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Barnum v. Equifax Information Services, LLC

United States District Court, D. Nevada

March 28, 2018

SHARON BARNUM, JERRY P. CABEBE, ROBERT SUSTRIK, and all similarly situated individuals, Plaintiff,
v.
EQUIFAX INFORMATION SERVICES, LLC, Defendant

          MATTHEW I. KNEPPER, ESQ. MILES N. CLARK, ESQ. KNEPPER & CLARK LLC DAVID H. KRIEGER, ESQ. HAINES & KRIEGER, LLC COUNSEL FOR PLAINTIFF

          MISTY L. PETERSON, ESQ. ZACHARY A. MCENTYRE, ESQ. KING & SPALDING LLP, BRYAN ZUBAY, ESQ. KING & SPALDING LLP, BRADLEY T. AUSTIN, ESQ. SNELL & WILMER LLP COUNSEL FOR EQUIFAX INFORMATION SERVICES, LLC

          STIPULATION TO PLAINTIFFS' FILING OF FOURTH AMENDED COMPLAINT

          RICHARD F. BOULWARE, II JUDGE

         PLEASE TAKE NOTICE that pursuant to Federal Rule of Civil Procedure 15(a)(2), LR 7-1, and LR IA 6-2, the parties have stipulated to Plaintiffs filing their proposed Fourth Amended Complaint, attached hereto as Exhibit 1, and to a 7-day extension of time for Equifax to respond to the Fourth Amended Complaint. Equifax's response to the Fourth Amended Complaint will be due 21 days after the filing of this stipulation. Equifax enters into this stipulation without waiving and while expressly reserving any and all defenses to the Fourth Amended Complaint.

         IT IS SO STIPULATED.

         ORDER

         IT IS SO ORDERED. The Clerk of the Court is instructed to file Exhibit 1, Proposed Amended Complaint which will serve as the operative Complaint.

         EXHIBIT 1

         Plaintiffs' Proposed Fourth Amended Complaint

         [PROPOSED] FOURTH AMENDED COMPLAINT FOR DAMAGES PURSUANT TO THE FAIR CREDIT REPORTING ACT, 15 U.S.C. § 1681, ET SEQ. AND FOR RELIEF UNDER THE DECLARATORY JUDGMENT ACT, 15 U.S.C. § 2201

         JURY TRIAL DEMANDED

         INTRODUCTION

         1. The United States Congress has found the banking system is dependent upon fair and accurate credit reporting. Inaccurate credit reports directly impair the efficiency of the banking system, and unfair credit reporting methods undermine the public confidence, which is essential to the continued functioning of the banking system. Congress enacted the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA”), to insure fair and accurate reporting, promote efficiency in the banking system, and protect consumer privacy. The FCRA seeks to ensure consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer's right to privacy because consumer reporting agencies have assumed such a vital role in assembling and evaluating consumer credit and other information on consumers.

         2. A central duty the FCRA imposes upon consumer reporting agencies is the prompt and thorough reinvestigation of disputes which consumers bring to the agency's attention regarding information on the consumer's credit report which is claimed to be inaccurate. The FCRA imposes explicit deadlines for when a consumer reporting agency must complete its reinvestigation of a consumer dispute and notify a consumer of the results of the same. Without prompt, thorough reinvestigation, and timely notice to consumers of the results, consumers have no assurances that their credit is being reported accurately, and suffer from anxiety, stress, and frustration from a perceived continuing damage to their creditworthiness.

         3. Plaintiffs Sharon Barnum (“Ms. Barnum”) and Robert Sustrik (“Mr. Sustrik”) (collectively, the “Plaintiffs”), on behalf of themselves and a class of similarly situated individuals (the “Class”), bring this action to challenge the actions of EQUIFAX INFORMATION SERVICES, LLC (“Equifax” or “Defendant”) in connection with Equifax's failure to timely notify them and a class of similarly situated disputing consumers of the results of its reinvestigations and/or other dispute determinations following completion and/or termination of a reinvestigation of a consumer dispute, as required by 15 U.S.C. § 1681i.

         4. Defendant's failure to timely notify Plaintiffs and Class members of the result of their credit disputes has resulted in, inter alia, damage to Plaintiffs and Class members' perceived creditworthiness.

         JURISDICTION AND VENUE

         5. This Court has federal question jurisdiction because this case arises out of violation of federal law. 15 U.S.C. § 1681 et seq.; 28 U.S.C. §1331; Smith v. Community Lending, Inc., 773 F.Supp.2d 941, 946 (D. Nev. 2011).

         6. This action arises out of Defendant's violations of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681(x) (“FCRA”).

         7. Venue is proper in the United States District Court for the District of Nevada pursuant to 28 U.S.C. § 1391(b) because Plaintiffs are residents of Clark County, the State of Nevada and because Defendant is subject to personal jurisdiction in the County of Clark, State of Nevada as they conduct business there. Venue is also proper because, the conduct giving rise to this action occurred in Nevada. 28 U.S.C. § 1391(b)(2). Further, Equifax has a registered agent of service in Nevada and is listed with the Nevada Secretary of State as a foreign limited liability company doing business in Nevada.

         PARTIES

         8. Plaintiffs are all natural persons residing in the County of Clark, State of Nevada. In addition, Plaintiffs and all putative Class members are “consumers” as that term is defined by 15 U.S.C. § 1681a(c).

         9. Defendant Equifax regularly assembles and/or evaluates consumer credit information for the purpose of furnishing consumer reports to third parties, and uses interstate commerce to prepare and/or furnish the reports. Equifax is a “consumer reporting agency” as that term is defined by 15 U.S.C. § 1681a(f), doing business with its principal place of business in Georgia.

         10. Unless otherwise indicated, the use of Equifax's name in this Complaint includes all agents, employees, officers, members, directors, heirs, successors, assigns, principals, trustees, sureties, subrogees, representatives, and insurers of Equifax.

         EQUIFAX FAILED TO TIMELY NOTIFY PLAINTIFF SHARON BARNUM AFTER RECIPT OF PLAINTIFF'S DISPUTE LETTER OF EQUIFAX'S REINVESTIGATION RESULTS

         11. In an Equifax credit report dated July 10, 2016 (the “Barnum Equifax Credit Report”), Ms. Barnum believed that Comenity Bank/Brylnhme (“Comenity Brylnhme”), Comenity Bank/Lnbrynat (“Comenity Lnbryant”), JPMorgan Chase Bank (“JP Morgan”), Ocwen Loan Servicing, LLC (“Ocwen”), and Wilshire Credit Corporation (“Wilshire”) (collectively, the “Barnum Furnishers”) allegedly reported inaccurate, derogatory information.

         12. On or about August 2, 2016, Ms. Barnum disputed the allegedly derogatory information on the Barnum Equifax Credit Report by notifying Equifax, in writing, of incorrect and inaccurate credit information contained on her Equifax Credit Report, and requested that this information be corrected (the “Barnum Equifax Dispute Letter.”).

         13. Ms. Barnum mailed the Barnum Equifax Dispute Letter to Equifax certified, return receipt.

         14. After receipt of the Barnum Equifax Dispute Letter, Equifax was required to conduct a reasonable reinvestigation of the dispute to determine whether the disputed information was inaccurate. 15 U.S.C. § 1681i.

         15. Specifically, Equifax was required where applicable to provide the disputed information to the Barnum Furnishers of that information no later than five days after receipt of the Barnum Equifax Dispute Letter. 15 U.S.C. § 1681i(a)(2)(A).

         16. Equifax was required to conduct this reinvestigation before the end of the 30-day period after receiving the Barnum Equifax Dispute Letter. 15 U.S.C. § 1681i(a)(1)(A). This period could be extended for not more than 15 days if Equifax received additional relevant information from Ms. Barnum during the 30-day reinvestigation period. 15 U.S.C. § 1681i(a)(1)(B). However, Ms. Barnum provided no additional relevant information to Equifax during the 30-day reinvestigation period, and so Equifax's deadlines to reinvestigate and notify Ms. Barnum were not extended.

         17. Equifax was further required to notify Ms. Barnum of the results of its reinvestigation in writing before the expiration of the 5-day period following completion of its reinvestigation. 15 U.S.C. § 1681i(a)(6)(A).

         18. In the event Equifax determined during the course of its reinvestigation that Plaintiff's dispute was frivolous or irrelevant, Equifax was also required to notify Ms. Barnum in writing of that determination no later than 5 days after making that determination. 15 U.S.C. § 1681i(a)(3)(B).

         19. However, Equifax never timely responded to the Barnum Equifax Dispute Letter at all by notifying Mr. Barnum, in writing or otherwise, within the time limits specified above, either that it had completed its reinvestigation of her dispute, or determined that the dispute was frivolous and/or irrelevant and terminated its reinvestigation.

         20. Because Equifax failed to timely respond to the Barnum Equifax Dispute Letter, Ms. Barnum had no way of knowing whether Equifax timely notified any of the Barnum Furnishers of disputed information as 15 U.S.C. § 1681i required, nor whether any of the Barnum Furnishers conducted a timely and proper investigation of the disputed information as required by 15 U.S.C. § 1681s-2(b).

         21. Because Equifax failed to timely respond to the Barnum Equifax Dispute Letter, Ms. Barnum also could not determine whether, pursuant to its duty under 15 U.S.C. § 1681i(a)(5)(A)(i) and (ii), ...


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