United States District Court, D. Arizona
Douglas L. Rayes United States District Judge
Jeffrey Stuart brings this action against Defendants BOKF, NA
dba Bank of Arizona (“BOKF”) and Experian
Information Solutions, Incorporated (“Experian”),
alleging violations of the Fair Credit Reporting Act
(“FCRA”). (Doc. 42.) Before the Court is
BOKF's motion to dismiss for failure to state a claim.
(Doc. 49.) The motion is fully briefed. For the reasons
stated below, BOKF's motion is denied.
purchased a home with a mortgage from BOKF in March 2008.
(Doc. 42 ¶ 8.) In early 2013, Plaintiff's home was
sold in a trustee sale. (¶ 9.) More than five years
later, Plaintiff's application for a mortgage on another
property was denied. (¶ 11.) Plaintiff was notified that
his application was denied because of issues with his credit
as reported by Experian, a credit reporting agency
(“CRA”). (¶ 12.) In particular, Experian was
reporting that Plaintiff's BOKF mortgage had a balance
owed of $625, 642.00. (¶ 14.)
October 23, 2018, Plaintiff mailed a dispute letter to
Experian, requesting that the outstanding balance be
corrected to reflect a zero balance. (¶ 15.) Plaintiff
contends that he was not responsible for any remaining
balance on the BOKF mortgage after the trustee sale because
Arizona is an anti-deficiency state. (¶ 10.) Experian
received Plaintiff's letter and forwarded it to BOKF.
(¶¶ 16, 17.)
November 9, 2018, Experian responded to Plaintiff's
dispute letter. (¶ 18.) Experian corrected its report to
reflect a zero balance for Plaintiff's BOKF mortgage but
added an “F” under his payment history indicating
that Plaintiff had a foreclosure in November 2018.
(¶¶ 19, 20.) Plaintiff did not have a foreclosure
in November 2018. (¶ 20.)
filed suit in December 2018. Thereafter, Plaintiff amended
his complaint, alleging that BOKF failed to “fully and
properly investigate” Plaintiff's dispute in
violation of 15 U.S.C. § 1681s-2(b). (¶ 32.)
Rule of Civil Procedure 12(b)(6) allows a defendant to seek
dismissal of a complaint that is not based on a cognizable
legal theory or that lacks sufficient facts to state a
plausible claim under an otherwise cognizable legal theory.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1988). When analyzing a complaint for
failure to state a claim to relief under Rule 12(b)(6), the
well-pled factual allegations are taken as true and construed
in the light most favorable to the nonmoving party.
Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.
2009). To avoid dismissal the complaint must plead sufficient
facts to state a claim to relief that is plausible on its
face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
enacted the [FCRA] ¶ 1970 to ensure fair and accurate
credit reporting, promote efficiency in the banking system,
and protect consumer privacy.” Gorman v. Wolpoff
& Abramson, LLP, 584 F.3d 1147, 1153 (9th Cir. 2009)
(internal quotation and citation omitted). “As an
important means to this end, the Act sought to make
‘[CRAs] exercise their grave responsibilities [in
assembling and evaluating consumers' credit, and
disseminating information about consumers' credit] with
fairness, impartiality, and a respect for the consumer's
right to privacy.'” Id. (alteration in
original) (quoting 15 U.S.C. § 1681(a)(4)).
relation to the duties of CRAs in the event a consumer
disputes reported information as inaccurate, Section 1681i
[T]he [CRA] shall . . . conduct a reasonable reinvestigation
to determine whether the disputed information is inaccurate
and record the current status of the disputed information, or
delete the item from the file . . ., before the end of the
30-day period beginning on the date on which the [CRA]
receives the [consumer's dispute].
15 U.S.C. § 1681i(a)(1)(A). As part of a reasonable
investigation, the FCRA requires that the CRA “provide
notification of the dispute to any [furnisher that] provided
information in dispute[.]” Id. §
1681i(a)(2)(A). The notice must contain “all relevant
information regarding the dispute that the [CRA] has received
from the consumer . . . .” Id. However, a
consumer must trigger the CRA's duty to reinvestigate by
“notify[ing] the [CRA] of the purported reporting
error.” Herisko v. Bank of Am., 367 Fed.Appx.