United States District Court, D. Nevada
ORDER (MOT RECONSIDER - ECF NO. 65)
A. LEEN UNITED STATES MAGISTRATE JUDGE
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).
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.”
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