Brown v. Transunion, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

SHEKEVIA BROWN,

Plaintiff,

v. Case No.: 8:21-cv-2371-VMC-JSS

TRANS UNION, LLC,

EQUIFAX INFORMATION

SERVICES, LLC, and

EXETER FINANCE, LLC,

Defendants.

____________________________/

ORDER

This cause comes before the Court pursuant to the Motion

for Judgment on the Pleadings filed by Defendant Exeter

Finance, LLC on December 27, 2021. (Doc. # 35). Plaintiff

Shekevia Brown responded on January 17, 2022, and Exeter filed

a reply on January 27, 2022. (Doc. ## 38, 47). For the reasons

given below, the Motion is granted.

I. Background

On October 7, 2021, Brown initiated this lawsuit,

alleging that Defendants Exeter, Trans Union, LLC, and

Equifax Information Services, LLC had violated her rights

under the Fair Credit Reporting Act (“FCRA”). (Doc. # 1). She

alleged that Trans Union and Equifax are consumer reporting

agencies (“CRAs”) and that Exeter furnished information to

the CRAs. (Id. at ¶¶ 6-12). The complaint alleges that Trans

Union and Equifax prepared and issued credit reports that

contained “inaccurate and misleading information” relating to

Brown’s Exeter account. (Id. at ¶ 14). Specifically, the

information furnished by Exeter and published by the CRAs “is

inaccurate since the accounts contain an incorrect current

payment status of ‘90 days past due’” when, in fact, the

account was paid and closed. (Id. at ¶¶ 15, 16). According to

Brown, this “pay status” field is “specifically designed to

be understood as the current status of the account.” (Id. at

¶ 18). Further, “credit scoring algorithms take [the payment

status] field into account when generating a credit score,

and when it is showing this negative status, it would cause

a lower credit score to be generated than a closed status.”

(Id.).

Based on these allegations, Brown sued Trans Union and

Equifax for alleged FCRA violations and, as pertinent to the

instant Motion, also alleged claims of willful and negligent

FCRA violations under of 15 U.S.C. § 1681s-2 against Exeter

(Counts Five and Six of the Complaint). (Id. at 12-15).

This case has been dismissed as to Trans Union, and

Equifax has filed an answer. (Doc. ## 21, 45). On November

24, 2021, Exeter filed its answer to the complaint. (Doc. #

22). Thereafter, Exeter filed its Motion for Judgment on the

Pleadings. (Doc. # 35). The Motion is fully briefed (Doc. ##

38, 47) and is now ripe for review.

II. Legal Standard

Pursuant to Federal Rule of Civil Procedure 12(c), a

party may move for judgment on the pleadings after the

pleadings are closed but early enough not to delay trial.

Fed. R. Civ. P. 12(c). “A motion for judgment on the pleadings

is governed by the same standard as a Rule 12(b)(6) motion to

dismiss.” StoneEagle Servs., Inc. v. Pay-Plus Sols., Inc.,

No. 8:13-cv-2240-VMC-MAP, 2015 WL 518852, at *1 (M.D. Fla.

Feb. 9, 2015)(citations omitted). “In determining whether a

party is entitled to judgment on the pleadings, [the Court]

accept[s] as true all material facts alleged in the non-

moving party’s pleading, and [the Court] view[s] those facts

in the light most favorable to the non-moving party.” Perez

v. Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir. 2014).

When considering a motion for judgment on the pleadings,

courts may consider documents that are not a part of the

pleadings so long as those documents are central to the claim

at issue and their authenticity is undisputed. Id. at 1340

n.12. Here, Brown’s Trans Union and Equifax credit reports,

while not attached to the pleadings, are central to her FCRA

claims and although the parties may dispute how they should

be legally interpreted, no party challenges the reports’

authenticity. See (Doc. # 38 at 3 n.1). Accordingly, the Court

will consider the credit reports.

III. Analysis

The FCRA requires entities that furnish information to

CRAs, such as Exeter, to furnish accurate information. 15

U.S.C. § 1681s-2(a)(1)(A). Once such entities receive notice

of a dispute regarding the completeness or accuracy of any

information, the entity must conduct an investigation, review

all relevant information, and report the results of the

investigation to the CRA. Id. § 1681s-2(b)(1)(A)-(C). If the

investigation finds information to be inaccurate or

incomplete, the reporting entity must modify, delete, or

permanently block that item of information. Id. § 1681s-

2(b)(1)(E).

Here, Brown alleges that Exeter violated this duty when

it “failed to conduct its reinvestigation in good faith” and

“continued to report this account on the Plaintiff’s credit

report after being notified of her dispute regarding the

current payment status.” (Doc. # 1 at ¶¶ 64-65, 75-76).

The statute contemplates three possible outcomes of a

satisfactory investigation: (1) the information is accurate

and complete; (2) the information is inaccurate or

incomplete; or (3) the information cannot be verified. Felts

v. Wells Fargo Bank, N.A., 893 F.3d 1305, 1312 (11th Cir.

2018). Whether the furnisher has satisfied its obligations

under Section 1681s-2(b) is reviewed under a reasonableness

standard. Id. “When a furnisher ends its investigation by

reporting that the disputed information has been verified as

accurate, the question of whether the furnisher behaved

reasonably will turn on whether the furnisher acquired

sufficient evidence to support the conclusion that the

information was true.” Id. (internal quotation marks

omitted). Additionally, the Eleventh Circuit has declared

that a Section 1681s-2(b) claim “cannot survive a motion to

dismiss without some supportable allegation that the reported

information is inaccurate or incomplete.” Leones v. Rushmore

Loan Mgt. Servs., LLC, 749 Fed. App’x 897, 901 (11th Cir.

2018).

The Court now turns to Brown’s Exeter account

information, as reflected in the Trans Union and Equifax

credit reports.

Trans Union

The relevant portion of the Trans Union report is

reproduced below:

EXETER FINANCE LLC i (2101 W JOHN CARPENTER FWY, IRVING, TX 75063, (800) 321-9637)

Date Opened: 03/11/2019 Date Updated: 09/15/2020 Pay Status: »Account 60 Days Past Due Date<

Responsibility: Individual Account Payment Received: $0 Terms: $0 per month, paid Monthly for 74

Account Type: Installment Account Last Payment Made: 09/15/2020 months

Loan Type: AUTOMOBILE Date Closed: 09/15/2020

»Maximum Delinquency of 60 days in 08/2020

for $649 and in 09/2020«

High Balance: High balance of $14,045 from 04/2019 to 09/2020

Remarks: CLOSED

Estimated month and yearthat this item will be removed: 06/2027

[09/2020 | 08/2020 | 07/2020 | 06/2020 | 05/2020 | 04/2020 | 03/2020 | 02/2020 | 01/2020 | 12/2019 | 11/2019 | 10/2019 _|

Balance) S215] S251) 913,169 $13,288 915,414) 913,559 913,005| 913,764 913,578 $13,375]

P. int

Amount Paid

PastDue | SQ] Gea $324) SSS SSS

Rating

Logjz019 | 08/2019 | 07/2019 | 06/2019 | 05/2019 | 04/2019 |

Balance) 913,497 $13,021] $13,75¢ $13,850, 913,965 $14,077]

Payment

Amount Paid

PastDbue | SQ] SSH SSS

Rating

The document reflects that the “last payment made” was

on September 15, 2020, and the “payment received” was $0.

(Doc. # 35-2 at 5). The account was also closed on September

15, 2020, with a SO balance. Still, Brown’s credit report

continued to show that the Exeter account was 60 days past

due.! Under “Remarks,” the account shows “CLOSED.” (Id.).

Equifax

The relevant portion of the Equifax report is reproduced

below:

1 While Brown alleged in the Complaint that the pay status

was “90 days past due,” the exhibit reflects that the account

was actually marked as 60 days past due. The discrepancy is

irrelevant for purposes of the Court’s analysis.

>>> The information you disputed has been updated as well as other information on this item. Account # - 6 443° The results are:

This account has been updated. Additional information has been provided from the original source regarding this item. THE FOLLOWING FIELDS HAVE

BEEN MODIFIED: “STATUS “BALANCE “PAST DUE “SCHEDULED PAYMENT “CLOSED DATE *ACTIVITY DESIGNATOR *ADDITIONAL

INFORMATION “ACCOUNT HISTORY. If you have additional questions about this item please contact: Exeter, PO Box 166097, IRVING, TX

75076-6097

Exeter Finance PO Box 166097 Irving TX T50176- 6097

Account Number Drake O pared High Credit Cracit Lime Terns Duration «9 Terms Frequency Months Revd = Activity Designate Creditor Clasaflcadion

4" O91V/ai9 $14,045 74Morths Monthly 18 Paid and Closed

iems As cfO@e Gamnos “mou | Datectlast ActmiPaymant ScwauadPayment Oatectls Caectlas CateMa) Del Cragect . CweredPayGalonPay GulconPay Daan

Fiepertedl Amaurt Pst Due Poyrant Amauri Amount Delrquency Activity 4stFiped Amount Stat Date = Amount Dom Cloned

11/19/2020 $0 092020 $34 07/2020 og2020

Tan 'wa@Aoone |. ‘yemofooam |. Whe Acare |. PuUt@@lom@canr . . POM@OOGMEm |.

Charge Off Installment Auto Individual Account

ADDITIONAL INFORMATION:

Account Paid For Less Than Full Balance

Closed or Paid Account/Zero Balance

Auto

Fixed Rate

Account History with Status Codes

or/2020

3 2 1

[Historical Account Information |

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Payment Payment Last (Credit Limit Past Loan Desi gnator

Amaurit Amount Payrieant Due

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ADDITIONAL INFORMATION:

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ADDITIONAL INFORMATION:

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ADDITIONAL INFORMATION:

Fixed Rate

The document reflects that, under “activity designator,”

the account is marked “Paid and Closed.” (Doc. # 35-1 at 10).

The “balance amount” is $0. The last payment was made in

September 2020, and the account was closed that same month.

Under “status,” the account is marked “Charge Off.” And under

“Additional Information,” the account states: “Account Paid

for Less than Full Balance; Closed or Paid Account/Zero

Balance.” (Id.)}. Under “Account History,” September 2020 is

coded a “3,” meaning the account was 90-119 days past due.

(Id. at 4, 10). Like the Trans Union report, the Equifax

report shows that the account was up to date in June 2020,

became $324 past due in July 2020, then $649 past due in

August 2020, and the account was closed in September 2020.

(Id. at 11).

Here, Brown’s claim against Exeter fails because she has

failed to set forth a supportable allegation that the reported

information is inaccurate or misleading. See Leones, 749 F.

App’x at 901; see also Diaz v. Equifax Info. Servs., LLC, No.

2:20-cv-437-JLB-MRM, 2021 WL 2814908, at *4 (M.D. Fla. Feb.

19, 2021) (applying Felts and Leones to conclude that a

plaintiff must plausibly allege that a “consumer’s

information [is] actually inaccurate” in order to state a

claim under Section 1681s-2(b)).

In the Eleventh Circuit, accuracy under the FCRA means

that the information “must be factually true and also unlikely

to lead to a misunderstanding.” Erickson v. First Advantage

Background Servs. Corp., 981 F.3d 1246, 1252 (11th Cir. 2020).

Whether a report is “misleading” is an “objective” question.

Id. “If a report is so misleading that it is objectively

likely to cause the intended user to take adverse action

against its subject, it is not maximally accurate. On the

other hand, the fact that some user somewhere could possibly

squint at a report and imagine a reason to think twice about

its subject would not render the report objectively

misleading.” Id. When evaluating claims of inaccurate or

false information in a credit report, ”the report must be

reviewed and considered in its entirety, instead of focusing

on a single field of data.” Lacey v. TransUnion, LLC, No.

8:21-cv-519-WFJ-JSS, 2021 WL 2917602, at *4 (M.D. Fla. July

12, 2021).

Here, when viewing the credit reports in their entirety,

it is readily apparent that the account is accurate and not

misleading. The Trans Union report clearly states that the

account (1) has a balance of $0; (2) was last updated on

September 15, 2020; (3) was closed on September 15, 2020; (4)

was 60 days past due in August and September 2020; and (5) is

closed. Likewise, the Equifax account clearly states that the

account (1) is “Paid and Closed” and (2) was closed in

September 2020 (3) with a “Zero Balance.”

Viewing the credit reports objectively and in their

entirety, the only reasonable reading of the Exeter account

is that the account was past due in September 2020, at which

time the account was updated one last time and closed –

zeroing out the balance. It does not indicate, as Brown

argues, that she is currently 60 days (or 90 days) past due.

See O’Neal v. Equifax Info. Servs., LLC, et al., No. 21-cv-

80968-RAR, 2021 WL 4989943, at *3 (S.D. Fla. Oct. 27, 2021)

(pointing out that, under nearly identical facts, “there is

no possible way that a reasonable creditor would believe that

Plaintiff was 120 days late on a $0 balance”).

Other courts in this District have reached similar

conclusions on similar facts. See Lacey, 2021 WL 2917602, at

*6 (“[W]hen Plaintiff Lacey’s credit report is viewed in its

entirety, it is clear that it was accurately reported and is

not misleading. On its face, the credit report reflects that

as of August 7, 2015, the account: (1) had a balance of $0;

(2) was last updated on August 7, 2015; (3) was closed on

that same date; (4) was 120 days past due from June 2015

through August 7, 2015; and (5) was foreclosed with collateral

sale. Objectively, no reasonable creditor looking at the

report would be misled into believing that Plaintiff Lacey

had a present pending amount due.”); Smith v. Transunion,

LLC, No. 6:21-cv-349-GAP-LRH, 2021 WL 3111583, at *2 (M.D.

Fla. July 1, 2021) (“When viewed in its entirety, Trans

Union’s reporting of the Account is neither inaccurate nor

materially misleading. The report shows a pay status that is

60 days past due, but also shows that the Account was fully

paid off and closed, leaving a $0 balance. Smith does not

deny that she was at least 60 days past due when she paid off

the Account or otherwise claim that there was any factual

error in the report. Smith nevertheless argues that the pay

status section, which shows that the Account was 60 days past

due at the time it was closed, is materially misleading

because a creditor viewing the report may believe the Account

is still open and overdue. But the pay status section reflects

historical information regarding a past delinquency and does

not suggest that the Account is still open and past due.

Indeed, the Account clearly notates that it is closed and

that 60 days is simply the maximum delinquency that occurred

during the Account’s history. Therefore, the report is not

misleading as a matter of law, and that no reader would

mistakenly believe the Account is somehow still open.”);

Pineda v. Trans Union, LLC, No. 2:21-cv-653-SPC-MRM, 2021 WL

5798282, at *2 (M.D. Fla. Dec. 7, 2021) (“But looking

objectively at the report as a whole (not just at the ‘Pay

Status’ field as Pineda urges), it is not materially

misleading. The ‘Pay Status’ field reflects historical

information. The first page of the report explains that for

closed accounts (such as the Habitat account), the ‘Pay

Status’ field represents the last reported status of the

account. The ‘Pay Status’ field does not say that it

represents the current status of the account. The report notes

that the Habitat account is closed and that 30 days is the

maximum delinquency on the account reported in September

2015. Thus, viewing the credit report objectively, there is

no possible way that a reasonable creditor would believe that

Plaintiff was [30] days late on a $0 balance. (citations

omitted)); see also Deonarine v. TransUnion, LLC, et al., No.

6:21-cv-1278-GAP-GJK, at p. 7-8 (M.D. Fla. Dec. 13, 2021)

(attached to Exeter’s Motion as Exh. C (Doc. # 35-3))

(dismissing identical claims against a CRA and an information

furnisher as without merit because no reasonable creditor

would believe the account was currently 120 days past due and

the report was not misleading as a matter of law).

In her response, Brown cites and attaches a different

Equifax credit report than the one submitted by Exeter. See

(Doc. # 38-1). She argues that the report cited by Exeter

contains Equifax’s investigation results in response to her

dispute, noting that the credit report cited by Exeter states

that:

The information you disputed has been updated as

well as other information on this item. Account #

- 8443* The results are:

This account has been updated. Additional

information has been provided from the original

source regarding this item. THE FOLLOWING FIELDS

HAVE BEEN MODIFIED: *STATUS *BALANCE *PAST DUE

*SCHEDULED PAYMENT *CLOSED DATE *ACTIVITY

DESIGNATOR *ADDITIONAL INFORMATION *ACCOUNT

HISTORY.

(Doc. # 38 at 6-7); see also (Doc. # 35-1 at 10). Brown points

out that the “original report . . . contains no such

designations” and instead states the following under “Account

Status”: “NOT_MORE_THAN_THREE_PAYMENTS_PAST_DUE.” (Doc. #

38-1 at 20). Under “Comments,” the account states “Consumer

disputes – reinvestigation in progress.” (Id. at 21).

But this argument does not carry the day for Brown.

Looking at the presumably earlier-in-time credit report

submitted by Brown as a whole, it is still readily apparent

that the account was closed in September 2020 with a $0

balance. (Doc. # 38-1 at 20-21 (stating a $0 “Balance” and a

“Date Closed” of September 1, 2020)). Thus, even without the

“Paid and Closed” language contained in the later report,

this credit report is also not inaccurate or misleading. See

Lacey, 2021 WL 2917602, at *6 (finding that, even in absence

of a “paid and closed” notation, credit report was not

inaccurate or misleading where the closing date and balance

indicated that account was closed); Smith, 2021 WL 3111583,

at *2 (same).

In addition, Brown does not dispute that the status of

the account as of the date the complaint was filed is correct.

She instead asserts that the “pay status” field “would cause

a lower credit score to be generated than a closed status.”

(Doc. # 1 at ¶ 18). She alleges that computer algorithms take

the “pay status” field into account when automatically

generating credit scores and that “[f]or this reason, it is

not appropriate to state that when the report is read as a

whole contains enough information as to not harm the consumer,

since the harm to the credit score is happening automatically

with this false information.” (Id. at ¶¶ 18-20).

But this argument has been rejected by multiple courts.

See Deonarine, Doc. # 35-3 at 8; Pineda, 2021 WL 5798282, at

*3; O’Neal, 2021 WL 4989943, at *3. As explained by the court

in O’Neal:

[S]uch allegations “completely ignore[] Eleventh

Circuit case law and the requirements of the FCRA

[because] . . . the Eleventh Circuit’s decisions in

Cahlin and Erickson instruct lower courts to

consider ‘objectively reasonable interpretations

of the report.’ How third-party companies choose to

utilize algorithms to decipher the accurate

information reported by Defendant has no bearing on

the accuracy of the report itself. Plaintiff

essentially posits that Trans Union is required to

‘report only that information which is favorable or

beneficial to the consumer[,]’ which runs directly

afoul of Eleventh Circuit precedent and the FCRA.

O’Neal, 2021 WL 4989943, at *3. The Court agrees and adopts

the reasoning of the O’Neal court in this case.

Brown argues that the binding holding in Erickson and

the persuasive views set forth in O’Neal and Pineda are

“antiquated” and out of touch with the “real world of credit

lending.” (Doc. # 38 at 18-19). But this Court cannot ignore

binding and on-point Eleventh Circuit precedent. Moreover, to

the extent Brown argues that the text of the FCRA needs to be

updated to reflect modern technology, Congress is the branch

with the power to do so, not the courts.

In sum, the Court agrees with Exeter that Brown’s FCRA

claims are due to be dismissed. Further, because the text of

the credit reports is not in dispute, and it is derogatory

but not materially inaccurate, amendment of these claims

would be futile. Because Brown cannot establish inaccuracy or

falsehood in the reports, her claims against Exeter are due

to be dismissed with prejudice. See Lacey, 2021 WL 2917602,

at *6 (dismissing similar claims with prejudice); Smith, 2021

WL 3111583, at *2 (same); see also Silberman v. Miami Dade

Transit, 927 F.3d 1123, 1133 (11th Cir. 2019) (explaining

that while leave to amend ought generally to be freely

granted, leave to amend need not be granted when any amendment

would be futile). Accordingly, Exeter’s Motion is due to be

granted and Brown’s claims against Exeter dismissed with

prejudice.

Pursuant to Federal Rule of Civil Procedure 54(b), this

Court may only direct entry of a final judgment as to fewer

than all claims or parties if the Court determines that there

is no just reason to delay entry of such final judgment. Here,

while, the Court has granted Exeter’s Motion for Judgment on

the Pleadings, Brown’s claims against Equifax are still

pending. Accordingly, the Court will not enter final judgment

at this time. See Fed. R. Civ. P. 54(b).

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Exeter Finance, LLC’s Motion for Judgment on the

Pleadings (Doc. # 35) is GRANTED.

(2) Counts Five and Six of the Complaint are dismissed with

prejudice.

(3) This case shall proceed as to the remaining Defendant,

Equifax Information Services, LLC.

DONE and ORDERED in Chambers, in Tampa, Florida, this

4th day of February, 2022.

fami 9m. Hunenby Cree

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

16