Archuleta et al v. Equifax Inforamtion Services, Llc et alMOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In SupportN.D. Ga.April 21, 2017- 1 - IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION JOHN ARCHULETA and GINA ARCHULETA, Plaintiffs, v. EQUIFAX INFORMATION SERVICES, LLC; EXPERIAN INFORMATION SOLUTIONS, INC.; and WELLS FARGO BANK NATIONAL ASSOCIATION (INC.), AS SUCCESSOR BY MERGER TO WELLS FARGO HOME MORTGAGE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION FILE NO. 1:17-CV-00642-MHC-WEJ DEFENDANT EXPERIAN INFORMATION SOLUTIONS, INC.’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT COMES NOW Defendant Experian Information Solutions, Inc. (“Experian”), by and through counsel, and respectfully moves (the “Motion”) this Court to dismiss the Complaint (“Complaint”) [Doc. 1] filed by Plaintiffs John Archuleta and Gina Archuleta (“Plaintiffs”), pursuant to Fed. R. Civ. P. 12(b)(6). In support thereof, Experian submits herewith its Memorandum of Law containing arguments and citations of authorities. Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 1 of 23 - 2 - WHEREFORE, Experian prays for the following relief: (a) That Plaintiffs’ action be dismissed in its entirety with prejudice; and (b) For such other relief as this Court deems just and proper. Dated: April 21, 2017 Respectfully submitted, /s/ William H. Rooks William H. Rooks Georgia Bar No. 906785 JONES DAY 1420 Peachtree Street, N.E., Suite 800 Atlanta, GA 30309-3053 Telephone: (404) 581-8891 Facsimile: (404) 581-8330 wrooks@jonesday.com An Attorney for Defendant Experian Information Solutions, Inc. Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 2 of 23 - 3 - IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION JOHN ARCHULETA and GINA ARCHULETA, Plaintiffs, v. EQUIFAX INFORMATION SERVICES, LLC; EXPERIAN INFORMATION SOLUTIONS, INC.; and WELLS FARGO BANK NATIONAL ASSOCIATION (INC.), AS SUCCESSOR BY MERGER TO WELLS FARGO HOME MORTGAGE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION FILE NO. 1:17-CV-00642-MHC-WEJ MEMORANDUM OF LAW IN SUPPORT OF EXPERIAN INFORMATION SOLUTIONS, INC.’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT Plaintiffs’ Complaint is fatally flawed. Although bringing claims under the auspices of the Fair Credit Reporting Act, Plaintiffs’ case in reality asks that Experian Information Solutions, Inc. (“Experian”) play the role of a bankruptcy court. Rather than being concerned with any factual inaccuracies in their credit reports, Plaintiffs seek to hold Experian liable for failing to adopt Plaintiffs’ legal conclusions about unsettled questions of law related to Plaintiffs’ Chapter 13 Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 3 of 23 - 4 - bankruptcy and its effect on their mortgage loan. Such efforts fly in the face of courts across the country, which have repeatedly held that the FCRA does not require credit reporting agencies like Experian to adjudicate these sorts of legal disputes. Accordingly, Plaintiffs’ claims must be dismissed. BACKGROUND Plaintiffs’ claims against Experian arise under the Fair Credit Reporting Act (“FCRA”) and involve the accuracy of a reported mortgage debt following Plaintiffs’ Chapter 13 bankruptcy. For background, this brief begins with an overview of the pertinent law and then describes Plaintiffs’ factual allegations and legal claims. I. THE FAIR CREDIT REPORTING ACT. The FCRA seeks “to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007). Pertinent here, the statute requires credit bureaus (technically, “consumer reporting agencies” or “CRAs”) to maintain “reasonable procedures to assure maximum possible accuracy” of credit data, 15 U.S.C. § 1681e(b); and to reasonably investigate consumer disputes about the accuracy of credit data, a process called “reinvestigation,” Id. § 1681i(a). Recognizing that disputes with the CRAs may not resolve all disputes, the statute Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 4 of 23 - 5 - allows consumers to dispute information directly with their creditors (sometimes called “data furnishers”) and place statements indicating that the consumer disputes the way a particular account is reporting. Id. at §§ 1681s-2(8), 1681i(b). II. FACTUAL ALLEGATIONS. A. The Parties. Plaintiffs are residents of Gwinnett County, Georgia, and are consumers as defined by the FCRA. (See Compl. ¶¶ 1–3.) Defendant Experian is a consumer reporting agency under the FCRA. (Id. at ¶ 7.) Experian collects consumer credit information from various sources, organizes and stores the information, and makes it available to authorized third parties, like lenders. (Id.) B. Plaintiffs’ Chapter 13 Bankruptcy. On or about September 26, 2006, Plaintiffs obtained a mortgage on their property located in Lilburn, Georgia, with Wells Fargo Home Mortgage (“Wells Fargo”). (Id. at ¶¶ 13–14.) Plaintiffs later jointly filed a voluntary petition for bankruptcy on September 14, 2012, listing their loan with Wells Fargo in their Amended Chapter 13 Plan as well as Schedule D to their petition. (Id. at ¶¶ 15– 16); In re Archuleta, 1:12-bk-73077, Doc. 1 at 15 (Bankr. N.D. Ga. Nov. 02, 2012); Id., Doc. 13 at 4. Plaintiffs’ Amended Chapter 13 Plan proposed that they would “make all post-petition payments directly to each mortgage creditor as those Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 5 of 23 - 6 - payments ordinarily come due” and indicated that Plaintiffs would cure a pre- petition arrearage of $2,188.28 during the plan. In re Archuleta, 1:12-bk-73077, Doc. 13 at 4 (Bankr. N.D. Ga. Nov. 02, 2012). The plan also indicated that Plaintiffs would not pay anything on a second mortgage owed to Wells Fargo Bank, NA. (See id.) The Bankruptcy Court confirmed Plaintiffs’ Amended Chapter 13 Plan on January 16, 2013. (See id. at Doc. 18). A discharge order was entered January 15, 2016. (See id. at Doc. 49.) The order does not identify which debts are, or are not, discharged. (See id.) Instead, the order states, “A discharge under 11 U.S.C. § 1328(a) is granted to: John Patrick Archuleta [and] Gina Marie Archuleta” and then provides several categories of debts that are not discharged. (See id. at 1–2.) C. Experian’s Credit Reporting and Plaintiffs’ Disputes. On or about July 19, 2016, following the discharge of Plaintiffs’ bankruptcy, Plaintiff John Archuleta obtained his Experian credit report, which showed the Wells Fargo account as discharged with a recent balance of $0. (Pls.’ Compl. at ¶¶ 76–78). This allegedly was inaccurate because “Mr. Archuleta continues to make payments. . . .” (Id. at ¶ 80.) Mr. Archuleta sent Experian a dispute letter dated January 12, 2017. (Id. at ¶ 82.) Experian then performed a reinvestigation. (See id. at ¶ 84.) Following the dispute, Plaintiff John Archuleta’s Wells Fargo Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 6 of 23 - 7 - account with Experian continued to report a $0 recent balance and a discharged status. (Id. at ¶ 87.) III. PROCEDURAL HISTORY AND LEGAL CLAIMS. Plaintiffs filed their Complaint on February 21, 2017. (See Pls.’ Compl.) The Complaint alleges that Experian violated 15 U.S.C. § 1681e(b) (reasonable procedures) and 15 U.S.C. § 1681i (reasonable reinvestigation). (See Compl. ¶¶ 142–47.) Plaintiffs specifically base their claims against Experian on the failure to include additional mortgage payments made by Plaintiff John Archuleta. (See id. at ¶ 80.) Plaintiffs allege that these violations were both negligent and willful. (See id. at ¶¶ 156–59.) LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(6) requires the Court to dismiss a complaint if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). As the United States Supreme Court has made clear, “[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 7 of 23 - 8 - do[.]”). While courts must accept the well-pleaded facts in the complaint as true, “[w]here a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). For a claim to be plausible, the plaintiff must put forth “enough facts to raise a reasonable expectation that discovery will reveal evidence” of Experian’s liability. Twombly, 550 U.S. at 556. The Court must reject mere legal conclusions. Mamani v. Berzain, 654 F.3d 1148, 1153–54 (11th Cir. 2011) (citing Randall v. Scott, 610 F.3d 701, 709–10 (11th Cir. 2010)). A district court may dismiss a complaint with prejudice where the plaintiff fails to allege any additional facts to support a cause of action, and leave to amend would be futile. See, e.g., Locke v. SunTrust Bank, 484 F.3d 1343, 1346 (11th Cir. 2007) (affirming district court’s dismissal with prejudice where plaintiff “did not allege ‘any additional facts to support a cause of action,’” and the district court concluded that “leave to amend . . . would be futile”). Finally, “A district court may take judicial notice of certain facts without converting a motion to dismiss into a motion for summary judgment . . . Public records are among the permissible facts that a district court may consider.” Universal Express, Inc. v. U.S. S.E.C., 177 F. App’x 52, 53 (11th Cir. 2006) (citations omitted). Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 8 of 23 - 9 - ARGUMENT Plaintiffs’ claims trade on the complex nature of Chapter 13 bankruptcies, asking this Court to hold that Experian could be liable for its failure to adopt Plaintiffs’ legal conclusions about the meaning and effect of their bankruptcy. The FCRA, however, does not task credit bureaus with becoming bankruptcy tribunals, staffed with legally trained employees who can appropriately adjudicate legal disputes. This is why courts around the country repeatedly have rejected any attempt to impose such requirements. Instead, the FCRA provides other remedies for consumers when a dispute to the credit bureaus does not resolve the issue. At bottom, this case is an attempt to extend the FCRA beyond its limits, and as such, it must be dismissed. I. THE COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO ALLEGE A FACTUAL INACCURACY. A. The Element of Inaccuracy. The existence of inaccurate information is a part of the prima facie case a Plaintiff must plausibly allege to state a claim under § 1681e(b) and § 1681i(a). See, e.g., Ray v. Equifax Info. Servs., LLC, 327 F. App’x 819, 826 (11th Cir. 2009) (“To establish a prima facie violation of § 1681e(b), a consumer must present evidence that [] a credit reporting agency’s report was inaccurate . . . .”); Cahlin v. Gen. Motors Acceptance Corp., 936 F.2d 1151, 1156–60 (11th Cir. 1991) (“In Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 9 of 23 - 10 - order to make out a prima facie violation of [§ 1681e(b)] the Act implicitly requires that a consumer must present evidence tending to show that a credit reporting agency prepared a report containing “inaccurate” information . . . under [§ 1681i] of FCRA to make reasonable efforts to investigate and correct inaccurate or incomplete information brought to its attention by the consumer.”). B. Plaintiffs Do Not Plead Any Factual Inaccuracies. As an initial matter, the Complaint is unclear as to what, exactly, is inaccurate in Experian’s reporting, although a review of the relevant law and allegations sheds some light. When a debt is discharged in bankruptcy, the debt itself continues to exist, even if the debtors’ creditors are enjoined from collecting on the obligation against the debtor personally. See Johnson v. Home State Bank, 501 U.S. 78, 84 (1991) (“[A] bankruptcy discharge extinguishes only one mode of enforcing a claim—namely, an action against the debtor in personam—while leaving intact another—namely, an action against the debtor in rem.”); In re Irby, 337 B.R. 293, 295 (Bankr. N.D. Ohio 2005) (explaining that it is “a common misconception . . . that the bankruptcy discharge eliminates the very existence of a debt. But this is not the case.”). Accordingly, the Federal Trade Commission has indicated that discharged debts should report with a $0 balance to indicate that the consumer is no longer personally liable on the debt. See Federal Trade Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 10 of 23 - 11 - Commission, 40 Years of Experience with the Fair Credit Reporting Act, an FTC Report with Summary of Interpretations (July 2011), at 55–56, 68.1 Courts have held that there is no obligation under the FCRA to report any further payments a consumer makes on a debt that has been discharged. See Horsch v. Wells Fargo Home Mortg., 94 F. Supp. 3d 665, 674 (E.D. Pa. 2015) (holding that reporting $0 on a discharged debt was not inaccurate because “making payments on the mortgage to prevent foreclosure did not mean that [the plaintiff] truly owed anything on the discharged account” (citing Schueller v. Wells Fargo & Co., 559 Fed. App’x 733, 734 (10th Cir. 2014))). Here, Plaintiffs allege that their mortgage account was not discharged (see Pls.’ Compl. at ¶ 80), and that Experian’s reporting was inaccurate because they were continuing to make payments on the Wells Fargo loan. (See id. at ¶¶ 80, 88.) Taken together, these allegations amount to a claim that Experian’s reporting (both before and after Plaintiffs’ disputes) was inaccurate because the loan was not discharged in their bankruptcy. The Wells Fargo account, according to Plaintiffs, should not be reporting a $0 balance, and should be reporting the payments Plaintiffs have made on the loan after their bankruptcy petition was filed. 1 The Report is available at https://www.ftc.gov/sites/default/files/ documents/reports/40-years-experience-fair-credit-reporting-act-ftc-staff-report- summary-interpretations/110720fcrareport.pdf. Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 11 of 23 - 12 - There is, however, a fundamental problem in Plaintiffs’ efforts to anchor liability to this reporting: determining whether they are correct is not a factual matter, but requires interpretation and application of legal principles that are less than clear. Plaintiffs are not claiming, for instance, that Experian is reporting them as past-due on their mortgage payments, when in fact they had made timely payments, or even that a court has declared their Wells Fargo mortgage non- dischargeable. If they were, it is conceivable that simply reviewing a cancelled check or a court order would resolve their dispute. Instead, there is no court order or other document that lays out the scope of Plaintiffs’ discharge and its specific impacts on the Wells Fargo debt or otherwise states that the Wells Fargo debt is not discharged. Instead, the discharge order does not specify which debts are actually discharged, stating “A discharge under 11 U.S.C. § 1328(a) is granted to: John Patrick Archuleta [and] Gina Marie Archuleta,” and then listing broad categories of debts that may not be discharged. See In re Archuleta, 1:12-bk-73077, Doc 49, (Bankr. N.D. Ga. Jan. 15, 2016). As other courts have explained, the Chapter 13 discharge granted under § 1328 is broad in nature, applying to any debt provided for in the plan, unless an exception applies. See In re Rogers, 494 B.R. 664, 667 (Bankr. E.D.N.C. 2013) (“As long as the plan contains some provision describing the treatment of that debt, and no Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 12 of 23 - 13 - exception to the chapter 13 discharge applies, the debt is discharged.”) (quoting In re Huyck, 252 B.R. 509, 514 (Bankr.D.Colo.2000).) In some instances, a debtor can cure pre-petition deficiencies without excepting the debt from their bankruptcy discharge. See 11 U.S.C. §§ 1322(b)(3), 1328 (provision providing for cure of defaults, but not excepted from discharge under § 1328). The Wells Fargo debt is specifically provided for in the Amended Chapter 13 Plan, explaining how the debtors would pay Wells Fargo directly and would use their plan to cure prior arrearages. See id. at Doc. 13, at 4. Neither Plaintiffs’ plan nor discharge order state that the debt would be excluded from the discharge. Nor is there a provision in the Bankruptcy Code that prohibits discharging mortgage debts in a Chapter 13 bankruptcy. See 11 U.S.C. § 1325(a)(5) (describing how secured claims may be provided for in the plan); In re Curtis, 322 B.R. 470, 481 (Bankr. D. Mass. 2005) (explaining that under 11 U.S.C. § 1325(a)(5) “modification may include converting a secured claim to an unsecured claim, even on a debtor’s principal residence, where the claim is wholly unsecured” and that the claim may be discharged); see also Horsch, 94 F. Supp. 3d at 665 (describing part of putative class as Chapter 13 debtors who continued to pay their mortgages in order to stave off foreclosure). All of the foregoing authorities suggest that, in contrast to Plaintiffs’ contentions, the Wells Fargo debt was in fact discharged. Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 13 of 23 - 14 - Plaintiffs may be correct that the Wells Fargo debt falls into one of the general exclusions listed on their discharge order, but as things stand currently, this is an open legal question. Determining the exact meaning of Plaintiffs’ discharge order is the purview of the bankruptcy judge who issued the order. See, e.g., Cave v. Singletary, 84 F.3d 1350, 1354 (11th Cir. 1996) (explaining that lower courts are afforded deference in interpreting their own orders). C. The FCRA Does Not Require Experian to Make Legal Determinations. Plaintiffs’ claim is a dispute over the unspecified legal effects of their Chapter 13 bankruptcy proceedings as applied to the Wells Fargo account. But it is well settled that the FCRA governs factually accurate reporting and does not extend to such “legal inaccuracies.” See, e.g., Cahlin v. Gen. Motors Acceptance Corp., 936 F.2d 1151, 1160 (11th Cir. 1991); (holding that “a [§ 1681i] claim is properly raised when a particular credit report contains a factual deficiency or error that could have been remedied by uncovering additional facts that provide a more accurate representation about a particular entry”) (emphasis in original); DeAndrade v. Trans Union LLC, 523 F.3d 61, 68 (1st Cir. 2008) (holding that determining the validity of a mortgage loan “is not a factual inaccuracy that could have been uncovered by a reasonable reinvestigation, but rather a legal issue that a credit agency . . . is neither qualified nor obligated to resolve under the FCRA”); Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 14 of 23 - 15 - Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892 (9th Cir. 2010) (“reinvestigation claims are not the proper vehicle for collaterally attacking the legal validity of consumer debts”); Wright v. Experian Info. Sols., Inc., 805 F.3d 1232, 1242 (10th Cir. 2015) (holding that the FCRA did not require the CRAs to determine the validity of tax liens because “[a] reasonable reinvestigation, however, does not require CRAs to resolve legal disputes about the validity of the underlying debts they report”); Hupfauer v. Citibank, N.A., No. 16 C 475, 2016 WL 4506798, at *7 (N.D. Ill. Aug. 19, 2016) (dismissing claims following a Chapter 13 discharge in part because “requiring a third party such as a credit bureau to determine whether a specific account was discharged in a particular consumer’s Chapter 13 bankruptcy would impose an unfairly heavy burden on that party . . . This is precisely the kind of legal question that credit reporting agencies are neither qualified nor obligated to answer.”). Here, there is no simple fact of the matter as to whether Plaintiffs’ Wells Fargo account was or was not discharged. Mortgage debts can be discharged in a Chapter 13, see 11 U.S.C. §1325(a)(5); In re Curtis, 322 B.R. at 481, and Plaintiffs’ plan plainly provides for the debt, suggesting that by the discharge order’s own terms, that claim was in fact discharged. But, as the order itself notes, there are some exceptions. This sort of complexity—which is inherent in Chapter Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 15 of 23 - 16 - 13 bankruptcies—is why the United States Bankruptcy Court’s Official Chapter 13 Form discharge order warns the reader: “Because the law is complicated, you should consult an attorney to determine the exact effect of the discharge in this case.” See Form 3180W, Chapter 13 Discharge, uscourts.gov (available at http://www.uscourts.gov/sites/default/files/form_b3180w_0.pdf). Indeed, even the nationwide plaintiff’s bar seems confused by the complexity of a Chapter 13 discharge, frequently bringing FCRA claims where Experian is not reporting a mortgage as discharged. See, e.g., Andria v. Equifax Info. Serv. LLC, et al., No. 1:17-cv-00527-TWP-MJD, Doc. 1 (S.D. Ind. Feb. 19, 2017) (alleging Experian reported inaccurate information in part for failing to report a mortgage account as discharged); Long v. Bayview Loan Serv. LLC, No. 1:16-cv-11762 (Doc. 1), (N.D. Ill. Dec. 30, 2016 (same). This legal complexity dooms Plaintiffs’ case against Experian. The FCRA does not require CRAs to proactively monitor bankruptcy court dockets, review the proceedings, and interpret their meaning, so there can be no general liability under § 1681e(b). See, e.g., Childress v. Experian Info. Sols., Inc., 790 F.3d 745, 747 (7th Cir. 2015) (holding that there is no duty under § 1681e(b) to pull and review bankruptcy dismissals where that “would [] require a live human being, with at least a little legal training, to review every bankruptcy dismissal and classify it”); Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 16 of 23 - 17 - Hupfauer, 2016 WL 4506798; George v. Chex Sys., Inc., No. 16-2450-JTM, 2017 WL 119590, at *3 (D. Kan. Jan. 12, 2017) (granting a motion to dismiss because “the ‘maximum possible accuracy’ standard of § 1681e does not require [the CRA] to check PACER prior to preparing a report”).2 And there can be no liability for Experian under § 1681i because no amount of factual reinvestigation could have resolved the dispute as to the exact meaning of Plaintiffs’ discharge order which, even today, is undetermined and requires a judicial determination about its scope and effects. See Cahlin, 936 F.2d at 1160. In the end, Plaintiffs ask this Court to stretch the FCRA well beyond its bounds and far beyond limits that courts around the country have recognized. Put simply, the FCRA does not require Experian to act as a de facto bankruptcy tribunal, deciphering and applying complex issues of law, and Plaintiffs’ claims against Experian must be dismissed. 2 The FCRA provides other remedies for Plaintiffs. They can dispute the debt directly with Wells Fargo, or add a statement of dispute. See 15 U.S.C. § 1681s-2(8); § 1681i(b); Wright, 805 F.3d at 1244 (“The FCRA expects consumers to dispute the validity of a debt with the furnisher of the information or append a note to their credit report to show the claim is disputed.”). Or, if Plaintiffs were determined to pursue a claim against Experian, they should have first obtained a judicial determination that the Wells Fargo loan was not, in fact, discharged, and provided that determination to Experian. See DeAndrade, 523 F.3d at 68 (“If a court had ruled the mortgage invalid and [the CRA] had continued to report it as a valid debt, then [Plaintiff] would have grounds for a potential FCRA claim.”). Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 17 of 23 - 18 - II. PLAINTIFFS’ INVOCATION OF INDUSTRY STANDARDS CANNOT SAVE THEIR COMPLAINT. Plaintiffs’ Complaint is littered with accusations that Experian’s reporting is inaccurate because it does not comport with industry standards embodied in the Consumer Data Industry’s Credit Resource Reporting Guide (the “CRRG). (See Pls.’ Compl. ¶¶ 24–45, 81–82.) Yet, despite repeatedly invoking supposed violations of industry standards, at no point do Plaintiffs explain which specific provisions of the CRRG or other industry standard was supposedly violated here.3 Notably, Plaintiffs state that the guidelines embodied in the CRRG are published “to assist furnishers with their compliance requirements under the FCRA.” (See id. at ¶ 30 (emphasis added).) As with Plaintiffs’ attempts to hold Experian liable for adjudicating legal claims, courts around the country routinely dismiss claims like these founded on vague invocations of the purported industry standards embodied in the CRRG. See, e.g., Mortimer v. Bank of Am., N.A., No. C-12-01959 JCS, 2013 WL 1501452, at *12 (N.D. Cal. Apr. 10, 2013) (“Defendant’s alleged noncompliance with the Metro 2 Format is an insufficient basis to state a claim under the FCRA.”); Mestayer v. Experian Info. Sols., Inc, No. 15-CV-03645-EMC, 3 Had Plaintiffs fully reviewed the 2015 version of the Credit Resource Reporting Guide they cite, they would have noted that no part of the Guide tells the user how to interpret and construe the bankruptcy court’s orders. In fact, the guide even tells the lender to consult with their legal department when the Chapter 13 plan is unclear. Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 18 of 23 - 19 - 2016 WL 631980, at *4 (N.D. Cal. Feb. 17, 2016) (same); Devincenzi v. Experian Info. Sols., Inc., No. 16-CV-04628-LHK, 2017 WL 86131, at *6 (N.D. Cal. Jan. 10, 2017) (holding that otherwise accurate reporting “is not rendered unlawful simply because a Plaintiff alleges that the reporting, although accurate, was inconsistent with industry standards”). And in those rare instances where courts have held that a violation of the CDIA’s guidelines can state a claim, it is usually where a furnisher’s alleged violation of industry standards is directly and explicitly tethered to the alleged inaccuracy. See, e.g., Nissou-Rabban v. Capital One Bank (USA), N.A., No. 15CV1675 JLS (DHB), 2016 WL 4508241, at *5 (S.D. Cal. June 6, 2016) (denying data furnisher’s motion to dismiss where plaintiff specifically alleged that Metro-2 standards required reporting “no data” instead of the charge- off that was reported). Indeed, courts have repeatedly declined to follow Nissou- Rabban, reaffirming that “allegations that a credit report deviated from the Metro 2 format [are] insufficient, without more, to state a claim under the FCRA. Rodriguez v. Experian Info. Sols., Inc., No. 16-CV-04668-BLF, 2017 WL 1354764, at *7 (N.D. Cal. Apr. 13, 2017); Mensah v. Experian Info. Sols., Inc., No. 16-CV-05689-WHO, 2017 WL 1246892, at *8 (N.D. Cal. Apr. 5, 2017) (disagreeing with Nissou-Rabban and holding that “deviation from industry standards by itself is insufficient to allege inaccurate or misleading reporting”). Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 19 of 23 - 20 - Here, Plaintiffs do not specifically allege how Experian violated Metro-2 of the CDIA’s guidelines. To the extent Experian can decipher a specific violation alleged, it is the implication found in Plaintiffs’ allegations that the CDIA guidelines require monthly reporting (See Compl. at ¶ 35) and the allegations that Plaintiffs were not being credited with payments made after their February 2016 discharge. (See, e.g., id. at ¶¶ 80–82.) But this misses the mark. First and foremost, this implied theory rests on the same legal determinations discussed above as it assumes that Plaintiffs’ Wells Fargo account was not actually discharged. If the account was discharged, then there is no obligation to report any post-discharge payments. See Horsch, 94 F. Supp. 3d at 674. Second, Plaintiffs do not plausibly allege any link between any industry standard and any inaccurate data. At most, Plaintiffs have pleaded that the CDIA requires furnishers to report data each month; Plaintiffs have not pleaded that the CDIA requires furnishers to report any payments received on discharged debts, or somehow requires Experian to force a data furnisher to report such information. Accordingly, Plaintiffs’ attempts to bolster their Complaint by peppering it with allusions to industry standards cannot save their claims against Experian, which should be dismissed. Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 20 of 23 - 21 - CONCLUSION For all of these reasons, Experian respectfully requests that this Court grant its Motion to Dismiss, and dismiss all claims in Plaintiffs’ Complaint against Experian, and do so with prejudice. Dated: April 21, 2017 Respectfully submitted, /s/ William H. Rooks William H. Rooks Georgia Bar No. 906785 JONES DAY 1420 Peachtree Street, N.E., Suite 800 Atlanta, GA 30309-3053 Telephone: (404) 581-8891 Facsimile: (404) 581-8330 wrooks@jonesday.com An Attorney for Defendant Experian Information Solutions, Inc. Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 21 of 23 - 22 - The undersigned hereby certifies that the foregoing document has been prepared in accordance with the font type and margin requirements of Local Rule 5.1 of the Northern District of Georgia, using a font type of Times New Roman and a point size of 14. /s/ William H. Rooks William H. Rooks An Attorney for Experian Information Solutions, Inc. Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 22 of 23 - 23 - CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 21th day of April, 2017, I caused the foregoing to be electronically filed with the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to all counsel of record. /s/ William H. Rooks William H. Rooks An Attorney for Defendant Experian Information Solutions, Inc. Case 1:17-cv-00642-MHC-WEJ Document 8 Filed 04/21/17 Page 23 of 23