United States District Court, N.D. Illinois
May 10, 2004.
THOMAS VLASIC, Plaintiff,
EQUIFAX CREDIT INFORMATION SERVICES, ABN AMRO, Defendants
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant ABN AMRO's ("AMRO")
motion for judgment on the pleadings and for Rule 11 sanctions. For the
reasons stated below we grant the motion for judgment on the pleadings
and deny the motion for sanctions.
Plaintiff Thomas Vlasic ("Vlasic") had a mortgage loan with a
subsidiary of AMRO. On April 24, 1999 Vlasic filed a chapter 7 bankruptcy
petition and in that petition he disclosed his ownership in property at
3242 Lake Park, Hobart Indiana which was encumbered by a mortgage. Vlasic
represented under oath in the petition that he intended to voluntarily surrender the property to his lenders.
The holder of a note secured by the mortgage lien on the property asked
the bankruptcy court to allow the holder to complete its foreclosure. The
court approved the request and the lien on the property was foreclosed
and sold to the holder of the note.
The basis for this action relates to the mortgage loan account that
Vlasic had with a subsidiary of AMRO. Vlasic claims that Defendants
inaccurately reported information to credit reporting agencies.
Specifically, Vlasic claims that Defendants erroneously reported a
foreclosure when the account was in bankruptcy proceedings. Vlasic
contends that the reported foreclosure was improper.
Vlasic's complaint contains three Counts. Count I is brought against
Defendant Equifax Credit Information Services, LLC ("Equifax") alleging a
violation of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681s-2,
Count II alleges a defamation claim against Equifax, and Count III
alleges a FCRA claim against AMRO. AMRO has moved for judgment on the
pleadings and for sanctions. Defendant Equifax has been granted leave to
join in the motion for the judgment on the pleadings.
A party is permitted under Federal Rule of Civil Procedure 12(c) to
move for judgment on the pleadings after the parties have filed the
complaint and the answer. Fed.R.Civ.P. 12(c); Northern Indiana Gun
& Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998). The courts apply the Rule 12(b)
motion to dismiss standard for Rule 12(c) motions and thus the court may
"grant a Rule 12(c) motion only if `it appears beyond doubt that the
plaintiff cannot prove any facts that would support his claim for
relief.'" Id. (quoting Craigs, Inc. v. General Elec. Capital Corp.,
12 F.3d 686, 688 (7th Cir. 1993)). The court, in ruling on a motion for
judgment on the pleadings, must "accept as true all well-pleaded facts,"
Forseth v. Village of Sussex, 199 F.3d 363, 364 (7th Cir. 2000), and
`"view the facts in the complaint in the light most favorable to the
nonmoving party.'" Northern Indiana Gun & Outdoor Shows, Inc., 163 F.3d
at 452(quoting GATX Leasing Corp. v. National Union Fire Ins. Co.,
64 F.3d 1112, 1114 (7th Cir. 1995)). The main difference between a Rule
12(b) motion and a Rule 12(c) motion is that a Rule 12(b) motion may be
filed before the answer to the complaint is filed, whereas, a Rule 12(c)
motion may be filed "after the pleadings are closed but within such time
as not to delay the trial. "Id.
A court may rule on a judgment on the pleadings under Rule 12(c) based
upon a review of the pleadings alone. Id. at 452. The pleadings include
the complaint, the answer, and any written instruments attached as
exhibits, such as affidavits, letters, contracts, and loan
documentation. Id. In ruling on a motion for judgment on the pleadings a
"district court may take into consideration documents incorporated by
reference to the pleadings . . . [and] may also take judicial notice of
matters of public record." U.S. v. Wood, 925 F.2d 1580, 1582 (7th Cir.
1991). If the court considers matters outside the pleadings, the court should convert the motion for
judgment on the pleadings into a motion for summary judgment. Northern
Indiana Gun & Outdoor Shows, Inc., 163 F.3d at 453 n.5.
I. Motion for Judgment on the Pleadings
Vlasic contends that Defendants improperly reported the foreclosure to
the credit reporting agencies because the property was in bankruptcy. The
FCRA requires furnisher of information:
who . . . regularly and in the ordinary course of
business furnishes information to one or more consumer
reporting agencies about the person's transactions or
experiences with any consumer . . . and . . . has
furnished to a consumer reporting agency information
that the person determines is not complete or
accurate, shall promptly notify the consumer reporting
agency of that determination and provide to the agency
any corrections to that information, or any additional
information, that is necessary to make the information
provided by the person to the agency complete and
accurate, and shall not thereafter furnish to the
agency any of the information that zremains not
complete or accurate,
15 U.S.C. § 1681s-2 (emphasis added). Defendants contend that they did
not provide any inaccurate information to credit agencies. The bankruptcy
petition filed by Vlasic on April 24, 1999 is a matter of public record
and thus can be considered for the instant motion for judgment on the
pleadings. Wood, 925 F.2d at 1582.
Vlasic first contends that he intended to voluntarily surrender the
property when he filed the bankruptcy petition and thus he cannot be held
accountable for the foreclosure since he had already surrendered the property in bankruptcy.
Vlasic represented under oath in the bankruptcy petition an intention to
voluntarily surrender the property. However, Defendants correctly point
out that Vlasic's intention to surrender the property did not transfer
title in the property. The holder of the note could not have sold the
property prior to the foreclosure and Vlasic was the legal owner of the
property at the time of the foreclosure.
Vlasic also argues that he was not a party in the foreclosure action.
Yet, Vlasic was personally named in the foreclosure action as the owner
of the property. Vlasic next argues that the foreclosure is an in rem
proceeding rather than an in personam proceeding and thus the foreclosure
cannot be reported on his personal report. Vlasic states that since the
judgment of foreclosure was anin rem proceeding "reporting that
foreclosure in Plaintiff's credit report creates the false impression
that the judgment of foreclosure was `in personam"' and thus the
reporting of the foreclosure was inappropriate. Vlasic provides a
dissertation in its answer to the instant motions regarding Vlasic's
views about how credit reporting of foreclosures should be dealt with and
what would be fair. Vlasic argues for instance that to allow foreclosures
to be reported in a certain manner would be "confusing" and "misleading."
However, the problem with Vlasic's arguments is that they are not
accompanied by any citations to supporting caselaw. Vlasic must do more
that offer his own opinion of what the law should be, particularly in an
area such as credit reporting where there is applicable law dealing with
the pertinent issues. Vlasic refers to cases in his legal standard and relating tangential issues, but
the majority of the few cases cited by Vlasic even on those tangential
issues are not controlling precedent.
Defendants correctly point out that if foreclosures were never allowed
to be reported on a person's credit report because a foreclosure action
is an in rent proceeding, no foreclosure could ever be reported on a
credit report because a piece of real estate does not have a "credit
report." Vlasic has not cited any legal authority that indicates that a
foreclosure cannot be reported on a credit report and Defendants have
provided legal support for the contrary assertion. See Sepulvado v. CSC
Credit Servs., Inc., 158 F.3d 890, 892 (5th Cir. 1998)(indicating that
under the FCRA a foreclosure could be reported on a credit report for
seven years). See e.g. Zahran v. Transunion Corp., 2003 WL 1733561, at *1
(N.D. Ill. 2003); Grant v. World Class Mortg. Corp., 1990 WL 19466, at *1
(N.D. Ill. 1990). There is nothing confusing about reporting the
foreclosure on Vlasic's credit report because of his direct connection to
the foreclosure. For instance, the judgment of foreclosure names Vlasic
as a party and forecloses the mortgage created in conjunction with his
mortgage loan account. Defendants also correctly point out that not every
person that files a bankruptcy also is a party in foreclosure and thus it
is appropriate to report both a bankruptcy and a foreclosure when
applicable. Therefore, we grant Defendants' motion for judgment on the
pleadings. II. Motion for Sanctions
AMRO argues that Vlasic's arguments are frivolous and that sanctions
are appropriate. AMRO takes issue particularly with Vlasic's unsupported
contentions that the foreclosure cannot be reported on a person's credit
report because it is anin rem proceeding. Although we find that Vlasic's
arguments are without merit, we do no find that they warrant sanctions.
III. Remaining Claims
The only remaining claim in light of the above rulings is the
defamation claim brought against Equifax in Count II. The jurisdictional
statement included in the complaint indicates that this court has federal
question jurisdiction. Since, the claims relating to the FCRA are no
longer viable, we dismiss the remaining claim as well. See Williams v.
Aztar Indiana Gaming Corp., 351 F.3d 294, 300 (7th Cir. 2003)(dismissing
remaining state claims); Wright v. Associated Ins. Companies Inc.,
29 F.3d 1244, 1251-52 (7th Cir. 1994)(stating that "[p]endent
jurisdiction is a doctrine of discretion . . . [and thus]. . . . [i]n the
usual case in which all federal claims are dismissed before trial, the
balance of these factors will point to declining to exercise jurisdiction
over any remaining pendent state-law claims . . . and the general rule is
that, when all federal claims are dismissed before trial, the district
court should relinquish jurisdiction over pendent state-law claims rather
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