# DULWORTH v. EXPERIAN INFORMATION SOLUTIONS INC.

> District Court, S.D. Indiana · May 22, 2024

URL: https://www.frixlaw.com/law-library/cases/10171148

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** May 22, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

CRAIG DULWORTH and BRIANNA DULWORTH, )
)
Plaintiffs, )
) 1:22-cv-00469-JMS-MJD
vs. )
)
EXPERIAN INFORMATION SOLUTIONS INC. and )
EQUIFAX INFORMATION SERVICES, LLC, )
)
Defendants. )

ORDER
Plaintiffs Craig and Brianna Dulworth filed for bankruptcy protection in October 2018,
received a bankruptcy discharge, and reaffirmed an automobile loan from Ally Financial/Ally
Bank ("Ally") (the "Ally Loan") as part of the bankruptcy proceeding. Subsequently, they
accessed their credit reports from Defendants Experian Information Solutions Inc. ("Experian")
and Equifax Information Services, LLC ("Equifax") (collectively, "the CRAs"), and discovered
that the Ally Loan was being reported as being included in their bankruptcy and that no payment
history was reflected. The Dulworths then initiated this litigation, alleging that the way in which
the CRAs reported the Ally Loan violated various provisions of the Fair Credit Reporting Act, 15
U.S.C. § 1681, et seq. ("FCRA"). The CRAs have filed a Joint Motion for Summary Judgment,
[Filing No. 180], and the Dulworths have filed a Motion to Exclude the Declaration of Karen Cobb,
[Filing No. 198], both of which are ripe for the Court's consideration.
I.
THE DULWORTHS' MOTION TO EXCLUDE THE DECLARATION OF KAREN COBB

In support of their Joint Motion for Summary Judgment, the CRAs submitted a Declaration
from Karen Cobb, Litigation Support Lead for Equifax. [Filing No. 183-2.] Because resolution
of the Dulworths' Motion to Exclude will determine whether the Court considers Ms. Cobb's
Declaration in connection with the Joint Motion for Summary Judgment, the Court turns first to
the Motion to Exclude.
A. Standard of Review

Federal Rule of Civil Procedure 26(a)(1)(A) requires, among other things, that "a party
must, without awaiting a discovery request, provide to the other parties…the name and, if known,
the address and telephone number of each individual likely to have discoverable information –
along with the subjects of that information – that the disclosing party may use to support its claims
or defenses, unless the use would be solely for impeachment." Under Rule 26(e)(1), a party who
has made a disclosure under Rule 26(a) must "supplement or correct its disclosure or response…in
a timely manner if the party learns that in some material respect the disclosure or response is
incomplete or incorrect, and if the additional or corrective information has not otherwise been
made known to the other parties during the discovery process or in writing."
The consequences of failing to comply with the disclosure requirements of Rule 26 are set

forth in Federal Rule of Civil Procedure 37, which provides that "[i]f a party fails to…identify a
witness as required by Rule 26(a)…, the party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified
or is harmless." Fed. R. Civ. P. 37(c)(1). Where failing to identify the witness is not substantially
justified or harmless, exclusion is "automatic and mandatory." Finley v. Marathon Oil Co., 75
F.3d 1225, 1230 (7th Cir. 1996). "The party who fails timely to disclose witnesses has the burden
to show the failure was harmless or substantially justified; it is not the burden of the moving party
to demonstrate prejudice." Equal Emp. Opp. Comm'n v. Vill. of Hamilton Pointe LLC, 2020 WL
1663130, at *2 (S.D. Ind. Jan. 16, 2020).
B. Relevant Background
Equifax served its Rule 26 Initial Disclosures on April 28, 2022, identifying the Dulworths,
Equifax employee Celestina Gobin "or other designated representative of Equifax, who may be
contacted only through Defendant's counsel," and other general categories of individuals such as

"[a]ny entity with which [the Dulworths] allege to have applied for credit, employment or
insurance." [Filing No. 198-1.] When asked in an Interrogatory to identify any employees that
Equifax "used to process, investigate, or respond to [the Dulworths'] disputes of the accuracy of
the Account," Equifax did not identify Ms. Cobb in its August 4, 2022 Objections and Responses
to Plaintiffs' First Set of Interrogatories. [Filing No. 198-2 at 6.]
Equifax also did not list Ms. Cobb in its Witness Lists filed on May 13, 2022, but did list
Ms. Gobin "or other designated representative of Equifax" and stated: "An Equifax representative
is likely to have information regarding the policies, practices and procedures of Equifax for
maintaining credit files and reinvestigating consumer disputes, Plaintiffs' disputes, Equifax's
reinvestigations of Plaintiffs' disputes, the contents of Plaintiffs' credit files, and, after reviewing

relevant documents, the facts at issue in this case." [Filing No. 30 at 1.] In its Final Witness List,
filed on February 13, 2023, Equifax identified Ms. Gobin and two other Equifax employees –
Shetonjela Barber and Pamela Smith – but did not generally designate "[another] designated
representative of Equifax." [See Filing No. 115.] Equifax has not moved to amend its Final
Witness List.
Discovery closed in this case on August 11, 2023, [Filing No. 132 at 2], and Plaintiffs did
not depose Ms. Cobb. The CRAs then submitted Ms. Cobb's Declaration in support of their Joint
Motion for Summary Judgment on October 6, 2023. [Filing No. 183-2.] In her Declaration, Ms.
Cobb discusses "the procedures that Equifax uses to assure maximum possible accuracy in
gathering, assembling, and storing consumer credit information and to correct errors that are
brought to its attention." [Filing No. 183-2 at 3.] She also discusses Equifax's handling of the
Dulworths' dispute regarding the reporting of the Ally Loan. [Filing No. 183-2 at 9-11.]
C. Discussion

In support of their Motion to Exclude, the Dulworths argue that "there can be no
meaningful argument that [they] were not surprised by Equifax's untimely disclosure" of Ms. Cobb
as a witness and that they were not able to take any discovery from her during the discovery period.
[Filing No. 198 at 4-5.] They assert that Ms. Cobb's Declaration "contains 62 factual statements,
and Equifax cites that Declaration more than 40 times, for factual assertions relating to Equifax's
data storage and compilation, its relationship with furnishers like Ally, reporting processes that
relate to accuracy, Equifax's knowledge of tradeline information like that at issue in this case,
reporting of bankruptcy information and supposed industry standards for doing that, [and]
Equifax's supposed ability to rely on furnishers like Ally for information." [Filing No. 198 at 5.]
The Dulworths contend that their "ability to prepare for a trial opposite a Party who does not

comply with the Court's Orders and Rules for disclosing witnesses is categorically prejudiced."
[Filing No. 198 at 6.] They argue that the prejudice they have suffered by the late disclosure of
Ms. Cobb as a witness cannot be cured and that they "have strategically chosen not to move for
summary judgment, based on the state of discovery at the time it closed, only to have Equifax
blindside them with wholly new evidence after [they] made that decision and could not reverse it."
[Filing No. 198 at 7.] They note that if additional discovery were now allowed, they "would have
to completely retool their summary-judgment positions and re-brief the Motion." [Filing No. 198
at 7.] They also argue that although Equifax's untimely disclosure of Ms. Cobb does not affect the
trial date, it does "meaningfully impact[ ] summary judgment." [Filing No. 198 at 8.] The
Dulworths assert that Equifax's failure to disclose Ms. Cobb was willful and that the circumstances
justify a departure from Local Rule 56-1(i), which discourages collateral motions in the summary
judgment process. [Filing No. 198 at 8-9.]
In its response, Equifax argues that the Dulworths are not prejudiced by the use of Ms.

Cobb's Declaration because Equifax identified two other Equifax representatives – Ms. Gobin and
Ms. Barber – and the Dulworths did not depose either of those individuals. [Filing No. 200 at 2.]
Equifax argues that its policies and procedures are undisputed and that "[i]f Plaintiffs truly believed
that different witnesses would provide differing testimony regarding Equifax's policies and
reinvestigation procedures, then they would have certainly deposed every witness identified by
Equifax." [Filing No. 200 at 3.] Equifax argues that its policies and procedures do not change
based on which specific Equifax representative testifies, and states that it is "amenable to
exchanging Ms. Cobb's declaration with one signed by Ms. Gobin, an individual specifically
named by Equifax in its witness list." [Filing No. 200 at 3.] Equifax argues that it sufficiently
identified its witness as "other designated representative of Equifax," and "there is no possible

tactical advantage Equifax can have over Plaintiffs because Equifax's policies and reinvestigations
remain unchanged." [Filing No. 200 at 3-4.] Equifax contends that the timing of its disclosure of
Ms. Cobb was not willful and that it did not gain any tactical advantage. [Filing No. 200 at 5.]
In their reply, the Dulworths argue that Rule 26(a)(1) requires the disclosure of actual
individuals and not categories of individuals. [Filing No. 201 at 1-2.] They assert that Equifax's
description of Ms. Gobin's testimony in its disclosures indicates that she was the only person at
Equifax who could testify regarding Equifax's policies, practices, and procedures. [Filing No. 201
at 3.] They argue further that Equifax seeks to use a Rule 30(b)(6) witness for a declaration, but
that "Rule 30(b)(6) only applies to depositions, so by definition it does not apply to declarations
or affidavits." [Filing No. 201 at 4.] They assert that "while Ms. Cobb claims her Declaration is
based on her personal knowledge, Equifax destroys that claim by submitting a declaration from
Ms. Gobin that is word-for-word identical." [Filing No. 201 at 5.] The Dulworths argue that
Equifax has not carried its burden of showing a lack of harm to them and that they are not required

"to turn over every stone and depose every witness an opponent does disclose so that [they] can
preserve harm arguments that have not yet materialized." [Filing No. 201 at 6.] They assert that
Ms. Cobb testifies about more than Equifax's policies and procedures, and that although Equifax
maintains that its belated disclosure of Ms. Cobb was not willful, it has not provided any
explanation for why it was untimely. [Filing No. 201 at 9.]
There is no dispute that Equifax did not specifically disclose Ms. Cobb as a witness.
Instead, it disclosed Ms. Gobin "or other designated representative of Equifax" to testify regarding
"the policies, practices and procedures of Equifax for maintaining credit files and reinvestigating
consumer disputes, Plaintiffs' disputes, Equifax's reinvestigations of Plaintiffs' disputes, the
contents of Plaintiffs' credit file, and, after reviewing relevant documents, the facts at issue in this

case." [Filing No. 198-1 at 3.] It also disclosed "Celestine Gobin or other designated
representative of Equifax" on its witness list and provided a similar description of the testimony
that person would provide as it had included in its Rule 26 disclosures. [Filing No. 30 at 1 ("An
Equifax representative is likely to have information regarding the policies, practices and
procedures of Equifax for maintaining credit files and reinvestigating consumer disputes,
Plaintiffs' disputes, Equifax's reinvestigations of Plaintiffs' disputes, the contents of Plaintiffs'
credit files, and, after reviewing relevant documents, the facts at issue in this case.").]
But this failure to specifically disclose Ms. Cobb only warrants exclusion of her
Declaration if it harmed the Dulworths. Most telling is the fact that Equifax did disclose Ms.
Gobin, but the Dulworths did not depose her. Equifax has submitted a Declaration from Ms. Gobin
that is identical to Ms. Cobb's Declaration in all material respects. [Filing No. 200-1.] While the
Dulworths argue that this indicates that Ms. Cobb's Declaration could not have been based on her
personal knowledge if Ms. Gobin can aver to the same facts, the Court disagrees. It is possible –

and, in the Court's view, probable – that more than one employee would have personal knowledge
of the inner workings of their employer. Ms. Gobin's Declaration demonstrates that this is the case
with Equifax, and that Equifax's failure to specifically name Ms. Cobb as a witness, in light of the
Dulworths' failure to depose Ms. Gobin, was harmless.1 Accordingly, the Court DENIES the
Dulworths' Motion to Exclude the Declaration of Karen Cobb. [Filing No. 198.]
II.
THE CRAS' JOINT MOTION FOR SUMMARY JUDGMENT

A. Standard of Review
A motion for summary judgment asks the Court to find that a trial is unnecessary because
there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(a). On summary judgment, a party must show the Court
what evidence it has that would convince a trier of fact to accept its version of the events. Johnson
v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). "'Summary judgment is not a time to be
coy.'" King v. Ford Motor Co., 872 F.3d 833, 840 (7th Cir. 2017) (quoting Sommerfield v. City of
Chicago, 863 F.3d 645, 649 (7th Cir. 2017)). Rather, at the summary judgment stage, "[t]he parties
are required to put their evidentiary cards on the table." Sommerfield, 863 F.3d at 649.

1 The Dulworths' failure to depose Ms. Gobin also discredits their argument that they may have
decided to move for summary judgment had they known that Equifax would rely on Ms. Cobb as
a witness. It is unclear to the Court how the Dulworths would move for summary judgment without
testimony regarding Equifax's internal policies and procedures – information they decided not to
pursue when they determined not to depose Ms. Gobin.
The moving party is entitled to summary judgment if no reasonable fact-finder could return
a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The
Court views the record in the light most favorable to the non-moving party and draws all reasonable
inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir.

2008). It cannot weigh evidence or make credibility determinations on summary judgment
because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630
(7th Cir. 2011).
Each fact asserted in support of or in opposition to a motion for summary judgment must
be supported by "a citation to a discovery response, a deposition, an affidavit, or other admissible
evidence." S.D. Ind. L.R. 56-1(e). And each "citation must refer to a page or paragraph number
or otherwise similarly specify where the relevant information can be found in the supporting
evidence." Id. The Court need only consider the cited materials and need not "scour the record"
for evidence that is potentially relevant. Grant v. Trustees of Ind. Univ., 870 F.3d 562, 572-73
(7th Cir. 2017) (quotations omitted); see also Fed. R. Civ. P. 56(c)(3); S.D. Ind. L.R. 56-1(h).

Where a party fails to properly support an assertion of fact or fails to properly address another
party's assertion of fact, the Court may consider the fact undisputed for purposes of the summary
judgment motion. Fed. R. Civ. P. 56(e)(2).
In deciding a motion for summary judgment, the Court need only consider disputed facts
that are material to the decision. A disputed fact is material if it might affect the outcome of the
suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In
other words, while there may be facts that are in dispute, summary judgment is still appropriate if
those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th
Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
B. Statement of Facts
The following Statement of Facts is set forth pursuant to the standard detailed above. The

facts stated are not necessarily objectively true, but as the summary judgment standard requires,
the undisputed facts and the disputed evidence are presented in the light most favorable to "the
party against whom the motion under consideration is made." Premcor USA, Inc. v. Am. Home
Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).
1. The CRAs' Procedures Related to Reporting Bankruptcies
When a consumer files for bankruptcy, the CRAs receive high level information from
public vendors including the consumer's name, the type of bankruptcy filed (i.e., Chapter 7 or
Chapter 13), the date the consumer filed for bankruptcy, and the court in which the consumer filed
for bankruptcy. [Filing No. 183-2 at 4; Filing No. 183-3 at 3-4.] The public vendors will also
inform the CRAs when a bankruptcy has been discharged or dismissed. [Filing No. 183-2 at 4;

Filing No. 183-3 at 3-4.] Public vendors do not provide the CRAs with information regarding
particular tradelines. [Filing No. 183-3 at 3-4.] The CRAs generally rely on consumers (the debt
holder) and data furnishers (i.e., the entity that is owed the debt) to inform them regarding whether
an account was discharged in bankruptcy. [Filing No. 183-1 at 7-8; Filing No. 183-2 at 4; Filing
No. 183-2 at 7; Filing No. 183-3 at 3; Filing No. 183-4 at 11-12.]
In addition to relying on data furnishers and consumers to provide bankruptcy discharge
information, the CRAs have developed and implemented an automated procedure to update
accounts to report as discharged following entry of a Chapter 7 bankruptcy discharge order. [Filing
No. 183-2 at 9; Filing No. 183-3 at 4-5.] This procedure – called the bankruptcy "scrub" – was
developed pursuant to an injunction entered in White v. Experian Info. Sol., Inc., 2008 WL
11518799 (C.D. Cal. Aug. 19, 2008) (the "White Injunction"). [Filing No. 183-2 at 9; Filing No.
183-3 at 4.] Pursuant to the White Injunction, if a furnisher is already reporting to a CRA that an
account was included in bankruptcy, the CRA will either retain that reporting during the pendency

of the bankruptcy and update the reporting to "discharged in bankruptcy" once the discharge order
is entered or simply retain the "included in bankruptcy" status after the discharge. [Filing No. 183-
2 at 9; Filing No. 183-3 at 5.]
a. Bankruptcy Information From Data Furnishers
Before accepting consumer data from a particular data furnisher, the furnisher goes through
a vetting process and the CRAs "will provide consumer reports and accept consumer credit data
only from those data furnishers [the CRAs] have determined are reasonably reliable based upon
the [CRAs'] own investigation, the data furnisher's reputation in the community, and/or [the
CRAs'] longstanding business relationships with them." [Filing No. 183-2 at 5; see also Filing
No. 183-3 at 3.] Each data furnisher signs an agreement certifying that it will comply with all

requirements of the FCRA. [Filing No. 183-2 at 5-6; Filing No. 183-3 at 3.] The CRAs do not
report information from data furnishers that they believe to be unreliable and if at any point the
CRAs learn that a data furnisher is not providing accurate information, they would take immediate
steps to remediate up to and including terminating the data furnisher as a source of information.
[Filing No. 183-2 at 6; Filing No. 183-3 at 3.]
Data furnishers report information to the CRAs pursuant to an industry-wide manual called
the Credit Reporting Resource Guide ("CRRG"). [Filing No. 183-2 at 4; Filing No. 183-3 at 3.]
The CRRG explains that data furnishers are to report accounts that are reaffirmed, included in
bankruptcy, or discharged in bankruptcy through the use of Consumer Information Indicators
("CII"). [Filing No. 183-2 at 5; Filing No. 183-3 at 3.] For example:
• A CII of "A" indicates that an account was included in a consumer's Chapter 7
bankruptcy petition;

• a CII of "E" indicates that a debt has been discharged in bankruptcy, and the
CRAs will not display a recent balance, past-due amount, or current payment
amount, and will suppress any post-petition payment information the data
furnisher has reported; and

• a CII of "R" indicates that an account was reaffirmed in bankruptcy, and the
CRAs will continue to display the balance and payment information for that
tradeline, or will update the account to reflect that information if it was
previously being reported as "A" or "E."

[Filing No. 183-2 at 5; Filing No. 183-3 at 4.]
b. Bankruptcy Information from Consumers
The CRAs also rely on consumers to inform them if the consumer believes the information
on their credit report is inaccurate. [Filing No. 183-2 at 6; Filing No. 183-3 at 4.] If a consumer
contacts the CRAs and provides either inadequate documentation or no documentation at all to
support their claim that an account should be reported as reaffirmed in bankruptcy, the CRAs will
thoroughly review the dispute and any supporting documentation and then contact the data
furnisher to verify the accuracy of its reporting through the Automated Consumer Dispute
Verification ("ACDV") process. [Filing No. 183-1 at 12; Filing No. 183-2 at 6; Filing No. 183-3
at 5; Filing No. 183-4 at 18.] If the data furnisher then informs the CRAs that the account should
report as reaffirmed, the consumer's credit report will be updated accordingly. [Filing No. 183-1
at 12; Filing No. 183-2 at 6; Filing No. 183-3 at 5.]
2. The Dulworths' Ally Loan and Chapter 7 Bankruptcy
On July 27, 2018 the Dulworths took out the Ally Loan, which was secured by a 2016 Kia
Sedona. [Filing No. 181-1 at 39-40; Filing No. 181-1 at 106-07.] Three months later, on October
12, 2018, the Dulworths filed a joint Voluntary Petition for Chapter 7 Bankruptcy in the United
States Bankruptcy Court for the Southern District of Indiana. [Dkt. 1 in In re: Craig Scott
Dulworth and Brianna Lashell Dulworth, No. 18-07856-JMC-7 (Bankr. S.D. Ind.) (the
"Bankruptcy Petition"); Filing No. 181-2; Filing No. 181-3.]

The Bankruptcy Petition listed two creditors holding secured claims – Ally (secured by the
2016 Kia Sedona) and One Main (secured by a 2006 Chevy Silverado). [Filing No. 181-3 at 20.]
The Dulworths wanted to reaffirm the Ally Loan so that Brianna Dulworth could use the 2016 Kia
Sedona to get to and from work. [Filing No. 181-1 at 42-43.] On December 20, 2018, Ally filed
in the Bankruptcy Court a Reaffirmation Agreement that it had entered into with the Dulworths
which required the Dulworths to make regular payments of $449.90 per month over the course of
74 months beginning on November 25, 2018. [Filing No. 181-1 at 50; Filing No. 181-4 at 2.] The
Reaffirmation Agreement outlined various obligations for the Dulworths and stated that if those
obligations were not satisfied, "the reaffirmation agreement is not effective, even though you have
signed it." [Filing No. 181-4 at 8.] It also stated that the Dulworths could "rescind (cancel)" the

Reaffirmation Agreement by providing notice to Ally "at any time before the bankruptcy court
enters [the] discharge, or during the 60-day period that begins on the date your reaffirmation
agreement is filed with the court, whichever occurs later." [Filing No. 181-4 at 8.] The Dulworths'
attorney signed the Reaffirmation Agreement on November 16, 2018, the Dulworths signed it on
December 4, 2018, and an Ally representative signed it on December 11, 2018. [Filing No. 181-
1 at 7.]
On January 15, 2019, the Bankruptcy Court entered an Order discharging the Dulworths'
Chapter 7 bankruptcy. [Filing No. 181-5 at 6-7.] The Discharge Order stated that "[m]ost…but
not all" debts are covered by the discharge, but the Discharge Order did not include a list of the
Dulworths' discharged and reaffirmed debts. [Filing No. 181-5 at 6.] The Discharge Order further
stated that creditors could not "make any attempt to collect a discharged debt" and explained that
the bankruptcy discharge "does not prevent the debtors from paying any debt voluntarily or from
paying reaffirmed debts according to the reaffirmation agreement." [Filing No. 181-5 at 6.] The

Discharge Order stated that it was "only a general summary of the bankruptcy discharge," and that
because "some exceptions exist" and "the law is complicated," "you should consult an attorney to
determine the exact effect of the discharge in this case." [Filing No. 181-5 at 7 (emphasis
omitted).]
3. The CRAs' Reporting of the Ally Loan
The Dulworths maintained current payments on the Ally Loan. [Filing No. 195-3 at 5.]
Approximately two and a half years after the Bankruptcy Court issued the Discharge Order, the
Dulworths obtained copies of their credit reports from the CRAs and discovered that Equifax was
reporting the Ally Loan as included in bankruptcy with no payment history and Experian was
reporting the Ally Loan as discharged through bankruptcy and never late. [See Filing No. 72 at 2-

3; Filing No. 183-2 at 9; Filing No. 183-3 at 4.] The CRAs were not reporting a monthly payment
amount of any balance on the Ally Loan because Ally reported to the CRAs that the Ally Loan
was included in the Dulworths' Chapter 7 bankruptcy and the CRAs relied on that reporting. [See
Filing No. 183-2 at 5; Filing No. 183-2 at 9; Filing No. 183-3 at 4-5.] Additionally, the tradeline
was not scrubbed pursuant to the White Injunction. [See Filing No. 183-2 at 9; Filing No. 183-3
at 5.] The CRAs were also reporting the Dulworths' discharged Chapter 7 bankruptcy public
record. [Filing No. 183-2 at 7; Filing No. 183-3 at 3.]
4. The Dulworths' Disputes to Equifax and Equifax's Reinvestigation
The Dulworths reached out to Ally "[u]p to seven [times]" in an effort to have Ally change
its reporting of the Ally Loan and, once they realized Ally would not change its reporting, they
hired counsel to assist them with sending disputes to the CRAs. [Filing No. 181-1 at 84-85; Filing

No. 181-1 at 89-90.] The Dulworths hired Stecklein and Rapp Chartered to represent them, and
in September 2021, the Dulworths (on their own and not through their attorney) each submitted
identical dispute letters to Equifax (the "September 2021 Disputes"). [Filing No. 183-2 at 9-10;
Filing No. 181-11; Filing No. 181-12.] In the September 2021 Disputes, the Dulworths stated that
Equifax was incorrectly reporting the Ally Loan as included in bankruptcy with no payment history
because the account was reaffirmed in bankruptcy. [Filing No. 183-2 at 9-10; Filing No. 181-10;
Filing No. 181-11.] The September 2021 Disputes included a copy of the Reaffirmation
Agreement that was filed with the Bankruptcy Court. [Filing No. 181-10 at 8-13; Filing No. 181-
11 at 8-13.] After receiving the September 2021 Disputes and after locating the Dulworths' credit
files, Equifax opened a case for each of the Dulworths to track the reinvestigation. [Filing No.

183-2 at 9-10.]
The Equifax agent who reviewed Brianna Dulworth's September 2021 Dispute did not
contact Ally via ACDV as required by Equifax's policies and procedures and it appears from
Equifax's records that the agent misinterpreted Brianna Dulworth's dispute. [Filing No. 183-1 at
22; Filing No. 183-2 at 9-10.] In any event, the agent addressed the Ally Loan and confirmed that
it was reporting as included in bankruptcy. [Filing No. 182-1; Filing No. 183-1 at 22-23; Filing
No. 183-2 at 10.]
The Equifax agent who reviewed Craig Dulworth's September 2021 Dispute notified Ally
via the ACDV process and requested that Ally investigate the account and verify whether the Ally
Loan was reaffirmed in the bankruptcy. [Filing No. 183-2 at 10.] After investigating, Ally advised
Equifax that the Ally Loan was accurately reporting as included in bankruptcy. [Filing No. 183-2
at 10.] On October 12, 2021, Equifax informed Craig Dulworth of the results of its investigation
and verified that the account was correctly reporting as included in bankruptcy. [Filing No. 183-

2 at 10.]
Equifax received a second dispute from Brianna Dulworth in December 2021 (the
"December 2021 Dispute"). [Filing No. 183-2 at 10-11.] In the December 2021 Dispute, Brianna
Dulworth stated that the Ally Loan continued to report inaccurately and re-submitted the
Reaffirmation Agreement that was filed with the Bankruptcy Court. [Filing No. 181-12; Filing
No. 183-2 at 11.] The Equifax agent who reviewed the December 2021 Dispute notified Ally via
the ACDV process and requested that Ally investigate the account and verify whether the account
was reaffirmed in bankruptcy. [Filing No. 183-2 at 11.] Ally returned its investigation results and
advised that the account was accurately reporting as included in bankruptcy and Equifax advised
Brianna Dulworth of the results of the investigation and verified that the account was correctly

reporting as included in bankruptcy. [Filing No. 183-2 at 11.] Equifax did not take any additional
actions to investigate the status of the Ally Loan. [Filing No. 195-4 at 24-25.]
5. The Dulworths' Disputes to Experian and Experian's Reinvestigation
The Dulworths claim that they sent letters to Experian dated September 7, 2021 and
November 1, 2021 disputing Experian's reporting of the Ally Loan. [Filing No. 183-3 at 5-6.] But
as Experian investigated the matter, it discovered that the disputes were identified by Experian as
not originating from the Dulworths, so they were not processed pursuant to Experian's mail
processing procedures. [Filing No. 183-3 at 6.] Specifically, Experian's Global Security Policy
was implemented to evaluate mail it receives and to differentiate between disputes actually sent
from a consumer or their attorney versus those sent by third parties, including credit clinics. [Filing
No. 183-3 at 6.] Under the Global Security Policy, Experian employees evaluate outside envelopes
and compare them to other mail received because third parties tend to send their mail in bulk, with
similar features apparent from the outside. [Filing No. 183-3 at 6.] Letters identified as likely sent

by a third party or credit clinic are then opened and reviewed to determine if they appear to have
been sent directly by a consumer. [Filing No. 183-3 at 6.] If they are sent by a consumer or an
attorney representing a consumer, Experian processes that mail according to the requirements of
the FCRA. [Filing No. 183-3 at 6.] If they are sent by a third party or credit clinic, Experian does
not process those letters as disputes. [Filing No. 183-3 at 6.] The dispute letters the Dulworths
claim to have sent to Experian were identified by Experian as third-party mail and, consequently,
Experian did not conduct a further reinvestigation. [Filing No. 183-3 at 6.]
Approximately one month after the Dulworths initiated this litigation (which originated in
Johnson Superior Court and was removed to this Court, [Filing No. 1]), and before Ally was named
as a Defendant, Experian notified Ally of the Dulworths' disputes via the ACDV process and

requested that Ally investigate the Ally Loan and verify whether the account was reaffirmed in
bankruptcy. [Filing No. 183-3 at 5.] Ally returned its reinvestigation results and advised Experian
that the Ally Loan was accurately reported by Experian as discharged in bankruptcy. [Filing No.
183-3 at 5.]
6. The Dulworths' Claimed Damages
The Dulworths acknowledge that following the discharge of their Chapter 7 bankruptcy,
the bankruptcy filing had harmed their credit and they were not surprised when several applications
for new credit cards and loans were denied or came with unfavorable interest rates. [Filing No.
181-1 at 8-10; Filing No. 181-1 at 57; Filing No. 181-1 at 69.] Specifically, after the discharge of
their Chapter 7 bankruptcy, the Dulworths attempted to obtain an automobile loan through a car
dealership and, during the application process, received two sets of denials dated July 17, 2021
and July 24, 2021 from Teachers Credit Union that were based on their Equifax credit file. [Filing
No. 181-1 at 97-98; Filing No. 183-5 at 2-3; Filing No. 183-5 at 7-8.] The denials dated July 17,

2021 were not straight denials and only stated that the lender was unable to offer the Dulworths
credit on the terms requested due to an "[i]nsufficient credit file after Bankruptcy." [Filing No.
183-5 at 2-3.] The July 17, 2021 denials offered the Dulworths a loan with alternative terms, which
they did not accept. [Filing No. 181-1 at 121; Filing No. 183-5 at 2-3.] The denials dated July 24,
2021, however, did not provide alternative terms but stated that the principal reasons for credit
denials were "[b]ankruptcy" and "[i]nsufficient credit file after Bankruptcy." [Filing No. 183-5 at
7-8.] The denial letters did not reference the reporting of any specific account as discharged in the
Dulworths' bankruptcy or the Ally Loan at issue. [Filing No. 183-5.] Despite these letters, the
Dulworths still obtained an automobile loan through Capital One Finance in July 2021. [Filing
No. 181-1 at 99.]

The Dulworths claim that they have suffered emotional and mental anguish, frustration,
and annoyance. [Filing No. 182-6 at 9-10; Filing No. 182-7 at 8-9.] Brianna Dulworth experienced
sadness and embarrassment associated with filing for bankruptcy, and frustration with the repeated
attempts to convince Ally that the Ally Loan was reaffirmed and that it should be reported to the
CRAs as reaffirmed. [Filing No. 181-1 at 30-32; Filing No. 181-1 at 83-85.] Brianna Dulworth
discussed her stress related to her attempts to convince Ally to report the Ally Loan as reaffirmed
with her family doctor, but neither she nor Craig Dulworth sought medical treatment as a result of
the CRAs' reporting of the Ally Loan, nor is there any evidence that they spoke to a mental health
professional. [Filing No. 181-1 at 135-36; Filing No. 182-7 at 9.]
7. The Lawsuit
The Dulworths originally filed suit in Johnson Superior Court, and Experian removed the
case to this Court on the basis of federal question jurisdiction. [Filing No. 1.] In their operative
Second Amended Complaint, the Dulworths assert claims against the CRAs for willfully and

negligently: (1) violating § 1681e(b) of the FCRA by not following reasonable procedures to
assure maximum possible accuracy of their reporting; and (2) violating § 1681i of the FCRA by
failing to conduct a reasonable reinvestigation of the Dulworths' disputes. [Filing No. 72 at 5-8.]
Specifically, the Dulworths allege that the CRAs erroneously reported the Ally Loan as
"'INCLUDED IN BANKRUPTCY' with no payment history" or "Discharged through Bankruptcy
Chapter 7/Never late" when the account was actually reaffirmed and they were making payments
toward the balance of the loan after the bankruptcy discharge. [Filing No. 72 at 2-3.] The
Dulworths allege that they submitted disputes to the CRAs regarding the erroneous reporting, but
that the CRAs continued to report the Ally Loan as included in bankruptcy and discharged through
bankruptcy. [Filing No. 72 at 3-4.] The Dulworths seek actual damages, statutory damages,

punitive damages, costs, and attorneys' fees. [Filing No. 72 at 7.]
C. Discussion
1. Standing
Before the Court considers the substance of the Dulworths' claims, it must determine
whether they have standing to sue, which is a jurisdictional requirement. Persinger v. Southwest
Credit Sys., L.P., 20 F.4th 1184, 1189 (7th Cir. 2021) (courts "have independent obligation to
inspect, and remain within, jurisdictional boundaries") (quotation and citation omitted). Standing
is a threshold issue, and the Court must discuss it at the outset. Bazile v. Fin. Sys. of Green Bay,
Inc., 983 F.3d 274, 278 (7th Cir. 2020). To have standing to sue in federal court under Article III,
a plaintiff must establish: "(i) that he [or she] suffered an injury in fact that is concrete,
particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and
(iii) that the injury would likely be redressed by judicial relief." TransUnion LLC v. Ramirez, 141
S. Ct. 2190, 2203 (2021) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

"Because standing is an essential ingredient of subject-matter jurisdiction, it must be
secured at each stage of the litigation." Bazile, 983 F.3d at 278. Although at the pleading stage
"general factual allegations of injury resulting from the defendant's conduct may suffice," Lujan,
504 U.S. at 561, "[o]nce the allegations supporting standing are questioned as a factual matter –
either by a party or by the court – the plaintiff must support each controverted element of standing
with 'competent proof,'" Bazile, 983 F.3d at 278 (quoting McNutt v. Gen. Motors Acceptance Corp.
of Ind., 298 U.S. 178, 189 (1936)). "Competent proof" means "a showing by a preponderance of
the evidence, or proof to a reasonable probability, that standing exists." Retired Chi. Police Ass'n
v. City of Chicago, 76 F.3d 856, 862 (7th Cir. 1996).
The parties do not explicitly address whether the Dulworths have standing, but the CRAs

argue in their Joint Motion for Summary Judgment that the Dulworths have not presented evidence
that the CRAs' reporting of the Ally Loan as discharged, rather than the Dulworths' poor credit
history and bankruptcy discharge, caused them any injury in fact. [Filing No. 186 at 19-23.] The
CRAs note the Dulworths' testimony that they knew filing for bankruptcy would damage their
credit for years and make it difficult to obtain credit. [Filing No. 186 at 19-20 (citing Filing No.
181-1 at 7; Filing No. 181-1 at 25-26; Filing No. 182-9 at 7).] They assert that although the
Dulworths received eleven denial letters in total (the "Credit Denial Letters"), they have not
presented any evidence that the denials were connected to the CRAs' reporting of the Ally Loan.
[Filing No. 186 at 21.] They argue that seven of the Credit Denial Letters relied on information
from Trans Union, another credit reporting agency that is not a party in this lawsuit, and that
although four of the letters refer to receiving information from Equifax, none reference the
Dulworths' outstanding debts or the Ally Loan as a reason for the denial. [Filing No. 186 at 21.]
The CRAs note that the four letters referencing Equifax provide the following reasons for denial:

"Bankruptcy" and "[i]nsufficient credit file after Bankruptcy." [Filing No. 186 at 21 (citing Filing
No. 183-5 at 2-3; Filing No. 183-5 at 7-8).] The CRAs argue that, in any event, the Dulworths
were able to obtain an automobile loan "almost immediately" after the Credit Denial Letters.
[Filing No. 186 at 21.] They also assert that the Dulworths have not provided any credit denial
letters linked to information reported by Experian. [Filing No. 186 at 21.] As for emotional
distress damages, the CRAs argue that any distress the Dulworths suffered was due to the filing of
their bankruptcy and their efforts to get Ally to change its reporting of the Ally Loan to the CRAs,
and not due to any actions of the CRAs. [Filing No. 186 at 21-22.] They also argue that "the
garden-variety stresses that [the Dulworths] claim to have experienced are exactly the sort that
courts in the Seventh Circuit reject as failing to meet the Seventh Circuit's strict standard for a

finding of emotional damage because they are so easy to manufacture." [Filing No. 186 at 22
(quotation and citation omitted).]
In their response,2 the Dulworths focus on the emotional distress damages they claim they
have suffered, including Brianna Dulworth's high blood pressure and anxiety, sadness and
depression, overwhelming stress, and frustration with the dispute process and the CRAs; and Craig

2 The CRAs note that the Dulworths' response, after subtracting pages used for the table of contents
and table of authorities, exceeds the 35-page limit for response briefs by 6 pages, and request that
the Court not consider arguments "after the 39-page mark." [Filing No. 199 at 3.] The Court
acknowledges that the Dulworths' response brief does not comply with the 35-page limit set forth
in Local Rule 7-1(e), but will consider the Dulworths' arguments made outside of the page limit
since the arguments made in the last 6 pages are not outcome-determinative. The Court cautions
counsel, however, that it must comply with all Local Rules going forward.
Dulworth feeling frustrated and helpless that no one would assist them with correcting the
misreporting. [Filing No. 196 at 23-25.]
The CRAs argue in their reply that the Dulworths do not dispute that the CRAs' reporting
of the Ally Loan did not cause them any credit harm. [Filing No. 199 at 10.] They reiterate their

argument that any emotional distress the Dulworths suffered was attributable to their bankruptcy
proceeding and Ally's actions. [Filing No. 199 at 10-11.]
The Court agrees that the Dulworths ignore the CRAs' arguments regarding a lack of actual
damages from their reporting of the Ally Loan – both that the Dulworths have not presented any
evidence that the credit denials based on information from Equifax were due to Equifax's reporting
of the Ally Loan and that none of the credit denials the Dulworths produced were based on
information from Experian. Consequently, the Dulworths have waived any argument in
opposition. Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) ("Failure to respond to an
argument…results in waiver.").
Additionally, the evidence the Dulworths point to in support of their claim that they

suffered emotional distress damages relates to the filing of their bankruptcy or their failed efforts
to get Ally to change how it was reporting the Ally Loan to the CRAs – and not to the actions of
the CRAs. [See, e.g., Filing No. 194-4 at 17-18 (Brianna Dulworth testifying regarding emotional
distress "from Ally's reporting"); Filing No. 194-5 at 4 (Craig Dulworth testifying that he was
aggravated due to not being able to get credit and was "trying to fix the problem" by applying for
credit).] The only evidence the Dulworths point to regarding the CRAs' actions is testimony from
Brianna Dulworth that she did not follow through with the CRAs regarding her dispute of the
reporting of the Ally Loan because she "was frustrated." [Filing No. 194-4 at 11.] The Court finds
that Brianna Dulworth's vague reference to feeling frustrated is not sufficient to show that the
Dulworths suffered emotional distress as a result of the CRAs' actions. Sarver v. Experian Info.
Sols., 390 F.3d 969, 971 (7th Cir. 2004) (The Seventh Circuit imposes a "strict standard for a
finding of emotional damage because [accounts of emotional distress] are so easy to
manufacture.") (quotation and citation omitted); see also Laura v. Experian Info. Sols., Inc., 2022

WL 823853, at *3 (N.D. Ill. Mar. 18, 2022) (plaintiff's conclusory assertion that she experienced
frustration, despair, and hopelessness after CRA's inaccurate reporting was not sufficient to
support emotional distress damages).
Even though the Dulworths have not presented any evidence that they suffered actual
damages for purposes of recovering for a negligent violation of the FCRA under §1681o, they can
still seek statutory and punitive damages under § 1681n for a willful violation of the FCRA. See
Meyers v. Nicolet Rest. of De Pere, LLC, 843 F.3d 724, 725 (7th Cir. 2016) ("Each willful violation
entitles consumers to recover either 'any actual damages sustained…as a result' of the violation or
statutory damages of between $100 and $1,000.") (quoting 15 U.S.C. § 1681n(a)(1)(A)). The
Dulworths still must show, however, that they suffered an injury-in-fact in order to seek redress

for a willful violation. McIntyre v. RentGrow, Inc., 34 F.4th 87, 93 n.2 (1st Cir. 2022) ("Even
without a showing of actual damages, a plaintiff who seeks to press a willful noncompliance claim
[under the FCRA] must show an injury in fact sufficient to support standing.") (citing Trans Union
LLC v. Ramirez, 141 S. Ct. 2190, 2200 (2021)).
In Spokeo, Inc. v. Robins, the Supreme Court held that a "bare procedural violation [of the
FCRA] divorced from any concrete harm" does not satisfy the injury-in-fact requirement of Article
III." 578 U.S. 330, 341 (2016). The Supreme Court also found, however, that "the risk of real
harm" can satisfy the requirement of concreteness where the violation of the FCRA is of a right
granted by the statute and the plaintiff "need not allege any additional harm beyond the one
Congress has identified." Id. at 342 (emphasis omitted). Subsequently, the Supreme Court held
that a plaintiff has standing to sue for an FCRA violation where a misleading credit report was
provided to a third party, because this dissemination constituted "concrete reputational harm."
Ramirez, 141 S. Ct. at 2200; see also Chuluunbat v. Experian Info. Solutions, Inc., 4 F.4th 562,

566 n.3 (7th Cir. 2021) (plaintiffs had standing to assert FCRA claims where they had all alleged
that their credit reports were accessed by third parties).
The record evidence in this case, which consists of the Credit Denial Letters, shows that
Equifax disseminated the Dulworths' credit reports to third parties during the time that the Ally
Loan was being reported as included in bankruptcy instead of reaffirmed. [See Filing No. 183-5
at 2-3 (letters to the Dulworths denying auto loan based on information received from Equifax).]
Under Spokeo and Ramirez, the Court finds that, because Equifax disseminated the Dulworths'
allegedly inaccurate credit reports to third parties, they have standing to assert their FCRA claims
against Equifax.
There is no record evidence, however, showing that Experian disseminated the Dulworths'

credit reports to third parties when it was reporting the Ally Loan as discharged through bankruptcy
instead of reaffirmed. None of the Credit Denial Letters reference Experian, [Filing No. 183-5],
and the Dulworths do not set forth any additional evidence showing – nor do they even argue in
their response brief – that third parties received their Experian credit report during this time.
Accordingly, under Spokeo and Ramirez, the Dulworths do not have standing to assert their FCRA
claims against Experian and those claims are DISMISSED WITHOUT PREJUDICE.3 The

3 A dismissal for lack of jurisdiction is without prejudice. See Am. Bottom Conservancy v. U.S.
Army Corps of Eng'rs, 650 F.3d 652, 661 (7th Cir. 2011).
Court also DENIES AS MOOT the CRAs' Joint Motion for Summary Judgment, [Filing No. 180],
as to the Dulworths' claims against Experian.
The Court goes on to consider the parties' arguments regarding the claims against Equifax.
2. Whether Equifax Violated § 1681e(b)

The Dulworths claim that Equifax negligently and willfully violated the FCRA. For a
negligent violation, the Dulworths must show that they suffered actual damages in order to recover.
15 U.S.C. § 1681o. As discussed above, they have not made such a showing and their claim for a
negligent violation of § 1681e(b) fails as a matter of law.
As to a willful violation, the Dulworths must show that Equifax acted "with actual
knowledge or reckless disregard for the FCRA's requirements." Persinger v. Sw. Credit Sys., L.P.,
20 F.4th 1184, 1195 (7th Cir. 2021) (citing Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57 (2007)).
This "raises a sequencing issue," where "[c]ourts may pass over the antecedent question of whether
a violation occurred, moving directly to whether the defendant negligently or willfully violated the
statute," which "is akin to the sequencing dilemma courts face in qualified immunity cases."

Persinger, 20 F.4th at 1195. The Court will follow the Supreme Court's approach in Safeco and
the Seventh Circuit's approach in Persinger, however, and first consider whether Equifax has
violated the FCRA.
15 U.S.C. § 1681e(b) provides that "[w]henever a consumer reporting agency prepares a
consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the
information concerning the individual about whom the report relates." In order for the Dulworths
to succeed on their FCRA claim, they must show that Equifax's consumer report contained
inaccurate information. See Walton v. BMO Harris Bank N.A., 761 Fed. App'x 589, 591 (7th Cir.
2019) (holding that a CRA "cannot be held liable as a threshold matter [under § 1681e(b)] if it did
not report inaccurate information"). Additionally, the FCRA "is not a strict liability statute," id. at
592, and "does not require unfailing accuracy from consumer reporting agencies," Denan v. Trans
Union LLC, 959 F.3d 290, 294 (7th Cir. 2020). If a CRA followed "reasonable procedures to
assure maximum possible accuracy" of a consumer's information, but reported inaccurate

information anyway, it is not liable under the FCRA. Henson v. CSC Credit Servs., 29 F.3d 280,
284 (7th Cir. 1994). Additionally, "[n]either the FCRA nor its implementing regulations impose
a…duty [upon CRAs] to determine the legality of a disputed debt." Denan, 959 F.3d at 295.
Equifax argues that it did not violate § 1681e(b) for two reasons: (1) determining whether
the Ally Loan was successfully reaffirmed and, consequently, inaccurately reported, would require
the type of legal analysis that it is not obligated to undertake; and (2) it was entitled to rely on
information furnished by Ally. The Court considers each reason in turn.
a. Whether Reporting the Reaffirmation Required a Legal
Determination That Equifax Was Not Obligated to Undertake

In support of its Joint Motion for Summary Judgment, Equifax argues that the Dulworths'
claims "present legal issues related to the validity of their reaffirmation agreement with Ally that
are not suitable for resolution by [the CRAs]." [Filing No. 186 at 18.] It notes that the only parties
to the Reaffirmation Agreement are the Dulworths and Ally, "and the record evidence shows that
they disagreed as to whether the debt was discharged" – with the Dulworths claiming that the Ally
Loan was not discharged and Ally claiming that the Ally Loan was accurately reported as included
in the bankruptcy with no payment history. [Filing No. 186 at 18.] Equifax asserts that
determining whether the Reaffirmation Agreement was "an enforceable contract between a
furnisher and a consumer turns on complex questions of bankruptcy law that far exceed the
competencies of consumer reporting agencies." [Filing No. 186 at 18 (quotations and brackets
omitted).] It argues that determining whether the Reaffirmation Agreement was valid would
require it to "consider the facts surrounding the [Reaffirmation Agreement] in light of applicable
bankruptcy law." [Filing No. 186 at 18.] It contends that the Dulworths could have gone to the
Bankruptcy Court and obtained an order that resolved their dispute with Ally and that, if they had,
the enforceability of the Reaffirmation Agreement would have become a question of fact instead

of a question of law. [Filing No. 186 at 18-19.]
In their response, the Dulworths argue that the CRAs "make and report legal conclusions
constantly when it suits them, but when they are sued…and want to avoid liability [they] retreat to
the legal/factual distinction that has some traction in courts, but no basis whatsoever in the statute."
[Filing No. 196 at 15.] They assert that the CRAs could have included a notation on their credit
reports that the Dulworths were making payments pursuant to an agreement even if the CRAs had
doubts about the agreement's validity, noting that the CRAs possessed the Reaffirmation
Agreement. [Filing No. 196 at 15.] They contend that they are claiming that they owe a debt and
that fact is being reported inaccurately, and that they are not collaterally attacking anything. [Filing
No. 196 at 17.] The Dulworths note that the CRAs do not need to determine the validity of the

Reaffirmation Agreement, and only need to know whether it existed and that when they learned it
existed, "the FCRA obligated them to do something about what they were reporting so that it was
maximally accurate." [Filing No. 196 at 18.] The Dulworths argue that the CRAs "want the Court
to conclude that relying on the furnisher was reasonable as a matter of law when [the CRAs] knew
they had conflicting information about the Ally Loan and might have resolved the confusion by
checking the bankruptcy docket." [Filing No. 196 at 20.] They assert that the CRAs "are
statutorily obligated to get things right," and that "[p]erhaps if [bankruptcy] is so complex and
difficult, [the CRAs] should stop including it in the reports they make so much money selling."
[Filing No. 196 at 22-23.]
In its reply, Equifax reiterates its argument that it received information from Ally regarding
the Ally Loan and that "any further investigation beyond confirming what Ally had already
reported would have required [it] to determine whether the [R]eaffirmation [A]greement was
legally valid." [Filing No. 199 at 4.] It notes that "legal disputes must be adjudicated and, as a

result, are beyond the scope of [the CRAs'] abilities." [Filing No. 199 at 4.] Equifax contends that
the cases the Dulworths rely upon all involved "binding and verifiable filings that were placed on
the bankruptcy docket," whereas in this case the issue is whether the Reaffirmation Agreement
was valid. [Filing No. 199 at 4-5.]
In Denan v. Trans Union LLC, the Seventh Circuit Court of Appeals considered whether a
CRA had violated § 1681e(b) when it reported a debt that the consumer argued was illegally issued,
but that the creditor had verified. 959 F.3d 290 (7th Cir. 2020). In finding that the CRA had not
violated § 1681e(b), the Seventh Circuit explained the role of furnishers and CRAs as follows:
The FCRA imposes duties on consumer reporting agencies and furnishers in a
manner consistent with their respective roles in the credit reporting market.
Furnishers – such as banks, credit lenders, and collection agencies – provide
consumer data to consumer reporting agencies. In turn, those agencies compile the
furnished data into a comprehensible format, allowing others to evaluate the
creditworthiness of a given consumer. Consumer reporting agencies and
furnishers, though interrelated, serve discrete functions: furnishers report data to
incentivize the repayment of debts, while consumer reporting agencies compile and
report that data for a fee. What results is a credit reporting system, producing a vast
flow and store of consumer information. For example, according to the Consumer
Financial Protection Bureau, each of the nationwide consumer reporting agencies
receive information from furnishers on over 1.3 billion consumer credit accounts
or trade lines on a monthly basis.

Id. at 294. The Seventh Circuit went on to note that requiring a CRA to "verify [a consumer's]
debt liability" would "attempt to graft responsibilities of data furnishers and tribunals onto a
consumer reporting agency. Only furnishers are tasked with accurately reporting liability. And it
makes sense that furnishers shoulder this burden: they assumed the risk and bear the loss of unpaid
debt, so they are in a better position to determine the legal validity of a debt…. [CRAs] collect
consumer information supplied by furnishers, compile it into consumer reports, and provide those
reports to authorized users." Id. at 295 (citations omitted). It concluded that determining the
validity of the plaintiff's debt involved three legal issues – whether the choice-of-law provision in

the loan agreements was enforceable, whether the loans were void under applicable state laws, and
whether tribal sovereign immunity shielded various parties from the application of those states'
laws – and that "[t]he power to resolve these legal issues exceeds the competencies of consumer
reporting agencies." Id.
While cases refusing to impose a duty on CRAs to determine the legality of a debt generally
involve questions of the validity of the debt, the Court finds the situation here – determining the
validity of the Reaffirmation Agreement – to be analogous. As the Seventh Circuit has explained,
factual issues for which CRAs are responsible to accurately report include, for example, "the
amount a consumer owes, and what day a consumer opened an account or incurred a payment."
Chuluunbat, 4 F.4th at 569. In contrast, a legal issue requires a CRA to "make [a] legal

determination[ ] about the facts or legal judgments." Id. Here, it is true that the filing of the
Reaffirmation Agreement is a factual issue, ascertainable from a quick review of the Dulworths'
bankruptcy docket. But the mere filing of the Reaffirmation Agreement does not necessarily mean
that it was valid. Indeed, Ally told the CRAs that the Ally Loan had not been reaffirmed and was
accurately reporting as included in bankruptcy. And the Reaffirmation Agreement provided that
it would cease to be effective if the Dulworths did not follow various instructions contained therein.
It also stated that the Dulworths could rescind the Reaffirmation Agreement by providing notice
to Ally before the Bankruptcy Court entered the discharge or during the 60-day period beginning
on the date the Reaffirmation Agreement was filed with the Bankruptcy Court, whichever occurred
later. [Filing No. 181-4 at 8.] Any further determination regarding the Reaffirmation Agreement's
validity would require Equifax to delve into applicable bankruptcy rules and contract law to answer
that question – including whether either of those scenarios had occurred after the Reaffirmation
Agreement was filed in the Bankruptcy Court. This is a legal determination that would require the

CRAs to apply law to the facts, that "exceeds the competencies" of the CRAs, and that is one which
the CRAs are not required to make under the FCRA. Denan, 959 F.3d at 295. Accordingly, the
Court finds that Equifax did not violate § 1681e(b) by reporting the Ally Loan as discharged
instead of reaffirmed.
b. Whether Equifax Was Entitled to Rely Upon Information From Ally
Equifax argues in support of its Joint Motion for Summary Judgment that CRAs "comply
with § 1681e(b) as a matter of law by reporting information provided to them by furnishers
following safeguards that are in place to ensure maximum possible accuracy of reporting consumer
information." [Filing No. 186 at 23.] It notes that "[t]his is especially true when the issue is
whether a consumer is liable to repay a debt, because only furnishers are tasked with accurately

reporting liability under the FCRA." [Filing No. 186 at 23 (quotations, citations, and brackets
omitted).] Equifax asserts that it had no reason to believe that Ally was an unreliable furnisher
and that "[o]n the contrary, Ally has a strong track record of providing the CRAs with accurate
information about the status of its debts following a Chapter 7 bankruptcy." [Filing No. 186 at
24.] Equifax relies upon a sample of 300 consumers' bankruptcy files that were reviewed in
connection with Myers v. Equifax Info. Servs., LLC, Case No. 1:20-cv-00392-JMS-DLP (S.D.
Ind.), in which there was only one reporting error from Ally. [Filing No. 186 at 24.] It contends
that "[the Dulworths'] suggestion that [the CRAs] should independently review all information
provided by furnishers would be untenable and at odds with Congress's goal of creating a credit-
reporting system suitable for meeting the needs of commerce." [Filing No. 186 at 24 (quotation
and citation omitted).]
In response, the Dulworths argue that the FCRA does not allow Equifax to "shirk [its]
investigation responsibilities in favor of simply regurgitating what a furnisher tells the CRA about

an account," and that Equifax took Ally's word over theirs, which was improper. [Filing No. 196
at 29.] They assert that just sending ACDVs to Ally was not reasonable and that Equifax was on
notice that Ally was not a reliable furnisher through the Dulworths' "multiple, detailed disputes,"
and through the litigation in Myers, which they claim showed that "Ally did not know what it was
doing when consumers entered into reaffirmation agreements with it." [Filing No. 196 at 30-31.]
They argue further that the Court should consider whether Equifax knew Ally might be an
unreliable source and what the cost to Equifax of verifying the accuracy of the information was,
and note that "there is no discussion of whether any of [the] accounts [in the 300-account sample
from Myers] involved reaffirmation agreements," and that Equifax "offer[s] nothing solid about
[what] it would take to verify with Ally whether [the Dulworths'] agreements were valid." [Filing

No. 196 at 32-33.]
In its reply, Equifax reiterates its argument that the Dulworths have not "provided any
authority or evidence to show that Ally is an unreliable furnisher." [Filing No. 199 at 9.]
It is well-settled that a CRA can rely on information from a furnisher in order to reasonably
assure maximum possible accuracy of its reporting of a consumer's information when the CRA
has no reason to believe that the furnisher is unreliable. Sarver, 390 F.3d at 972 ("In the absence
of notice of prevalent unreliable information from a reporting lender, which would put Experian
on notice that problems exist, we cannot find that such a requirement to investigate would be
reasonable given the enormous volume of information Experian processes daily.").
The Dulworths rely only on their own disputes and the dispute of the plaintiff in the Myers
case for their argument that Ally was an unreliable furnisher. But issues with the Dulworths' Ally
Loan, a potential inaccuracy with the plaintiff's loan in Myers, and one discrepancy out of 300
consumers in the Myers sample do not rise to the level of putting Experian on notice of a problem.

Further, even if the 300-account sample in Myers did not include many, or any, scenarios where
the consumer had entered into a reaffirmation agreement, the Court does not find this significant.
The Dulworths still have not shown that there was an issue with Ally's reporting of accounts –
reaffirmation agreement-related or otherwise – that should have alerted Equifax to an issue.
Further, the Dulworths do not suggest what more Equifax could have done. Even if it had
examined the Bankruptcy Court docket upon receiving reinvestigation information from Ally, the
docket would not have reflected whether the Reaffirmation Agreement was properly signed by the
Dulworths and Ally, whether the Dulworths complied with the terms of the Reaffirmation
Agreement up to that point such that it continued to be effective, or whether the Dulworths had
rescinded the Reaffirmation Agreement after it was filed.

In sum, no reasonable jury could conclude that Equifax failed to follow reasonable
procedures to assure maximum possible accuracy of its reporting of the Ally Loan. Accordingly,
the Court GRANTS the CRAs' Joint Motion for Summary Judgment, [Filing No. 180], on the
Dulworths' claims that Equifax negligently and willfully violated § 1681e(b).
3. Whether Equifax Violated § 1681i
In support of its Joint Motion for Summary Judgment, Equifax argues that it did not violate
§ 1681i because the Dulworths' disputes involved a legal issue and "no amount of investigation by
Equifax would have uncovered an inaccuracy in their credit reports." [Filing No. 186 at 25.] It
asserts that after receiving the Dulworths' disputes – which included a copy of the Reaffirmation
Agreement – it did not know "whether the reaffirmation contract was enforceable, what happened
between 2018 and 2021, and how the account should report as of September 2021 as neither the
documents nor the bankruptcy docket would have provided [it] with a current status, history, and
payment information," so it reinvestigated the disputes with Ally. [Filing No. 186 at 25-26.]

The Dulworths argue in their response that Equifax simply took Ally's word over theirs
regarding the validity of the Reaffirmation Agreement, and that a fact issue exists regarding the
reasonableness of that conduct. [Filing No. 196 at 29.] They contend that courts have not found
that the ACDV process is reasonable as a matter of law and that Equifax was on notice that Ally
was an unreliable furnisher. [Filing No. 196 at 30.] The Dulworths assert that Equifax engaged
in "parroting" by simply sending an ACDV to Ally and waiting for its response. [Filing No. 196
at 33.] They argue further that "Equifax has not moved for summary judgment on the willfulness
element of [their] Section 1681i claim." [Filing No. 196 at 44.]
In its reply, Equifax argues that "courts have held that the use of the ACDV process is
sufficient when a plaintiff cannot show what a more robust reinvestigation would result in," and

that "no amount of reinvestigation by Equifax would have allowed it to determine whether the
reaffirmation agreement was legally valid or not because Equifax is not equipped to determine the
validity of a debt and neither is it required to do so under the FCRA." [Filing No. 199 at 8.]
Equifax argues that it did move for summary judgment on the Dulworths' claim that it willfully
violated § 1681i, pointing to "an entire section dedicated to [the Dulworths'] failure to establish
that Equifax violated Section 1681i of the FCRA." [Filing No. 199 (citing Filing No. 186 at 15;
Filing No. 186 at 25-26; Filing No. 185 at 29-33).]
As the Seventh Circuit has explained, "[w]hen a consumer contends that his [or her] credit
report is inaccurate or incomplete, he [or she] can dispute his [or her] report with the CRA that
prepared it. The CRA is then obligated to conduct a 'reasonable reinvestigation to determine
whether the disputed information is inaccurate,' considering '[a]ll relevant information submitted
by the consumer.'" Chaitoff v. Experian Info. Sols., Inc., 79 F.4th 800, 809 (7th Cir. 2023)
(citations omitted, quoting 15 U.S.C. § 1681i). The CRA must then transmit to the furnisher "all

relevant information regarding the dispute" that it receives from the consumer. 15 U.S.C. §
1681i(a)(2)(A). Negligent violations of § 1681i are actionable under § 1681o and willful violations
are actionable under § 1681n. Chaitoff, 79 F.4th at 809. "[R]easonable procedures under §
1681e(b) are not proof of a reasonable reinvestigation under § 1681i(b)." Id. at 817.
Here, Equifax received disputes from the Dulworths in which they stated that the Ally Loan
should not be reporting as closed or included in bankruptcy, but rather that it was an open account
that was reaffirmed in bankruptcy and had a positive payment history. [See Filing No. 181-10;
Filing No. 181-11; Filing No. 181-12; Filing No. 182-2.] Equifax then sent ACDVs to Ally to
reinvestigate the status of the Ally Loan.4 [See Filing No. 182-4.] Further, and tellingly, the
Dulworths do not suggest what more Equifax could have done. Although Equifax had a copy of

the Reaffirmation Agreement, the mere existence of the Agreement did not necessarily mean that
it was valid. Its validity turned on whether it was validly signed, whether the Dulworths had
continued with timely payments, and whether the Dulworths had repudiated the Agreement (as
they were permitted to do pursuant to bankruptcy laws). As discussed above, these are legal
determinations that Equifax was not obligated to make under the FCRA, rather than factual
determinations that were readily made from looking at the bankruptcy docket. Chaitoff, 79 F.4th

4 The Court acknowledges that Equifax did not contact Ally via ACDV in connection with Brianna
Dulworth's September 2021 Dispute, but an Equifax agent did address the Ally Loan and
confirmed that it was reporting as included in bankruptcy. [Filing No. 183-1 at 22-23.] And the
Dulworths do not discuss in their response brief Equifax's failure to use the ACDV process in
connection with Brianna Dulworth's September 2021 Dispute in any event.
at 814 ("CRAs are not well suited to adjudicate legal defenses to a debt, so they are not liable for
reporting information that may be legally inaccurate."). Additionally, and also as discussed above,
the Dulworths have not presented competent evidence from which a reasonable jury could
conclude that Equifax should have known that Ally was an unreliable furnisher.

Further, while a CRA's duty to reinvestigate also depends on "the cost of verifying the
accuracy of the source versus the possible harm inaccurately reported information may cause the
consumer," Henson v. CSC Credit Servs., 29 F.3d 280, 287 (7th Cir. 1994), the appropriate answer
was not – as the Dulworths suggest – for Equifax to simply delete the Ally Loan tradeline because
doing so would not cost anything, [Filing No. 196 at 33]. Equifax reinvestigated the tradeline by
submitting an ACDV to Ally and considering Ally's response. While the ACDV process is not
per se reasonable in every circumstance, the circumstances here did not require Equifax to do
more. The Dulworths premise their argument on the notion that Equifax had a duty to "figure out
whether the reaffirmation agreement [was] valid," [Filing No. 196 at 21], but Equifax has no such
duty under the FCRA when "figuring it out" would entail making legal determinations, as it would

have here. See Denan, 959 F.3d at 295.
Finally, the Court rejects the Dulworths' argument that Equifax did not move for summary
judgment on their claim that Equifax willfully violated § 1681i. Although Equifax focuses its
motion on arguments that it did not violate § 1681i at all, [see, e.g., Filing No. 186 at 25-26], it
also states that it "move[s] for summary judgment on Plaintiffs' claims that [it] allegedly violated
§ 1681e(b) and willfully violated § 1681e(b) and § 1681i of the FCRA." [Filing No. 186 at 15
(emphasis added).] And, in any event, the Court has found that no reasonable jury could conclude
that Equifax violated § 1681i in the first instance, so it would be impossible to find that Equifax
violated that provision willfully. See Safeco, 551 U.S. at 60 (whether FCRA was violated in the
first instance was "antecedent question" to whether violation was reckless).
In sum, no reasonable jury could conclude that Equifax failed to reasonably reinvestigate
the Dulworths' disputes in violation of § 1681i. Accordingly, the Court GRANTS the CRAs' Joint

Motion for Summary Judgment as to the Dulworths' claims against Equifax for both negligent and
willful violations of § 1681i.
III.
CONCLUSION

"In a nation of 330 million people, billions of pieces of credit information are generated
each year. Mistakes in compiling and reporting that information are inevitable." Chaitoff, 79 F.4th
at 808. Moreover, the FCRA is not a strict liability statute. Walton, 761 Fed. App'x at 592. The
Dulworths have not presented evidence from which a reasonable jury could conclude that Experian
provided a credit report containing the inaccurate reporting of the Ally Loan to a third party, that
the Dulworths suffered actual damages at the hands of Equifax, or that Equifax failed to satisfy its
obligations to follow reasonable procedures to assure maximum possible accuracy of its reporting
of the Ally Loan or to reasonably reinvestigate the Dulworths' disputes regarding the reporting of
the Ally Loan. For the foregoing reasons, the Court:
• DENIES the Dulworths' Motion to Exclude the Declaration of Karen Cobb,
[198];

• DISMISSES the Dulworths' claims against Experian WITHOUT
PREJUDICE for lack of jurisdiction;

• DENIES AS MOOT the CRAs' Joint Motion for Summary Judgment, [180],
as to the Dulworths' claims against Experian; and

• GRANTS the CRAs' Joint Motion for Summary Judgment, [180], as to the
Dulworths' claims against Equifax.

Final judgment shall enter accordingly.
Date: 5/22/2024
Hon. Jane Magnhus-Stinson, Judge
‘United States District Court
Southern District of Indiana

Distribution via ECF only to all counsel of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10171148. Public record. Not legal advice.