WILLIAMS v. EQUIFAX INFORMATION SERVICES, LLC et al
OPINION. Signed by Judge Renee Marie Bumb on 6/21/2016. (tf, )
[Civ. No. 14-8115, Dkt. No. 20;
Civ. No. 14-8116, Dkt. No. 29]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
GLENN M. WILLIAMS,
Civil No. 14-8115 (RMB/JS)
EXPERIAN INFORMATION SOLUTIONS,
Civil No. 14-8116 (RMB/JS)
EXPERIAN INFORMATION SOLUTIONS,
Brent F. Vullings
Vullings Law Group, LLC
3953 Ridge Pike, Suite 102
Collegeville, PA 19426
Attorney for Plaintiffs
Dorothy A. Kowal
Price, Meese, Shulman & D'Arminio, PC
Mack-Cali Corporate Center
50 Tice Boulevard
Woodcliff Lake, New Jersey 07677
Attorney for Defendant
BUMB, United States District Judge:
This matter comes before the Court upon the filing of two
actions, Glenn Williams v. Experian, Civ. No 14-8115 and Lorissa
Williams v. Experian, Civ. No. 14-8116, both on December 30,
2014 by plaintiffs Glenn Williams and Lorissa Williams
Plaintiffs bring causes of action
for a violation of the Fair Credit Reporting Act (“FCRA”) and
On September 1, 2015, Defendant Experian
Information Solutions, Inc. (“Experian”) moved for summary
(Civ. No. 14-8115, Dkt. No. 20; Civ. No. 14-8116,
Dkt. No. 29.)
On June 6, 2016, the Court held oral argument.
For the reasons set forth below, the Court will grant summary
judgment in favor of Experian in both cases and will issue an
order to show cause why sanctions should not be imposed upon
counsel for Plaintiffs under Federal Rule of Civil Procedure 11
for bringing these frivolous lawsuits.
The Court addresses
these motions below.
These cases center around credit report disputes the
Plaintiffs filed with Experian, a consumer reporting agency as
that term is defined by the FCRA.
(Def.’s Statement of Facts &
The factual predicates of Plaintiffs’ respective cases are
nearly identical. As such, the Court describes the factual
background of the cases in tandem, noting pertinent and unique
facts of each case as relevant.
Pl.’s Resps. at ¶ 2, Civ. No. 14-8115, Dkt. Nos. 20-1, 22-1
(hereinafter “G. Williams SOF at ¶ ___.”)).
As a consumer
reporting agency, Experian gathers credit and public record
information and reports that information, typically in
connection with the consumer’s desire to engage in a credit
(Def.’s Statement of Facts & Pl.’s Resps. at ¶ 3,
Civ. No. 14-8116, Dkt. Nos. 29-1, 31-1 (hereinafter “L. Williams
SOF at ¶ ___.”)).
In essence, Experian acts as a warehouse for
credit information that assembles, stores, and furnishes data as
it is provided by credit grantors and public record vendors.
(G. Williams SOF at ¶ 4.)
In these cases, while carrying out its business as a
consumer reporting agency, Experian determined and reported that
each Plaintiff had filed two Chapter 13 bankruptcies in the
United States Bankruptcy Court for the District of New Jersey:
In re Glen Williams, Case No. 08-15866; In re Glenn Williams,
Case No. 08-19833; In re Lorissa Williams, Case No. 08-29436; In
re Lorissa Williams, Case No. 09-11266.
Williams SOF at ¶ 15.)
(Id. at ¶ 15; L.
Plaintiffs disputed these bankruptcies
to Experian under the premise that neither one of them had filed
Specifically, Ms. Williams disputed the
bankruptcies in an online dispute form submitted on November 22,
Mr. Williams disputed his bankruptcies in an online form
he submitted on April 3, 2012.
(L. Williams SOF at ¶ 17; G.
Williams SOF at ¶ 17.)
Following the receipt of each Plaintiff’s dispute, Experian
conducted a reinvestigation by sending an Automated Consumer
Dispute Verification (“ACDV”) to LexisNexis, the entity that
furnished the records showing Plaintiffs had filed the above
(Id. at ¶¶ 11, 18; L. Williams SOF at ¶¶ 11, 18.)
LexisNexis is Experian’s public records vendor.
Jason Scott at ¶ 17.) Thereafter, LexisNexis responded that the
bankruptcy filings had been accurately attributed to both
(Def.’s Ex. A, Civ. No. 14-8115 (Mr. Williams);
Def.’s Ex. A, Civ. No. 14-8116 (Ms. Williams)).
verified each Plaintiff’s name, address (XXXXXXXXXX, Sewell,
N.J., 08080) and last four digits of his or her social security
numbers, although no mention was made of the omission of the
second “n” in Mr. Williams’ first name in some bankruptcy
documents in one bankruptcy proceeding.
19; L. Williams SOF at ¶ 19.)
(G. Williams SOF at ¶
Each Plaintiff was informed of
the results of the credit dispute process by letter from
Experian: Ms. Williams on December 12, 2011 and Mr. Williams on
Plaintiffs deny that Experian conducted a reinvestigation,
however, they do so only generally without citation to any
record material. While Plaintiffs’ responses to Defendants’
Local Rule 56.1 statement suggest they dispute the
reasonableness of the reinvestigation, it does not appear that
any fact in the record contradicts the notion that an ACDV was
sent to the furnisher of the record.
May 9, 2012.
(Def.’s Ex. B, Civ. No. 14-8115 (Mr. Williams);
Def.’s Ex. B, Civ. No.
14-8116 (Ms. Williams).)
Thereafter, more than seven months after Experian informed
Mr. Williams of the results of its reinvestigation, on December
20, 2012, Experian received a second dispute by letter from Mr.
Williams concerning the two bankruptcies.
(G. Williams SOF at ¶
Experian flagged the second dispute as potentially
fraudulent and replied to Mr. Williams, using the same Sewell,
New Jersey address as that connected with the bankruptcy
In a letter dated December 24, 2012, Experian
indicated that it had not taken any action on the request
because of its opinion that the document was suspicious and any
future requests received in a similar manner would not receive a
(Def.’s Ex. D, Civ. No. 14-8115 (“We received a
suspicious request regarding your personal credit information
that we have determined was not sent by you.
This could be
deemed as deceptive or fraudulent use of your information.
have not taken any action on this request.
Any future requests
At oral argument counsel for Experian explained that there are
several reasons why a letter dispute might seem fraudulent such
as the origin of the mailing. Here, the Court judicially notes
the mailing ZIP codes on each of the suspicious mailings from
Plaintiff do not appear to match the Sewell, New Jersey return
address. (Ex. C, Civ. No. 14-8115.) The same is true for Ms.
Williams’ flagged correspondence, discussed infra. The ZIP code
begins with a “9,” which are ZIP Codes affiliated with the West
Coast and Alaska. See
made in this manner will not be processed and will not receive a
The letter additionally instructed Plaintiff to
contact Experian by phone or online if he sought to legitimately
dispute any portion of his credit report.
(Id. at ¶¶ 21, 22;
Def.’s Ex. D, Civ. No. 14-8115 (“If you believe that information
in your personal credit report is inaccurate or incomplete,
please call us at the phone number that displays on your
Experian personal credit report, or visit our secure website . .
A second flagged letter was received purportedly by Mr.
Williams almost two years later, on November 20, 2014, which
Experian flagged and to which it did not respond.5
(Id. at ¶
Experian also received a second dispute from Ms. Williams
on January 30, 2012 concerning her two purported bankruptcies.
(L. Williams SOF at ¶ 21.)
This second dispute was not flagged,
but instead Experian responded that it had already investigated
those items and would not do so a second time, pursuant to
Section 611(a)(3)(A) of the FCRA.
(Id. at ¶ 22 (“We have
already investigated this information and the credit grantor has
The letter also indicated that Mr. Williams could dispute his
personal credit report by mail, including correspondence with
his full name including middle initial and general, social
security number, current mailing address, date of birth, and
previous addresses for the past two years. (Def.’s Ex. D, Civ.
The Court notes that no factual documentation or sworn
statement by Mr. Williams has been put forth regarding the
authenticity of either of these flagged disputes.
verified its accuracy.”)
Two subsequent dispute letters
purporting to be authored by Ms. Williams were flagged as
potentially fraudulent and treated in a similar manner to Mr.
Williams’ potentially fraudulent dispute letters.6
(Id. at ¶¶
A summary of the history of the Plaintiffs’ credit disputes
and Experian’s responses are as follows:
First Dispute Letter
April 3, 2012
November 22, 2011
Response by Experian
May 9, 2012
December 12, 2011
Second Dispute Letter
December 20, 2012
January 30, 2012
Response to Second Dispute
Letter by Experian
December 24, 2012
February 3, 2012
Third Dispute Letter
November 24, 2014
December 20, 2012
Response to Third Dispute
Letter by Experian
December 26, 2012
Fourth Dispute Letter
November 24, 2014
Summary judgment shall be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
14 Fed. R.
A fact is “material” if it will “affect the
To the extent the statements of facts underlying these facts
were disputed by Ms. Williams in her responsive Local Rule 56.1
statement, the denials do not dispute the existence of the
purported correspondence between the parties, but rather the
legal efficacy of such communications.
outcome of the suit under the governing law . . . .”
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute is
“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”
When deciding the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence; all
reasonable “inferences, doubts, and issues of credibility should
be resolved against the moving party.”
Meyer v. Riegel Prods.
Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983).
However, a mere
“scintilla of evidence,” without more, will not give rise to a
genuine dispute for trial.
Anderson, 477 U.S. at 252.
a court does not have to adopt the version of facts asserted by
the nonmoving party if those facts are “utterly discredited by
the record [so] that no reasonable jury” could believe them.
Scott v. Harris, 550 U.S. 373, 380 (2007).
In the face of such
evidence, summary judgment is still appropriate “where the
record . . . could not lead a rational trier of fact to find for
the nonmoving party . . . .”
Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P.
Then, “when a properly supported motion for summary
judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P.
The non-movant’s burden is rigorous: it “must point to
concrete evidence in the record”; mere allegations, conclusions,
conjecture, and speculation will not defeat summary judgment.
Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995);
Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (citing
Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 228
(3d Cir. 2009)) (“[S]peculation and conjecture may not defeat
III. LEGAL ANALYSIS
As mentioned, Plaintiffs’ complaints state two separate
causes of action.
The first is a series of violations of the
Fair Credit Reporting Act, including the failure to delete
inaccurate information from Plaintiff’s credit file after
reinvestigation in violation of 15 U.S.C. § 1681i(a) and the
failure to employ and follow reasonable procedures to assure
maximum possible accuracy of accuracy of Plaintiffs’ credit
report in violation of 15 U.S.C. § 1681e(b).
Compl. ¶¶ 24(a)-
(b), Glenn Williams v. Equifax, et al., Civ. No. 14-8115; Compl.
¶¶ 25(a)-(b), Lorissa Williams v. Equifax, et al., Civ. No. 148116. The second is a cause of action for defamation, arising
from the reporting of the “false and negative alleged
Compl. ¶¶ 26-37, Glenn Williams v. Equifax, et
al., Civ. No. 14-8115; Compl. ¶¶ 27-38, Lorissa Williams v.
Equifax, et al., Civ. No. 14-8116.
Because there are clearly no
genuine disputed facts, summary judgment will be granted in
favor of Experian as to all claims.
A. FCRA Claims
Plaintiffs initially challenge Experian’s compliance with
15 U.S.C. § 1681e(b)’s requirement that, “Whenever 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
Plaintiff also argues that Experian failed to
follow the FCRA’s requirement that agencies conduct a
“reasonable reinvestigation to determine whether . . . disputed
information is inaccurate . . . .”
15 U.S.C. § 1681i(a)(1)(A).
Generally speaking, a consumer reporting agency does not
violate the FCRA’s requirement that it “follow reasonable
procedures to assure maximum possible accuracy” of credit
reports or to “reinvestigate” consumer disputes of information
if the information that it reports is factually accurate.
Cortez v. Trans Union, LLC, 617 F.3d 688, 708 (3d Cir. 2010)
(“Negligent noncompliant with § 1681e(b)” includes the element
that “inaccurate information was included in a consumer’s credit
report”); Klotz v. Trans Union, LLC, 246 F.R.D. 208, 213 (E.D.
Pa. 2007) (“If the information in a consumer’s file was, in
fact, correct, then no investigation could have revealed the
existence of inaccurate information because there was no
inaccurate information to uncover.”) (citing Cushman v. Trans
Union Corp., 115 F.3d 220, 227 (3d Cir. 1997)).
As such, once a
Court determines that the credit items that were reported are
factually accurate, the analysis under the FCRA may cease.
v. Associated Credit Bureau Servs., 451 F. Supp. 447 (E.D. Pa.
1977), aff’d 578 F.2d 1376 (3d Cir. 1978) (“the Court does not
need to reach the issue of reasonableness if it finds initially
that the report furnished was accurate.”).
Here, there are compelling and undisputed facts to support
this Court’s conclusion that these bankruptcies were in fact
filed by each Plaintiff.
First, and most tellingly, Plaintiffs
have not presented any evidence – in the form of sworn testimony
or any other form – that they did not file the bankruptcy
petitions at issue.
All that is before the Court is a copy of
each Plaintiff’s self-serving online dispute form filed with
Experian, which has not been sworn to.
Mr. and Mrs. Williams’
identifying information—social security number, birthdate and
address—are all found on the bankruptcy court documents.
Importantly, Plaintiffs have not disputed the accuracy of this
At oral argument, Plaintiffs’ counsel,
Mr. Vullings, contended – without pointing to any evidence –
that there were impostors posing as Plaintiffs.
The Court was
incredulous that impostors would go to the lengths that they
purportedly did, as evidenced by the public filings.
Specifically, a review of the bankruptcy court documents reveals
that a series of installment payments for filing fees were made
in each the bankruptcies, amounting to hundreds of dollars.
re Glenn Williams, Case No. 08-19833 (payment made on May 28,
2008); In re Glen Williams, Case No. 08-15866 (payment made on
April 1, 2008); In re Lorissa Williams, Case No. 09-11266
(payment made January 21, 2009); In re Lorissa Williams, Case
No. 08-29436 (payment made October 7, 2008).
individual purporting to be Mr. Williams also completed credit
counseling over the internet.
19833, Dkt. No. 14.
In re Glen Williams, Case No. 08-
Two individuals purporting to be Mr. and
Mrs. Williams appeared before the Court for a Section 341
hearing, which was recorded by a court reporter.
In re Lorissa
Williams, Case No. 09-11266, Dkt. No. 27.7
The United States Trustee requires identification of
individuals appearing for a Section 341 hearing. If Plaintiffs’
counsel is going to continue to take the position that
Plaintiffs did not in fact file the bankruptcy petitions, he may
wish to pursue this.
Against this evidence, the Court repeatedly asked Mr.
Vullings, for evidence underpinning his “theory” that there were
impostors posing as Plaintiffs.
The Court even pointed out to
counsel that the dockets of each of the bankruptcy cases
reflected that the United States Bankruptcy Court sent letters
and notices of each pleading filed (including the petitions) to
each Plaintiff at the listed address, the Sewell, New Jersey
address, which remains their current address today.
inquired as to why Plaintiffs would continually receive notices
of a bankruptcy proceeding being litigated on his or her behalf
by a supposed impostor, yet do nothing.
responded — again, without record citation — that Plaintiffs did
nothing because they did not know the bankruptcies would end up
on their credit scores.
The only opposition put forth by Plaintiffs is, one, their
bare, self-serving credit disputes filed with Experian, and,
two, Mr. Williams’ identification of a missing “n” in his first
name in certain of his bankruptcy documents, despite the fact
that all the other identifying information is correct.8
a far cry from a scintilla of evidence.
Anderson, 477 U.S. at
In Ms. Williams’ complaint, she also avers that “Plaintiff
recently discovered that the alleged Chapter 13 Bankruptcy
petitions purported to be hers contains [sic] a signature that
in no way resembles her signature.” Compl. at ¶ 15, Civ. No.
14-8116. This allegation was never factually developed and was
never mentioned after the pleading stage by Plaintiffs.
Indeed, it is hardly evidence.
In the end, there is
nothing before this Court to show that Plaintiffs did not file
To the contrary, the evidence all points to
the fact that Experian has had to expend resources for over a
year and a half litigating a baseless case.
And, again, it is
most noteworthy that Plaintiffs have not even submitted a sworn
document before this Court in support of their claims that they
did not file these bankruptcies.
In this Court’s mind, this
speaks volumes and highlights the nakedness of the allegations.
As such, summary judgment is proper in favor of Experian on all
Plaintiffs also bring claims for defamation against
Experian for reporting the disputed bankruptcies.
15 U.S.C. § 1681h(e), qualified immunity generally prevents
consumer reporting agencies from being sued for defamation
unless malice or intent to injure can be shown.
Id.; Cousin v.
Trans Union Corp., 246 F.3d 359, 375 (5th Cir. 2001).
must be shown that Experian knew the reports about Plaintiffs
were false or published them with reckless disregard for whether
they were false.
Cousin, 246 F.3d at 375.
The Court makes this determination without reaching the issue
of whether Experian’s procedure or reinvestigation was
reasonable under the circumstances.
Given the obvious conclusion that Plaintiffs filed the
petitions, Plaintiffs have additionally failed to make out a
claim for malice.
In supporting a claim for malice, Plaintiffs
perplexingly rely largely on allegations contained in the
complaints. Plaintiffs essentially argue that in publishing
Plaintiffs’ disputed bankruptcies, despite Plaintiffs having
disputed them, Experian exhibited malice.
This utter lack of factual development is not, and cannot
be, enough to survive summary judgment.
Plaintiffs have not
genuinely disputed the fact that Experian published and
continued to publish the credit reports because its public
records vendor, LexisNexis, confirmed that they belonged to
(G. Williams Ex. A; L. Williams Ex. A.)
bankruptcies were pursued, but for a small typo, under
Plaintiffs’ names, with Plaintiffs’ birthdates, addresses and
social security numbers.
(G. Williams Ex. A; L. Williams Ex.
Experian’s decision to publish Plaintiffs’ bankruptcies
despite Plaintiffs’ disputes because a second check confirmed
their initial reporting is evidence that Experian did not
knowingly publish inaccurate information.
The fact that they
relied on their public records vendor’s usual procedure, which
verified Plaintiffs’ identifying information, is evidence that
their reporting was not done with recklessness toward the truth.
To hold that the continued publication of re-verified, negative
credit information after it is disputed by Plaintiff subjects a
consumer reporting agency to a claim for defamation would
essentially require such agencies to change the information at a
customer’s direction or face trial.
See generally, O’Connor v.
Trans Union Corp., No. CIV. A. 97–4633, 1999 WL 773504, at *8
(E.D. Pa. Sep. 29, 1999) (granting summary judgment for
defendant where plaintiff provided no evidence of malice).
C. Order to Show Cause and Sanctions
The final issue to be resolved in this case is the apparent
lack of any meaningful factual investigation carried out by
Plaintiffs’ attorney prior to bringing these lawsuits.
Court is troubled by the downright lack of evidence put forward
by Plaintiffs to support their criminal allegations about an
identity theft perpetrated against them by some unidentified
In pursuit of this full-throttled allegation,
counsel for Plaintiffs deposed no witnesses, offered no sworn
affidavits of Plaintiffs’ personal knowledge of the theft, and
provided no documentation concerning Plaintiffs’ naked
allegations that these bankruptcies did not belong to them.
Counsel appeared to rest solely on Experian’s exhibits about the
credit dispute resolution process and a missing “n” in Glenn.10
That misspelling relates to only one of the four bankruptcies
Plaintiffs dispute. Second, that misspelling occurs in only a
portion of the documents relating to that bankruptcy. See,
e.g., In re Glen Williams, Case No. 08-15866, Dkt. No. 5
It is certainly not forbidden for a Plaintiff to oppose summary
judgment without putting forth its own exhibits, but where
Plaintiffs’ factual theory of the case is as serious as it is
here, the failure to even offer a sworn affidavit in support of
it raises all kinds of flags.
Given the above described state of Plaintiffs’ argument,
and to hopefully alleviate the concern that Plaintiffs were
attempting to push this litigation forward past summary judgment
and onto trial without the burden of actually developing the
facts supporting the case, the Court held oral argument on June
The Court’s concern was not alleviated. Plaintiffs’
counsel’s explanation was, that in a “quick conversation” with
his client he found out “very quickly” that a person that
Plaintiffs did not know was carrying out the bankruptcy
proceedings on their behalf.11
In this Court’s mind, as it
currently understands counsel’s efforts to verify the veracity
of his clients’ contentions, a “quick conversation” – no matter
how quick “quick” is – is simply inexcusable.
(containing partially handwritten caption reading “IN RE: Glenn
As counsel stated, “In a very quick conversation with my
client . . . I found out very quickly they were dealing with
someone who was doing some sort of credit repair for them. Umm,
in essence, what we’ve come to find out – again a very quick
search – umm that this person they were dealing with was filing
fraudulent bankruptcies . . . .”
To be clear, the problem with Plaintiffs’ contentions that
two supposed unnamed individuals are filing bankruptcies on
their behalf - including the use of Plaintiffs’ correct
identifying information, the paying of filing fees on their
behalf, the attendance of credit counseling on their behalf, and
live appearances in Bankruptcy Court - is not that they are
Federal Courts are often presented with strange or
seemingly incredible factual predicates, and some of those
predicates are ultimately supported by the factual record.
Instead, the problem with Plaintiffs’ counsel’s actions in this
proceeding is that he has seen fit to pursue these fanciful and
farfetched claims of a multi-year bankruptcy impersonation fraud
up to and through summary judgment motions without any apparent
modicum of factual investigation or attempt to set forth any
factual basis for the claims whatsoever.
Without showing how
Experian might have detected this fraud, which has apparently
also fooled a United States Bankruptcy Court on four separate
occasions over a series of years, Plaintiffs press on with their
claims and argue that Experian should be liable for violating
the FCRA and defamation.
They do so:
Without conducting any identifiable discovery
Without providing any sworn statement by either
Plaintiff disclaiming the bankruptcies or outlining
Without deposing either Plaintiff to outline this
Without deposing any Experian employee about its
attempt to identify this fraud;
Without providing a single document in support of
Plaintiffs’ opposition to summary judgment;
Without inquiring into or seeking to explain with
evidence Plaintiffs’ failure to file any police
charges concerning this alleged fraud; and
Without inquiring into or seeking to explain with
evidence Plaintiffs’ failure to identify the existence
of the fraud to the bankruptcy court after numerous
bankruptcy court documents were served on Plaintiffs’
Instead, as represented by counsel at oral argument, Plaintiffs’
claim is predicated solely on counsel’s passing conversation
with his clients, which amounts to neither evidence itself nor
meaningful factual investigation.
This Court is not naïve to the fact that FCRA litigation
and its cousin Fair Debt Collection Practices Act (FDCPA)
litigation are often pursued on boilerplate pleadings with no
ultimate intent or hope that the case proceeds to trial or much
past the pleading stage.
See generally Bock v. Pressler and
Pressler, 30 F. Supp. 3d 283, 287 (D.N.J. July 1, 2014)
(discussing, under somewhat different facts, that lawyer’s
practice in FDCPA includes automation and review by non-attorney
Indeed, to this end, a cursory search of the
dockets reveals that Plaintiffs’ counsel appears to have filed
hundreds of FCRA and FDCPA actions in the District of New
Jersey, many of which did not proceed past several docket
entries before the case was terminated.12
The fact that some
portion of FCRA or FDCPA cases present similar factual
predicates prone to bulk litigation does not, however, give an
attorney license to file a case without any meaningful review or
See generally id. (noting that in filing a debt
collection action, an attorney’s review of the pleadings
violated the FDCPA because “[w]hatever reasonable attorney
review may be, a four-second scan is not it.”).
notion is even more manifest here where Plaintiffs do not seek
to bring a typical factual scenario, but rather a magnificently
Lawyers have an obligation to reasonably investigate their
claims prior to filing them in court.
N.J. Rule of Prof’l
Conduct 3.1 (“A lawyer shall not bring or defend a proceeding,
nor assert or controvert an issue therein unless the lawyer
knows or reasonably believes that there is a basis in law and
fact for doing so that is not frivolous . . . .” (emphasis
The seriousness of legal proceedings and their
A rudimentary sampling of one-hundred of these revealed that
fifty-four were terminated prior to an answer and thirty-five
were dismissed prior to dispositive or discovery motion
The commentary to Model Rule of Professional Conduct 3.1 is
also illustrative on this point: “The filing of an action or
associated consequences for the parties are simply too important
to permit lawyers to litigate for years on a single “quick
conversation” with a client about unquestionably material facts
and quite serious allegations.
As the record now stands, and as
oral argument only made clearer, this Court has legitimate
doubts that this bedrock principal of legal ethics was followed
in this case.
And as set forth above, this Court has little
doubt that Plaintiffs filed the bankruptcy petitions, and their
mailings to Experian stating otherwise have all the markings of
a well-schemed fraud.14
In short, any investigation beyond a
defense or similar action taken for a client is not frivolous
merely because the facts have not first been fully substantiated
or because the lawyer expects to develop vital evidence only by
discovery. What is required of lawyers, however, is that they
inform themselves about the facts of their clients’ cases and
determine that they can make good faith arguments in support of
their clients’ positions.” Model Rules of Prof’l Conduct R. 3.1
cmt. 2 (2009) (emphasis added); see also Wisconsin Chiropractic
Ass’n v. State, 676 N.W.2d 580, 589 (Wis. Ct. App. 2004)
(interpreting a similar statute and explaining that, “[I]n
deciding whether to rely on one’s client for the factual
foundation of a claim, an attorney must carefully question the
client and determine if the client’s knowledge is direct or
hearsay and is plausible; the attorney may not accept the
client’s version of the facts on faith alone. Allegation by a
client of serious misconduct of another may require a more
serious investigation. While the investigation need not be to
the point of certainty to be reasonable and need not involve
steps that are not cost-justified or are unlikely to produce
results, the signer must explore readily available avenues of
factual inquiry rather than simply taking a client’s word.”).
Pursuant to 18 U.S.C. § 1341, “Whoever, having devised or
intending to devise any scheme or artifice to defraud, or for
obtaining money or property by means of false or fraudulent
pretenses, representations, or promises . . . places in any post
office or authorized depository for mail matter, any matter or
“quick conversation” should have sounded the Rule 3.1 alarm
Mr. Vullings should nevertheless be afforded the
opportunity to correct this Court’s understanding of his factual
development of the case, if appropriate.15
outlined in the accompanying Order, Plaintiffs’ counsel is
directed to show cause to this Court why he should not be
sanctioned for presenting pleadings and other papers to this
Court which were not predicated on a reasonable inquiry under
the circumstances to ensure the factual contentions had
Fed. R. Civ. P. 11(b).
As outlined above, Defendant Experian’s motions for summary
judgment in each of the above-captioned cases are GRANTED.
Additionally, as set forth in the accompanying Order,
Plaintiffs’ counsel is ordered to show cause why he should not
DATED: June 21, 2016
thing whatever to be sent or delivered by the Postal Service, .
. . shall be fined under this title or imprisoned not more than
20 years, or both.”
For the avoidance of confusion, the purpose of this order to
show cause is not to permit Plaintiffs or Plaintiffs’ counsel a
second bite at the summary judgment apple. Even if Plaintiffs’
allegations concerning imposters are true, the time for
Plaintiffs to point to evidence indicating summary judgment is
improper has come and gone.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
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