Jeudy-Elissaint v. Experian Information Solutions, Inc. 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 MARIE THERESE JEUDY- ELISSAINT, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, INC.; TRANS UNION LLC; and WELLS FARGO BANK NATIONAL ASSOCIATION (INC.), AS SUCCESSOR BY MERGER TO WELLS FARGO HOME MORTGAGE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION FILE NO. 1:17-CV-00638-ODE-LTW DEFENDANT EXPERIAN INFORMATION SOLUTIONS, INC.’S MOTION TO DISMISS PLAINTIFF’S 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 Plaintiff Marie Therese Jeudy-Elissaint, (“Plaintiff”) 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-00638-ODE-LTW Document 9 Filed 04/21/17 Page 1 of 23 - 2 - WHEREFORE, Experian prays for the following relief: (a) That Plaintiff’s 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-00638-ODE-LTW Document 9 Filed 04/21/17 Page 2 of 23 - 3 - IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION MARIE THERESE JEUDY- ELISSAINT, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, INC.; TRANS UNION LLC; and WELLS FARGO BANK NATIONAL ASSOCIATION (INC.), AS SUCCESSOR BY MERGER TO WELLS FARGO HOME MORTGAGE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION FILE NO. 1:17-CV-00638-ODE-LTW MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S COMPLAINT Plaintiff’s Complaint is fatally flawed. Although bringing claims under the auspices of the Fair Credit Reporting Act, Plaintiff’s 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 her credit reports, Plaintiff seeks to hold Experian liable for failing to adopt Plaintiff’s legal conclusions about unsettled questions of law related to Plaintiff’s Chapter 13 bankruptcy and its effects on her mortgage loan. Such efforts fly in the face of Case 1:17-cv-00638-ODE-LTW Document 9 Filed 04/21/17 Page 3 of 23 - 4 - 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, Plaintiff’s claims must be dismissed. BACKGROUND Plaintiff’s claims against Experian arise under the Fair Credit Reporting Act (“FCRA”) and involve the accuracy of a reported mortgage debt following Plaintiff’s Chapter 13 bankruptcy. For background, this brief begins with an overview of the pertinent law and then describes Plaintiff’s 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). The FCRA 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 allows consumers to dispute information directly with their creditors (sometimes called “data Case 1:17-cv-00638-ODE-LTW Document 9 Filed 04/21/17 Page 4 of 23 - 5 - 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. Plaintiff resides in Clayton County, Georgia, and qualifies as a consumer within the meaning of the FCRA. (See Compl. ¶¶ 1–2.) Defendant Experian is a consumer reporting agency under the FCRA. (Id. at ¶ 4.) 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. Plaintiff’s Chapter 13 Bankruptcy. On or about June 1, 2007, Plaintiff obtained a mortgage on her property located in Cambria Heights, New York, with World Savings Bank, FSB. (Id. at ¶¶ 12–13.) Through a series of assignments, Wells Fargo eventually became the servicer on Plaintiff’s mortgage. (Id. at ¶¶ 14–15.) Plaintiff later filed a voluntary petition for bankruptcy on February 28, 2011, listing her loan with Wells Fargo in her Chapter 13 Plan as well as Schedule D of her petition. (Id. at ¶¶ 16–17); In re Jeudy-Elissaint, 1:11-bk-56021, Doc. 1 at 11 (Bankr. N.D. Ga. February 28, 2011); Id., Doc. 2 at 4. Plaintiff alleges that her Chapter 13 plan provided that she would cure arrearages and then make payments directly to Wells Fargo pursuant to 11 Case 1:17-cv-00638-ODE-LTW Document 9 Filed 04/21/17 Page 5 of 23 - 6 - U.S.C. § 1322(b)(5). (Compl. ¶ 18.) Plaintiff’s Chapter 13 Plan, however, listed $0 in pre-petition arrearages to Wells Fargo and proposed that she would “make all post-petition payments directly to each mortgage creditor as those payments ordinarily come due.” In re Jeudy-Elissiant, 1:11-bk-56021, Doc. 2 at 5 (Bankr. N.D. Ga. February 28, 2011). The Bankruptcy Court confirmed Plaintiff’s Chapter 13 Plan on May 4, 2011. (See id. at Doc. 16). A discharge order was later entered March 31, 2016. (See id. at Doc. 70.) 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: Marie Therese Jeudy-Elissaint aka Marie T. Jeudy Elissaint” and then provides several categories of debts that are not discharged. (See id. at 1–3.) C. Experian’s Credit Reporting and Plaintiff’s Disputes. On or about June 22, 2016, following the discharge of Plaintiff’s bankruptcy, Plaintiff obtained her Experian credit report, which showed the Wells Fargo account as discharged with a recent balance of $0. (Compl. at ¶¶ 48–49). This allegedly was inaccurate because “the Plaintiff continues to make payments . . . .” (Id. at ¶ 50.) Plaintiff sent Experian a dispute letter dated December 5, 2016. (Id. at ¶ 52.) Experian then performed a reinvestigation. (See Case 1:17-cv-00638-ODE-LTW Document 9 Filed 04/21/17 Page 6 of 23 - 7 - id. at ¶¶ 53–57.) Following the dispute, Plaintiff’s Wells Fargo account continued to report a $0 recent balance and a discharged status. (Id. at ¶ 57.) III. PROCEDURAL HISTORY AND LEGAL CLAIMS. Plaintiff filed her Complaint on February 21, 2017. (See 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. ¶¶ 87–104.) Plaintiff specifically bases her claims against Experian on the failure to include additional mortgage payments Plaintiff made. (See id. at ¶ 50.) Plaintiff alleges that these violations were negligent and willful. (See id. at ¶¶ 100–04.) 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 do[.]”). While courts must accept the well-pleaded facts in the complaint as true, Case 1:17-cv-00638-ODE-LTW Document 9 Filed 04/21/17 Page 7 of 23 - 8 - “[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-00638-ODE-LTW Document 9 Filed 04/21/17 Page 8 of 23 - 9 - ARGUMENT Plaintiff’s 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 Plaintiff’s legal conclusions about the meaning and effect of her 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 allege to plausibly 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-00638-ODE-LTW Document 9 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. Plaintiff Does 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 debtor’s 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-00638-ODE-LTW Document 9 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, Plaintiff alleges that her mortgage account was not discharged (see Compl. at ¶ 50), and that Experian’s reporting was inaccurate because she was continuing to make payments on the Wells Fargo loan. (See id. at ¶ 80.) Taken together, these allegations amount to a claim that Experian’s reporting (both before and after Plaintiff’s dispute) was inaccurate because the loan was not discharged in her bankruptcy. The Wells Fargo account, according to Plaintiff, should not be reporting a $0 balance, and should be reporting the payments Plaintiff has made on the loan after her 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-00638-ODE-LTW Document 9 Filed 04/21/17 Page 11 of 23 - 12 - There is, however, a fundamental problem in Plaintiff’s efforts to anchor liability to this reporting: determining whether she is correct is not a factual matter, but requires interpretation and application of legal principles that are less than clear. Plaintiff is not claiming, for instance, that Experian is reporting her account as past-due on her mortgage payments, when in fact she had made timely payments, or even that a court has declared her Wells Fargo mortgage non- dischargeable. If she were, it is conceivable that simply reviewing a cancelled check or a court docket would resolve her dispute. Instead, there is no court order or other document that lays out the scope of Plaintiff’s discharge and its specific effect 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: Marie Therese Jeudy-Elissaint aka Marie T. Jeudy Elissaint,” and then listing broad categories of debts that may not be discharged. In re Jeudy-Elissiant, 1:11-bk-56021, Doc. 16 at 1–3 (Bankr. N.D. Ga. February 28, 2011). The Wells Fargo debt is specifically provided for in the Chapter 13 Plan, explaining how the debtor would pay Wells Fargo directly. Id., Doc. 2 at 5. Nor is there a provision in the Bankruptcy Code that prohibits discharging mortgage debts in a Chapter 13 bankruptcy. See 11 U.S.C. Case 1:17-cv-00638-ODE-LTW Document 9 Filed 04/21/17 Page 12 of 23 - 13 - § 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). Further, some bankruptcy courts construing 11 U.S.C. § 1328’s exception for long term debts treated under § 1322(b)(5) have held that long term debts provided for in the plan, which have no pre-petition arrearages, like Plaintiff’s debt to Wells Fargo, are not excepted from the bankruptcy discharge. See In re Rogers, 494 B.R. 664, 669 (Bankr. E.D.N.C. 2013) (explaining that a Chapter 13 bankruptcy discharge is broad in nature, and a debt is not excepted under 11 U.S.C. § 1322(b)(5) unless the plan provides for curing pre-petition arrearages). Indeed, Plaintiff’s own counsel has alleged in other cases that debts treated under § 1322(b)(5) have been discharged. See Brown v. Experian Info. Sols. Inc., et al., Case No. 1:17-cv-0800, Doc. 1 at ¶¶ 15, 47) (N.D. Ga. Mar. 5, 2017). All of the foregoing authorities suggest that, in contrast to Plaintiff’s contentions, the Wells Fargo debt was in fact discharged. Case 1:17-cv-00638-ODE-LTW Document 9 Filed 04/21/17 Page 13 of 23 - 14 - Plaintiff may be correct that the Wells Fargo debt falls into one of the general exclusions listed on her discharge order, but as things stand currently, this is an open legal question. Determining the exact meaning of Plaintiff’s discharge order is the purview of the Bankruptcy Court 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. Plaintiff’s claim is a dispute over the unspecified legal effects of her 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-00638-ODE-LTW Document 9 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 Plaintiff’s Wells Fargo account was or was not discharged. Mortgage debts can be discharged in a Chapter 13, see, e.g., In re Rodgers, 494 B.R. at 669; In re Curtis, 322 B.R. at 481, and Plaintiff’s plan plainly provides for the debt without curing any pre-petition arrearages, 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 Case 1:17-cv-00638-ODE-LTW Document 9 Filed 04/21/17 Page 15 of 23 - 16 - of complexity—which is inherent in Chapter 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 Plaintiff’s 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 Case 1:17-cv-00638-ODE-LTW Document 9 Filed 04/21/17 Page 16 of 23 - 17 - least a little legal training, to review every bankruptcy dismissal and classify it”); 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 Plaintiff’s 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, Plaintiff asks 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 Plaintiff’s claims against Experian must be dismissed. 2 The FCRA provides other remedies for Plaintiff. She 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 Plaintiff was determined to pursue a claim against Experian, she should first have 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-00638-ODE-LTW Document 9 Filed 04/21/17 Page 17 of 23 - 18 - II. PLAINTIFF’S INVOCATION OF INDUSTRY STANDARDS CANNOT SAVE HER COMPLAINT. Plaintiff’s 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 Compl. ¶¶ 24–32, 42–45.) Despite repeatedly invoking supposed violations of industry standards, at no point does Plaintiff explain which specific provisions of the CRRG or other industry standard was supposedly violated here.3 Notably, Plaintiff states 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 Plaintiff’s attempt 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 Plaintiff fully reviewed the 2015 version of the Credit Resource Reporting Guide she cites, she would have noted that no part of the Guide tells the user how to interpret and construe the Bankruptcy Court’s orders, and even tells the lender to consult with its legal department when the Chapter 13 plan is unclear. Case 1:17-cv-00638-ODE-LTW Document 9 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, though 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-00638-ODE-LTW Document 9 Filed 04/21/17 Page 19 of 23 - 20 - Here, Plaintiff does 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 Plaintiff’s allegations that the CDIA guidelines require monthly reporting (See Compl. at ¶ 35) and the allegations that Plaintiff was not being credited with payments made after her March 2016 discharge. (See, e.g., id. at ¶ 50.) But this misses the mark. First, this implied theory rests on the same legal determinations discussed above because it assumes that Plaintiff’s Wells Fargo account was not actually discharged, despite appearances to the contrary. 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, Plaintiff does not plausibly allege any link between any industry standard and any inaccurate data. At most, Plaintiff has pleaded that the CDIA requires furnishers to report data each month. Plaintiff has not pleaded that the CDIA requires furnishers to report any payments received on discharged debts, or somehow requires Experian to forcibly require a data furnisher to report such information. Accordingly, Plaintiff’s attempts to bolster her Complaint by peppering it with allusions to industry standards cannot save her claims against Experian, which should be dismissed. Case 1:17-cv-00638-ODE-LTW Document 9 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 Plaintiff’s 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-00638-ODE-LTW Document 9 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-00638-ODE-LTW Document 9 Filed 04/21/17 Page 22 of 23 - 23 - CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 21st 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-00638-ODE-LTW Document 9 Filed 04/21/17 Page 23 of 23