Experian's Arguments re Accuracy:Toler v. PHH,etal, WD Ark

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Experian's Arguments re Accuracy:Toler v. PHH,etal, WD Ark

Postby Administrator » Fri Nov 21, 2014 3:14 am

Experian's Arguments re Accurracy:Toler v. PHH,etal, WD Ark


D. Plaintiffs Failed to Show That the PHH Delinquency was Inaccurate2

FN 2 Other than injury and causation, Plaintiffs are required to show every element of a FCRA violation to recover under § 1681n. See Graham v. CSC Credit Servs., Inc., 306 F. Supp. 2d 873, 879 (0. Minn. 2004). Accordingly, Plaintiffs failure to show a required element of both § 1681e(b) and § 168li is fatal for all claims.

Case 6:12-cv-06032-RTD Document 262 Filed 11/20/14 Page 8 of 17 PageID #: 7171
For claims under § 1681e(b) and § 168li, Plaintiffs bear the burden to show that the
information they claim caused their injury was, in fact, inaccurate. See Paul v. Experian Info.
Solutions, Inc., 793 F. Supp. 2d 1098, 1101-02 (D. Minn. 2011). At trial, Plaintiffs presented
evidence which-taken as true for the purposes of this motion-suggests that the Talers: (a)
initially entered into a mortgage with PHH; (b) later agreed to a modified payment program with
PHH to make reduced payments; and (c) stopped making any payments in March 2011 following
statements made by PHH. This evidence fails to show that the reported delinquency was
"inaccurate" as a matter of law. See Jianqing Wu v. Trans Union, No. A W -03-1290, 2006 U.S.
Dist. LEXIS 96712 (D. Md. May 2, 2006), affd, 2007 U.S. App. LEXIS 4344 (4th Cir. 2007).
In Jianqing Wu, the Court was presented with a near-identical factual scenario, as the plaintiff
challenged Equifax's reporting of several delinquencies following the plaintiff's entrance into
various payment assistance programs for his prior loans. See id. at *3-6. In granting judgment
as a matter of law for Equifax, the court noted:
Whether or not First USA considered entrance into the Assist Program an agreement not to report Plaintiffs late payments, Plaintiff cannot escape the fact that he paid his account late on more than one occasion and did not pay the "original" amount due. Because it remains undisputed that Plaintiff actually made these payments late, the First USA entries on the Equifax reports were not "inaccurate" within the meaning of § 1681e(b).
Likewise, Plaintiff cannot recover under § 1681 e(b) for the late entries for his Universal Bank account. In his cross-motion for summary judgment, Plaintiff avers that because of a dispute over the interest rate on convenience checks for his Universal Bank account, "Plaintiff suspended payment starting for the September 28, 2000 billing statement." As noted above, Plaintiffs admission that he did not pay his account prevents a finding that these trade lines in the Equifax report were "inaccurate. "
Id. at * 13-14. Here, Plaintiffs failed to show-and do not claim-that they paid the original
amount due under the PHH mortgage at any time they claim Experian reported a delinquency.
Moreover, Plaintiffs admit that, like the plaintiff in Jianqing Wu, they suspended all payments on

Case 6:12-cv-06032-RTD Document 262 Filed 11/20/14 Page 9 of 17 PageID #: 7172
the loan as of March 2011, preventing a finding of inaccuracy for subsequent reports of
delinquency as a matter of law. Because Plaintiffs failed to show that the reported PHH
delinquency was "inaccurate" within the meaning of the FCRA, Experian is entitled to judgment
as a matter oflaw on Plaintiffs' § 168le(b) and § 1681i claims for this independent reason. 3

FN 3 - To be sure, Plaintiffs also asserted inaccuracies in various details beyond the reporting of the delinquency itself (e.g., term, payment amount, etc.). These minor alleged inaccuracies do not give rise to liability under the FCRA as a matter of law, as they do not satisfy the essential element that the inaccuracy be a proximate cause of the injury suffered. See, e.g., Lee v. Experian Info. Solutions, No. 02-C-8424, 2003 U.S. Dist. LEXIS 17420, at *8, 13­ 14 (N.D. Ill. Oct 2, 2003) (ignoring minor inaccuracies and focusing on whether there was a "material inaccuracy (that is, a continued mistaken inclusion of the [] account in [plaintiffs] credit report).") (emphasis in original); Toliver v. Experian Info. Solutions, Inc., 973 F. Supp. 2d 707,722 (S.D. Tex. 2013) (discounting inaccuracies that plaintiff did not show caused any drop in credit or adverse credit action).
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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