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Trenton v. Experian Information Solutions, Inc.

United States District Court, D. New Mexico

July 10, 2019



         Defendant Trans Union, LLC (Trans Union) asks the Court to dismiss the ORIGINAL COMPLAINT (Doc. No. 1) (Complaint) filed by Plaintiff Joseph A. Trenton (Plaintiff) pro se.[1] Trans Union contends that Plaintiff failed to allege specific facts that establish Trans Union violated the Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq. (FCRA). On June 19, 2019, Plaintiff responded to the Motion and included additional facts and statutory references.[2] Because the Court construes pro se filings liberally, the Court concludes that the allegations in the Complaint, as supplemented by the Response, sufficiently state a claim against Trans Union for violation of the FCRA. However, the Response has highlighted the need for Plaintiff to file an Amended Complaint. Hence, the Court will grant the Motion in part without prejudice allowing Plaintiff leave to amend the Complaint.[3] However, the Court will dismiss Plaintiff's claim for injunctive relief with prejudice because the FCRA does not provide a private cause of action for injunctive relief.


         A. Motions to Dismiss

         Under Rule 12(b)(6) a court may dismiss a claim “for failure to state a claim upon which relief can be granted[.]” Fed.R.Civ.P. 12(b)(6). A court's function on a Rule 12(b)(6) motion is to assess whether the plaintiff's complaint “is legally sufficient to state a claim for which relief may be granted.” Brokers' Choice of America, Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135 (10th Cir. 2014) (citation omitted). In evaluating a Rule 12(b)(6) motion, the court must “accept as true all well-pleaded facts, as distinguished from conclusory allegations, and view the facts in the light most favorable to the nonmoving party.” Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998). However, the court is not required to accept legal conclusions without factual support. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To summarize, a complaint must contain sufficient factual allegations “to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true....” Twombly, 550 U.S. at 555.

         B. Construction of Pro se Complaints

         Courts generally construe a pro se litigant's pleadings liberally, and courts hold pro se litigants to a less stringent standard than lawyers. Campbell v. Jenkins, 07-2126-JAR-JPO, 2007 WL 3245395, at *1 (D. Kan. Oct. 29, 2007) (unpublished) (construing various pro se filings as a motion to alter or amend judgment under Rule 59) (citing Hall v. Belmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). Thus, if a pro se plaintiff's complaint can reasonably be read “to state a valid claim on which the plaintiff could prevail, [the court] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Id. (quoting Hall supra). The Court is mindful that it must not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues, ” nor should the Court “supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Id. (quoting Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997)).

         C. Fair Credit Reporting Act

         Congress enacted the FCRA to “require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information[.]” 15 U.S.C.A. § 1681. The term “consumer reporting agency” means any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties[.]” 15 U.S.C. § 1681a (f). Trans Union is considered a consumer reporting agency under this definition. Id. Under the FCRA, if a consumer reporting agency is notified “that information regarding a consumer [which] was furnished to the agency is disputed by the consumer, the agency must indicate that fact in each consumer report that includes the disputed information.” 15 U.S.C. § 1681c; 15 U.S.C. § 1681s-2(a)(3). Whenever a consumer reporting agency prepares a consumer report it must follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates. 15 U.S.C.A. § 1681e. To state a claim against a consumer reporting agency, the plaintiff must allege that (1) inaccurate information was included in his credit report; (2) the inaccuracy was due to the consumer reporting agency's failure to follow reasonable procedures to assure maximum possible accuracy; (3) the plaintiff suffered an injury; and (4) the injury was caused by the inclusion of the inaccurate information. Eller v. Trans Union, LLC, 739 F.3d 467, 472-73 (10th Cir. 2013).

         Section 1681o(a) allows a consumer to sue for actual damages for a negligent violation of the FCRA. See Id. at § 1681o(a). Under § 1681n(a), however, if the violation is willful, the consumer may recover statutory and punitive damages. See Id. A “willful” violation of the FCRA is either an intentional violation or a violation committed by an agency in reckless disregard of its duties under the FCRA. See Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57-58 (2007). A claimant may establish recklessness by proving that the consumer reporting agency engaged in action that involved “an unjustifiably high risk of harm that is either known or so obvious that it should be known.” Id. at 68. See generally, Birmingham v. Experian Info. Sols., Inc., 633 F.3d 1006, 1009 (10th Cir. 2011).[4]


         Plaintiff alleges that the information reported on Plaintiff's credit reports provided by Defendants Experian Information Solutions, Inc. (Experian), Equifax Information Services, LLC (Equifax), and Trans Union (together, Defendants) is “the foremost reason that Mr. Trenton was denied credit, vehicles, etc.” Plaintiff claims that he entered into a settlement agreement with the “three major bureaus” to correct his report. However, “[t]hese errors have returned.” (Compl. ¶ 1 at p. 6.) Plaintiff also alleges he was the “victim of the Equifax breach that compromised numerous individuals, since then Plaintiff has been seeing unknown attempts to get credit in his name. Plaintiff has informed the credit bureaus that this is occurring but there is [sic] only minor repairs made.” (Id. ¶ 2 at p. 6.) Plaintiff alleges that he “has reported these gross errors to Defendants Experian, Transunion [sic], and Equifax. Only Equifax has listened and deleted one of the false accounts however, they are still reporting one last false account. These Defendants are refusing to remove this information which is causing Plaintiff to be denied housing nor can he purchase a home. Plaintiff is not even able to buy a car.” (Id. ¶ 4 at p. 6.) Plaintiff claims that Defendants are “to the date of filing this action, reporting false information as well as inquiries on Plaintiffs [sic] account.” (Id. ¶ 6 at p. 7.) Finally, Plaintiff asserts that “the major credit bureaus are falsely reporting that the accounts meet FCRA requirements, even though there has been no evidence to support that the accounts belong to Plaintiff.” (Id. ¶ 8 at p. 7.) Plaintiff seeks “a reasonable and fair judgment against Defendants for willful noncompliance of the Fair Credit Reporting Act and seeks his statutory remedies as defined by but not limited to 15 U.S.C. Section 1681N[.]” (Id. at pp. 7-8) (emphasis in original).


         Trans Union argues that Plaintiff's Complaint is an impermissible “shotgun pleading.” (Mot. at 4.) Trans Union asserts that the Complaint contains only vague allegations related to inaccurate credit reports that make it “virtually impossible to determine what acts or omissions” Trans Union committed in violation of the FCRA (Id.) The Court disagrees. Plaintiff alleges facts that, construed liberally, fit within the elements necessary for an FCRA claim against Trans Union for inaccurate credit reporting. Plaintiff alleges that after agreeing to correct errors on his credit report in a settlement, Trans Union and other Defendants have continued to report erroneous information on Plaintiff's credit reports. This erroneous information has caused Plaintiff to be unable to receive credit for the purchase of a house and a vehicle. See Eller supra (listing elements required to state a cause of action against consumer reporting agency under the FCRA).

         Next, Trans Union asserts that Plaintiff has only cited sections of the FCRA that do not apply to Trans Union. Trans Union correctly contends that the particular sections cited in the Complaint apply to data furnishers and not to consumer reporting agencies. (Mot. at 5.) For example, Plaintiff specifically cites one section of the FCRA: “15 U.S.C. § 1681S-2.”[5] That section is entitled ‚ÄúResponsibilities of furnishers of information to consumer reporting agencies‚ÄĚ and prohibits furnishers of credit information from providing inaccurate credit information to consumer reporting agencies, such as Trans Union. Trans Union argues that Plaintiff's failure to ...

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