Jackel et al v. Equifax Information Services, Llc et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND FOR LACK OF SUBJECT-MATTER JURISDICTION

W.D. Ky.July 8, 2016

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION DAVID L. JACKEL and DACIA JACKEL, Plaintiffs, vs. EQUIFAX INFORMATION SERVICES, LLC, BANK OF AMERICA, N.A., CENTURY BANK OF KENTUCKY, INC., FAY SERVICING, LLC, GERMANAMERICAN BANCORP CORPORATION, FINANCIAL BANK, JP MORGAN CHASE, OCWEN LOAN SERVICING LLC, REPUBLIC BANK & TRUST COMPANY, and WELLS FARGO BANK, N.A., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 3:16-cv-319-CRS DEFENDANT FAY SERVICING, LLC’S MOTION TO DISMISS COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1) and 12(b)(6) Defendant Fay Servicing, LLC (“Fay”) hereby moves the Court pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss the Complaint for the reasons stated in the accompanying Memorandum of Law, which is incorporated as if fully set forth herein. A proposed Order is attached. Fay respectfully requests a hearing or oral argument on the Motion pursuant to Local Rule 7.1(f). Dated: July 8, 2016 ALSTON & BIRD LLP /s/ Meredith Jones Kingsley Meredith Jones Kingsley Kentucky Bar No. 93424 1201 West Peachtree Street Atlanta, Georgia 30309 Phone: 404-881-4793 Fax: 404-253-8643 Meredith.kingsley@alston.com Case 3:16-cv-00319-CRS Document 31 Filed 07/08/16 Page 1 of 3 PageID #: 152 2 Elizabeth A. Sperling (Admitted Pro Hac Vice) California State Bar No. 231474 ALSTON & BIRD LLP 333 South Hope Street Sixteenth Floor Los Angeles, California 90071 Telephone: (213) 576-1028 Facsimile: (213) 576-1100 elizabeth.sperling@alston.com Attorneys for Defendant Fay Servicing, LLC Case 3:16-cv-00319-CRS Document 31 Filed 07/08/16 Page 2 of 3 PageID #: 153 3 CERTIFICATE OF SERVICE I hereby certify that on July 8, 2016, a true and accurate copy of the foregoing was electronically filed with the Clerk of the United States District Court for the Western District of Kentucky, Louisville Division, using the CM/ECF system, which will send a notice of electronic filing to all counsel of record. /s/ Meredith Jones Kingsley Attorney for Defendant Fay Servicing, LLC Case 3:16-cv-00319-CRS Document 31 Filed 07/08/16 Page 3 of 3 PageID #: 154 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION DAVID L. JACKEL and DACIA JACKEL, Plaintiffs, vs. EQUIFAX INFORMATION SERVICES, LLC, BANK OF AMERICA, N.A., CENTURY BANK OF KENTUCKY, INC., FAY SERVICING, LLC, GERMANAMERICAN BANCORP CORPORATION, FINANCIAL BANK, JP MORGAN CHASE, OCWEN LOAN SERVICING LLC, REPUBLIC BANK & TRUST COMPANY., and WELLS FARGO BANK, N.A., Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 3:16-cv-319-CRS DEFENDANT FAY SERVICING, LLC’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS Defendant Fay Servicing, LLC’s (“Fay”) Motion to Dismiss is based on this Memorandum, all pleadings and papers on file in this action, and on such other and further matters as may be presented to the Court at the time of any hearing. I. INTRODUCTION Plaintiffs’ single claim for relief against Fay for a purported violation of the Fair Credit Reporting Act (“FCRA”) fails as a matter of law for lack of standing. The United States Supreme Court’s recent decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), is dispositive of Plaintiffs’ FCRA claim. In Spokeo, the Supreme Court held that a plaintiff in a FCRA action must allege injury-in-fact and particularized and concrete harm in order to sue for a statutory FCRA violation. As a threshold issue, Plaintiffs fail to satisfy Article III standing because they do not allege facts establishing an actual concrete injury caused by Fay’s credit reporting. For this reason alone, the complaint should be dismissed as against Fay. Case 3:16-cv-00319-CRS Document 31-1 Filed 07/08/16 Page 1 of 13 PageID #: 155 2 In order to plead that they paid higher interest rates or were denied credit because of an allegedly improper notation on their credit report, as they must, Plaintiffs would have to plausibly plead that but for Fay’s false reporting, they would have obtained loans with lower interest rates or would have received credit but were denied. Plaintiffs fail to plead the constitutionally required element of injury-in-fact and particularized and concrete harm caused by Fay. This alone dooms Plaintiffs’ FCRA claim against Fay. If anything, Plaintiffs’ purported harm, if any, was the result of their own default on numerous mortgages and secured debts owed to their 181 secured creditors – to speak nothing of unsecured creditors. Plaintiffs admit they filed a 229-page Chapter 7 bankruptcy petition listing 181 secured creditors. [Complaint, ¶ 21.] It is simply implausible to suggest that, because Fay reported, at some unidentified point in time, that Plaintiffs had a $0.00 balance, their account was opened on January 22, 2004, and was 120-149 days late – all of which Plaintiffs do not dispute was historically accurate – rather than stating the account was discharged in bankruptcy, they were denied credit and paid more for credit and insurance. Plaintiffs offer no specifics about what credit denials they received and how they ended up paying more for credit and insurance. Nor do they provide any detailed allegations about when, with whom, and how much more. Nor do they allege any facts showing how any of that was the direct result of Fay reporting historically accurate information about their loan rather than the fact that Plaintiffs “own many homes that they rent” out, all of which were secured by loans from “many different financial institutions,” all of which they defaulted on. [Complaint, ¶¶ 17-19, 22.] Their harm, if any, was not plausibly caused by Fay’s accurate reporting on this one account. In addition to Plaintiffs’ failure to satisfy Article III standing, the Complaint fails against Fay for three other fundamental reasons. First, the information Fay reported was indisputably historically accurate. Plaintiffs simply allege that, at some unknown point in time, their report did not reflect that the account was discharged in bankruptcy. That does not make – and Plaintiffs plead no facts – that the historical information was false or inaccurate at the time Fay reported it. Case 3:16-cv-00319-CRS Document 31-1 Filed 07/08/16 Page 2 of 13 PageID #: 156 3 Second, Plaintiffs fail to allege facts demonstrating that Fay negligently or willfully furnished inaccurate information to the credit bureaus after Plaintiffs initiated their dispute. This is yet another essential pleading element for a FCRA claim that is lacking here. Nor do Plaintiffs allege specific facts showing that Fay failed to update the reporting to reflect the account was discharged in bankruptcy, if it was, after they initiated their dispute. Third, there are no allegations that Plaintiffs’ Fay mortgage was actually discharged in their bankruptcy. The Complaint fails to allege facts demonstrating that Fay was one of the secured creditors listed in Schedule D of Plaintiffs’ bankruptcy petition and fails to allege their Fay mortgage debt was included among the secured debts that were discharged in their bankruptcy. [Complaint, ¶ 25, listing the defendants included in their bankruptcy discharge who received a certificate of mailing, conspicuously omitting Fay.] Plaintiffs’ allegations actually concede that Fay received no certificate of mailing of a copy of the discharge. [Id., ¶¶ 25-26, listing all Defendants except for Fay.] The only reasonable inference that may plausibly be drawn from the facts alleged in the Complaint, as opposed to mere conclusory assertions and deductions of law that are not to be considered on a motion to dismiss, is that Plaintiffs’ Fay mortgage debt was not discharged. For all these reasons, Plaintiffs’ claim against Fay should be dismissed without leave to amend. II. FACTUAL ALLEGATIONS The entire Complaint is vague and contains only threadbare allegations against Fay. Plaintiffs’ business and primary source of income was renting out an unspecified number of homes, all of which Plaintiffs financed with individual loans. [Complaint, ¶¶ 16-19.] Plaintiffs fell on hard economic times and filed for Chapter 7 bankruptcy with the United States Bankruptcy Court for the Western District of Kentucky on or about April 14, 2010. [Id. ¶ 21.] Their bankruptcy petition listed a total of 181 secured creditors. [Id.] They do not identify the number of unsecured creditors they had in addition to those. [See generally, id.] Plaintiffs fail to allege that the mortgage debt Fay serviced, the subject of their Complaint against Fay, was included in their Case 3:16-cv-00319-CRS Document 31-1 Filed 07/08/16 Page 3 of 13 PageID #: 157 4 bankruptcy petition. [See generally, id.] After the bankruptcy court discharged Plaintiffs’ bankruptcy case on July 23, 2010, Plaintiffs admittedly did not mail a copy of the discharge to Fay. [See id., ¶¶ 25-26.] All other Defendants are listed as recipients of Plaintiffs’ discharge notice. Thus, the only reasonable conclusion that may be drawn is that the Fay mortgage was not discharged. Plaintiffs claim their Equifax credit report – at some unidentified point in time – showed “a current balance due of $0.00” on the Fay mortgage and that an account had an “opened date” of January 22, 2004, as well as a payment status of “120-149 days late.” [Id., ¶ 57.] Plaintiffs allege this information is false “to the extent” it was reported after Plaintiffs filed for Chapter 7 bankruptcy relief, and because Fay failed to report that the account was discharged in bankruptcy on July 23, 2010. [Id. ¶ 58.] Plaintiffs claim they disputed the reporting on the Fay Mortgage by letter to Equifax dated on or about March 31, 2016. [Id. ¶¶ 29, 30.] Notably, however, Plaintiffs do not allege facts demonstrating that Fay continued to report this information after it received the dispute notice from Equifax. Nor do Plaintiffs allege that Fay reported this information after Plaintiffs filed bankruptcy (or obtained a discharge of the debt in bankruptcy). Furthermore, although Plaintiffs claim in conclusory fashion that they were denied credit and had to pay more for credit and insurance as a result of Fay’s failure to investigate their dispute [id., ¶ 56.], they do not allege any specifics as to how Fay failed to investigate their dispute; that Fay failed to update the reporting after their dispute was initiated; how they were denied credit, by whom, or when; and when and how they had to pay more for credit and insurance. [See generally, Complaint.] III. LEGAL ARGUMENT A. Standard Of Review A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint to determine whether there is a lack of cognizable legal theory, or the absence of sufficient facts alleged under a cognizable legal theory. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of her ‘entitlement to relief’ requires more than labels Case 3:16-cv-00319-CRS Document 31-1 Filed 07/08/16 Page 4 of 13 PageID #: 158 5 and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint does not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). “The factual allegations must be definite enough to ‘raise a right to relief above the speculative level.’” Twombly, 550 U.S. at 555. But a court should not accept “legal conclusions cloaked as fact.” Haddad v. Randall S. Miller Assocs., PC, 587 F. App'x 959, 963 (6th Cir. 2014) (unpublished). “The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing” the “‘irreducible constitutional minimum’” elements of Article III standing, meaning that he or she “must ‘clearly . . . allege facts demonstrating’ each element.” Spokeo, 136 S. Ct. at 1547 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990); Warth v. Seldin, 422 U.S. 490, 518 (1975)). B. The Complaint Fails to State A Claim For Violation Of The FCRA Against Fay Plaintiffs’ Complaint against Fay fundamentally fails because they have not alleged and cannot allege any facts demonstrating a FCRA violation on the part of Fay. The FCRA imposes obligations on persons or entities, such as creditors, that “furnish” information to credit reporting agencies (“CRAs”). See 15 U.S.C. § 1681s-2. There are two components to a furnisher’s obligations under Section 1681s-2 of the FCRA. Subsection (a) of Section 1681s-2 sets forth a furnisher’s duty to report “accurate information” to the CRAs. Subsection (b) of Section 1681s-2 sets forth a furnisher’s duty to conduct an investigation in response to a notice of dispute from a CRA. Although furnishers have obligations under both subsections, only subsection (b) contemplates a private right of action for its violation. See Boggio v. USAA Fed. Sav. Bank, 696 F.3d 611, 615-16 (6th Cir. 2012); see also Stafford v. Cross Country Bank, 262 F. Supp. 2d 776, 782-84 (W.D. Ky. 2003). Under Section 1681s-2(b), a furnisher is required to conduct a “reasonable investigation” in response to notice from a CRA that a consumer disputes the accuracy of the furnisher’s credit Case 3:16-cv-00319-CRS Document 31-1 Filed 07/08/16 Page 5 of 13 PageID #: 159 6 reporting. Boggio, 696 F.3d at 617. If the furnisher’s investigation reveals that information being reported is “inaccurate or incomplete,” the furnisher must update its reporting accordingly and prevent future misreporting by “modify[ing] that item of information,” “delet[ing] that item of information,” or “permanently block[ing] the reporting of that item of information.” 15 U.S.C. §§ 1681s-2(b)(1)(E)(i)-(iii). A report is “accurate” under the FCRA if it contains information that is accurate on its face or that is technically accurate, even if it could be misleading or incomplete in some respect. Shaw v. Equifax Info. Sols., Inc., No. 15-14014, 2016 U.S. Dist. LEXIS 59138, *7 (E.D. Mich. May 4, 2016) (citing Dickens v. Trans Union Corp., 18 F. App’x 315, 318 (6th Cir. 2001)). Moreover, civil liability will only attach if the furnisher “willfully” or “negligently” fails to comply with Section 1681s-2(b). See 15 U.S.C. §§ 1681n, 1681o; see also Boggio, 696 F.3d at 618. Plaintiffs fail to allege that the information Fay reported concerning their mortgage was inaccurate or that Fay willfully or negligent failed to comply with the FCRA. 1. Plaintiffs Fail To Plausibly Allege Any Injury-In-Fact Caused By Fay’s Credit Reporting According to recent United States Supreme Court precedent, Plaintiffs’ failure to plead facts plausibly establishing that they suffered any actual damages caused by the alleged FCRA statutory violation renders their claim against Fay legally deficient under Rule 12(b)(6) and Rule 12(b)(1). The Supreme Court held less than two months ago, in the context of an FCRA suit that, “as the party invoking federal jurisdiction, [Plaintiff] bears the burden of establishing” the “‘irreducible constitutional minimum’ of standing,” including that he or she “suffered an injury in fact.” Spokeo, 136 S. Ct. at 1547 (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000); Lujan, 504 U.S. at 560-61; FW/PBS, 493 U.S. at 231). “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ and is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560). Case 3:16-cv-00319-CRS Document 31-1 Filed 07/08/16 Page 6 of 13 PageID #: 160 7 In Spokeo, the Supreme Court specifically analyzed the plaintiff’s burden to allege an injury under the FCRA that is “both concrete and particularized.” Id. The Court noted that a “particularized” injury is one that “‘affect[s] the plaintiff in a personal and individual way,’” whereas “[a] ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.” Id. at 1548. The Court held that a plaintiff “cannot satisfy the demands of Article III by alleging a bare procedural violation” and specifically noted that “[a] violation of one of the FCRA’s procedural requirements may result in no harm.” Id. at 1550. Rather, “the plaintiff must ‘clearly . . . allege facts demonstrating,’” id. at 1547, that “the particular procedural violations alleged . . . entail a degree of risk sufficient to meet the concreteness requirement” of establishing an injury-in-fact to establish Article III standing, id. at 1550. Plaintiffs’ Complaint falls short of satisfying the injury-in-fact requirement necessary to establish Article III standing. Plaintiffs obliquely allege they were denied credit and had to pay more for credit and insurance as a result of Fay’s failure to investigate their dispute. [Complaint, ¶ 56.] Noticeably absent from the Complaint, however, are any facts to establish a causal nexus between any specific instance of such damage and Fay’s alleged failure to investigate their dispute. To be recoverable, Plaintiffs’ alleged damages must flow from the statutory violation. See, e.g., Smith v. Ohio State Univ., No. 2:15-cv-3030, 2016 U.S. Dist. LEXIS 74612, at *12 (S.D. Ohio June 8, 2016) (recognizing need to establish causal connection between alleged breach of FCRA and damages). Plaintiffs have not pleaded one fact satisfying this requirement. Plaintiffs also fail to allege how and when they were denied credit or by whom and how that was the result of Fay’s purported failure to investigate their dispute. Nor do Plaintiffs plead any facts as to how they had to pay more for credit and insurance, with whom, by how much, when, and how that was the result of Fay’s purported failure to investigate their dispute. The complaint fails to state how the Plaintiffs’ purported injuries are the result of Fay’s failure to investigate their dispute as opposed to the fact that they defaulted on numerous debts to 181 secured creditors, and an untold number of unsecured creditors, causing them to file Chapter 7 bankruptcy. The Court may exercise common sense and determine that, to the extent Plaintiffs Case 3:16-cv-00319-CRS Document 31-1 Filed 07/08/16 Page 7 of 13 PageID #: 161 8 were denied credit and had to pay more for credit and insurance, it was likely the result of Plaintiffs’ own default on their massive debts and their resultant bankruptcy, rather than simply Fay not investigating a dispute as to one account that showed a $0.00 balance, an opening date, and a payment status of 120-149 days late at some unknown point in time. Under the FCRA, Plaintiffs are entitled to recover actual damages only if they flow directly from the statutory violation. See, e.g., Johnson v. Wells Fargo Home Mortg., Inc., 558 F. Supp. 2d 1114, 1119 (D. Nev. 2008) (recognizing need to establish “the causal connection required to link his alleged actual damages to Defendant’s violation”). Here, there is nothing in the Complaint to show any causal connection between the harm alleged and the purportedly unlawful act. Plaintiffs must show that any harm to their credit is directly linked to Fay’s alleged failure under the FCRA to investigate and correct the reporting inaccuracies at issue. This harm must be distinct from any “credit damage” resulting from, for example, Plaintiffs’ own failures to pay their outstanding debts, the fact they were past due on numerous financial obligations to 181 secured creditors, and/or their bankruptcy filing. Fay cannot be held liable for any damages caused by Plaintiffs’ own actions and inactions. All Plaintiffs have done here is allege a “bare procedural violation” without showing how they have been actually damaged by Fay’s conduct. Because there is nothing in the Complaint linking the alleged denial of credit and having to pay more for credit and insurance to Fay’s purported failure to investigate, Plaintiffs have not met their burden to plead “[f]actual allegations . . . to rise above the speculative level,” Twombly, 550 U.S. at 555, and “state a claim to [damages] that is plausible on its face,” Iqbal, 556 U.S. at 678. The import of Spokeo’s holding to this case is that Plaintiffs cannot simply rely on a claim for statutory damages to sustain their claim. Plaintiffs’ failure to plead (a) any plausible actual damages that (b) were actually caused by Fay is fatal to their FCRA claim. Case 3:16-cv-00319-CRS Document 31-1 Filed 07/08/16 Page 8 of 13 PageID #: 162 9 2. Plaintiffs Do Not Dispute That The Information At Issue Is Historically Accurate The Complaint also fails as against Fay because Plaintiffs fail to allege that Fay’s reporting at issue was inaccurate. To state a FCRA violation, a plaintiff must meet the threshold showing that his or her credit report contained inaccurate information. See Shaw, 2016 U.S. Dist. LEXIS 59138, at *7; see also Spence v. TRW, Inc., 92 F.3d 380, 382 (6th Cir. 1996) (holding that a showing of inaccuracy is a necessary element of a FCRA claim). A report is “accurate” under the FCRA if it contains information that is accurate on its face or that is technically accurate, even if it could be misleading or incomplete in some respect. Shaw, 2016 U.S. Dist. LEXIS 59138, at *7 (citing Dickens v. Trans Union Corp., 18 F. App’x 315, 318 (6th Cir. 2001)). The Plaintiffs fail to meet their burden. Here, the Complaint alleges in a conclusory fashion that the information Fay reported on the Plaintiffs’ credit report was false “to the extent” that Fay reported it after they filed Chapter 7 bankruptcy. [Complaint, ¶ 58.] They do not allege any specific facts showing that Fay actually reported this information after they filed for bankruptcy. Nor do they allege facts showing that Fay was given notice of their bankruptcy discharge and, therefore, had an obligation to report the account was discharged. But even if Plaintiffs did allege these facts, the reported information at issue is indisputably accurate. Plaintiffs never contest that the account was opened on January 22, 2004, that it had a current balance due of $0.00, or that it was at one time 120-149 days late. No facts are alleged as to when this information was reported and when it appeared on their credit report. No facts are pleaded establishing that Fay furnished inaccurate information about Plaintiffs’ mortgage debt to the credit bureau.1 1 Without knowledge of when the Plaintiffs obtained the credit report at issue, it is unclear whether Plaintiffs satisfy FCRA’s statute of limitations. See 15 U.S.C. § 1681p. Case 3:16-cv-00319-CRS Document 31-1 Filed 07/08/16 Page 9 of 13 PageID #: 163 10 3. Plaintiffs Do Not Allege Fay Negligently Or Willfully Furnished Inaccurate Information To Equifax After Plaintiffs Initiated Their Dispute Another key element of a FCRA claim that is missing here is any factual allegation that Fay “willfully” or “negligently” furnished inaccurate information after its duty to investigate the dispute was triggered under Section 1681i(a)(2). Civil liability only attaches if a furnisher “willfully” or “negligently” fails to comply with Section 1681s-2(b). See 15 U.S.C. §§ 1681n, 1681o; see also Boggio, 696 F.3d at 618. There is an absolute dearth of facts on this matter. Thus, this Court cannot know whether or not Fay reasonably investigated, or whether or not it willfully or negligently furnished inaccurate information about Plaintiffs’ mortgage account. See Barrett v. Fifth Third Bank & Trans Union, LLC, No. 3:15-cv-00698-CRS, 2016 U.S. Dist. LEXIS 17339, * 4 (W.D. Ky. Feb. 11, 2016) (dismissing FCRA claim without leave to amend where no “factual support” showed a negligent or willful failure to investigate a dispute). If Fay updated Plaintiffs’ credit reporting information with regard to the mortgage following Plaintiffs’ dispute, there would be no basis at all for a finding that Fay “willfully” or “negligently” violated FCRA. 4. Plaintiffs Do Not Allege That Plaintiffs’ Fay Mortgage Debt Was Actually Discharged In Their Bankruptcy Plaintiffs conspicuously fail to allege that the Fay mortgage debt was actually discharged in their bankruptcy and that they served Fay with notice of their bankruptcy discharge. Plaintiffs allege that they included 181 secured creditors on Schedule D of their Chapter 7 bankruptcy petition. [Complaint, ¶ 21.] Yet they fail to attach that Schedule to the Complaint, making it impossible to know whether or not Fay or a predecessor entity was included on that petition. And, while the Plaintiffs allege that they did not reaffirm any of the secured debts listed on Schedule D of the petition, they fail to allege whether the mortgage debt was ever listed on that Schedule. [See Case 3:16-cv-00319-CRS Document 31-1 Filed 07/08/16 Page 10 of 13 PageID #: 164 11 id., ¶ 23.] Moreover, Plaintiffs allege their discharge “included certificate of mailing of a copy of the discharge” to every named defendant in this case except for Fay. [Id., ¶¶ 25-26.] Given that the Court is confined to the four-corners of the Complaint in deciding this motion to dismiss, the only plausible conclusion that may be drawn from these conspicuous omissions is that the Fay mortgage was not included in the bankruptcy at all. See Twombly, 550 U.S. at 555; Haddad, 587 F. App'x at 963. As such, the Complaint fails to plead facts indicating that the mortgage debt was discharged in bankruptcy at all. IV. CONCLUSION Plaintiffs have failed to plead specific facts establishing Article III standing, including concrete particularized injury-in-fact caused by Fay, that the information Fay reported was inaccurate, that Fay negligently or willfully furnished inaccurate information about the Plaintiffs’ account after they initiated their dispute, and that their Fay mortgage was actually discharged in bankruptcy. These defects are not curable by amendment. As such, the Court should dismiss Plaintiffs’ Complaint as against Fay without leave to amend. [signatures on following page] Case 3:16-cv-00319-CRS Document 31-1 Filed 07/08/16 Page 11 of 13 PageID #: 165 12 Dated: July 8, 2016 ALSTON & BIRD LLP /s/ Meredith Jones Kingsley Meredith Jones Kingsley Kentucky Bar No. 93424 1201 West Peachtree Street Atlanta, Georgia 30309 Phone: 404-881-4793 Fax: 404-253-8643 Meredith.kingsley@alston.com Elizabeth A. Sperling (Admitted Pro Hac Vice) California State Bar No. 231474 ALSTON & BIRD LLP 333 South Hope Street Sixteenth Floor Los Angeles, California 90071 Telephone: (213) 576-1028 Facsimile: (213) 576-1100 elizabeth.sperling@alston.com Attorneys for Defendant Fay Servicing, LLC Case 3:16-cv-00319-CRS Document 31-1 Filed 07/08/16 Page 12 of 13 PageID #: 166 13 CERTIFICATE OF SERVICE I hereby certify that on July 8, 2016, a true and accurate copy of the foregoing was electronically filed with the Clerk of the United States District Court for the Western District of Kentucky, Louisville Division, using the CM/ECF system, which will send a notice of electronic filing to all counsel of record. /s/ Meredith Jones Kingsley Attorney for Defendant Fay Servicing, LLC Case 3:16-cv-00319-CRS Document 31-1 Filed 07/08/16 Page 13 of 13 PageID #: 167 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION DAVID L. JACKEL and DACIA JACKEL, Plaintiffs, vs. EQUIFAX INFORMATION SERVICES, LLC, BANK OF AMERICA, N.A., CENTURY BANK OF KENTUCKY, INC., FAY SERVICING, LLC, GERMANAMERICAN BANCORP CORPORATION, FINANCIAL BANK, JP MORGAN CHASE, OCWEN LOAN SERVICING LLC, REPUBLIC BANK & TRUST COMPANY, and WELLS FARGO BANK, N.A., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 3:16-cv-319-CRS [PROPOSED] ORDER GRANTING DEFENDANT FAY SERVICING, LLC’S MOTION TO DISMISS COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1) and 12(b)(6) This matter having come before the court on Motion of Defendant Fay Servicing, LLC to Dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and the Court having reviewed the pleadings and being otherwise sufficiently advised, IT IS HEREBY ORDERED that the Motion is GRANTED, and the Complaint is DISMISSED in its entirety as against Defendant Fay Servicing, LLC and without leave to amend. So ordered, this _____ day of _____________, 2016 __________________________________ Senior Judge Charles R. Simpson, III Western District of Kentucky Case 3:16-cv-00319-CRS Document 31-2 Filed 07/08/16 Page 1 of 1 PageID #: 168