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Jackson v. Experian Information Solutions, Inc.

United States District Court, N.D. Illinois, Eastern Division

February 16, 2017

KENNETH JACKSON, Plaintiff,
v.
EXPERIAN INFORMATION SOLUTIONS, INC., Defendant.

          MEMORANUM OPINION AND ORDER

          MATTHEW F. KENNELLY, District Judge

         Kenneth Jackson brought suit against Experian Information Solutions, Inc., Ocwen Loan Servicing, LLC, and Residential Credit Solutions, Inc. (RCS), alleging violations of the Fair Credit Reporting Act (FCRA). After the Court denied RCS's motion to dismiss, Jackson v. Experian Information Solutions, Inc., No. 15 C 11140, 2016 WL 2910027 (N.D. Ill. May 19, 2016), Jackson settled his claims against Ocwen and RCS. His sole remaining claim is against Experian for its alleged violation of the FCRA provision that requires credit reporting agencies to reinvestigate the accuracy of information in a consumer's credit file upon receiving a consumer's dispute notice, 15 U.S.C. § 1681i(a).[1]

         The parties have filed cross-motions for summary judgment. Experian argues that it did not violate section 1681i(a) and that even if it did, no reasonable jury could find that it caused Jackson to suffer any actual damages. Jackson argues that Experian's continued inaccurate reporting of an account balance following his bankruptcy caused him actual emotional distress and that even if he did not suffer actual damages, he is entitled to statutory damages based on Experian's willful violation of the FCRA. For the reasons stated below, the Court grants Experian's motion and denies Jackson's motion.

         Background

         The Court provided factual background in its ruling on the motion to dismiss, with which the Court assumes familiarity. See Jackson, 2016 WL 2910027, at *1-*2. Thus the Court need only summarize the essential background facts here. In March 2013, Jackson filed for Chapter 13 bankruptcy because he could no longer afford the mortgage payments on the residential property he co-owned (the Greenview property) and had difficulty selling the property on the open market following the housing market crash. Though IndyMac Bank Home Loan Servicing and CitiMortgage were the original servicers of Jackson's mortgage loan, the servicing rights changed hands over time- OneWest Bank, FSB and Citibank became the servicers of the loan with IndyMac sometime prior to Jackson's bankruptcy, Ocwen Loan Servicing became the servicer of that loan in November 2013, and RCS became the servicer of the loan sometime around June 2015. Jackson filed his modified Chapter 13 plan in June 2013. The plan provided that Jackson would surrender the Greenview property to IndyMac and Citimortgage, the loan's servicers at the time, in full satisfaction of their claims. The bankruptcy court confirmed Jackson's modified Chapter 13 plan in June 2013, and the court discharged most of Jackson's debts when it entered a discharge order in December of that year. Jackson admits he knew at the time he filed for bankruptcy that doing so would adversely affect his credit score.

         Experian is a credit reporting agency whose business consists of compiling consumer credit information and providing that information to others. Experian communicates with creditors (also known as "data furnishers") through an industry-wide automated online system called "e-Oscar." The FCRA provides that if a consumer disputes the accuracy of information that a consumer reporting agency maintains in the consumer's credit file, the consumer may notify the agency of the dispute, and the agency must conduct a reasonable reinvestigation of the file. 15 U.S.C. § 1681i(a)(1)(A). Experian processes consumer disputes and updates inaccurate information using either an "internal" investigation and update process or an "external" investigation and update process. If Experian can resolve the dispute using the information produced by the consumer in its dispute letter or the information currently in the consumer's credit file, it will resolve the dispute "internally" and then send a Dispute Response Notification (DRN) to the data furnisher through e-Oscar to notify the furnisher of the changes Experian made. If Experian cannot resolve the dispute internally, it will send the data furnisher an Automated Consumer Dispute Verification (ACDV) form through e-Oscar. An ACDV form is designed to elicit a response from the data furnisher to verify whether the information the furnisher is reporting to Experian is accurate.

         Experian received a dispute letter from Jackson in early November 2015.[2] Along with his letter, Jackson submitted his bankruptcy discharge order, his confirmed bankruptcy plan, and schedules D, E, and F from his bankruptcy petition. In the letter, Jackson asked Experian to update the Ocwen, RCS, and OneWest accounts in his consumer file to "report a current balance and a monthly payment of '0'" and to reflect "an accurate payment history on the accounts that ha[d] been discharged in [his] bankruptcy case." Def.'s Ex. F, dkt. no. 89-6, at 2. At the time Experian received Jackson's dispute letter, Jackson's RCS account was already reporting as discharged in Chapter 13 bankruptcy, his Ocwen account was reporting as discharged in Chapter 7 bankruptcy, and his OneWest account was no longer reporting. Both the RCS and Ocwen accounts were already reporting a $0 balance and no monthly payment obligation. Experian processed Jackson's dispute internally, updating the date of discharge for his RCS account and confirming that it was properly reporting as discharged in Chapter 13 bankruptcy, and updating the Ocwen account to reflect that the account was discharged in Chapter 13 bankruptcy rather than in Chapter 7. After making the updates, Experian sent DRNs to Ocwen and RCS notifying them that it had updated the information it maintains for those accounts.

         On November 11, 2015, Experian formally responded to Jackson's dispute letter with an updated disclosure form displaying the information in his credit file. The form reflected that Jackson's Ocwen and RCS accounts had been discharged through Chapter 13 bankruptcy on December 26, 2013 and that both accounts were reporting a $0 balance with no monthly payment obligation.

         The form that Experian sent to Jackson also included a field labeled "Account History" for each account. The Account History field for Jackson's Ocwen accounts showed an account balance of $503, 474 and a scheduled monthly payment of from November 2013 through December 2014. The Account History field for the RCS account showed a variable account balance and a scheduled monthly payment of $3, 639 from June 2015 through August 2015. Experian created the Account History fields in Jackson's file by saving the balance and scheduled payments that Ocwen and RCS had reported in a given month. Experian includes that information in its consumer disclosures to inform consumers what information their creditors are reporting and because 15 U.S.C. § 1681g requires consumer reporting agencies to disclose to consumers all information it has in their files. Though Experian maintains the Account History information in a consumer's file, it does not include that information in credit reports it provides to creditors in connection with applications for new credit. And although Experian does use some of the Account History information to describe a consumer's balance trends in a product called "TrendView, " Experian maintains that nothing in Jackson's file indicates that any creditor made an inquiry associated with TrendView.

         Jackson has been denied credit twice since his December 2013 bankruptcy discharge. On December 11, 2015, he applied online for a Discovery Financial Services card and was denied immediately. Three days later, Bank of America denied Jackson's Visa credit card application because of his "current or past delinquency with one or more of [his] creditors" and because he had "delinquency and a public record or collection account(s) appearing on [his] credit file." Def.'s Ex. K, dkt. no. 89-11, at 2.

         In his complaint, Jackson alleges that Experian's actions caused him emotional distress. When asked how that distress has manifested itself, Jackson responded: "Well, I mean, sleeping being an issue, worry about finances, you know. I would say also-although I hate to admit this-irritability and agitation, short temper." Def.'s Ex. A, dkt. no. 89-1, at 128:12-17. Jackson also testified during his deposition that he has not suffered emotional distress related to Experian's reporting since the date that Experian responded to his dispute letter in November 2015. Id. at 130:14-20.

         Jackson contends that Experian violated the FCRA by continuing to report positive account balances and scheduled payments past the date of his bankruptcy discharge in the Account History sections of his file. Experian denies that its response to Jackson's consumer dispute violated the FCRA. And even if that response was inadequate, Experian argues, Jackson's claim fails because he has not produced evidence that it caused him to suffer any actual damages. The Court addresses the parties' arguments below.

         Discussion

         Summary judgment is appropriate where there are no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A dispute about a material fact is "genuine" only if the evidence would allow a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "To survive summary judgment, the non-moving party must show evidence sufficient to establish every element that is essential to its claim and for which it will bear the burden of proof at trial." Diedrich v. Ocwen Loan Servicing, LLC, 839 F.3d 583, 591 (7th Cir. 2016). In ...


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