Jones-Bentley 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 RHONDA JONES-BENTLEY, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, INC. AND METLIFE HOME LOANS, LLC, Defendants. ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION FILE NO. 1:17-CV-00892-MHC-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 Rhonda Jones-Bentley (“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. 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. Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 1 of 24 - 2 - 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-00892-MHC-LTW Document 5 Filed 04/21/17 Page 2 of 24 - 3 - IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION RHONDA JONES-BENTLEY, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, INC. AND METLIFE HOME LOANS, LLC, Defendants. ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION FILE NO. 1:17-CV-00892-MHC-LTW MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS THE COMPLAINT Plaintiff’s Complaint is fatally flawed. Though 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 courts across the country, which have repeatedly held that the FCRA does not Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 3 of 24 - 4 - 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). 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 allows consumers to dispute information directly with their creditors (sometimes called “data furnishers”) as well as to place statements in a credit file indicating Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 4 of 24 - 5 - 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 is a resident of Cobb County, Georgia, and is a consumer as defined by the FCRA. (See Compl. ¶¶ 1–2.) Defendant Experian is a “consumer reporting agency” under the FCRA. (Id. at ¶¶ 3–4.) Experian collects consumer credit information from various sources, organizes and stores the information, and then makes it available to authorized third parties, like lenders. (Id.) B. Plaintiff’s Chapter 13 Bankruptcy. Plaintiff purchased a property in Austell, Georgia, on or about August 9, 2010, and obtained a mortgage loan with Buckhead Mortgage Associates, Inc. (See id. at ¶¶ 10–11.) The loan transferred to MetLife Home Loans, LLC (“MetLife”) on or about August 23, 2010. (See id. at ¶ 12.) Plaintiff later filed a voluntary petition for bankruptcy on October 6, 2011, listing her loan with MetLife on Schedule D to her petition. (See id. at ¶¶ 13–14; In re Jones-Bentley, 1:11-bk- 79169, Doc. 1 at 11 (Bankr. N.D. Ga. Oct. 6, 2011).) Plaintiff’s Chapter 13 plan proposed that she would “make all post-petition payments directly to each mortgage creditor as those payments ordinarily come due” and indicated that there Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 5 of 24 - 6 - was no pre-petition arrearage for Plaintiff to cure on her MetLife debt. (See Compl. at ¶ 15; In re Jones-Bentley , Doc. 2 at 4 (Bankr. N.D. Ga. Oct. 6, 2011).) Plaintiff’s plan was confirmed on January 19, 2012. (See Compl. at ¶ 17; In re Jones-Bentley, Doc. 33 (Bankr. N.D. Ga. Jan. 19, 2012).) Plaintiff filed a Transfer of Claim for the mortgage loan from MetLife to JPMorgan Chase Bank, N.A. on March 20, 2013. (See Compl. at ¶ 20; Doc. 53 (Bankr. N.D. Ga. Mar. 20, 2013).) A discharge order was later entered on November 20, 2015. (See Compl. at ¶ 23; Doc. 85 (Bankr. N.D. Ga. Nov. 20, 2015).) The order does not identify which debts are, or are not, discharged. (See id.) Instead, the order states, “[T]he debtor(s) is discharged from all debts provided for by the plan or disallowed under 11 U.S.C. Section 502” and then provides several categories of debts that are not discharged. (Doc. 85 (Bankr. N.D. Ga. Nov. 20, 2015).) C. Experian’s Credit Reporting and Plaintiff’s Disputes. On or about April 2, 2016, after the discharge of Plaintiff’s bankruptcy, Plaintiff obtained her Experian credit report, which showed the MetLife account as discharged with a recent balance of $0. (See Compl. at ¶¶ 45–48). This was allegedly inaccurate because “Plaintiff continues to make payments directly to MetLife . . . .” (Id. at ¶ 49.) Three months later, on July 18, 2016, Plaintiff sent Experian a dispute letter. (Id. at ¶ 51.) Experian then contacted MetLife through Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 6 of 24 - 7 - e-Oscar to reinvestigate. (Id. at ¶ 53.) Following the dispute, Experian continued to report Plaintiff’s MetLife account as having a $0 recent balance and a discharged status. (Id. at ¶¶ 55–56.) III. PROCEDURAL HISTORY AND LEGAL CLAIMS. Plaintiff filed her Complaint on March 11, 2017. (See Doc. 1.) The Complaint alleges that Experian violated 15 U.S.C. § 1681e(b) (reasonable procedures) and 15 U.S.C. § 1681i (reasonable reinvestigation). (See Compl. ¶¶ 69–88.) Plaintiff specifically bases her claims against Experian on the failure to include Plaintiff’s continued mortgage payments made directly to MetLife. (See id. at ¶ 49.) Plaintiff alleges that these violations were both negligent and willful. (See id. at ¶¶ 84–85.) 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 Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 7 of 24 - 8 - 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, “[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, a 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., Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 8 of 24 - 9 - 177 F. App’x 52, 53 (11th Cir. 2006) (citations omitted). 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 have repeatedly 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. Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 9 of 24 - 10 - Motors Acceptance Corp., 936 F.2d 1151, 1156–60 (11th Cir. 1991) (“In 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 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 Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 10 of 24 - 11 - consumer is no longer personally liable on the debt. See Federal Trade 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, and that Experian’s reporting was inaccurate because she was continuing to make payments on the MetLife loan. (See Compl. at ¶ 49.) Taken together, these allegations amount to a claim that Experian’s reporting (both before and after Plaintiff’s disputes) was inaccurate because the loan was not discharged in Plaintiff’s bankruptcy. The MetLife account, per Plaintiff, should not be reporting 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-00892-MHC-LTW Document 5 Filed 04/21/17 Page 11 of 24 - 12 - a $0 balance, and should be reporting the payments Plaintiff has made on the loan after her bankruptcy petition was filed. 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 as past- due on her mortgage payments, when in fact she had made timely payments, or even that a court has declared her MetLife 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 impact on the MetLife debt or otherwise states that the MetLife debt is not discharged. Instead, the discharge order does not specify which debts are actually discharged, stating “the debtor(s) is discharged from all debts provided for by the plan,” and then listing broad categories of debts that are not to be discharged. See In re Jones-Bentley, 11-bk-79169, Doc 45, (Bankr. N.D. Ga. Nov. 13, 2015). The MetLife debt is specifically provided for in the plan, explaining how Plaintiff would pay MetLife directly and indicating that there was no pre-petition arrearage to cure. See id. Doc. 2, at 4. Nor is there a Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 12 of 24 - 13 - 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). Further, some bankruptcy courts construing 11 U.S.C. § 1328’s exception for long term debts treated under § 1322(b)(5) which Plaintiff seems to rely on (see Compl. ¶ 19), have held that long term debts provided for in a Chapter 13 plan which have no pre-petition arrearages 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. Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 13 of 24 - 14 - 5, 2017). All of the above authorities suggest that, in contrast to Plaintiff’s contentions, the MetLife debt was in fact discharged. Plaintiff may be correct that the MetLife debt falls into one of the general exclusions listed on her discharge order, but as things stand currently, this is an open legal question. And of course, determining the exact meaning of Plaintiff’s 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. Plaintiff’s claim is a dispute over the unspecified legal effects of her Chapter 13 bankruptcy proceedings as applied to the MetLife 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 Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 14 of 24 - 15 - uncovered by a reasonable reinvestigation, but rather a legal issue that a credit agency . . . is neither qualified nor obligated to resolve under the FCRA”); 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 MetLife 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 Plaintiff’s plan plainly provides for the debt, suggesting that by the discharge Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 15 of 24 - 16 - order’s own terms, that claim was in fact discharged. The order discharged Plaintiff from all debts provided for by the confirmed plan which listed MetLife as a creditor, see Doc. 85 (Bankr. N.D. Ga. Nov. 20, 2015), and the parties did not modify the confirmed plan to remove MetLife. Therefore, the effect of the transfer of claim after confirmation of the plan but prior to the discharge order is a matter for judicial determination. Furthermore, as the order itself notes, there are some exceptions. Yet, it does not appear that Plaintiff’s plan falls into any exceptions to discharge, not even the exception for plans that provide for the curing of defaults and maintenance of payments because Plaintiff did not have a pre-petition arrearage to cure, even if she was maintaining payments. See 11 U.S.C. § 1328(a)(1); In re Jones-Bentley, 1:11-bk-79169, Doc. 2 at 4 (Bankr. N.D. Ga. Oct. 6, 2011). This sort 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 Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 16 of 24 - 17 - 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 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 2 The FCRA provides other remedies for Plaintiff. She can dispute the debt directly with MetLife, 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 Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 17 of 24 - 18 - 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 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. 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. ¶¶ 25–44, 50.) Despite repeatedly invoking supposed violations of industry standards, however, at no point does Plaintiff explain which specific 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 have first obtained a judicial determination that the MetLife 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-00892-MHC-LTW Document 5 Filed 04/21/17 Page 18 of 24 - 19 - provisions of the CRRG or other industry standards were supposedly violated here. 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 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, 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 Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 19 of 24 - 20 - 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”). 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 November 2015 discharge. (See, e.g., id. at ¶ 49–50.) But this misses the mark. First and foremost, this implied theory rests on the same legal determinations discussed above as it assumes that Plaintiff’s MetLife account was not actually discharged. If the account was discharged, then there is no obligation Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 20 of 24 - 21 - 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. 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. Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 21 of 24 - 22 - 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 Attorneys for Defendant Experian Information Solutions, Inc. Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 22 of 24 - 23 - 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 Attorneys for Experian Information Solutions, Inc. Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 23 of 24 - 24 - 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 Attorneys for Defendant Experian Information Solutions, Inc. Case 1:17-cv-00892-MHC-LTW Document 5 Filed 04/21/17 Page 24 of 24