Covington v. Equifax Info. Servs.

• Decision Date: 20 April 2020
• Docket Number: Civil Action No. 2:18-15640 (KM) (MAH)
• Parties: KELLAR COVINGTON, JR. Plaintiff, v. EQUIFAX INFORMATION SERVICES, INC., Defendant.
• Court: U.S. District Court — District of New Jersey

KELLAR COVINGTON, JR. Plaintiff, v. EQUIFAX INFORMATION SERVICES, INC., Defendant.

Civil Action No. 2:18-15640 (KM) (MAH)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

April 20, 2020

OPINION

I. INTRODUCTION

This matter comes before the Court by way of pro se Plaintiff Kellar Covington, Jr.'s Amended Complaint, which the Court has construed as a Motion to Amend the Complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure. See Am. Compl., Sept. 26, 2019, D.E.18; Order, Oct. 7, 2019, D.E. 19. Defendant Equifax Information Services LLC ("Equifax") opposes Plaintiff's submission on the basis of futility. See Def.'s Opp. Br. at 1, Oct. 10, 2019, D.E. 20. For the reasons that follow, the Court denies Plaintiff leave to file the Amended Complaint.

II. BACKGROUND

Plaintiff instituted this civil action against Equifax to obtain damages and injunctive relief under the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681 to 1681x, in connection with alleged inaccuracies in Equifax's reporting of a bankruptcy and Chase Auto, Toyota, Macy's, and OneMain tradelines that appear on his credit report. See Compl., ¶¶ 1, 5-7, 10, Nov. 2, 2018, D.E. 1. Plaintiff contended that Equifax prepared "a patently false consumer report" because the referenced tradelines had been sold and were unverified. Id. ¶¶ 10-11. Plaintiff alleged that Equifax "willfully and/or negligently failed to follow reasonable procedures to assure maximum possible accuracy of the consumer reports it prepared and/or published pertaining to Plaintiff, in violation of [15 U.S.C. § 1681e(b)]." Id. ¶ 12. He further asserted that Equifax's "willful and/or negligent refusal to follow reasonable procedures to assure 'maximum possible accuracy' as specifically mandated by the FCRA" prevented him from obtaining credit, caused him reputational harm and emotional distress, and caused him to incur unspecified out-of-pocket expenses. Id. ¶¶ 14-15.

Plaintiff attached several exhibits to the Complaint to buttress his allegations. Plaintiff first included a handwritten letter to Equifax dated July 9, 2018, that in turn enclosed correspondence to and from the Federal Trade Commission ("FTC"), dated June 21, 2018 and July 6, 2018, respectively. See id., Ex. A, D.E. 1 at 9-13.¹ Plaintiff stated to Equifax that the FTC communications concern "incomplete and missing information on an item on [his] credit report." Id., D.E. 1 at 9. None of the communications specify what information was incomplete, however. Plaintiff wrote to the FTC that he "disputed an incomplete item that was being reported on [his] credit report by Equifax," and that Equifax had failed to delete the notation. Id., D.E. 1 at 11. In the FTC's response, it simply referred Plaintiff to the Consumer Financial Protection Bureau. Id., D.E. 1 at 10.

Plaintiff next attached a letter mailed to Equifax on October 5, 2018 that concerned the Toyota tradeline. Id., D.E. 1 at 14 ("October 5, 2018, Equifax Letter"). Plaintiff therein requested that Equifax delete the accounts stated on his credit report because they contained inaccurate information concerning the source of the financing. Id. Plaintiff stated that he contacted both Toyota Motor Credit Corp. and Lexis Financial Services for verification, and it appears that Plaintiff sent copies of the letter to Equifax. See id., D.E. 1 at 15-19. In a letter to Toyota MotorCredit Corp. and Lexus of Bridgewater dated August 11, 2018, Plaintiff disputed the repossession of a vehicle financed by Toyota, and stated that "continued reporting of this invalid claim on [his] credit reports will be considered a violation of the FDCPA and FCRA." Id., D.E. 1 at 15 ("August 11, 2018, Toyota Letter"). The Complaint did not contain any factual allegations or exhibits concerning the Chase Auto, Macy's, or OneMain tradelines.

The next set of documents attached to the Complaint concerned Plaintiff's bankruptcy. See Compl., Ex. B., D.E. 1 at 21-26. In September 2018, Plaintiff contacted the Clerk of the United States Bankruptcy Court for the District of New Jersey to inquire whether the Clerk responded to requests for information from credit bureaus. See id., D.E. 1 at 24, 26. On Plaintiff's letter dated September 6, 2018, there is an undated and unsigned handwritten notation stating that the "Court does not provide any information to credit agencies. All bankruptcies are public information." Id., D.E. 1 at 26.

The final relevant document attached to the Complaint was an incomplete letter from Equifax dated June 3, 2018.² See Compl., Ex. C., D.E. 1 at 30-31 ("Equifax Dispute Letter"). The letter appears to be responsive to an unspecified dispute raised by Plaintiff. Equifax wrote:

If we were able to make changes to your credit report based on the information you provided, we have done so. Otherwise, we contacted the company reporting the information to Equifax for them to investigate your dispute.

In this situation:

• We request that the reporting company verify the accuracy of the information you disputed;

• We provide them with any relevant information and supporting documentation you provided us with the dispute to consider as part of the investigation; and

• We request that they send Equifax a response to your dispute and update their records and systems, as necessary.

If your dispute involves a public record item, Equifax contacts a third party vendor to obtain the most recent status of the public record.

Id.at 30. The letter also includes information regarding the "dispute results." Id. at 31. Equifax informed Plaintiff that "[t]he information you disputed has been verified as accurate, however, information unrelated to your dispute has been updated." Id. The final portion of the document included a table of information pertaining to Equifax's reinvestigation of Plaintiff's bankruptcy. See id. It states that Equifax obtained information about Plaintiff's bankruptcy through LexisNexis's search of public records. Id. Equifax then stated that it "reviewed the bankruptcy information," which was reported as discharged. Id. On this document, Plaintiff circled labeled "Date Verified," which had been left blank. See id.

Equifax moved to dismiss the complaint in lieu of filing an answer. See generally Def.'s Mot. to Dismiss, Nov. 29, 2018, D.E. 6. The thrust of Equifax's motion was that Plaintiff's Complaint implicated 15 U.S.C. § 1681i(a)—not 15 U.S.C. § 1681e(b) as alleged by Plaintiff—and that the Complaint failed to state a claim upon which relief may be granted because Plaintiff failed to plead a cognizable inaccuracy within the meaning of the FCRA. See id. at 5-8, 10. With respect to the Toyota tradeline in particular, Equifax averred that Plaintiff's claims relating thereto are barred by a prior release. Id. at 8-9.

The District Court granted Equifax's motion. See Order, Sept. 9, 2019, D.E. 17. The Honorable Kevin McNulty, U.S.D.J., dismissed Plaintiff's claims related to the Toyota tradeline with prejudice on the basis that those claims were subject to claim preclusion. See id.; Op. at 9-10, Sept. 9, 2019, D.E. 16. Judge McNulty noted that the parties previously settled an action brought against Equifax wherein Plaintiff attested to the accuracy of some of the instant disputed allegations. See Op. at 1, 10 (citing Covington v. Equifax Info. Servs., Inc., No. 16-8002). JudgeMcNulty emphasized that Plaintiff "agreed to release all claims against Equifax and acknowledged the accuracy of his credit report as of September 19, 2017," which included information about the disputed Toyota tradeline. Id. at 1.

With respect to the claims arising from the reporting of the Chase Auto, Macy's and OneMain tradelines, Judge McNulty held that Plaintiff failed to allege facts showing that the information reported about him was inaccurate or was otherwise actionable under 15 U.S.C. § 1681e(b) or 15 U.S.C. § 1681i. Id. at 9. His Honor explained that

the complaint fails to make any factual allegations beyond an assertion that certain tradelines remain on Covington's credit report. Covington fails to state factually how, why, or in what manner the information about these tradelines is inaccurate. Covington's complaint suggests, and he argues in his opposition brief, that the accounts associated with the Chase Auto, Macy's, and OneMain Financial tradelines on his credit report may have been sold. But there is nothing improper under the FCRA by continuing to accurately list closed accounts so long as Equifax complies with § 168lc(a)(4). Covington does not claim that Equifax failed to comply with § 168lc(a)(4).

Covington has therefore not alleged facts showing that the information reported about him concerning these tradelines is inaccurate or creates a materially misleading impression.

Covington separately suggests that "the 'furnisher' was unable to verify the accounts or the 'furnisher' thereby had misrepresented to Equifax the status of the accounts in violation of Section 168 le(b)." But there are no factual allegations that Covington notified Equifax of a dispute concerning the Chase Auto, Macy's, and OneMain Financial tradelines. Nor are there any factual allegations to support a reasonable inference that Equifax failed to investigate and modify the allegedly inaccurate information.

Op. at 8-9 (internal quotation marks and citations omitted). Finally, Judge McNulty held that Plaintiff failed to state a claim under the FCRA in connection with his allegation that Equifax failed to verify the status of his bankruptcy. Id. at 10-11. His Honor found that Plaintiff did not allege any facts that suggest that Equifax failed to follow reasonable procedures to assure theaccuracy of that information. Id. at 11. Judge McNulty dismissed these latter claims "without prejudice to the submission . . . of a properly supported motion to amend the complaint." Order, D.E. 17.

Rather than proceeding with a motion that complies with Local Civil Rules 7.1, 7.2, and 15.1, Plaintiff simply filed a nine-count Amended...