United States District Court, N.D. California
ORDER GRANTING DEFENDANTS EXPERIAN AND EQUIFAX'S
MOTIONS TO DISMISS; AFFORDING PLAINTIFF LEAVE TO AMEND;
CONTINUING CASE MANAGEMENT CONFERENCE.
M. CHESNEY United States District Judge.
the Court are five motions to dismiss: (1) defendant Experian
Information Solutions, Inc.'s (“Experian”)
motion, filed November 15, 2016, in Case No. 16-5687; (2)
defendant Equifax, Inc.'s (“Equifax”) motion,
filed December 19, 2016, in Case No. 16-5687; (3) defendant
Wells Fargo Bank, National Association's (“Wells
Fargo”) motion, filed December 19, 2016, in Case No.
16-5693; (4) Equifax's motion, filed December 27, 2016,
in Case No. 16-5693; and (5) Equifax's motion, filed
December 27, 2016, in Case No. 16-6347. All five motions have
been fully briefed. Having considered the parties'
written submissions, the Court rules as
above-titled actions, brought, respectively, by plaintiffs
Rudolph Jugoz (“Jugoz”), Teresa Robles
(“Robles”), and Janet Perkins
(“Perkins”), each plaintiff has filed a complaint
alleging defendants failed to report his/her debts accurately
in light of a pending bankruptcy. In particular, each
plaintiff alleges the following:
filed for bankruptcy pursuant to Chapter 13 of the Bankruptcy
Code and his/her plan was confirmed. (See Jugoz
Compl. ¶¶ 93, 97; Robles Compl. ¶¶ 93,
97; Perkins Compl. ¶¶ 87, 94.) Thereafter,
plaintiff ordered a three bureau credit report and noticed
numerous tradelines therein contained “inaccurate,
misleading, or incomplete information that did not comport
with credit reporting industry standards.”
(See Jugoz Compl. ¶¶ 98-99; Robles Compl.
¶¶ 98-99; Perkins Compl. ¶¶ 105-106.)
“disputed the inaccurate tradelines via certified mail
with” credit reporting agencies (“CRAs”)
Experian, Equifax, and TransUnion, LLC, which dispute letter
plaintiff is “informed and believes” was sent to
the creditors in question. (See Jugoz Compl.
¶¶ 100, 102; Robles Compl. ¶¶ 100, 102;
Perkins Compl. ¶¶ 107, 109.) Thereafter, plaintiff
ordered another three bureau report and noticed “some
of the inaccuracies had not been updated.”
(See Jugoz Compl. ¶¶ 103-04; Robles
¶¶ 103-04; Perkins Compl. ¶ 110.) In
particular, defendants continued to report outstanding and
past due balances on plaintiff's debts, which reporting
did not reflect the terms of plaintiff's Chapter 13 plan,
and continued to fail to “comport with Metro 2
industry standards” by “not listing the correct
CII D indicator.” (See Jugoz Compl. ¶¶
105-06; Robles Compl. ¶¶ 106-09; Perkins Compl.
thereon, each plaintiff asserts two causes of action against
multiple defendants, comprising creditors of plaintiff
(hereinafter, “Creditor Defendants”) and two of
the three CRAs (hereinafter, “CRA Defendants”).
In each of the three cases, the first cause of action is
asserted against all defendants under the Fair Credit
Reporting Act (“FCRA”), and the second cause of
action is asserted against the Creditor Defendants under the
California Consumer Credit Reporting Agencies Act
Experian, Equifax, and Wells Fargo (hereinafter,
“Moving Defendants”), have, as noted, filed the
above-referenced five motions to dismiss; specifically,
Equifax seeks dismissal of all three plaintiffs'
complaints, Experian seeks dismissal of Jugoz's
complaint,  and Wells Fargo seeks dismissal of
under Rule 12(b)(6) of the Federal Rules of Civil Procedure
“can be based on the lack of a cognizable legal theory
or the absence of sufficient facts alleged under a cognizable
legal theory.” See Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Rule
8(a)(2), however, “requires only ‘a short and
plain statement of the claim showing that the pleader is
entitled to relief.'” See Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Fed.R.Civ.P. 8(a)(2)). Consequently, “a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations.” See id.
Nonetheless, “a plaintiff's obligation to provide
the grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” See
id. (internal quotation, citation, and alteration
analyzing a motion to dismiss, a district court must accept
as true all material allegations in the complaint, and
construe them in the light most favorable to the nonmoving
party. See NL Indus., Inc. v. Kaplan, 792 F.2d 896,
898 (9th Cir. 1986). “To survive a motion to dismiss, a
complaint must contain sufficient factual material, accepted
as true, to ‘state a claim to relief that is plausible
on its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
“Factual allegations must be enough to raise a right to
relief above the speculative level[.]”
Twombly, 550 U.S. at 555. Courts “are not
bound to accept as true a legal conclusion couched as a
factual allegation.” See Iqbal, 556 U.S. at
678 (internal quotation and citation omitted).
outset, the Court notes that over 170 complaints nearly
identical to the three complaints at issue herein have been
filed in the Northern District of California over the past
year by the same law firm. Consequently, a number of other
judges in this District have ruled on the issues raised by
Moving Defendants, and the Court has considered those
decisions in connection with the below
First Cause of Action - “Violation of Fair Credit
Reporting Act 15 U.S.C. § 1681s-2(b)”
First Cause of Action, plaintiffs allege that defendants
violated the FCRA by failing to investigate and remedy the
allegedly inaccurate reporting raised in plaintiffs'
dispute letters. In that regard, plaintiffs allege that the
Creditor Defendants, which include Wells Fargo, violated 15
U.S.C. § 1681s-2(b) by “failing to conduct a
reasonable investigation and re-reporting misleading and
inaccurate account information” and that the CRA
Defendants, namely, Experian and Equifax, violated 15 U.S.C.
§ 1681i-(a)1 by failing to “conduct a reasonable
investigation and fail[ing] to correct the misleading and/or
inaccurate statements on the account within the statutory
time frame or at all.” (See Jugoz Compl.
¶¶ 111, 120, 122; Robles Compl. ¶¶ 114,
123, 125; Perkins Compl. ¶ 118, 127, 129.)
Defendants seek dismissal of the First Cause of Action for
failure to plead either an inaccuracy or damages, and Wells
Fargo additionally argues that Robles' claims are barred
by judicial estoppel.
state a claim for violation of 15 U.S.C. § 1681i or
§ 1681s-2(b), a plaintiff must demonstrate ‘that
an actual inaccuracy exist[s].” Mensah v. Experian
Info. Sols., Inc., No. 16-cv-05689 WHO, 2017 WL 1246892,
at *5 (N.D. Cal. Apr. 5, 2017) (alteration in original)
(quoting Carvalho v. Equifax Info. Servs., LLC, 629
F.3d 876, 890 (9th Cir. 2010)). If a plaintiff is unable to
make a “prima facie showing of inaccurate reporting,
” his or her claim “fail[s] as a matter of
law.” See Carvalho, 629 F.3d at 890 (internal
quotation and citation omitted). An item on a credit report
is inaccurate under § 1681i or § 1681s-2(b) either
where “it is patently incorrect” or “it is
misleading in such a way and to such an extent that it can be
expected to adversely affect credit decisions.”
Id. (internal quotation and citation omitted)
(setting forth standard under § 1681s-2(b));
Mensah, 2017 WL 1246893, at *5 (applying standard to
instant cases, plaintiffs rely on two separate theories to
support their allegation that defendants' reporting is
inaccurate, both of which theories, Moving Defendants argue,
fail to plead a claim under the FCRA.
Chapter 13 Confirmation
allege, as noted above, that defendants' reporting was
incorrect or misleading because, after plaintiffs'
Chapter 13 plans were confirmed, defendants did not alter
their reporting to reflect the terms of the confirmed plans,
which plans, plaintiffs further allege, provided for a
reduced balance or no balance owed on certain debts. Moving
Defendants contend their continuing to report the full
outstanding balance of those debts and/or the delinquency of