Santos v. Experian Info. Sols.

• Decision Date: 03 September 2021
• Docket Number: 21-cv-117 (ECT/ECW)
• Parties: Charito Santos, Plaintiff, v. Experian Information Solutions, Inc., Defendant.
• Court: U.S. District Court — District of Minnesota

Charito Santos, Plaintiff, v. Experian Information Solutions, Inc., Defendant.

No. 21-cv-117 (ECT/ECW)

United States District Court, D. Minnesota

September 3, 2021

Kimberly S. Moen Zillig and Andrew C. Walker, Walker &amp Walker PLLC, Minneapolis, MN, for Plaintiff Charito Santos.

Adam W. Wiers, Jones Day, Chicago, IL; Melissa Saldana, Jones Day Dallas, TX; and Gregory J. Meyers, Lockridge Grindal Nauen PLLP, Minneapolis, MN, for Defendant Experian Information Solutions, Inc.

OPINION AND ORDER

ERIC C. TOSTRUD UNITED STATES DISTRICT COURT

Plaintiff Charito Santos, M.D. alleges that Defendant Experian Information Solutions, Inc. violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., when it issued an updated credit report that left out some information regarding a mortgage on her home. Experian seeks dismissal of Dr. Santos's Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). Experian's motion will be granted because Santos does not allege facts plausibly showing that the at-issue credit report is “inaccurate” in the relevant sense, an essential element of each of her FCRA claims.

I^[1]

Dr Santos and her spouse, Lester Santos, “hold a joint mortgage with NewRez LLC[.]” Am. Compl. ¶ 10 [ECF No. 15]. Dr. Santos “has remained current on her payments to her mortgage lender[.]” Id. ¶ 15. Though Lester “filed a petition for Chapter 13 bankruptcy relief on June 17, 2020[, ]”see In re Santos, No. 20-41616 (Bankr. D. Minn.), Dr. Santos was not a party to the bankruptcy proceeding, and the NewRez mortgage “was not included or discharged in” Lester's bankruptcy, Am. Compl. ¶¶ 11, 14, 16.

Dr Santos obtained a copy of her consumer credit report from Experian dated November 7, 2020. Id., Ex. A [ECF No. 15-1]. This report included a tradeline for the NewRez mortgage. Id. ¶ 17. In a section entitled “Account Info, ” the report listed the date the account was opened (October 17, 2014), the original balance of the mortgage ($380, 000), the amount of the scheduled monthly payment ($2, 570), and the length of the mortgage term (30 years) and identified the mortgage's “Status” as “Open/Never late.” Id., Ex. A at 2. In this same “Account Info” section, dashes appeared next to categories titled “Balance, ” “Balance Updated, ” and “Recent Payment.” Id. In a section entitled “Payment History, ” a symbol signifying the mortgage was “[c]urrent on payments” appeared for the months of January, February, April, May, and June 2020. Id. A “[n]o data for this time period” (or “ND”) symbol appeared for March 2020, and only dashes appeared for each month from July through December 2020. Id. Finally, in a section of the credit report entitled “Balance Histories, ” balance, scheduled payments, and amounts paid were shown for each month beginning July 2019 through May 2020. Id. at 2-3.

In correspondence dated November 9, 2020, Dr. Santos's counsel wrote to Experian disputing the accuracy and completeness of the November 7 credit report. Id., Ex. B [ECF No. 15-2]. In the letter, Dr. Santos's counsel asserted that “[Dr.] Santos has been current on her payments, up to the present.” Id. at 1. To support this assertion, Dr. Santos's counsel attached a mortgage statement from NewRez dated October 14, 2020. Id. at 3-4. Dr. Santos's counsel then asserted that the credit report “falsely state[d] that the mortgage loan was ‘closed,' and that the loan ha[d] a $0 balance[.] Id. at 1.^[2] “In fact, ” Dr. Santos's counsel wrote, “[Dr.] Santos is current on payments, the mortgage is open, and the loan has a current balance of $338, 606.12.” Id. Dr. Santos's counsel suggested that the report's “error[s]” were “the result of her husband filing bankruptcy.” Id. And he asked that the report be corrected “immediately” to show that the mortgage was “current with an outstanding balance.” Id.

In response to this request, Experian provided Dr. Santos with an updated credit report dated December 8, 2020. Am. Compl., Ex. C at 1, 2 [ECF No. 15-3]. This report purported to show Dr. Santos's mortgage tradeline “[b]efore dispute” and “[a]fter dispute.” Id. at 1-2.^[3] The “[a]fter dispute” or updated section of the report, like the November 7 report, showed the status of the mortgage account as “Open/Never late[.]” Id. at 2. The account history listed payments and balances for July 2019 through May 2020, but the “Recent balance” and “High balance” were “Not reported.” Id. For June 2020 through October 2020, the payment history on the account had been changed to show “ND, ” or “No data for this time period[.]” Id. Experian noted that “[i]f an item [Dr. Santos] disputed [wa]s not in the list of results [], it was either not appearing in [her] credit file or it already reflected the requested status at the time of [its] reinvestigation.” Id. Experian explained:

If we were able to make changes to your credit report based on information you provided, or if you requested the addition of a statement, we have done so. Otherwise, we have contacted the company reporting the information you disputed, supplied them all relevant information and any documents you gave us with your dispute, and instructed them to: review all information we provide them about your dispute; verify the accuracy of the information; provide us a response to your dispute; and update their records and systems as necessary.

Id.

Dr. Santos brought this action originally in Minnesota District Court, Ramsey County, via a Complaint dated December 29, 2020. Summons & Compl. [ECF No. 1-1]. Experian removed the case here on January 15, 2021, Notice of Removal [ECF No. 1], and then filed a motion to dismiss the original Complaint, Mot. to Dismiss [ECF No. 10]. Dr. Santos responded to Experian's first motion by filing the now-operative Amended Complaint. In her Amended Complaint, Dr. Santos asserts three FCRA claims, all concerning the content of the updated December 8, 2020 credit report. Dr. Santos alleges that Experian “willfully or negligently fail[ed] to reasonably reinvestigate [her] dispute[]” in violation of 15 U.S.C. § 1681i(a)(1)(A). Am. Compl. ¶¶ 24-35 (Count I). Dr. Santos next alleges that Experian “willfully or negligently fail[ed] to follow reasonable procedures to assure maximum possible accuracy of the information concerning [her]” in violation of 15 U.S.C. § 1681e(b). Am. Compl. ¶¶ 36-48 (Count II). Finally, Dr. Santos alleges that Experian “willfully or negligently fail[ed] to modify inaccurate or incomplete information concerning [her]” in violation of 15 U.S.C. § 1681i(a)(5)(A). Am. Compl. ¶¶ 49-59 (Count III). To support each of these claims, Dr. Santos alleges the same factual predicate: that the December 8, 2020 credit report was inaccurate or incomplete because it contained “information that the disputed account had no balance, and had no payments made on it since June, 2020.” Id. ¶ 26; see also Id. ¶¶ 38, 51.

II

In reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court must accept as true all of the factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Gorog, 760 F.3d at 792 (citation omitted). Although the factual allegations need not be detailed, they must be sufficient to “raise a right to relief above the speculative level[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). The complaint must “state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The FCRA imposes procedural and substantive requirements meant to “ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” Poehl v. Countrywide Home Loans, Inc., 528 F.3d 1093, 1096 (8th Cir. 2008) (quoting Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007)). Relevant here, a “consumer reporting agency” like Experian must “follow reasonable procedures to assure maximum possible accuracy of the information” in a consumer's credit report. 15 U.S.C. § 1681e(b). “[I]f the completeness or accuracy of any item of information contained in a consumer's file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly . . . of such dispute, the agency shall, free of charge, conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information, or delete the item from the file . . ., before the end of the 30-day period beginning on the date on which the agency receives the notice of the dispute from the consumer[.]” Id. § 1681i(a)(1)(A). “If, after any reinvestigation . . . of any information disputed by a consumer, an item of the information is found to be inaccurate or incomplete or cannot be verified, ” the consumer reporting agency must:

(i) promptly delete that item of information from the file of the consumer, or modify that item of information, as appropriate, based on the results of the reinvestigation; and

(ii) promptly notify the furnisher of that information that the information has been modified or deleted from the file of the consumer.

Id. § 1681i(a)(5)(A).

Dr Santos alleges that Experian violated each of these provisions: §§ 1681e(b), 1681i(a)(1)(A), and 1681i(a)(5)(A). To maintain a claim under § 1681e(b), Dr. Santos must allege facts plausibly showing that Experian “(1) reported inaccurate credit information about [her] and (2) failed to follow reasonable procedures to assure the accuracy of [her] credit report.” Krosch v. Equifax Info. Servs., LLC, No. 19-cv-2784 (NEB/KMM), ...