Jacobs v. Experian Information Solutions
Filing
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MEMORANDUM DECISION -granting 14 Motion for Judgment on the Pleadings ; Motions terminated: 14 MOTION for Judgment on the Pleadings filed by Experian Information Solutions. Signed by Judge David Sam on 7/14/11. (jmr)
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
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JEFFREY JACOBS, individually
Plaintiff,
)
Case No.: 2:09-cv-00739 DS
)
vs.
)
EXPERIAN INFORMATION
SOLUTIONS, L.L.C.;
And DOES 1-10, inclusive
)
Defendants.
MEMORANDUM DECISION
)
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This matter is before the court on a Motion for Judgment on
the Pleadings filed by Defendant, Experian Information Solutions,
L.L.C. Having carefully considered the parties’ memoranda and the
complete record in this matter, the court issues this memorandum
decision.
BACKGROUND
In May 1999, the plaintiff and his former wife authorized
Equity First Credit Union (Equity First) to withdraw money from
the plaintiff’s bank account and apply it to pay his home
mortgage.
After finding out that Equity First failed to make any
payments and being unable to make up those payments, the
plaintiff lost his home in a foreclosure.
Plaintiff successfully
removed foreclosure data on credit files from two other credit
reporting agencies.
However, after the plaintiff solicited the
defendant to remove the foreclosure information from Plaintiff’s
report, Defendant continued to maintain the derogatory
information in his file. The complaint in this action alleges
that defendant willfully and/or negligently violated provisions
of the Fair Credit Reporting Act (FCRA). 15 U.S.C. § 1681 et seq.
ANALYSIS
Fed. R. Civ. P. Rule 12(c) provides that “after the
pleadings are closed . . . a party may move for judgment on the
pleadings.”
A motion for judgment on the pleadings under Fed. R.
Civ. P. Rule 12(c) is reviewed “under the standard of review
applicable to a Rule 12(b)(6) motion to dismiss.”
Corder v.
Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1223 (10th Cir.
2009) citing Nelson v. State Farm Mut. Auto. Ins. Co., 419 F.3d
1117, 1119 (10th Cir. 2005).
When faced with such a motion a
court must accept as true the factual allegations set forth in
the complaint and construe them in the light most favorable to
the plaintiff. Wyle v. Skiwatch Condo. Corp., 183 Fed. Appx. 760,
761 (10th Cir. 2006).
Such a complaint must contain enough facts
to state a claim for relief that is plausible on its face,
otherwise, the motion for judgment will be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 547 (1955).
Plaintiff attempts to establish a plausible claim for relief
based on 15 U.S.C. 1681e(b) and 15 U.S.C. 1681i(c).
The court,
however, holds that the plaintiff has not stated a plausible
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claim for relief under either of these two sections and therefore
grants Defendant’s motion for judgment on the pleadings.
I. 15 U.S.C. 1681e(b)
In order for a claim to lie under the FCRA the claim must
establish that the defendant reported inaccurate information.
Cassara v. DAC Services, Inc., sets forth the requirements a
plaintiff must prove for a claim to succeed under 15 U.S.C.
1681e(b).
The threshold question the Cassara court used to
determine whether there was in fact a claim under 1681e(b) was
whether an agency has reported inaccurate information.
Plaintiff actually agrees that the reported foreclosure is
correct.
In order to prevail in a private civil action under
1681e(b), Plaintiff must establish that (1) the consumer
reporting agency failed to follow reasonable procedures to assure
the accuracy of its reports; (2) the report in question was, in
fact, inaccurate; (3) the plaintiff suffered an injury; and (4)
the consumer reporting agency's failure caused the plaintiff's
injury. Cassara v. DAC Services, Inc., 276 F.3d 1210, 1217 (10th
Cir. 2002); See, e.g., Whelan v. Trans Union Credit Reporting
Agency, 862 F.Supp. 824, 829 (E.D.N.Y.1994).
Because there is no
dispute whether the reported foreclosure was accurate, Plaintiff
cannot satisfy all four of the aforementioned requirements to
prevail on a 1681e(b) claim.
Thus, Plaintiff failed to state a
plausible claim for relief under 1681e(b).
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The record shows that Plaintiff has not at any time sought
to claim that Defendant has reported inaccurate information.
Although Plaintiff could be given an opportunity to amend his
complaint to include this claim, it is still not likely that he
would prevail on this claim because Plaintiff does not maintain
that the report in question was inaccurate.
Indeed, under Fed.
R. Civ. P. 15(a), leave to amend may be freely granted as justice
requires. However, “the district court may exercise its
discretion to deny leave to amend due to . . . futility of
amendment.”
2010).
Carvalho v. Equifax, 629 F.3d 876, 892 (9th Cir.
The court finds amendment would be futile in this case.
II. 15 U.S.C. 1681i(c)
Plaintiff maintains that he has stated a plausible claim for
relief because Plaintiff provided Defendant with information to
show that the foreclosure was fraudulent and even after learning
of the fraud Defendant still failed to remove the foreclosure
information from Plaintiff’s credit report or provide more
accurate information regarding the dispute. Despite Plaintiff’s
attempt to establish that a well-pleaded complaint exists, he
still does not satisfy the requirements for successfully stating
a claim under the FCRA.
As a preliminary matter, under 15 U.S.C.
1681i Plaintiff must show that Defendant reported factually
inaccurate information regarding the foreclosure to sustain a
claim.
Plaintiff’s complaint alleges that his mortgage was
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foreclosed upon as a result of fraud and that Experian reported
the foreclosure. Thus, Plaintiff’s 1681i(c) claim fails because
there are no allegations that the information Experian reported
was factually inaccurate.
Second, Plaintiff’s 1681i(c) claim fails for the
independent reason that he has not alleged that he requested a
consumer statement be added to his file under 15 U.S.C 1681i(b).
Section 1681i(b) provides in relevant part: “If the
reinvestigation does not resolve the dispute, the consumer may
file a brief statement setting forth the nature of the dispute.”
Under 1681i(c) , a consumer reporting agency must include a
consumer’s 1681i(b) statement in subsequent reports. However, the
record does not show any allegations in Plaintiff’s complaint
that Plaintiff ever requested a 1681i(b) statement be placed on
his credit file after receiving the results of Experian’s
reinvestigation.
Even if Plaintiff did in fact file a consumer
statement of dispute under 1681i(b), the outcome of Plaintiff’s
1681i(c) claim remains unchanged because the threshold question
as to whether a consumer may bring a claim under 1681i(c) is
whether there is a dispute over the accuracy of the reported
information.
Again, the record shows that Plaintiff does not
dispute the accuracy of the reported information.
Thus,
Plaintiff failed to state a plausible claim for relief under
1681i(c).
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Lastly, Plaintiff’s suggestion that a consumer’s request for
a reinvestigation of an item triggers a credit reporting agency’s
duties to show a dispute on file under 1681i(c) is erroneous. To
the contrary, under 1681i(c) a consumer is required to show that
1) he disputed an item on his credit file, 2) the consumer
reporting agency’s reinvestigation did not resolve the dispute,
and 3) the consumer thereafter filed a statement pursuant to
1681i(b) that was not included on subsequent reports to third
parties.
There is nothing in the record showing that Plaintiff
complied with the third requirement.
Instead, the record
indicates that Plaintiff filed this suit after a reinvestigation
did not resolve the dispute through the outlined procedures.
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CONCLUSION
Accordingly, the court finds Plaintiff failed to establish a
plausible claim upon which relief can be granted. The court
grants Defendant’s Motion for Judgment on the Pleadings.
SO ORDERED.
DATED this 14th day of July,2011.
BY THE COURT:
DAVID SAM
SENIOR JUDGE
UNITED STATES DISTRICT COURT
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