” with my payments after my Chapter 13 filing as of and through May
2017. Reporting this information, is necessary to provide “complete” information
about this tradeline, and will also likely increase my credit score significantly given
the “positive” payment history.
You are impermissibly suppressing this information and depriving me of complete
and accurate credit reporting furnished about this account. Accordingly, please
stop suppressing this information. Your failure to report this data is lowering my
credit score.
48.

Indeed, the RFI Response laid transparent the Positive Suppressed Data which Equifax
failed to include in the Plaintiff’s Credit File.

49.

After receiving the Equifax Dispute Letter, Equifax was required to conduct an
investigation into this specific account on Plaintiff’s consumer report pursuant to 15 U.S.C.
§ 1681i.

50.

On or about July 18, 2017, Plaintiff received notification from Equifax through its
“reinvestigation” (Equifax Report No. 7181054971) that Equifax received notice of
Plaintiff’s dispute pursuant to 15 U.S.C. § 1681i(a)(6). However, Equifax failed to correct
the Plaintiff’s Credit File to include the Positive Suppressed Data in Ditech’s updated
tradeline.

51.

A reasonable investigation by Equifax and Ditech should have resulted in an update to
Ditech’s tradeline to include the Positive Suppressed Data.

52.

Ditech and Equifax therefore failed to conduct a reasonable investigation as required by 15
U.S.C. §§ 1681s-2(b)(1)(A) and/or 1681i(a), and wrongly continued suppressing complete
and accurate information in connection with Plaintiff’s Consumer File.

53.

Ditech and Equifax failed to review all relevant information provided by Plaintiff in the
dispute to Equifax, as required by and in violation of 15 U.S.C. §§ 1681s-2(b)(1)(B) and
1681i(a), respectively.

54.

Ditech and Equifax re-reported the incomplete and inaccurate misleading information on
Plaintiff’s Credit File. Specifically, the Positive Suppressed Data continued to remain
suppressed and thus omitted from the Plaintiff’s Consumer File.

55.

Ditech and Equifax, upon receipt of Plaintiff’s dispute, failed to conduct an investigation
with respect to the disputed information as required by 15 U.S.C. §§ 1681s-2(b)(1)(B)
and/or 1681i(a), respectively.

56.

Due to Ditech and Equifax’s failure to reasonably investigate Plaintiff’s dispute, they
each further failed to correct and update Plaintiff’s information as required by 15 U.S.C.
§ 1681s-2(b)(1)(E), thereby causing continued reporting of inaccurate information in
violation of 15 U.S.C. § 1681-s(2)(b)(1)(C) and/or 1681e(b), respectively.

57.

And, because notice of the results of reinvestigation constitutes a consumer report within
the meaning of 15 U.S.C. §§ 1681a(d), 1681i(a)(6)(B)(ii), the materially omission of the
Positive Suppressed Data on the notice of results of reinvestigation perfected Plaintiff’s
injury as soon as Equifax provided it Plaaintiff.

58.

Failing to report and/or rereport the Positive Suppressed Data also constituted a violation
of 15 U.S.C. § 1681g(a) because the lack of clarity and numerous omissions in the
information reported and rereported has the tendency to confuse ordinary consumers like
Plaintiff.

59.

Plaintiff’s efforts to correct Equifax’s incomplete and inaccurate reporting were fruitless
resulting in this suit. Indeed, Equifax was provided the evidence of its illegal suppression
and willful failed to make the requested corrections to the Plaintiff’s Credit File.

60.

Equifax timely notified Ditech of the dispute based on its mandated statutory duty pursuant
to 15 U.S.C. § 1681i Equifax’s continued incomplete and inaccurate reporting of the
Positive Suppressed Data in light of its knowledge of the actual errors and omissions was
willful. Plaintiff is, accordingly, eligible for statutory damages.

61.

Also as a result of Equifax’s continued incomplete and inaccurate reporting of the Positive
Suppressed Data, Plaintiff has suffered actual damages, including without limitation fear

of credit denials, out-of-pocket expenses in challenging the Defendants’ wrongful
omissions, damage to Plaintiff’s creditworthiness, and emotional distress.
62.

By reporting incomplete and inaccurate account information relating to Ditech’s Account
after notice and confirmation of its errors, Equifax failed to take the appropriate measures
as required under 15 U.S.C. §§1681i(a) and 1681e(b), respectively, or comply with 15
U.S.C. § 1681g(a).
THE EXPERIAN VIOLATIONS

Ditech and Experian Failed on investigation of Plaintiff’s Dispute to Report Complete
Information about the Ditech Account No. Ending 2671
63.

Plaintiff requested and received a consumer file from Experian dated November 29, 2016
identified by Experian Report No. 3513-8711-56 (the “Experian Disclosure”)

64.

Specifically, on information and belief, the Experian Disclosure indicated that positive data
Ditech should have been reporting was suppressed or missing altogether, thereby depriving
the Plaintiff of positive credit data which would have provided the Plaintiff a true “fresh
start” after filing Bankruptcy. That is, the material omission of Plaintiff’s post-discharge
positive payment history on his mortgage was patently incorrect because he was in fact
making timely monthly payments on the Ditech Account (“Positive Suppressed Data”).

65.

This failure caused the Plaintiff’s Experian Disclosure to include materially misleading
omissions, which in context created misperceptions about the Plaintiff’s timely (yet
unreflected) monthly payments to Ditech.

66.

Specifically, on information and belief, Ditech furnished positive credit data to Experian
stating that the Plaintiff’s account was “current” with all ongoing monthly payment
obligations from after the Chapter 13 was filed on July 31, 2011 through the date of the
date the Credit File was created, November 29, 2016, essentially five years of suppressed
positive monthly account notations that the mortgage was being timely paid (the “Positive
Suppressed Data”).

67.

However, Experian failed to include the Positive Suppressed Data in the Plaintiff’s
Consumer Disclosure and alternatively reported this timely paid account as an “account
that may considered negative”.

68.

Accordingly, on or about June 21, 2017, pursuant to 15 U.S.C. § 1681i(a)(1), Plaintiff
disputed Experian’s incomplete reporting by notifying Experian, in writing, of the
incomplete and inaccurate credit information contained in the Plaintiff’s Credit File.

69.

Specifically, Plaintiff sent a letter, certified, return receipt, to Experian (the “Experian
Dispute Letter”), requesting the above incomplete and materially misleading omissions be
corrected to include the Positive Suppressed Data.

70.

The Plaintiff included proof of the Positive Suppressed Data, which was provided directly
by Ditech to the Plaintiff in response to Plaintiff’s request for information pursuant to 12
C.F.R. §1024.36 (the “RFI Response”).

71.

In part, the Experian Dispute Letter stated (in part):
Attached is a copy of my driver’s license and other documentation to prove my
identity. Your company provided me with a consumer credit file which is attached.
As you can see from your credit file and attached documents, I have a mortgage
account with DITECH (Account No. 2671) and you are not reporting complete
information about this account. Specifically, I obtained information from
DITECH in which DITECH provided proof (attached) it furnished to you that I
was “current” with my payments after my Chapter 13 filing as of and through May
2017. Reporting this information, is necessary to provide “complete” information
about this tradeline, and will also likely increase my credit score significantly given
the “positive” payment history.
You are impermissibly suppressing this information and depriving me of complete
and accurate credit reporting furnished about this account. Accordingly, please
stop suppressing this information. Your failure to report this data is lowering my
credit score.

72.

Indeed, the RFI Response laid transparent the Positive Suppressed Data which Experian
failed to include in the Plaintiff’s Credit File.

73.

After receiving the Experian Dispute Letter, Experian was required to conduct an
investigation into this specific account on Plaintiff’s consumer report pursuant to 15 U.S.C.
§1681i.

74.

On or about July 18, 2017, Plaintiff received notification from Experian through its
“reinvestigation” (Experian Report No. 3513-8711-56) that Experian received notice of
Plaintiff’s dispute pursuant to 15 U.S.C. § 1681i(a)(6). However, Experian failed to correct
the Plaintiff’s Credit File to include the Positive Suppressed Data in Ditech’s updated
tradeline.

75.

A reasonable investigation by Experian would have updated Ditech’s tradeline to include
the Positive Suppressed Data.

76.

Ditech and Experian therefore failed to conduct a reasonable investigation as required by
15 U.S.C. §§ 1681s-2(b)(1)(A) and/or 1681i(a), and wrongly continued suppressing
complete and accurate information in connection with Plaintiff’s Consumer File.

77.

Ditech and Experian failed to review all relevant information provided by Plaintiff in the
dispute to Experian, as required by and in violation of 15 U.S.C. §§ 1681s-2(b)(1)(B) and
1681i(a), respectively.

78.

Ditech and Experian re-reported the incomplete and inaccurate misleading information on
Plaintiff’s Credit File. Specifically, the Positive Suppressed Data continued to remain
suppressed and thus omitted from the Plaintiff’s Consumer File. Even worse, Experian
reported that the Ditech Account was included in Plaintiff’s Chapter 13 Bankruptcy on
February 14, 2017, even though Plaintiff was discharged from his bankruptcy October 7,
2016.

79.

Ditech and Experian, upon receipt of Plaintiff’s dispute, failed to conduct an investigation
with respect to the disputed information as required by 15 U.S.C. §§ 1681s-2(b)(1)(B)
and/or 1681i(a), respectively.

80.

Due to Ditech and Experian’s failure to reasonably investigate Plaintiff’s dispute, they each
further failed to correct and update Plaintiff’s information as required by 15 U.S.C. §

1681s-2(b)(1)(E), thereby causing continued reporting of inaccurate information in
violation of 15 U.S.C. § 1681-s(2)(b)(1)(C) and/or 1681e(b), respectively.
81.

And, because notice of the results of reinvestigation constitutes a consumer report within
the meaning of 15 U.S.C. §§ 1681a(d), 1681i(a)(6)(B)(ii), the materially omission of the
Positive Suppressed Data on the notice of results of reinvestigation perfected Plaintiff’s
injury as soon as Experian provided it Plaintiff.

82.

Failing to report and/or rereport the Positive Suppressed Data also constituted a violation
of 15 U.S.C. § 1681g(a) because the lack of clarity and numerous omissions in the
information reported and rereported has the tendency to confuse ordinary consumers like
Plaintiff.

83.

Plaintiff’s efforts to correct Experian’s incomplete and inaccurate reporting were fruitless
resulting in this suit. Indeed, Experian was provided the evidence of its illegal suppression
and willful failed to make the requested corrections to the Plaintiff’s Credit File.

84.

Experian timely notified Ditech of the dispute based on its mandated statutory duty
pursuant to 15 U.S.C. § 1681i Experian’s continued incomplete and inaccurate reporting
of the Positive Suppressed Data in light of its knowledge of the actual errors and omissions
was willful. Plaintiff is, accordingly, eligible for statutory damages.

85.

Also as a result of Experian’s continued incomplete and inaccurate reporting of the Positive
Suppressed Data, Plaintiff has suffered actual damages, including without limitation fear
of credit denials, out-of-pocket expenses in challenging the Defendants’ wrongful
omissions, damage to Plaintiff’s creditworthiness, and emotional distress.

86.

By reporting incomplete and inaccurate account information relating to Ditech’s Account
after notice and confirmation of its errors, Experian failed to take the appropriate measures
as required under 15 U.S.C. §§1681i(a) and 1681e(b), respectively, or comply with 15
U.S.C. § 1681g(a).

THE TRANSUNION VIOLATIONS
TransUnion Failed to Report Complete
Information about Ditech
Account No. Ending 2671
87.

Plaintiff requested and received a consumer file from TransUnion dated November 21,
2016 identified by TransUnion File No. 369986787 (the “Credit File”).

88.

Specifically, TransUnion took a “one size fits all approach” and rather than provide a
“complete” and “accurate” Credit File to the Plaintiff, “suppressed” positive data being
furnished from Ditech thereby depriving the Plaintiff of positive credit data which would
have provided the Plaintiff a true “fresh start” after filing Bankruptcy.

However,

TransUnion alternatively failed to report timely mortgage payments on the Property
reported by Ditech.
89.

This failure caused the Plaintiff’s Credit File to include materially misleading omissions,
which in context created misperceptions about the Plaintiff’s timely (yet unreflected)
monthly payments to Ditech.

90.

Specifically, Ditech furnished positive credit data to TransUnion stating that the Plaintiff’s
account was “current” with all ongoing monthly payment obligations from after the
Chapter 13 was filed on July 31, 2011 through the date of the date the Credit File was
created, November 21, 2016, essentially five years of suppressed positive monthly account
notations that the mortgage was being timely paid (the “Positive Suppressed Data”).

91.

However, TransUnion failed to include the Positive Suppressed Data in the Plaintiff’s
Credit File.

92.

Accordingly, on or about June 21, 2017, pursuant to 15 U.S.C. §1681i(a)(1), Plaintiff
disputed TransUnion’s incomplete reporting by notifying TransUnion, in writing, of the
incomplete and inaccurate credit information contained in the Plaintiff’s Credit File.

93.

Specifically, Plaintiff sent a letter, certified, return receipt, to TransUnion (the “TransUnion
Dispute Letter”), requesting the above incomplete and misleading information omissions
be corrected to include the Positive Suppressed Data.

94.

The Plaintiff included proof of the Positive Suppressed Data, which was provided directly
by Ditech to the Plaintiff in response to Plaintiff’s request for information pursuant to 12
C.F.R. §1024.36 (the “RFI Response”).

95.

In part, the TransUnion Dispute Letter stated (in part):
Attached is a copy of my driver’s license and other documentation to prove my
identity. Your company provided me with a consumer credit file which is attached.
As you can see from your credit file and attached documents, I have a mortgage
account with DITECH (Account No. 2671) and you are not reporting complete
information about this account. Specifically, I obtained information from
DITECH in which DITECH provided proof (attached) it furnished to you that I
was “current” with my payments after my Chapter 13 filing as of and through May
2017. Reporting this information, is necessary to provide “complete” information
about this tradeline, and will also likely increase my credit score significantly given
the “positive” payment history.
You are impermissibly suppressing this information and depriving me of complete
and accurate credit reporting furnished about this account. Accordingly, please
stop suppressing this information. Your failure to report this data is lowering my
credit score.

96.

Indeed, the RFI Response laid transparent the Positive Suppressed Data which TransUnion
failed to include in the Plaintiff’s Credit File.

97.

After receiving the TransUnion Dispute Letter, TransUnion was required to conduct an
investigation into this specific account on Plaintiff’s consumer report pursuant to 15 U.S.C.
§ 1681i.

98.

On or about June 29, 2017, Plaintiff received notification from TransUnion through its
“reinvestigation” (TransUnion File No. 369986787) that TransUnion received notice of
Plaintiff’s dispute pursuant to 15 U.S.C. § 1681i(a)(6). However, TransUnion failed to
correct the Plaintiff’s Credit File to include the Positive Suppressed Data in Ditech’s
updated tradeline.

99.

A reasonable investigation by TransUnion would have updated Ditech’s tradeline to
include the Positive Suppressed Data. However, Trans Union failed to even provide notice
of Plaintiff’s dispute to Ditech before unilaterally suppressing Positive Suppressed Data,
thus constituting a willful violation of 15 U.S.C. § 1681i(a)(2).

100.

TransUnion therefore failed to conduct a reasonable investigation as required by 15 U.S.C.
§1681i(a), and wrongly continued suppressing complete and accurate information in
connection with Plaintiff’s Credit File.

101.

TransUnion failed to review all relevant information provided by Plaintiff in the dispute to
TransUnion, as required by and in violation of 15 U.S.C. §1681i(a).

102.

TransUnion re-reported the incomplete and inaccurate misleading information on
Plaintiff’s Credit File. Specifically, the Positive Suppressed Data continued to remain
suppressed and willfully omitted from the Plaintiff’s Credit File.

103.

TransUnion, therefore, upon receipt of Plaintiff’s dispute, failed to conduct an investigation
as required by 15 U.S.C. §1681i(a).

104.

Failing to report and/or rereport the Positive Suppressed Data also constituted a violation
of 15 U.S.C. § 1681g(a) because the lack of clarity and numerous omissions in the
information reported and rereported has the tendency to confuse ordinary consumers like
Plaintiff.

105.

Plaintiff’s efforts to correct TransUnion’s incomplete and inaccurate reporting were
fruitless resulting in this suit. Indeed, TransUnion was provided the evidence of its illegal
suppression and willful failed to make the requested corrections to the Plaintiff’s Credit
File.

106.

TransUnion’s continued incomplete and inaccurate reporting of the Positive Suppressed
Data in light of its knowledge of the actual errors and omissions was willful. Plaintiff is,
accordingly, eligible for statutory damages.

107.

Also as a result of TransUnion’s continued incomplete and inaccurate reporting of the
Positive Suppressed Data, Plaintiff has suffered actual damages, including without

limitation fear of credit denials, out-of-pocket expenses in challenging the Defendants’
wrongful omissions, damage to Plaintiff’s creditworthiness, and emotional distress.
108.

By reporting incomplete and inaccurate account information relating to Ditech’s Account
after notice and confirmation of its errors, TransUnion failed to take the appropriate
measures as required under 15 U.S.C. §§1681i(a) and 1681e(b), respectively, or comply
with 15 U.S.C. § 1681g(a).
FIRST CAUSE OF ACTION
VIOLATION OF THE FAIR CREDIT REPORTING ACT
15 U.S.C. § 1681 ET SEQ. (FCRA)

109.

Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though
fully stated herein.

110.

The foregoing acts and omissions constitute numerous and multiple willful, reckless or
negligent violations of the FCRA, including but not limited to each and every one of the
above-cited provisions of the FCRA, 15 U.S.C. §1681.

111.

As a result of each and every willful violation of the FCRA, Plaintiff is entitled to actual
damages as the Court may allow pursuant to 15 U.S.C. § 1681n(a)(1); statutory damages
pursuant to 15 U.S.C. § 1681n(a)(1); punitive damages as the Court may allow pursuant to
15 U.S.C. § 1681n(a)(2); and reasonable attorney’s fees and costs pursuant to 15 U.S.C. §
1681n(a)(3) from Defendants.

112.

As a result of each and every negligent noncompliance of the FCRA, Plaintiff is entitled to
actual damages as the Court may allow pursuant to 15 U.S.C. § 1681o(a)(1); and reasonable
attorney’s fees and costs pursuant to 15 U.S.C. § 1681o(a)(2) from Defendants.
PRAYER FOR RELIEF
Plaintiff respectfully requests the Court grant Plaintiff the following relief against

Defendants:
///

FIRST CAUSE OF ACTION
VIOLATION OF THE FAIR CREDIT REPORTING ACT
15 U.S.C. § 1681 ET SEQ. (FCRA)
•

an award of actual damages pursuant to 15 U.S.C. § 1681n(a)(1);

•

award of statutory damages pursuant to 15 U.S.C. § 1681n(a)(1);

•

an award of punitive damages as the Court may allow pursuant to 15 U.S.C. §
1681n(a)(2);

•

award of costs of litigation and reasonable attorney’s fees, pursuant to 15 U.S.C. §
1681n(a)(3), and 15 U.S.C. § 1681(o)(a)(1) against Defendant for each incident of
negligent noncompliance of the FCRA; and

•

any other relief the Court may deem just and proper.
TRIAL BY JURY

113.

Pursuant to the seventh amendment to the Constitution of the United States of America,
Plaintiff is entitled to, and demands, a trial by jury.

///

Dated: December 20, 2017
Respectfully submitted,
/s/ Matthew I. Knepper, Esq.
Matthew I. Knepper, Esq.
Nevada Bar No. 12796
Miles N. Clark, Esq.
Nevada Bar No. 13848
KNEPPER & CLARK LLC
10040 W. Cheyenne Ave., Suite 170-109
Las Vegas, NV 89129
Phone: [phone]
FAX: [phone]
Email: [e-mail]
Email: [e-mail]
David H. Krieger, Esq.
Nevada Bar No. 9086
HAINES & KRIEGER, LLC
8985 S. Eastern Ave., Suite 350
Henderson, NV 89123
Phone: [phone]
FAX: [phone]
Email: [e-mail]
Attorneys for Plaintiff
DANIEL C. WOLFORD