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McCurry v. Bank of America, N.A.

United States District Court, D. Nevada

May 22, 2017

PATRICIA McCURRY, Plaintiff,
v.
BANK OF AMERICA, N.A., et al., Defendant.

          ORDER (MOT RECONSIDER - ECF NO. 65)

          PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE

         Before the court is Defendant Ocwen Loan Servicing, LLC's Motion for Reconsideration Regarding Order on Motion for Relief from Admissions (ECF No. 65). The court has considered the motion, plaintiff's Response (ECF No. 66), and Ocwen's Reply (ECF No. 67).

         BACKGROUND

         The Complaint (ECF No. 1) in this case was filed on February 1, 2016. It is an action for damages pursuant to the Fair Credit Reporting Act, 15 U.S.C. § 1681. Plaintiff alleges the defendants erroneously reported derogatory credit information to national reporting agencies, and failed to properly investigate plaintiff's disputes, damaging plaintiff's credit worthiness. Complaint (ECF No. 1) ¶¶ 2, 3. Defendant Ocwen is a furnisher of information as contemplated by 15 U.S.C. § 1681s-2(b) that regularly furnishes information to a consumer credit reporting agency in the ordinary course of business. Id. ¶ 13.

         On October 27, 2009, plaintiff filed for Chapter 13 bankruptcy protection in the District of Nevada. Id. ¶ 20. The furnisher defendants were scheduled in the bankruptcy and each or its predecessor in interest received notice of the bankruptcy. Id. ¶ 21. The bankruptcy court confirmed the plaintiff's Chapter 13 plan. Id. ¶ 22. Plaintiff made all payments required under the terms of the confirmed Chapter 13 plan. Id. ¶ 13. Plaintiff sought the bankruptcy court's assistance in negotiating the terms of her debts. Id. ¶ 24. The delinquency and repayment terms of plaintiff's debt to each furnisher defendants were ordered by the court under the Chapter 13 plan, “not as they had existed prior to the bankruptcy filing.” Id. On February 13, 2015, after completing all payments required under her Chapter 13 plan, the plaintiff received a discharge which included debts to the furnisher defendants. Id. ¶ 27. While plaintiff made timely payments pursuant to her court-ordered Chapter 13 plan, any post-bankruptcy derogatory reports were both inaccurate and illegal absent court orders to the contrary. Id. ¶ 28. Any delinquency based on pre-bankruptcy terms was similarly “moot” because although the debt continued to exist, the terms and schedule of repayment, and timeliness of repayment depended solely on the Chapter 13 plan and payments made through the Chapter 13 plan. Id. ¶ 29.

         The defendants either reported or caused to be reported inaccurate information after the bankruptcy. Id. ¶ 30. Adverse information reported by defendants was based on improper enforcement and reporting of pre-bankruptcy obligations. Id. ¶ 32. The furnisher defendants also failed to comply with the Consumer Data Industry Association's Metro 2 Reporting Standards which provide guidance for credit reporting and FCRA compliance. Id. ¶ 33.

         Plaintiff obtained a copy of her Equifax and Experian consumer reports dated June 3, 2015, which contained multiple inaccuracies. Id. ¶ 41. Ocwen inaccurately reported to Equifax that the plaintiff's account was 180 days past due for the period from April 2013, through March 2015, and that she maintained a balance on the period from June 2013, through March 2015. Id. ¶ 46. Ocwen inaccurately reported to Experian that plaintiff's account was 180 days past due from April 2010 through August 2011, October 2011 through April 2012, June 2012 through November 2012, and January 2013 through January 2015, 150 days past due from March 2010, 90 days past due for January and February 2010, and 60 days past due for December 2009. Ocwen reported account balances from June 2013 through March 2015. Id. ¶ 47. Plaintiff made all payments pursuant to her Chapter 13 plan during that period and received a discharge for the account. Id. ¶ 48. Therefore, any reports of past due payments after her bankruptcy filing were inaccurate. Id.

         On July 24, 2015, plaintiff disputed the furnisher defendants' reported information regarding her alleged dates by notifying Equifax and Experian in writing of the incorrect and inaccurate credit information they furnished. Id. ¶ 51. The defendants failed to conduct reasonable investigations as required by 15 U.S.C. § 1681s-2(b)(1)(A) and wrongfully verified inaccurate information in connection with plaintiff's credit reports. Id. ¶ 61. Defendants failed to review all relevant information provided by plaintiff in the disputes to Equifax and Experian in violation of 15 U.S.C. § 1681s2(b)(1)(B). Id. ¶ 62. Defendants knew or should have known that the original report was inaccurate based on plaintiff's dispute letter and/or the public record of the bankruptcy. Id. ¶ 63. Defendants' failures to reasonably investigate and correct and update plaintiff's information caused continued reporting of inaccurate information. Id. ¶ 64. The defendants' continued inaccurate and negative reporting was willful. Id. ¶ 66. Plaintiff has suffered actual damages including credit denials, out-of-pocket expenses in challenging defendants' wrongful representations, damage to her credit worthiness, and emotional distress. Id. ¶ 67.

         As a result, plaintiff seeks an award of actual damages pursuant to 15 U.S.C. § 1681n(a)(1); statutory damages pursuant to 15 U.S.C. § 1681n(a)(1); punitive damages as the court may allow pursuant to 15 U.S.C. § 1681n(a)(2); costs of litigation and reasonable attorney's fees allowed by statute; and any other relief the court may deem just and proper.

         Settlements were reached with a number of defendants before Ocwen made its initial appearance. Counsel submitted a proposed discovery plan and scheduling order proposing a standard 180-day plan in compliance with LR 26-1(e), measured from the date of the first defendant's appearance. The court approved the plan which established an August 23, 2016 discovery cutoff, and other deadlines consistent with LR 26-1(e). See Stipulation (ECF No. 17) and Order (ECF No. 18). The court set the matter for a status conference the date Ocwen made its first appearance and gave counsel two weeks from the date of the hearing to conduct the Rule 26(f) conference, make their initial disclosures, and submit any proposed stipulation or request to adjust the existing discovery plan and scheduling order deadlines. See Minutes of Proceedings (ECF No. 39). The parties requested and received a 90-day extension of the discovery plan and scheduling order deadlines. See Stipulation (ECF No. 40) and Order (ECF No. 41).

         On July 14, 2016, Ocwen filed a Motion for Relief from Admissions (ECF No. 37). The motion requested that Ocwen receive relief from its failure to respond to written discovery and requests for admissions served by plaintiff on March 29, 2016. Ocwen represented that, because it was in settlement discussions with plaintiff, it failed to respond to the written discovery. Although plaintiff was amenable to providing an extension of time for response to the interrogatories and requests for production of documents, plaintiff refused to permit Ocwen to respond to the request for admissions, deeming them admitted. Ocwen therefore sought relief pursuant to Rule 36(b) arguing that if the admissions were allowed to stand, it would “potentially preclude a trial on the merits of the Plaintiff's credit reporting claim.” Additionally, if deemed admitted, they would “result in the admission of facts which discovery has proven, or will prove, to be demonstrably untrue.” The motion argued that Ocwen had made an adequate showing of the two-prong test entitling it to Rule 36(b) relief.

         The court set the motion for hearing on August 16, 2016. After reviewing the moving and responsive papers and hearing arguments of counsel, the court orally ruled from the bench. The court granted Ocwen limited relief granting in part and denying in part the motion for relief from admissions. The court granted the motion with respect to admissions 29 through 31, but denied it in all other respects. A Minute Order prepared by the undersigned's courtroom deputy memorialized the court's ruling.

         In the current motion, Ocwen seeks reconsideration pursuant to LR 59-1 of the order asserting “two specific admissions that should have been included in the relief, Request for Admissions Nos. 17 and 18, were not addressed.” Request No. 17 asked Ocwen to admit that it “furnished inaccurate information to Experian in connection with the OCWEN account.” Request for Admission No. 18 asks Ocwen to admit that it “furnished inaccurate information to Equifax in connection with the OCWEN account.” Ocwen argues that plaintiff conceded at the hearing that it had not suffered legal prejudice by having to prove its case. More importantly, Ocwen argues that these two admissions are directly contradicted by Ocwen's business records which indicate that on August 7, 2015, after receiving plaintiff's dispute, Ocwen corrected and reported back to the credit bureaus. An Automated Credit Dispute Verification Response updated plaintiff's credit report to show a zero balance with zero past due. A copy of this document is attached as Exhibit C to the motion. Ocwen therefore asks the court to reconsider “its prior Minute Order and provide relief on these two admissions, consistent with its prior finding that the admissions deemed admitted would not subserve OCWEN's defense of this matter.”

         Plaintiff opposes the motion arguing it should be denied because it is untimely and Ocwen unreasonably delayed filing it. Fed.R.Civ.P. 60(b) requires a motion for reconsideration to be brought within a “reasonable time.” Ocwen has not shown a “mistake, inadvertence, surprise, or excusable neglect . . . [or] newly discovered evidence that, with reasonable diligence, could have been discovered in time to move for a new trial under Rule 59(b).” The motion was not filed for more than 240 days after the court's ruling. Summary judgment motions were fully briefed six months ago. Ocwen should have brought the motion “before with its opposition to the motion for summary ...


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