Pinchuk v. CIT Bank et al

RESPONSE to 38 Motion to Dismiss

D. Nev.September 25, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TH E LA W O FF IC E O F V ER N O N N EL SO N A TT O RN EY A T LA W VERNON A. NELSON, JR., ESQ. Nevada Bar No.: 6434 THE LAW OFFICE OF VERNON NELSON 9480 S. Eastern Ave., Ste. 244 Las Vegas, NV 89123 Tel.: 702-476-2500 Fax.: 702-476-2788 E-mail: vnelson@nelsonlawfirmlv.com Attorney for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF NEVADA STEVEN GEARY PINCHUK, Plaintiff, v. CIT BANK, N.A, and EQUIFAX, INC. Defendants. Case No.: 2:16-cv-02986-RFB-CWH PLAINTIFF’S REPSONSE TO DEFENDANT CIT BANK’S MOTION TO DISMISS AMENDED COMPLAINT Vv Plaintiff Steven Geary Pinchuk (“Plaintiff or “Mr. Pinchuk”) by and through his counsel of record, The Law Office of Vernon Nelson, submits this Opposition to Defendant CIT Bank, N.A.’s (“CIT”) Motion to Dismiss Amended Complaint pursuant to F.R.C.P. 12(b)(6). This Opposition is based on the attached Memorandum of Points and Authorities, the pleadings on file, and any oral argument the Court may permit. I. INTRODUCTION As the result of CIT’s previous Motion To Dismiss Complaint, Plaintiff prepared and filed an Amended Complaint with very detailed factual support for claims set forth therein, including dates and specifics of each alleged FCRA violation of each Defendant. Based on what appeared to be the Court’s main focus during the earlier motion hearing, Plaintiff’s Amended Complaint also includes specifics of dates pertinent to the 2 year statute of limitations and 5 year statute of repose set forth in the FCRA. Consistent with Plaintiff’s briefing of the initial Motion To Dismiss, Plaintiff’s Amended Complaint has dropped his claim under the Nevada Deceptive Trade Practices Act. Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 1 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Despite Plaintiff’s overhaul of his Complaint, and despite Plaintiff’s citation during the earlier briefing round to case law which demonstrates that his claims meet all requirements to state a claim upon which relief can be granted, and likewise satisfy Article III Standing requirements, CIT has trotted out again its obligatory Motion To Dismiss. As such, this may seem “like de ja vu all over again” to the Court. The big difference here, however, is that Plaintiff has completely revamped its complaint to include very specific factual delineation of his claims, which clearly meet or surpass requirements under Fed. R. Civ. P. 12(b)(6). Other than removing arguments that the FCRA does not specify a private right of action, and argument regarding the Nevada Deceptive Trade Practices Act, CIT’s motion includes the same “cookie-cutter” arguments which were demonstrated to be unavailing in prior briefing, at least as the resurrected arguments relate to Plaintiff’s very detailed pleading redraft. As demonstrated below, Plaintiff has sufficiently plead his claims under the FCRA, including his claim for punitive damages, which contrary to CIT’s renewed contentions are not controlled or affected in any manner by Nevada statute of case law from the Nevada Supreme Court. II. STATEMENT OF FACTS A. Factual Background Plaintiff copies/pastes the following extensive statement of facts underlying his claims against CIT directly from his Amended Complaint, which he filed with the Court on August 27, 2011: (1) For the convenience of the Court in reviewing the factual allegations supporting Plaintiff’s claims against CIT, and (2) So the Court may easily see that CIT’s renewed attempt to dismiss Mr. Pinchuk’s pleading and thereby avoid litigation is unfounded and ineffectual. The numbering below is the same as in the Amended Complaint. 8. Plaintiff purchased the real property commonly known as 5134 Blissful Valley Court on November 22, 2006 (the “Property”). In connection with the purchase of the Property, Plaintiff executed a first mortgage note and deed of trust in favor of Aspen Mortgage LLC (the “First Mortgage Loan") in the principal amount of $750,000.00. The Plaintiff also executed Second Mortgage Note and Second Deed of Trust for $93,800.00 (the “Second Mortgage Loan”). Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 2 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 9. On January 1, 2007, Indy Mac Bank FSB acquired the Second Mortgage Loan from Aspen Mortgage LLC. On February 15, 2007, the Second Mortgage was service released to Citi Mortgage. At the time of the transfer the account was due for the March 1, 2007 payment. 10. Upon information and belief, Indy Mac Bank FSB also acquired the First Mortgage Loan from Aspen Mortgage LLC. The First Mortgage Loan was not service released to Citi Mortgage and Plaintiff made payments to Indy Mac Bank FSB. 11. Prior to March 2009, Indy Mac Bank FSB filed for bankruptcy. In March 2009, One West Bank purchased many assets from Indy Mac Bank; including Plaintiff’s First Mortgage Loan. 12. Like many residents of Clark County, Plaintiff needed to negotiate a short sale of his home during the “Great Recession”. Plaintiff’s realtor told him, to qualify for short sale, Plaintiff had to stop paying his First Mortgage Loan and Second Mortgage Loan. Plaintiff stopped making payments around November 2010. On or about March 24, 2011, One West Bank FSB recorded an Assignment of the First Deed of Trust from Aspen Mortgage to One West Bank, FSB. 13. On or around June 13, 2011, the Plaintiff completed a short sale to Gregory S Barber. This sale was recorded with the Clark County recorder on June 13, 2011. 14. In December of 2012, Plaintiff discovered that certain credit reporting agencies were not accurately reporting the sale of the Property as a short sale. Instead, they were inaccurately reporting that One West Bank, LLC foreclosed on the Property. 15. In December of 2012, Plaintiff contacted Indy Mac Mortgage Services, a division of One West Bank FSB. He told Indy Mac Mortgage Services (“IMMS”) that Equifax had inaccurately reported that One West Bank had foreclosed on the Property. On December 20, 2012, IMMS wrote to Plaintiff and told him that IMMS had submitted a correction to the credit bureaus to show the account as a complete short sale. (the “December 2012 Disputes”). 16. In April of 2013, Plaintiff discovered IMMS had not submitted a correction to the credit bureaus as agreed. Plaintiff had obtained a copy of his credit report before April 23, 2013 and discovered, amongst other things, that Equifax was inaccurately reporting his Second Mortgage. The Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 3 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 reporting of the Second Mortgage was inaccurate because it was reported the Second Mortgage as “Bad debt & placed for collection & skip.” The Second Mortgage should have reported as a “complete short sale” as IMMS had admitted and promised to correct. Also, Equifax’s reporting Plaintiff’s First Mortgage was inaccurate. Equifax’s reporting was inaccurate because it reported as “FORECLOSURE PROCESS STARTED REAL ESTATE MORTGAGE.” It should have reported as a “complete short sale” as IMMS had admitted and agreed to change. 17. On April 23, 2013, the Plaintiff wrote a letter to Equifax stating that Plaintiff disputed the reporting of the First Mortgage and Second Mortgage as inaccurate. The letter also described: (1) the inaccuracies described in Paragraph 16 above; (2) why the reporting described in Paragraph 16 was inaccurate; and (3) the necessary corrections described in Paragraph 16 above. Plaintiff did not receive a response to this letter (the “April 2013 Disputes”). 18. In August 2015, One West Bank was acquired by CIT group. 19. On August 26, 2016, Plaintiff obtained a copy of his credit report from Credit Secure from American Express and it reported inaccurate information about the two mortgage accounts. With respect to Equifax, the report was inaccurate because it showed that CIT foreclosed on the Property. The two accounts should have reported as a “complete short sale” as IMMS previously admitted and promised to correct. 20. On August 31, 2016 Plaintiff disputed the August 26th report “on-line” with Equifax. Plaintiff disputed the account descriptions related to the First Mortgage Loan and the Second Mortgage Loan and the foreclosure. Plaintiff also disputed the “amount outstanding” as stated in the Equifax report. The Plaintiff informed Equifax that the accounts should have reported as a “complete short sale” as IMMS previously admitted and promised to correct. Plaintiff did not receive a response to the online dispute filed with Equifax (the “August 2016 Disputes”). 21. On October 19, 2016, more than 30 days after he filed his dispute, with Equifax, Plaintiff obtained another copy of his three-bureau credit report from Experian. The report was inaccurate because it continued to report that CIT foreclosed on the Property. The October 19, 2016 report also had comments that said, "these are accounts that are not currently paid as agreed.” Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 4 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 22. On November 8, 2016, Plaintiff disputed the October 19th report online with Equifax. Plaintiff disputed Equifax's reporting of a foreclosure. Plaintiff also disputed the comment that the two accounts were not paid as agreed. The two mortgage accounts should have reported as a “complete short sale” as IMMS previously admitted and promised. Plaintiff did not receive a response to this dispute (the “November 2016 Disputes”). 23. Given the lack of a response from CIT and Equifax, Plaintiff needed to obtain counsel. Plaintiff's counsel wrote a demand letter to CIT and Equifax on December 19, 2016. 24. On January 5, 2017, Plaintiff's counsel received a letter from CIT’s Research Department. After reading the letter, the Plaintiff: (1) first discovered that several violations had occurred, and were continuing to occur; (2) discovered that several known violations had not been the accounts were disputed by the consumer. The letter provided, in relevant part: A. Contrary to 15 U.S.C. § 1681i, CIT told Plaintiff’s counsel that Plaintiff should have submitted the dispute to CIT directly, and not through the credit bureaus. In this regard, CIT stated: As Mr. Pinchuk’s written dispute was submitted to the credit bureaus and not to CIT Bank NA, we were not given the opportunity to respond to this inquiry. In order for us to respond, the written disputes must be submitted directly to CIT Bank, NA. This inaccurate instruction demonstrates that CIT employees do not know that the FCRA requires consumers to dispute items through the credit bureaus to have a personal cause of action pursuant to 15 U.S.C. § 1681s-2(b). This response also indicates that CIT does not have reasonable procedures in place to respond to consumer disputes reported through the credit bureaus. B. With respect to the Second Mortgage, CIT Bank admitted that its reporting was inaccurate and in violation of the FCRA. Specifically, CIT said, Indy Mac acquired the Second Mortgage on January 1, 2007 and that it was service released to Citi mortgage on February 15, 2007. As this loan was serviced by CIT more than seven years ago, CIT has submitted an update to the credit bureaus to delete this loan from the credit bureaus. C. As to the First Mortgage, CIT acknowledged that the loan was closed as a short sale on June 13, 2011. However, CIT claimed that its reporting was correct because the First Mortgage Loan was closed as part of a short sale on June 13, 2011; but the short sale was Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 5 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 completed after the foreclosure process had started. CIT said, “the final reporting of this loan is paid for less than the full balance owed, after foreclosure started.” However, this reporting clearly contradicts IMMS’s December 20, 2012 letter. IMMS, CIT’s predecessor in interest, said that a correction had been submitted to the credit bureaus to show the account as a complete short sale. The dispute described in Paragraphs 23 and 24 above may be referred to as the “January 2017 Disputes” 25. Plaintiff obtained a copy of his credit report from Credit Secure from American Express on April 8, 2017. With respect to the First Mortgage, Experian reported that it “was legally paid in full for less than the full balance”, and there was no mention of any late payments or foreclosure. Trans Union reported that the payment status had been 120 days past due, the account was closed and the balance was $0.00. Trans Union did not report anything about a foreclosure. Equifax continued to report that a settlement was accepted after foreclosure started; and that at least “120 days or more than four payments past due.” The Equifax report was inaccurate because the reporting clearly contradicts IMMS’s December 20, 2012 letter. IMMS, CIT’s predecessor in interest, said that a correction had been submitted to the credit bureaus to show the account as a complete short sale. Also, Equifax’s report did state that Plaintiff disputed CIT's reporting of the First Mortgage. 26. As to the Second Mortgage, Plaintiff discovered that CIT was continuing to report the Second Mortgage to the credit bureaus. CIT’s continued reporting of the Second Mortgage to the credit bureaus was inaccurate and was contrary to CIT’s January 5, 2017 letter. In its January 5, 2017 letter, CIT acknowledged “as this loan was serviced by CIT more than seven years ago, CIT has submitted an update to the credit bureaus to delete this loan from the credit bureaus.” Clearly CIT did not follow through on its promise to remove this out-of-date and inaccurate information. Thus, Experian continued to report a balance of $0.00 and “account transferred to another office.” Trans Union reported a balance of $0.00 and the payment status as “paid after charge-off”. However, Equifax, continued to report the Second Mortgage inaccurately. The report was inaccurate because the account should have been removed from Plaintiff’s credit report. Further, it should not have been reported as “bad debt and placed for collection and skip.” If anything, the report should have reported the Second Mortgage as a “complete short sale” as IMMS previously admitted and promised to do. Also, Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 6 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 the April 8th report finally indicates that the consumer disputed the Second Mortgage reporting. However, the report does not indicate that the consumer disputed the First Mortgage (the “April 2017 Disputes”) 27. Equifax’s continued reporting of negative information about the Second Mortgage after CIT: (1) had serviced the Second Mortgage more than NINE years ago; (2) admitted the reporting exceeded 7 years, and (3) promised to submit an update to the credit bureaus “to delete this loan”; demonstrates, as is set forth in the First and Second Claims for Relief below, that CIT and/or Equifax willfully failed to comply with the FCRA. 28. By taking the actions described in Paragraphs 7-27 above, the Plaintiff provided multiple written notices of dispute to Equifax and claimed that CIT’s reporting of the First Mortgage and the Second Mortgage was inaccurate, misleading, and wrongful. Plaintiff understands that Equifax notified CIT of each notice of dispute that it received from Plaintiff. 29. Based on the actions described in Paragraphs 7-27 above, it clear that: (1) Plaintiff filed numerous disputes with Equifax regarding CIT; (2) CIT continued inaccurate reporting of the First Mortgage Account and the Second Mortgage Account; (3) CIT (and its predecessor IMMI), admitted that its reporting was incorrect and had continued beyond 9 years; (4) Equifax’s failed to respond to multiple disputes made by Plaintiff. Accordingly, Plaintiff alleges that CIT and/or Equifax knowingly and wrongfully continued to report the First Mortgage and Second Mortgage inaccurately. CIT and Equifax also did not adequately investigate and/or communicate about Plaintiff’s dispute. Equifax and/or CIT did not evaluate or consider any of Plaintiff’s information, claims, or evidence, and it did not make any reasonable attempt to verify and/or correct Plaintiff’s disputes regarding the reporting of the First Mortgage and the Second Mortgage. CIT and/or Equifax also failed to communicate with Plaintiff about the status of Plaintiff’s disputes. 30. As is set forth in the First and Second Claims for Relief below, each notice of dispute that Plaintiff reported to Equifax triggered Equifax’s obligations under the FCRA, including its obligations under 15 U.S.C. § 1681i. 31. As is set forth in the First and Second Claims for Relief below, each time Equifax notified CIT that the Plaintiff disputed CIT’s reporting triggered CIT’s obligation under the FCRA, Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 7 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 including its obligation under 15 U.S.C. § 1681s-2(b) to investigate the dispute and report the results of the dispute to Equifax. 32. As is set forth in the First and Second Claims for Relief, CIT and/or Equifax failed to comply with its duties under the FCRA. Because of CIT’s and/or Equifax’s failure to comply with the FCRA, Plaintiff has suffered substantial economic damages. He has been turned down for mortgages that would have allowed him to refinance his house, pay off a high interest personal loan, and pull out the equity from his home that he needs to pay for his daughter’s college tuition. Since he was turned down for mortgages due to the actions of CIT and Equifax, he has continued to make higher mortgage payments. He has had to continue to pay the high interest personal loan, and he has not been able to pull the equity out of his home to pay for his daughter’s tuition. As a result, he has also suffered severe emotional distress in the form of fear, anger, anxiety; particularly with respect to his ability to pay his daughter’s tuition. His credit reputation has been unnecessarily damaged and he has also sustained substantial attorney fees. 33. The actions of the Defendants as described in the preceding paragraphs above constitute numerous, repeated, and intentional violations of the FCRA. The actions of Defendants were committed by other persons or entities employed by CIT (collectively the “CIT Parties”) and Equifax (collectively the “Equifax parties”). The actions of the CIT Parties and Equifax Parties were incidental to, or of the same general nature as, the responsibilities that these agents were authorized to perform by the Defendants. 34. The actions of Defendants were committed in their capacity as agents of their principal. The actions of CIT Parties and Equifax were committed within the scope and authority granted by their principals and were motivated to benefit their principals. Defendants are therefore liable to Plaintiff through the doctrine of Respondent Superior for the unlawful actions of their employees, including but not limited to violations of the FCRA and the laws of the State of Nevada. 35. As alleged in more detail below, 15 U.S.C.S. §§ 1681n, and 1681o, respectively, make credit reporting agencies (CRAs) liable for willful or negligent noncompliance with any requirement imposed under the FCRA. Sections 1681n and 1681o create private rights of action for consumers. In addition, 15 U.S.C. § 1681s-2(b) requires that furnishers of credit information must Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 8 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 reasonably investigate the completeness or accuracy of any information they have provided to a credit reporting agency after receiving notice from a credit reporting agency of a dispute. Id. § 1681s- 2(b)(1). 36. Section 1681p of the FCRA requires plaintiffs to file claims for relief 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. In Vasquez v. Bank of Am., N.A., 2015 U.S. Dist. LEXIS 154682 (N.D. Cal. Nov. 13, 2015) the Court cited and agreed with decisions made by several other U.S. District Courts. As a result, the Court held that each separate notice of dispute from a consumer 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. Amended Complaint for Damages Pursuant To The Fair Credit Reporting Act 15 [U.S.] 1681, Et. Seq. And Related State Laws and Jury Demand (“Amended Complaint”). Despite Plaintiff’s detailed factual explication of his claims, CIT renewed its attempt to dismiss Plaintiff’s claims without litigation on September 11, 2011. CIT continues to claim Plaintiff’s pleading is deficient because, among other similar complaints thoroughly addressed below: Plaintiff fails to allege how [CIT’s] investigation into this alleged reporting error was reportedly unreasonable. Plaintiff fails to attach to his Complaint any written correspondence to [CIT], any documentation showing improper reporting, or any other materials that actually support Plaintiff’s conclusory factual and legal conclusions Motion, 2:6 through 2:10. CIT additionally contends Mr. Pinchuk’s pleading is barred under “the applicable two-year statute of limitations set forth in Section 2681p(1) of the FCRA.” Id., 2:10 through 2:13. CIT concludes that Plaintiff’s Amended Complaint fails to satisfy Rule 8 pleading requirements, as articulated by the United States Supreme Court in the Twombly and Iqbal cases. Id., 2:14 through 2:17. As demonstrated below, CIT’s contentions of pleading deficiency are erroneous. Plaintiff plainly satisfies Fed. R. Civ. P. 8, including delineation of alleged facts to satisfy the applicable two- year statute of limitations and/or five-year statute of repose set forth in the FCRA. Plaintiff’s Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 9 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Amended Complaint also satisfies Article III standing requirements. In sum, CIT’s additional “cookie-cutter” attempt to avoid litigation must denied. III. LEGAL ARGUMENT A. Standard of Review The Court should dismiss any cause of action that fails to state a claim upon which relief can be granted. FRCP 12(b)(6); see also N Star Int'l. v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983); Vasquez v. Bank Of Am., N.A., 2015 US Dist. Lexis 154682, *5-6 (N.D. Ca. 2015). “A complaint in whole or part is subject to dismissal if it lacks a cognizable legal theory or the complaint does not include sufficient facts to support a plausible claim.” Id., citing Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing a motion to dismiss pursuant to 12(b)(6), the Court should take all allegations in the Complaint as true and construe them in the light most favorable to Plaintiffs. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), as amended on denial of reh'g, 275 F.3d 1187 (9th Cir. 2001; Velasquez, supra. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Velasquez, quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). B. Fair Credit Reporting Act The FCRA was enacted to prevent unfair and inaccurate reporting practices that undermine consumer confidence. 15 U.S.C. § 1681(a); Nelson v. Chase Manhattan Mortg. Corp., 282 F.3d 1057, 1058-59 (9th Cir. 2002). The FCRA imposes duties on lenders, like CIT, who furnish information to credit reporting agencies. See, e.g., 15 U.S.C. § 1681s-2. The United States Court of Appeals for the Ninth Circuit (“Ninth Circuit Court”) has held the FCRA provides a private right of action against a FCRA “furnisher” that violates the duties imposed by § 1681s-2(b). Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1154 (9th Cir. 2009); Nelson, 282 F.3d at 1059-60. Section 1681s-2(b) governs the duties of “furnishers” when they get notice from a CRA of a dispute. After receipt of notice from the CRA of a dispute raised by a consumer about the accuracy of information provided by the furnisher, the furnisher must: (A) conduct an investigation with respect to the disputed information; Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 10 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 (B) review all relevant information provided by the CRA pursuant to section 1681i(a)(2) of this title; (C) report the results of the investigation to the CRA; (D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis; and (E) if an item of information disputed by a consumer is found to be inaccurate or incomplete or cannot be verified after any reinvestigation under paragraph (1), for purposes of reporting to a CRA only, as appropriate, based on the results of the reinvestigation promptly- (i) modify that item of information; (ii) delete that item of information; or (iii) permanently block the reporting of that item of information. § 1681s-2(b). Any investigation by a furnisher under this provision must be "reasonable." Gorman, 584 F.3d at 1157. Further, Section 1681n(a) of the FRCA provides in relevant part: "Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of . . . any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000," plus punitive damages, costs, and reasonable attorney's fees. Section 1681o similarly provides: "Any person who is negligent in failing to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of . . . any actual damages sustained by the consumer," plus costs and reasonable attorney's fees. See, e.g., Dewi v. Wells Fargo Bank, 2012 U.S. Dist. Lexis 189878, at *7 (C.D. Ca. 2012). C. CIT’s Motion Seeks to Impose a Higher Pleading Standard than Is Required Under FRCP Rule 8 and Controlling Case Law CIT contends that Plaintiff’s Amended Complaint “fails to allege, among other key facts, how CITB’s investigation was allegedly unreasonable, and/or what specific damages plaintiff sustained as a result of CITB’s actions or omissions. Plaintiff fails to attach any written correspondence to CITB, any documentation showing improper reporting, or any other materials that actually support Plaintiff’s conclusory and legal assertions.” Motion, 4:5 through 4:10. As further demonstrated below, Rule 8 Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 11 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 does not require any of the hyper-specificity for which CIT argues: “However, an FCRA claim does not need to be pled with specificity.” Waldrop v. Green Tree Servicing, LLC, 2015 U.S. Dist. Lexis 136301, at *8, 2015 WL 58298979 (D. Nev. 2015); Moulton v. AmeriCredit Fin. Servs., 2005 U.S. Dist. Lexis 32185, at *11, 2005 WL 1522237 (N.D. Ca. 2005) (“Although Defendant AmeriCredit asserts that to make a § 1681s-2(b) [claim], Plaintiff must ̀ identify the inaccuracy or incomplete entry in her credit report’ with specificity, none of the cases cited by AmeriCredit adequately supports such a heightened `FCRA pleading requirement’ that is distinct from a Rule 8(a) pleading.”). As demonstrated below, Plaintiff’s Amended Complaint satisfies Rule 8 pleading requirements. CIT’s motion therefore should be denied. See Moulton v. AmeriCredit Fin. Servs., 2005 U.S. Dist. Lexis 32185, 2005 WL 1522237 (N.D. Ca. 2005) (“As the Ninth Circuit has observed, `The [Rule 12(b)(6)] motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted.’ Gilligan v. Jamco Develop. Corp., 108 F.3d 246, 249 (9th Cir. 1997).”). D. Plaintiff Has Sufficiently Pled that CIT Violated the FCRA “To state a claim under 15 U.S.C. §§1681s-2(b), a plaintiff must allege four elements: (1) plaintiff identified an inaccuracy in his credit report; (2) plaintiff notified a credit reporting agency; (3) the credit reporting agency notified the furnisher of the information; and (4) the furnisher failed to investigate the inaccuracies or further failed to comply with the requirements in 15 U.S.C. § 1681s- 2(b)(1)(A)-(E). Palvorosa v. Allied Collection Serv., 2017 U.S. Dist. Lexis 886, at *9-10, 2017 WL 29331 (D. Nev. 2017), citing Waldup, supra. CIT first contends that Plaintiff’s Amended Complaint “fails to plead with any specificity that the CRAs he contacted subsequently notified CITB of those disputes.” Motion, 4:16 through 4:24. The Amended Complaint satisfies the Rule 8 notice-pleading requirement regarding the notice element, however, by alleging that Plaintiff notified Equifax of disputes on numerous occasions, and specifically adding: “Plaintiff understands that Equifax notified CIT of each notice of dispute that it received from Plaintiff.” Amended Complaint For Damages Pursuant To The Fair Credit Reporting Act 15 & 1681, Et. Seq. and Related State Laws And Jury Demand (“Amended Complaint”), ¶ 28.; Palvorosa, supra. (holding that “Taking the well-pleaded allegations . . . as true, plaintiff has sufficiently stated a claim under 15 U.S.C. § 1681s-2(b) against Ocwen to withstand a motion to Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 12 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 dismiss. Plaintiff alleged (among other elements) . . . (2) that he disputed the information on December 16, 2016, by notifying Equifax of the inaccurate information furnished by Ocwen, (3) that Equifax in turn timely notified Ocwen of the dispute . . . .”);1 Reagan v. Am. Home Mortg. Servicing, 2011 U.S. Dist. Lexis 58293, 2011 WL 2149100 (N. D. Ca. 2011) (“In the instant action, plaintiffs satisfy the first element of the claim. They allege that in January 2011, Experian, Equifax, and Trans Union sent AHMSI notification of a disputed credit report.”); Waldrop v. Green Tree Servicing, LLC, 2015 U.S. 136301 at *8-9, 2015 WL 5829879 (D. Nev. 2015) ( the following assertion satisfied the Rule 8 standard: “Plaintiffs believe these credit reporting agencies subsequently notified defendant of the dispute.”). As demonstrated by the Court in Waters v. Hollywood Tow Serv., 2010 U.S Dist. Lexis 93091, at *79-80 (C.D. Ca. 2010), Plaintiff’s claims are subject only to pleading standards, regardless of evidence CIT claims it may develop through discovery regarding its receipt of notice of disputes from Equifax: Plaintiff has alleged that Rickenbacker received notice of plaintiff’s dispute from Experian sufficient to trigger an obligation to conduct a reasonable investigation under section 1681s-2(b), but that Rickenbacker did not do so. Rickenbacker may be able to prove that it did not receive notice of plaintiff’s dispute or that its investigation was reasonable in light of the notice it received. See Gorman [v. Wolpoff & Abramson, LLP, 584 F.3d 1147 (9th Cir. 2009)] at 1161 (“The requirement that furnishers investigate consumer disputes is procedural. An investigation is not necessarily unreasonable because it results in a substantive conclusion unfavorable to the consumer even if that conclusion turns out to be inaccurate.”) Nonetheless, plaintiff’s factual allegations are sufficient to make out a claim under section 1681s- 2(b). See Gorman, 584 F.3d at 1158-1159 [holding, in pertinent part, that where a notice of dispute stated that the consumer contended that `the reported debt was not owed because he had not received the goods he was promised,’ that contained `enough information to alert [the furnisher] to the specific nature of [the consumer’s] actual claim’] (bracketing added). Plaintiff’s citations regarding “notice by inference” are inapposite. Specifically, CIT’s citations to both Staccato v. Discover Financial Servs., Inc., 49- Fodmaps. 913, 913-14, 2012 WL 5951490, at *1 (C.A.9 (Or.) 2012) and Cave v. National Default Servicing Corp., 2015 WL 1 Like the Plaintiff in Polvorosa, Mr. Pinchuk has alleged (1) that he identified an inaccuracy in his credit report; (2) he notified a CRA; (3) the CRA notified the furnisher of the information; and, (4) the furnisher failed to investigate the inaccuracies; it failed to evaluate or consider any of Plaintiff’s information, claims, or evidence and it did not make any reasonable attempt to verify the disputed reporting of the Debt. See, e.g., Amended Complaint, ¶¶ 19-28, and 72-85. Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 13 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 3832252, at *3 (D. Nev. 2015) each specify they involve the failure to allege that the CRA notified the furnisher, which is not the case here. See, e.g., Amended Complaint, ¶28. Howard v. Blue Ridge Bank, 371 F. Supp. 2d 1139, 1143 (N. D. Cal. 2005) also provides CIT no help, as the pleading in that case was deficient for failure to specify which credit agencies Plaintiff notified of his dispute; Plaintiff’s complaint merely jointly alleged he “notified defendants that the entries were inaccurate.” The Blue Ridge Court authorized Plaintiff to provide a more definite statement to correct this pleading deficiency. Id. CIT’s citation to Densmore v. Gen. Motors Acceptance Corp., 2003 U.S. Dist. Lexis 16901, 2003 WL 22220177, at *2 (N.D. Ill. 2003) likewise does not counter the fact that Plaintiff’s pleading of notice of CIT by Equifax regarding each of Plaintiff’s disputes is satisfactory. Specifically, it is clear that the Courts in the Ninth Circuit do not follow the Densmore court’s pre-suit investigation requirement. See Dewi v. Wells Fargo Bank, 2012 U.S. Dist. Lexis 189878 (C.D. Ca. 2012). The Dewi Court acknowledged the Densmore case citation to section 1681i(a)(6)(A) and (B)(iii), for the proposition that plaintiff could have confirmed whether the CRA notified the furnisher of the dispute had plaintiff requested the CRA provide this information to be provided with written results of reinvestigation; The Dewi Court pointed out, however, that “by the same token, § 1681(a)(2) obligates the CRA to notify a furnisher within five days of receiving notice of a dispute from the consumer,” and added that at least one other court had declared that a consumer may reasonably rely on the inference that the CRA complied with its statutory duty. Comparing the two cited sections of section 1681, the Dewi Court concluded: As between these competing reasonable inferences, the Court must draw the one in Plaintiff’s favor at this stage, so Plaintiff need not have conducted a pre-suit investigation and the issue of notification is one to be explored in discovery. See Ashcroft, 556 U.S. at 677-78. Dewi, at 11-13.2 2 Even if this Court otherwise might be inclined to consider the Densmore pre-suit investigation rule, the Court should note that Plaintiff additionally alleges throughout the Amended Complaint that Equifax did not respond to his disputes in any manner. See e.g., Amended Complaint, ¶ 20, 22, 42, 45. This fact does not necessarily mean, however, that Equifax did not notify CIT of Plaintiff’s disputes, as Equifax did revise information on the subject account between various of Plaintiff’s new disputes, cf. id., ¶¶ 19, 21 and 25. Moreover, correspondence directly with CIT suggests that CIT is not set up to receive (or at least pay attention to) CRA reports of consumer Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 14 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 E. Plaintiff’s Allegations of Damages are Sufficient to Satisfy Rule 8 and to Raise Article III Standing CIT’s claim that Plaintiff needs to provide more specificity, this time in relation to allegations of damages, is once again, wrong: both in terms of Rule 8, and in terms of Article III standing. As demonstrated in this section, Plaintiff’s pleading satisfies both. 1. Fed. R. Civ. P. 8 Damages Requirements Rule 8 does actually does not require a FCRA Plaintiff to allege damages to support a willful violation claim, and a plaintiff’s complaint is not subject to dismissal by a Rule 12(b)(6) motion for failure to do so. See Dewi v. Wells Fargo Bank, 2012 U.S. Dist. Lexis 189878, at *16, n.3 (C.D. Ca. 2012) (“Under §1681n, a plaintiff does not need to plead or prove actual damages for willful violations of the FCRA, so even if Plaintiff failed to allege actual damages here, her willful claim is not doomed. See Bateman v. Am. Multi-Cenema, Inc., 623 F.3d 708, 718-19 (9th Cir. 2010).”). As stated above in section III.C., pleading under section 1681s-2(b) requires only the following: To state a claim under 15 U.S.C. § 1681s-2(b), a plaintiff must allege four elements: (1) plaintiff identified an inaccuracy in his credit report; (2) plaintiff notified a credit reporting agency; (3) the credit reporting agency notified the furnisher of the information; and (4) the furnisher failed to investigate the inaccuracies or further (cont.) complaints, as CIT’s staff contends in that letter that “In order for us to respond, the written disputes must be submitted directly to CIT Bank, N.A.,” and additionally claimed that “we were not given the opportunity to respond to this inquiry” because Plaintiff did not submit his dispute directly to CIT. Id., ¶ 24. Additionally suggesting that Equifax and CIT do communicate (and that CIT would have received/seen notices of Plaintiff’s disputes had its staff bothered to look at them), is CIT’s various notations to Plaintiff’s counsel that it had submitted updates to the credit bureaus. See, e.g., Id., ¶ 24- 26. Whether CIT actually followed through with this promise raises another factual issue, but CIT’s communication at minimum raises a discovery question regarding communication between CIT and Equifax regarding Plaintiff’s disputes. Notwithstanding CIT’s attempt to now avoid this claim on grounds that Plaintiff has not yet proven that Equifax sent notices of Plaintiff’s disputes, CIT’s correspondence plainly demonstrates that discovery is appropriate regarding the notice issue, and should convince the Court to disregard the Densmore pre-suit investigation requirement if the Court otherwise might find the rule from the Northern District of Illinois more compelling than the various courts noted above from the Nevada District and other courts within the Ninth Circuit. Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 15 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 failed to comply with the requirements in 15 U.S.C. § 1681s-2(b)(1)(A)-(E). See, e.g., Waldrop, 23015 U.S. Dist. Lexis 136301, 2015 WL 5829879, at *3. Palvorasa v. Allied Collection Serv., 2017 U.S. Dist. Lexis 886, 2017 WL 29331 (D. Nev. January 3, 2017). Even without this requirement limitation, however, Plaintiff’s Amended Complaint plainly satisfies damages pleading standards for all of his claims. See, e.g., Amended Answer, ¶ 24. CIT tries to mislead the Court regarding this issue with truncated treatment of Johnson v. CGR Servs., Inc., 2005 U.S. Dist. Lexis 7889, 2005 WL 991770 (N.D. Ill. 2005). The Johnson Court addressed the damages allegations in that case as follows: Plaintiff’s complaint states that she “has suffered damages as a result of Defendants’ conduct” and requests actual damages, declaratory relief, costs, and attorney’s fees. . . . ¶ Federal Rule of Civil Procedure 8 allows for a liberal, but not nonexistent, pleading standard. The FCRA does not explicitly limit the “actual damages” recoverable under the statute and Plaintiff does not need to plead her damages with heightened particularity. However, the Complaint needs to at least give the other party some notice as to what her actual damages could possibly be. Plaintiff’s claim that her wages continue to be garnished improperly from a prior state court order, but does not assert other damages anywhere in her complaint. . . . ¶ Taking all the allegations in Plaintiff’s complaint as true, the Court cannot conceive of any damages that Plaintiff has sustained from which the Court could grant relief. This is not a matter of actually providing evidence as proof of her damages - as necessary to demonstrate a prima facie case on summary judgment -- but just stating a proper claim for relief in the first instance. (italics added to second paragraph) CIT omitted the italicized portion of the second paragraph above (explaining that heightened particularity in pleading is not required), and chose to solely quote the sentence that follows that statement. CIT likewise omitted the provision that explains the distinction between pleading requirements and proof requirements. CIT additionally references case law that “legal conclusions ̀ couched as factual allegation’” do not satisfy the Rule 8 pleading standard. Motion, 6:8 through 6:12, citing and quoting Reagan v. American Home Mortg. Servs., Inc., 2011 U.S. Lexis 58293, 2011 WL 2149100, at *2 This provision also is a misrepresentation since Plaintiff’s allegations here do not fall into that category. Specifically, Plaintiff alleges, in part, the following in the Amended Complaint: 32. . . . [Plaintiff] has been turned down for mortgages that would have allowed him to refinance his house, pay off a higher interest personal loan, and pull out the equity from his home that he needs to pay for his daughter’s college tuition. Since he was turned down for mortgages due to the actions of CIT and Equifax, he has continued to make higher mortgage payments. He has had to continue to pay the Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 16 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 high interest personal loan, and he has not been able to pull equity out of his home to pay for his daughter’s tuition. As a result, he has also suffered severe emotional distress in the form of fear, anger, anxiety; particularly with respect to his ability to pay his daughter’s tuition. His credit reputation has been unnecessarily damaged and he has also sustained substantial attorney fees. Amended Complaint, ¶ 32; see also id., ¶ 86 (tying stated damages to CIT in Claim For Relief directed specifically at it); see Dewi v. Wells Fargo Bank, 2012 U.S. Dist. Lexis 189878, at *15 (C.D. Ca. 2012)3. 4 2. Article III Standing Requirements “Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood.” Spokeo, Inc. v. Robbins, 136 S. Ct. 1540, 1547, 194 L. Ed.2d 635, 643 (2016). The purpose of Article III standing provision derived from the United States Constitution is to ensure proper separation of powers among the three branches of government: “In order to remain faithful to this tripartite structure, the power of the Federal Judiciary may not be permitted to intrude upon the powers given to the other branches.” Id., 136 S. Ct. at 1547, 136 L. 3 “Finally, Wells Fargo argues that Plaintiff did not plead facts to suggest she suffered actual injury as a result of its inaccurate and misleading reporting. However, Plaintiff plainly alleges injury resulting from Wells Fargo’s actions: the combined amount of the higher interest rate she must pay on at least one credit card, the reduction in ̀ her line of credit,’ a job opportunity that was withdrawn, the ‘loss of wages, [and] damage to [her] credit reputation . . . .’ This is more than sufficient to state a claim for actual damages under the FRCP. See Drew v. Equifax Info. Servs., LLC, 690 F.3d 1100, 1109, 2012 WL 3186110, at *6 (9th Cir. 2012) (holding that “repeated inquiries about [the plaintiff’s] account may have affected his credit score” and could be considered damages under the FCRA). Indeed, these damages represent the very harms the FCRA was designed to avoid. See Gorman, 584 F.3d at 1153; see also Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir. 1995) (“The legislative history of the FCRA reveals that it was crafted to protect consumers from the transmission of inaccurate information about them . . . and to establish credit reporting practices that utilize accurate, relevant, and current information in a confidential and responsible manner.”).” 4 In clear contradiction of the Johnson Court’s declaration that heightened pleading specificity is not required in FCRA claims, CIT misrepresents to the Court declared that Plaintiff’s claim is deficient because of the following: Plaintiff fails to allege, among other things, what mortgagor rejected his application, the amount of the loan that he applied for, when that rejection occurred, how such rejection relates to the purported reporting error, and/or any cognizable amount of damages. CIT’s attempts to focus the Court here on matters of proof, which the Johnson court are not pertinent at the pleading stage. Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 17 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 Ed.2d. at 642-43, citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S. Ct. 1854, 164 L. #d.2d 589 (2006); Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-560, 112 S. Ct. 2130, 119 L. Ed.2d 351 (1992). “Although the Constitution does not fully explain what is meant by ̀ [t]he judicial Power of the United States,’ Art. III, § 1, it does specify that this power extends only to `Cases’ and `Controversies,’ Art. III, § 2.” Article III “limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Id., citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 473, 102 S. Ct. 752, 70 L. Ed.2d 700 (1982); Warth v. Seldin, 422 U.S. 490, 498-499, 95 S. Ct. 2197, 45 L. Ed.2d 343 (1975). In this way, ̀ [t]he law of Article III standing . . . serves to prevent the judicial process from being used to usurp the powers of the political branches, Clapper v. Amnesty Int’l USA, 568 U.S. 398, 133 S. Ct. 1138, 1146, 185 L. Ed.2d 264, 275 (2013); Lujan, supra, at 576-577, 112 S. Ct. 2130, 119 L. Ed.2d 351, and confines the federal courts to a properly judicial role, see Warth, supra, at 498, 95 S. Ct. 2197, 45 L. Ed.2d 343.” Spokeo, 136 S. Ct. at 1547, 194 L. Ed.2d, at 643. Case law from the United States Supreme Court establishes that constitutional standing involves three elements: Plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Spokeo, 136 S. Ct. at 1547, 194 L. Ed.2d, at 643, citing Lujan, 504 U.S,. at 560-561, 112 S. Ct. 2130, 119 L. Ed.2d 351; Friends of the Earth, Inc., 528 U.S., at 180-181, 120 S. Ct. 693, 145 L. Ed.2d 610. “Where, as here, a case is at the pleading stage, the plaintiff must `clearly . . . allege facts demonstrating’ each element.” Id., citing Warth, supra, at 518 95 S. Ct. 2197, 45 L. Ed.2d 343. The “injury in fact” requirement requires “a plaintiff to show that he or she has suffered ̀ an invasion of a legally protected interest’ that is ̀ concrete and particularized’ and ̀ actual or imminent, not conjectural or hypothetical.” Id., 136 S. Ct., at 1547, 194 L. Ed.2d, at 644. “For an injury to be `particularized,’ it ̀ must affect the plaintiff in a personal and individual way.’” Id.; see also, Spokeo, supra, 136 S. Ct., at 1555-1556, 194 L. Ed.2d, at 652, Ginsburg, J, and Sotomayor, J., dissenting Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 18 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 (clarifying that the “particularity requirement of “injury in fact” “bars complaints raising generalized grievances, seeking relief that no more benefits the plaintiff than it does the public at large.”). “A ̀ concrete’ injury must be ̀ de facto’; that is, it must actually exist - [it must be] ̀ real,’ and not `abstract.’” Id., citing Blacks Law Dictionary 479 (9th ed. 2009), Webster’s Third New International Dictionary 472 (1971); and Random House Dictionary of the English Language 305 (1967). “`Concrete’ is not, however, necessarily synonymous with `tangible.’ Although tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete.” Id. CIT additionally cites to the Spokeo Court’s statement that alleging “a bare procedural violation divorced from any concrete harm [would not] satisfy the injury-in-fact requirement of Article III.” Motion, 7:26-28.5 This reference also is misleading, as Plaintiff’s Amended Complaint does not fall into this category. Plaintiff plainly satisfies both the particularity and concreteness requirements the of Article III “injury-in-fact” analysis, if applicable to this claim. See Amended Complaint, ¶¶ 32 and 86. CIT’s contentions about Article III standing therefore qualify as yet another red herring. F. Plaintiff Has Pled Multiple FCRA Violations Within The 2-Year Statute Of Limitations and 5-Year Repose Periods The FCRA requires plaintiffs to file claims for relief “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. A furnisher of credit information must reasonably investigate “the completemess or accuracy of any information provided by [a furnisher of information] to a credit reporting agency” after receiving notice from a credit reporting agency of a dispute. Id. § 1681s-2(b)(1). Deaton v. Chevy Chase 5 But see, Spokeo, supra, 136 S. Ct., at 1554, 194 L. Ed.2d, at 650, Thomas, J., concurring (Justice Thomas clarified that the Article III standing “injury in fact” requirement is satisfied without pleading of individualized harm, by the alleged violation of the legal duty, “[if] Congress has created a private duty owed personally to [the plaintiff] to protect his information,” such as in relation to Plaintiff’s FCRA claims here. This clarification is consistent with the Dewi Court’s declaration that pleading a private cause of action under the FCRA does not actually require the pleading of damages. Dewi v. Wells Fargo Bank, 2012 U.S. Dist. Lexis 189878, at *16, n.3 (C.D. Ca. 2012)); see also, Spokeo, supra, 136 S. Ct., at 1555-1556, 194 L. Ed.2d, at 652, Ginsburg, J, and Sotomayor, J., dissenting (noting the Court’s agreement that “Congress has the authority to confer rights and delineate claims for relief where no existed before,” i.e. to confer standing without a need to show particularized harm). Based on both the concurring and dissenting opinions in Spokeo, it is questionable whether Plaintiff is even required to prove “injury in fact” in relation to a FCRA claim. Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 19 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 Bank, 157 F. App’x 23, 24 (9th Cir. 2005); Nelson v. Chase Manhattan Mortgage Corp., 282 F.3d 1057, 1059 (9th Cir. 2002). Vasquez v. Bank of Am., N.A., 2015 U.S. Dist. Lexis 154682, at *7; 2015 WL 7075628 (N.D. Ca. 2015). With the statute of limitations and repose requirements in mind, the Vasquez Court considered whether “the statute of limitations resets each time Vasquez sent BANA a dispute letter, regardless of whether she had disputed the information before.” Id. The Vasquez Court answered this question in the affirmative: 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 [FCRA] violation. . . . ¶ The plain language and purpose of the [FCRA] compel the conclusion that each dispute letter triggers a duty to investigate, regardless of whether the information has been previously disputed. Nothing in the text of 15 U.S.C. § 1681s-2 limits a furnisher’s duty to investigate only to novel disputes. Indeed, the language plainly requires investigation into “a dispute with regard to the completeness or accuracy of any information.” Id. (emphasis added by Vasquez Court). Moreover, the express “purpose of the FCRA is to ensure consumer reporting procedures that are `fair and equitable to the consumer.’” Marcinski, 36 F. Supp.3d at 291 (quoting 15 U.S.C. § 1681(B)). Reading the statue to trigger a duty to investigate even in the case of re-reports comports with that purpose - particularly if the furnisher of information does not correct its past mistakes. Thus, Vasquez’s FCRA claim for relief accrued in the summer of 2015 when BANA supposedly failed to reasonably to investigate the dispute, and thus the claim is timely. CIT cites to Ellis v. Advanta Bank, 2017 U.S. Dist. Lexis 62096, 2017 WL 1436249 (N.D. Ca. April 24, 2017), for the conclusion that “each issuance of a credit report does not constitute a separate and distinct tort.” CIT’s argument here misses the mark, however. Plaintiff does not argue that each issuance of a credit report was a separate violation by CIT, but alleges multiple violations based on CIT’s failure to reasonably investigate each additional dispute submitted by Plaintiff, and additionally based on when he reasonably discovered CIT’s investigation failures.6 6 The Vasquez Court additionally specified that “each transmission of the same credit report is a separate and distinct tort to which a separate statute of limitations applies” because the injury to plaintiff occurs when the negative credit report is transmitted to an institution, which uses the report to deny credit to the consumer.” Citing, among others, and quoting, Hyde v. Hibernia Nat’l Bank in Jefferson Parish, 861 F.2d 446, 449-50 (5th Cir. 1988). Noting (as did the Ellis Court that “[a]t least two courts have rejected the Hyde theory of liability on the grounds that such a rule would create a perpetual statute of limitations,” the Vasquez Court stated: Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 20 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 Both categories of Plaintiff’s FCRA claims fall within the Drew Court’s holding to which the Ellis Court cites, that “a cause of action under the FCRA begins to accrue once the consumer discovers that the furnisher’s investigation was unreasonable.” Ellis, 2017 U.S. Dist. Lexis 62096, at *7-8, 2017 WL 1436249 (“The evidence that Ellis attached to her opposition suggests that Ellis first had notice that Defendants continued to report the alleged inaccuracy as early as August 14, 2014. . . . ¶ For this reason, the Court finds that Plaintiff’s claim cold not have accrued in July 2014 because at that time Plaintiff was not on notice of Defendants’ alleged unreasonable investigation. See Drew, 690 F.3d at 1110-11. Ellis only became aware of her potential claim when Defendants responded to the notice of inaccurate information on August 14, 2014. . . . At the earliest, then, Ellis’s claim accrued on that date.”). Plaintiff’s two categories of claims also fit within the Vasquez Court’s holding above. Plaintiff’s pleading of both his new claims (those accruing in or after August 2016) and his newly-discovered claims (2017 discovery that CIT and its predecessor in interest did not do what they claimed, therefore failed to conduct adequate investigation and follow through thereon, and therefore engage in continuing violations) satisfy the 2-year statute of limitations and/or the 5-year statute of repose under the FCRA. See, e.g., Amended Complaint, ¶¶ 7 through 27, and 65 through 85. CIT’s contention that Plaintiff has not satisfied the statute of limitations is wrong, and CIT’s pending motion also must be rejected on this basis. / / / (cont.) Given the purpose of the [FCRA], Vasquez has the better argument. If a bank repeatedly reports inaccurate information to a credit reporting agency that has a negative impact on a consumer’s credit, each inaccurate report is a separate and distinct harm for which the [FCRA] provides a remedy. [FCRA] requires only that the plaintiff bring a claim for relief within two years of discovering that the bank provided inaccurate information. Nothing in the [FCRA] suggests otherwise. Vasquez, 2015 U.S. Dist. Lexis 154682, at *9-10; 2015 WL 7075628. Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 21 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 G. Plaintiff’s Punitive Damages Claim is Controlled by Federal Statute and Case Law, Not Nevada Statute or Case Law CIT cites to Nevada statute, and case law from the Supreme Court of Nevada, to argue that Plaintiff’s punitive damages claims should be dismissed. CIT is once again off base, as Plaintiff’s punitive damages claim has nothing to do with Nevada state law. As is set forth in Dewi supra, Section 1681n(a) of the FRCA provides that a person who “willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of . . . any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000," plus punitive damages, costs, and reasonable attorney's fees. See Levinson v. Transunion LLC, 2016 U.S. Dist. 72284, at *18 and *19, (C.D. Ca. 2016) (emphasis added). Defendant argues that “Plaintiff is not automatically entitled to punitive damages.” In support of this argument, Defendant cites Dillard Dept. Stores v. Beckwith, 115 Nev. 372, 380, 989 P.2d 882, 887 (1999). Again, this Nevada Supreme Court case has no effect whatsoever on Plaintiff’s federal FCRA claim. At this time, Plaintiff is alleging a violation of Section 1681n(a). IF PLAINTIFF PROVES DEFENDANT WILLFULLY VIOLATED THE FCRA, IT MAY BE ABLE TO RECOVER PUNITIVE DAMAGES, pursuant to federal statute. While, this is ultimately a matter of proof, Plaintiff has sufficiently alleged that CIT violated Section 1681n(a), and he is entitled to plead entitlement to punitive damages. Thus, CIT’s claim that Plaintiff is not entitled to punitive damages is without merit, and this pending motion must be denied on this basis as well. / / / / / / / / / / / / Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 22 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 IV. CONCLUSION For all the foregoing reasons, Defendant’s motion to dismiss must be denied. DATED this 25th day of September, 2017 THE LAW OFFICE OF VERNON NELSON By: /s/ Vernon Nelson VERNON NELSON, ESQ. Nevada Bar No.: 6434 9480 S. Eastern Avenue, Suite 244 Las Vegas, NV 89123 Tel: 702-476-2500 | Fax: 702-476-2788 E-Mail: vnelson@nelsonlawfirmlv.com Attorney for Plaintiff Case 2:16-cv-02986-RFB-CWH Document 41 Filed 09/25/17 Page 23 of 23