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Stuart v. BOKF NA

United States District Court, D. Arizona

July 26, 2019

Jeffrey Stuart, Plaintiff,
v.
BOKF NA dba Bank of Arizona, et al., Defendants.

          ORDER

          Douglas L. Rayes United States District Judge

         Plaintiff 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.[1] For the reasons stated below, BOKF's motion is denied.

         I. Background

         Plaintiff 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.)

         On 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.)

         On 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.)

         Plaintiff 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.)

         II. Legal Standard

         Federal 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 (2007).

         III. Discussion

         “Congress 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)).

         In relation to the duties of CRAs in the event a consumer disputes reported information as inaccurate, Section 1681i provides:

[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. ...


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