ESCOBAR v. PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY SERVICES, LLC

Filing 8

MEMORANDUM AND OPINION. SIGNED BY HONORABLE JOHN R. PADOVA ON 4/10/18. 4/11/18 ENTERED & E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ADRIENNE ESCOBAR
v.
PENNSYLVANIA HIGHER EDUCATION
ASSISTANCE AGENCY SERVICES, LLC

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CIVIL ACTION

NO. 17-4212

MEMORANDUM
Padova, J.

April 10, 2018

Plaintiff has brought this lawsuit against Defendant Pennsylvania Higher Education
Assistance Agency Services, LLC (“PHEAA”) pursuant to the Fair Credit Reporting Act, 15
U.S.C. § 1681 et seq. (“FCRA”), asserting that PHEAA failed to conduct reasonable
investigations in response to disputes of debt it reported to credit reporting agencies. PHEAA
has moved to dismiss the Complaint as time-barred by the applicable statute of limitations. We
deny the Motion for the reasons set forth below.
I.

BACKGROUND

took out a student loan in Plaintiff’s name. 1 (Compl. ¶ 1.) Escobar took out the loan for her

The Complaint alleges that, more than ten years ago, Plaintiff’s mother, Julie Escobar,

to make timely payments on the loan and it went into default. (Id. ¶ 2.) This defaulted student

own benefit, and did so by forging Plaintiff’s name on the loan documents. (Id.) Escobar failed

loan was reported on Plaintiff’s credit reports. (Id.) In May 2008, Escobar sent a letter to

(Id. ¶ 3.)

PHEAA in which she confessed that she, not Plaintiff, had taken out the loan and offered to
complete any paperwork PHEAA needed to press charges against her.

Notwithstanding Escobar’s confession, PHEAA continued to inform Credit Reporting Agencies
1

For the sake of clarity, we refer to Plaintiff Adrienne Escobar as “Plaintiff” and to her
mother, Julie Escobar, as “Escobar.”

collector. (Id. ¶ 12.) Plaintiff did not learn that Escobar had confessed to the identity theft until
(“CRAs”) that Plaintiff was responsible for the defaulted loan and referred Plaintiff to a debt
the year before she filed the instant Complaint. (Id. ¶ 11.)

In August 2014, Plaintiff filed a dispute of this defaulted loan with two CRAs. (Id. ¶ 18.)

The CRAs, in turn, sent automated credit dispute verifications (“ACDVs”) to PHEAA. (Id. ¶
investigation. (Id. ¶ 20.) On August 28, 2014, April Carter, who processed the Equifax ACDV

19.) On August 6, 2014, Equifax sent an identify fraud ACDV to PHEAA and requested a fraud

for PHEAA, responded that Plaintiff “had a charged off student loan with an unpaid balance
reported as a loss by a credit grantor that had been transferred to recovery.” (Id.) Plaintiff
contends that this response could only have resulted from “a negligent and reckless investigation
. . . in light of the previous confession and affidavit that the identity thief had sent to [PHEAA].”
On August 13, 2014, TransUnion issued an ACDV to PHEAA. (Id. ¶ 21.) Leigh

(Id.) PHEAA did not contact Plaintiff about the identity theft claim. (Id.)

¶ 22.) Wenerick reported that Plaintiff was responsible for the defaulted student loan. (Id.) On
Wenerick responded to the TransUnion ACDV on behalf of PHEAA on September 5, 2014. (Id.

requested another fraud investigation. (Id. ¶ 23.) On September 30, 2014, Ryan Oswandel
September 9, 2014, Equifax issued another identity theft ACDV to PHEAA, in which it
responded to this Equifax ACDV on behalf of PHEAA. (Id. ¶ 24.) Oswandel reported that

Plaintiff “had a defaulted student loan with an unpaid balance reported as a loss that had been
transferred to recovery.” (Id.)
department related to the PHEAA student loan. (Id. ¶ 26.) In the police report, Plaintiff

On June 19, 2015, Plaintiff filed a police report with the San Angelo, Texas police

identified her mother as the person who had used her identity. (Id.) On August 16, 2015,

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that the CRAs remove the PHEAA student loan from her record because of fraud. (Id. ¶ 27.)

Plaintiff sent a second credit dispute package to the same two CRAs, including a letter requesting

She also asked the CRAs to put an extended fraud alert on her credit report. (Id.) Her letter

stated that she did not take out the student loan, did not sign the promissory note, and had never
made a payment on the loan. (Id.) Plaintiff included a copy of the June 19, 2015 police report in
the loan dispute package. (Id.)
extended credit alert. (Id. ¶ 28.) On August 26, 2015, TransUnion issued another ACDV to
On August 26, 2015, TransUnion updated Plaintiff’s credit file by adding the requested

fraudulently opened. (Id. ¶ 29.) TransUnion attached Plaintiff’s dispute letter and police report

PHEAA, informing it that Plaintiff claimed identity fraud and that the student loan account was

ACDV on behalf of PHEAA. (Id. ¶ 30.) Donella updated Plaintiff’s account by repeating
to the ACDV. (Id.) On September 21, 2015, Jessica Donella responded to the new TransUnion

PHEAA’s report of the derogatory information related to the defaulted student loan. (Id.)
PHEAA’s response ignored Plaintiff’s dispute letter and police report. (Id.)
In September 2015, Equifax issued two ACDVs related to the defaulted student loan, one
(Id. ¶ 31.)

was sent to TransWorld Systems, Inc., a debt collector that was attempting to collect on the
“TransWorld Systems instructed Equifax to delete the account for fraud.” (Id. ¶ 32.) Ordinarily,
student loan; the other was sent to PHEAA.

After it received the ACDV,

a debt collector would contact the lender, PHEAA, prior to giving such an instruction. (Id.)
Nonetheless, two weeks later, April Carter responded to the Equifax ACDV on behalf of
PHEAA by “stating that the current past due balance [on the defaulted student loan] was $38,571
and that the account had been transferred to recovery.” (Id.)

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information sent to it by Plaintiff. (Id. ¶ 33.) On October 22, 2015, Randi Lynn Kolva

TransUnion subsequently issued another ACDV to PHEAA based on additional

responded to this TransUnion ACDV on behalf of PHEAA. (Id. ¶ 34.) Her response did not
ask TransUnion to delete the account or update its credit reporting. (Id.)

Escobar was the perpetrator of the identity fraud and that Escobar was Plaintiff’s mother. (Id. ¶

In October 2015, Equifax issued a new ACDV to PHEAA, informing PHEAA that

PHEAA. (Id. ¶ 36.) She did not acknowledge the identity theft, rather she informed Equifax
35.)

On October 31, 2015, Tamika Dawson responded to Equifax’s ACDV on behalf of

In May 2016, Plaintiff again sent a credit dispute package to the CRAs. (Id. ¶ 37.) In

that the total outstanding balance for the student loan was $38,571.00. (Id.)

response, the CRAs deleted the reference to the student loan in Plaintiff’s credit report. (Id.) On
Plaintiff’s credit report for fraud. (Id. ¶ 38.)

May 17, 2016, TransUnion notified PHEAA that it had deleted the student loan account from

Despite all of the information it had received regarding Plaintiff’s claim that the student

that debt. (Id. ¶ 38.) In November 2016, TransWorld Systems placed another collection account

loan was procured through identity theft, PHEAA harassed Plaintiff in an attempt to collect on
related to the student loan on Plaintiff’s Equifax credit file. (Id. ¶ 39.) PHEAA’s actions have

damaged Plaintiff’s credit, resulting in limited access to credit, credit denials, frustration,
members. (Id. ¶ 40.)

aggravation, and humiliation, and have also damaged Plaintiff’s relationships with her family

The Complaint asserts one claim for violation of the Fair Credit Reporting Act, 15 U.S.C.

the disputes it received as part of seven different ACDV investigations. (Id. ¶ 42.) Plaintiff
§ 1681s-2(b), alleging that PHEAA failed to conduct reasonable investigations with respect to

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seeks compensatory damages, punitive damages, statutory damages, interest, costs and
reasonable attorney’s fees. PHEAA has moved to dismiss the Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6).
II.

LEGAL STANDARD
When considering a motion to dismiss pursuant to Rule 12(b)(6), we “consider only the

complaint, exhibits attached to the complaint, [and] matters of public record, as well as
undisputedly authentic documents if the complainant’s claims are based upon these documents.”
Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). We take the factual allegations
of the complaint as true and “‘construe the complaint in the light most favorable to the
plaintiff.’” DelRio-Mocci v. Connolly Props., Inc., 672 F.3d 241, 245 (3d Cir. 2012) (quoting
Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011)). Legal conclusions,
however, receive no deference, as the court is “‘not bound to accept as true a legal conclusion
couched as a factual allegation.’” Wood v. Moss, 134 S. Ct. 2056, 2065 n.5 (2014) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
A plaintiff’s pleading obligation is to set forth “‘a short and plain statement of the
claim,’” which gives “‘the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original)
(quoting Fed. R. Civ. P. 8(a)(2), and Conley v. Gibson, 355 U.S. 41, 47 (1957)). The complaint
must contain “‘sufficient factual matter to show that the claim is facially plausible,’ thus
enabling ‘the court to draw the reasonable inference that the defendant is liable for [the]
misconduct alleged.’” Warren Gen. Hosp., 643 F.3d at 84 (quoting Fowler v. UPMC Shadyside,
578 F.3d 203, 210 (3d Cir. 2009)). “The plausibility standard is not akin to a ‘probability

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requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “A complaint that pleads facts
‘merely consistent with a defendant’s liability . . . stops short of the line between possibility and
plausibility of entitlement to relief.’” Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 (3d Cir.
2016) (alteration in original) (quoting Iqbal, 556 U.S. at 678). In the end, we will grant a motion
to dismiss brought pursuant to Rule 12(b)(6) if the factual allegations in the complaint are not
sufficient “‘to raise a right to relief above the speculative level.’” W. Run Student Hous.
Assocs., LLC v. Huntington Nat’l Bank, 712 F.3d 165, 169 (3d Cir. 2013) (quoting Twombly,
550 U.S. at 555).
III.

DISCUSSION
PHEAA argues that the entire Complaint, or, in the alternative, a portion of Plaintiff’s

claim, must be dismissed because Plaintiff’s claim is time-barred by the FCRA’s statute of
limitations. The FCRA provides as follows:
An action to enforce any liability created under this subchapter may be brought in
any appropriate United States district court, without regard to the amount in
controversy, or in any other court of competent jurisdiction, not later than the
earlier of -(1) 2 years after the date of discovery by the plaintiff of the violation that is the
basis for such liability; or
(2) 5 years after the date on which the violation that is the basis for such liability
occurs.
15 U.S.C. § 1681p. PHEAA contends that Plaintiff’s claim is time-barred because she was
aware of the identity theft alleged in the Complaint more than two years before she filed the
instant lawsuit.
Generally, the statute of limitations is not an appropriate ground for a motion to dismiss
brought pursuant to Rule 12(b)(6), and an exception is made only “‘where the complaint facially
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shows noncompliance with the limitations period and the affirmative defense clearly appears on
the face of the pleading.’” Budzash v. Howell Twp., 451 F. App’x 106, 109 (3d Cir. 2011)
(quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.1 (3d Cir. 1994)).
“Statute of limitations issues normally implicate factual questions . . . therefore, a defendant
bears a heavy burden in seeking to establish as a matter of law that the challenged claims are
barred.” Bionix Dev. Corp. v. Sklar Corp., Civ. A. No. 07–4465, 2009 WL 3353154, at *5 (E.D.
Pa. Oct. 14, 2009) (citing Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 498 (3d
Cir. 1985)).
A.

Application of the Statute of Limitations to Plaintiff’s Entire Claim

PHEAA recognizes that, while the United States Court of Appeals for the Third Circuit
has not interpreted the FCRA’s statute of limitations, courts in this Circuit have “held that an
action is timely if a plaintiff alleges that a furnisher of information ‘continued to report
[inaccurate] information to [the credit bureaus] within the statutory period, regardless of whether
it had begun reporting prior to the two year statute of limitation.’” Van Veen v. AT&T Corp.,
Civ. A. No. 10-1635, 2011 WL 4001004, at *4 (E.D. Pa. May 25, 2011) (alterations in original)
(quoting Jaramillo v. Experion Info. Sols., Inc., 155 F. Supp. 2d 356, 360 (E.D. Pa. 2001)).
However, PHEAA argues that we should reject this interpretation of the statute, because it results
in “essentially eliminating any statute of limitations by a consumer simply re-submitting a credit
dispute at any time in the future.” (Def.’s Mem. at 4.) PHEAA maintains that the limitations
period should begin to run when a plaintiff first learns of the mistake on his or her credit report,
notwithstanding any subsequent reporting of that mistake. See, e.g. Mack v. Equable Ascent
Financial, LLC, Civ. A. No. 11-793, 2013 WL 183646, at *5 (E.D. Tex. Jan. 17, 2013) (stating
that the statute of limitations began to run on plaintiff’s FCRA claim when plaintiff received his

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credit report); Hatten v. Experian Info. Sols., Inc., Civ. A. No. 12-12236, 2013 WL 5179190, at
*4 (E.D. Mich. Sept. 12, 2013) (rejecting argument that plaintiff’s “repeated attempts at
resolving the issue [with her credit report] tolled the FCRA’s statute of limitation” because,
where “the underlying complaint relates to recurring violations stemming from the same original
incident, and the alleged violations are triggered every time Plaintiff files a dispute, Plaintiff
would be able to extend the statute of limitations indefinitely simply by filing subsequent
complaints as the two year period nears its end”).
“Federal courts are split on the question of whether each separate notice of dispute
triggers a duty to investigate even if the information has been disputed previously.” Vasquez v.
Bank of Am., N.A., Civ. A. No. 15-4072, 2015 WL 7075628, at *3 (N.D. Cal. Nov. 13, 2015).
“The majority of courts have concluded that ‘each separate notice of dispute triggers a duty to
investigate the disputed information, regardless of whether the information has been previously
disputed,’ and each time a furnisher fails reasonably to investigate the dispute results in a new
FRCA violation.” Id. (quoting Marcinski v. RBS Citizens Bank, N.A., 36 F. Supp. 3d 286, 290
(S.D.N.Y. 2014) (remaining citations omitted)).
We are not persuaded by PHEAA’s argument that we should follow the federal courts
that have concluded “that allowing a second dispute letter to trigger a new statute of limitations
would permit plaintiffs ‘to indefinitely extend the limitations period by simply sending another
complaint letter to the credit reporting agency.’” Id. (quoting Bittick v. Experian Info. Sols.,
Inc., 419 F. Supp. 2d 917, 919 (N.D. Tex. 2006) (remaining citations omitted)). The FCRA
requires a furnisher of credit information to perform the following duties after it receives notice
of a dispute regarding the accuracy of the information that it provided to a CRA: “(A) conduct
an investigation with respect to the disputed information; (B) review all relevant information

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provided by the consumer reporting agency pursuant to section 1681i(a)(2) of this title; [and] (C)
report the results of the investigation to the consumer reporting agency . . . .” 15 U.S.C. § 1681s2(b)(1). “Given the FCRA’s language, as well as its purpose, each alleged failure of [the
furnisher of credit information] to comply with [its] FCRA obligations constitutes a separate
FCRA violation, even though the violations stem from the same allegedly false or inaccurate
credit information.” Marcinski, 36 F. Supp. 3d at 290. “Thus, each separate notice of dispute
triggers a duty to investigate the disputed information, regardless of whether the information has
been previously disputed.” Id. Consequently, “[t]he statute’s construction creates a violation
every time a consumer submits a dispute to a credit reporting agency and that agency or the
relevant lender does not respond to the complaint as directed by the statute.” Broccuto v.
Experian Info. Sols., Inc., Civ. A. No. 07-782, 2008 WL 1969222, at *4 (E.D. Va. May 6, 2008).
“The fact that the account or transactions questioned in the instant dispute may have also been
the subject of a previous dispute does not mitigate the obligations of the bank or credit reporting
agency to take the actions outlined in § 1681s-2(b)(1)(A)-(D).” Id. See also Jenkins v. Chase
Bank USA, N.A., Civ. A. No. 14-5685, 2015 WL 4988103, at *7 n.6 (E.D.N.Y. Aug. 19, 2015)
(“[W]here FCRA violations are based upon a furnisher’s obligations under Section 1681s–
2(b)(1), ‘each separate notice of dispute triggers a duty to investigate the disputed information’
which triggers its own separate statute of limitations.” (quoting and citing Marcinski, 36 F.
Supp. 3d at 290) (additional citation omitted)); Young v. LVNV Funding LLC, Civ. A. No. 121180, 2013 WL 4551722, at *3 (E.D. Mo. Aug. 28, 2013) (holding that “‘each re-report of
inaccurate information, and each failure to conduct a reasonable investigation in response to a
dispute, is a separate FCRA violation subject to its own statute of limitations’” (quoting Cathcart
v. Am. Express, Civ. A. No. 11-2125, 2012 WL 5258820, at *2 (E.D. Mo. Oct. 23, 2012))).

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We conclude, accordingly, that each time a CRA sent an ACDV to PHEAA, PHEAA
was obliged anew to investigate the accuracy of its information regarding the disputed student
loan, and any failure on its part to reasonably conduct that investigation triggered the running of
a new limitations period with respect to that investigation. See Maiteki v. Marten Transportation
Ltd., 4 F. Supp. 3d 1249, 1254 (D. Colo. 2013) (holding “that each re-report of allegedly false
information triggers a new duty to conduct a reasonable investigation, which in turn restarts the
limitations period for an FCRA claim based on the failure to conduct a reasonable investigation”
(citing Larson v. Ford Credit, Civ. A. No. 06-1811, 2007 WL 1875989, at *4 (D. Minn. June 28,
2007))). “This conclusion is consistent with the purpose of the FCRA.” Marcinski, 36 F. Supp.
3d at 290. “In enacting the statute, Congress recognized a ‘need to ensure that those parties
which controlled a consumer’s credit history and therefore access to future credit exercise their
grave responsibilities with fairness, impartiality, and a respect for the consumer’s right to
privacy.’” Id. (quoting Broccuto, 2008 WL 1969222, at *4). “The FCRA expressly states that
its purpose is to ensure consumer reporting procedures that are ‘fair and equitable to the
consumer.’” Id. at 291 (quoting 15 U.S.C. § 1681(b)). “Were the Court to hold that the duties of
a furnisher of credit lapse once an initial investigation is undertaken in regard to disputed
information, it would contravene both the statutory language and the stated intent of the FCRA.”
Id. We therefore deny the Motion to Dismiss with respect to PHEAA’s argument that the
entirety of Plaintiff’s claim is barred by the applicable statute of limitations because she was
aware of the identity theft issue more than two years prior to filing the instant Complaint.
B.

Application of the Statute of Limitations to ACDVs Issued in 2014

PHEAA argues that, if this action is not entirely time-barred, a portion of Plaintiff’s claim
is barred by the statute of limitations because it arose from credit disputes that she filed more

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than two years prior to filing the instant Complaint. Specifically, PHEAA asks us to dismiss that
portion of Plaintiff’s claim that arises from three ACDVs that were sent to PHEAA in 2014. As
August 2014. (Compl. ¶ 18.) On August 6, 2014, Equifax issued an identity fraud ACDV to

we discussed earlier, the Complaint alleges that Plaintiff filed a dispute with two CRAs in
PHEAA and PHEAA responded to that ACDV on August 28, 2014. (Id. ¶ 20.) On August 13,

ACDV on September 5, 2014. (Id. ¶¶ 21-22.) On September 9, 2014, Equifax issued another
2014, TransUnion issued an identity theft ACDV to PHEAA and PHEAA responded to that

(Id. ¶¶ 23-24.) PHEAA maintains that Plaintiff’s claim should be dismissed to the extent that it

identity theft ACDV to PHEAA and PHEAA responded to that ACDV on September 30, 2014.

pertains to PHEAA’s investigation of these three ACDVs, because it conducted its investigations
in August and September of 2014, more than two years before Plaintiff filed the Complaint on
September 20, 2017.
Plaintiff contends that her claim is not untimely as it relates to the 2014 ACDVs because
the statute of limitations did not begin to run as to this aspect of her claim until she learned that
PHEAA’s investigations of those ACDVs were unreasonable. She maintains that the evidence
will demonstrate that she did not know and could not have known what information PHEAA had
when it investigated the 2014 ACDVs and, thus, the statute of limitations did not begin to run on
that portion of her claim at the time of PHEAA’s investigations in August and September 2014.
As we discussed earlier, the FCRA’s statute of limitations begins to run “2 years after the
date of discovery by the plaintiff of the violation that is the basis” for her claim. 15 U.S.C. §
1681p(1) (emphasis added); see also Yarish v. Downey Fin. Corp., Civ. A. No. 08-00380, 2009
WL 1208178, at *2 (E.D. Va. Apr. 28, 2009) (“A FCRA plaintiff . . . only has two years from
the date he discovers the violation to file his claim.”) Plaintiff’s claim is based on PHEAA’s

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alleged violation of the FCRA by failing to conduct reasonable investigations of seven different
Plaintiff. (Compl. ¶ 43.) Consequently, according to the plain language of the FCRA, the

disputes of the credit information that it had furnished to TransUnion and Equifax regarding

statute of limitations began to run on each portion of her claim when she discovered each

allegedly unreasonable investigation conducted by PHEAA. See Marcinski, 36 F. Supp. 3d at
290 (concluding, “based on the unambiguous language of the FCRA as well as its stated
purpose,” that the statute of limitations began to run on the plaintiff’s claims that two
information furnishers had failed to conduct adequate investigations in connection with his
disputes of his credit reports when he “discovered that Defendants had failed to comply with
their FCRA duties in connection with” those disputes); see also Zahran v. Bank of Am., Civ. A.
No. 15-C-1968, 2015 WL 4397779, at *4 (N.D. Ill. July 17, 2015) (stating that “the statute of
limitations begins to run on a § 1681s–2(b) claim not when the plaintiff discovers the erroneous
reporting but when it becomes clear that the furnishing entity or entities ‘failed to comply with
their FCRA duties’ to investigate and correct any erroneous reports” (quoting Marcinski, 36 F.
Supp. 3d at 290)).
The Complaint does not allege the date of Plaintiff’s discovery that PHEAA had
conducted an unreasonable investigation of the 2014 ACDVs. We therefore cannot determine,
from the face of the Complaint, whether Plaintiff was aware of PHEAA’s allegedly unreasonable
investigations of the 2014 ACDVs more than two years before she filed the instant Complaint on
September 20, 2017. We conclude, accordingly, that it would not be appropriate to dismiss the
portion of Plaintiff’s claim that arises from the three investigations conducted by PHEAA in
August and September 2014 based on the expiration of the applicable statute of limitations. See
Budzash, 451 F. App’x at 109 (stating that the statute of limitations normally “cannot serve as a

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basis for granting relief under Rule 12(b)(6)” and recognizing that an exception to that rule will
only be made “‘where the complaint facially shows noncompliance with the limitations period’”
(citing and quoting Oshiver, 38 F.3d at 1384 n.1)). We consequently deny the Motion to Dismiss
as to PHEAA’s argument that Plaintiff’s claim is time-barred to the extent that it arises from
PHEAA’s August and September 2014 investigations.
IV.

CONCLUSION
For the reasons stated above, we deny PHEAA’s Motion to Dismiss in its entirety. An

appropriate order follows.
BY THE COURT:
/s/ John R. Padova
____________________________
John R. Padova, J.

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