United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, CHIEF JUDGE
Angela Barry (“Ms. Barry”) and Robert Barry
(“Mr. Barry”) bring this action against Defendant
Farm Bureau Bank FSB (“Farm Bureau”) alleging
various causes of action arising out of allegedly inaccurate
information contained in credit reports requested by
Plaintiffs.Pending before the Court is Farm
Bureau's Motion for Summary Judgment. (ECF No. 121.)
For the reasons discussed below, the Court
GRANTS the motion.
case arises out of four disputed credit reports acquired by
Plaintiffs from the website annualcreditreport.com. Equifax
Information Services, LLC (“Equifax”) and
Experian Information Solutions, Inc. (“Experian”)
each provided a credit report for Mr. Barry through the
website on February 17, 2016. (See ECF No. 70-1 at
9-34, 48-52.) Subsequently, Equifax and Experian each
provided a credit report for Ms. Barry via the same website
on February 25, 2016. (See Id. at 1-8, 44-47.)
Plaintiffs disputed the contents of those reports and alleged
that the two credit reporting agencies failed to correct them
on two occasions. Following the dismissal of all Defendants
except Farm Bureau, the remaining claims in this action bring
into question the actions and inactions of Farm Bureau in the
way it allegedly reported information to the credit agencies
regarding Ms. Barry's reports.
respect to the Equifax report obtained on February 25, 2016,
Ms. Barry alleges that the reports included multiple errors
about an account under Plaintiffs' names with Farm
Bureau. (See ECF No. 70 at ¶¶ 13, 15, 56.)
Ms. Barry avers that information related to this account
incorrectly identified an outstanding account balance and
erroneously indicated that payments were past due. (See
Id. at ¶ 56.) She claims that this was not possible
as the account was affected by Plaintiffs' Chapter 13
bankruptcy filed in November 2013 and the payment plan that
resulted from it. (See id.; see also Id. at
24 ¶ 1.) Ms. Barry first sent a dispute letter to
Equifax on March 25, 2016, alerting the company of the
alleged errors. (Id. at ¶ 57; see also
ECF No. 70-1 at 35- 36.) After Equifax supposedly failed to
correct the report, Ms. Barry sent a second dispute letter to
Equifax on June 30, 2016. (ECF No. 70 at ¶ 67; see
also ECF No. 70-1 at 39-40.) Again, Ms. Barry alleges
that Equifax failed to correct the report after the second
dispute letter. (ECF No. 70 at ¶ 69.)
the report furnished by Experian on February 25, 2016, Ms.
Barry similarly alleges that her report contained errors
regarding an account in her name with Farm
Bureau. (See Id. at ¶¶ 76, 99.)
She asserts that information related to that account
wrongfully reported it as adverse and delinquent. (See
Id. at ¶ 99.) Again, Ms. Barry avers that the
couple's Chapter 13 bankruptcy altered the nature of that
account and that Experian's report failed to consider
this. Like with Equifax, Ms. Barry sent a dispute letter to
Experian on March 25, 2016. (Id. at ¶ 100;
see also ECF No. 70-1 at 53-54.) Because Experian
allegedly failed to correct the errors in the report, Ms.
Barry sent to Experian a second dispute letter on June 30,
2016. (ECF No. 70 at ¶ 110; see also ECF No.
70-1 at 57-58.) Despite these letters, Ms. Barry claims that
Experian still did not fix the errors contained in her credit
report. (ECF No. 70 at ¶ 112.)
originally filed two separate actions in this Court on
October 11, 2016. (ECF No. 1; see also Civil Action
No. 2:16-cv-09518, ECF No. 1.) Upon motion by one of the
previously terminated Defendants, the Court consolidated the
two cases on April 25, 2017, and ordered Plaintiffs to file a
consolidated complaint in the above-styled civil action,
which serves as the lead case. (ECF No. 67.) The consolidated
complaint (the “Complaint”) subsequently was
filed on May 10, 2017. (ECF No. 70.) Ms. Barry alleges the
following four counts against Farm Bureau in the Complaint:
(II) violations of the federal Fair Credit Reporting Act
(“FCRA”); (IV) defamation; (V) violations of the
West Virginia Consumer Credit and Protection Act
(“WVCCPA”); and (VI) a violation of 11 U.S.C.
§ 362(a) for defying the stay triggered by
Plaintiffs' Chapter 13 bankruptcy proceedings.
(Id. at ¶¶ 144-156, 164-175; see also
Id. at 24-25 ¶¶ 1-9.) Ms. Barry demands a wide
array of relief, including actual, statutory, and punitive
damages, in addition to attorney's fees and costs and
“other relief as the Court shall deem just and proper
under the attendant circumstances.” (Id. at
Bureau filed its Motion for Summary Judgment on March 15,
2018. (ECF No. 121.) Plaintiffs responded to the motion on
March 29, 2018, (ECF No. 125), and Farm Bureau filed its
reply in support of the motion on April 5, 2018, (ECF No.
126). As such, the motion is fully briefed and ripe for
STANDARD OF REVIEW
of the Federal Rules of Civil Procedure governs motions for
summary judgment. This rule provides, in relevant part, that
summary judgment should be granted if “there is no
genuine issue as to any material fact.” Summary
judgment is inappropriate, however, if there exist factual
issues that reasonably may be resolved in favor of either
party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). “Facts are ‘material' when
they might affect the outcome of the case, and a
‘genuine issue' exists when the evidence would
allow a reasonable jury to return a verdict for the nonmoving
party.” News & Observer Publ. Co. v.
Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th
Cir. 2010). When evaluating such factual issues, the Court
must view the evidence “in the light most favorable to
the opposing party.” Adickes v. S. H. Kress &
Co., 398 U.S. 144, 157 (1970).
moving party may meet its burden of showing that no genuine
issue of fact exists by use of “depositions, answers to
interrogatories, answers to requests for admission, and
various documents submitted under request for
production.” Barwick v. Celotex Corp., 736
F.2d 946, 958 (4th Cir. 1984). Once the moving party has met
its burden, the burden shifts to the nonmoving party to
“make a showing sufficient to establish the existence
of an element essential to that party's case, and on
which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). If a party fails to make a sufficient
showing on one element of that party's case, the failure
of proof “necessarily renders all other facts
immaterial.” Id. at 323.
Bureau's motion challenges all four counts directed
toward it in the Complaint: Counts II, IV, V, and VI. With
regard to Count II, which alleges a cause of action under the
FCRA, Farm Bureau argues that the information it provided to
the credit reporting bureau both before and after Ms. Barry
disputed the information was accurate and, thus, was not
“inaccurate” for purposes of the FCRA. (ECF No.
122 at 4-5.) Farm Bureau further argues that the defamation
and WVCCPA claims alleged in Counts IV and V, respectively,
are preempted by the FCRA. (Id. at 5-7 (citing 15
U.S.C. §§ 1681h(e), 1681t(b)(1)(F)); see also
Id. at 9-10 (citing Evans v. Trans Union LLC,
No. 2:10-cv-00945, 2011 WL 672061, at *1 (S.D. W.Va. Feb. 14,
2011)).) Finally, the motion argues that the allegations
contained in Count VI regarding violation of the stay under
11 U.S.C. § 362(a) cannot be addressed by this Court as
it lacks subject-matter jurisdiction to consider the claim.
(Id. at 7-9, 10.) Alternatively, Farm Bureau avers
that the automatic stay does not prevent Farm Bureau from
accurately reporting deficiencies to a credit reporting
agency and that Ms. Barry has not alleged any intent to
violate the stay as required by statute. (Id.
(citing 11 U.S.C. § 362(k)(1)).)
Count II: Violations of the FCRA
that “[i]naccurate credit reports directly impair the
efficiency of the banking system, and unfair credit reporting
methods undermine the public confidence which is essential to
the continued functioning of the banking system, ”
Congress enacted the FCRA in 1970 to promote the accuracy and
fairness of credit reporting. 15 U.S.C. § 1681(a)(1).
Section 623 of the FCRA sets forth specific requirements for
“furnishers of information to consumer reporting
agencies, ” including obligations to provide accurate
information initially to those agencies and a continuing duty
to investigate and report corrections to the agencies
regarding any disputed information. See §
1681s-2(a), (b). Notably, “the FCRA does not impose
upon furnishers a duty to report credit information at all;
instead, the FCRA dictates how and under what circumstances
information may be reported, if a furnisher so
chooses.” Evans, 2011 WL 672061, at *3. As
Farm Bureau correctly notes in its supporting memorandum, the
“FCRA explicitly bars private suits for violations of
§ 1681s-2(a), but consumers can still bring private
suits for violations of § 1681s-2(b).”
Saunders v. Branch Banking & Tr. Co. of Va., 526
F.3d 142, 149 (4th Cir. 2008); see also Johnson v. MBNA
Am. Bank, NA, 357 F.3d 426, 431-33 (4th Cir. 2004).
notice from a consumer reporting agency that someone has
disputed “the completeness or accuracy of any
information” provided in a credit report, §
1681s-2(b) obliges information furnishers to “conduct
an investigation with respect to the disputed
information” and report inaccuracies to all consumer
reporting agencies to which it provides information.
See § 1681s-2(b)(1)(A). Further, furnishers
must “review all relevant information provided by the
consumer reporting agency pursuant to [§ 1681i], ”
which states that the agency must notify all relevant
information furnishers within five business days from
receiving notification of a consumer's dispute.
See §§ 1681i(a)(2), 1681s-2(b)(1)(B). Upon
notice of the dispute, the furnisher has thirty days to
review the information, complete its investigation, and
report any corrected information. The furnisher's duty to
investigate is triggered once the consumer reporting agency
notifies it of the dispute. See, e.g., Mavilla
v. Absolute Collection Serv., Inc., 539 Fed.Appx. 202,
208 (4th Cir. 2013) (per curiam) (unpublished opinion)
(citations omitted). The private right of action afforded by
the FCRA applies to willful or negligent noncompliance with
either § 1681i or § 1681s-2(b). See Gorman v.
Wolpoff & Abramson, LLP, 584 F.3d 1147, 1154 (9th
Cir. 2009) (citing 15 U.S.C. §§ 1681n, o).
Farm Bureau admits to furnishing information to consumer
reporting agencies, (ECF No. 122 at 4), signifying that it
must abide by the applicable requirements in 15 U.S.C. §
1681s-2. The briefing solely focuses on whether Farm
Bureau's reporting, as a matter of law, was accurate
under the FCRA and does not contest the adequacy of Farm
Bureau's investigations. (See ECF No. 122 at
4-5; ECF No. 125 at 2-3.) While at least one district court
has held that “[t]he inaccuracy of furnished
information, without evidence that the furnisher's
investigation was unreasonable, does not create liability by
itself, ” Phillips v. Trans Union, LLC, No.
3:16-CV-00088, 2017 WL 3911018, at *5 (W.D. Va. Sept. 6,
2017) (citing Johnson, 357 F.3d at 431; Blick v.
Wells Fargo Bank, N.A., No. 3:11-CV-00081, 2012 WL
1030137, at *9 (W.D. Va. Mar. 27, 2012), aff'd,
474 Fed.Appx. 932 (4th Cir. 2012)), other courts have noted
that plaintiffs must make an initial showing “that an
actual inaccuracy exist[s]” to state a claim under the
FCRA, see Keller v. Experian Info. Sols., Inc., No.
16-CV-04643-LHK, 2017 WL 130285, at *5 (N.D. Cal. Jan. 13,
2017) (“[E]ven if a furnisher or [credit reporting
agency] fails to conduct a reasonable investigation or
otherwise fails the fulfill its obligations under the FCRA,
if a plaintiff cannot establish that a credit report
contained an actual inaccuracy, then the plaintiff's
‘claims fail as a matter of law.'” (quoting
Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876,
890 (9th Cir. 2010))); see also Hernandez v. Wells Fargo
Home Mortg., No. 2:14-CV-1500 JCM, 2015 WL 1204985, at
*2-3 (D. Nev. Mar. 16, 2015), aff'd, 713
Fed.Appx. 702 (9th Cir. 2018). Regardless of which approach
prevails, however, Ms. Barry's claim under Count II
cannot survive summary judgment.
upon the parties' arguments in the briefing, the question
here boils down to whether Farm Bureau's reporting of
information indicating that Ms. Barry's account was past
due, adverse, and/or delinquent despite the account's
inclusion in and payments made in accordance with her Chapter
13 bankruptcy plan is accurate under the FCRA. In answering that
question in the affirmative, the Court notes that the Fourth
Circuit has not directly addressed this issue but finds
instructive a line of cases from the Northern District of
California. Those cases, totaling “approximately 170
nearly identical cases, ” involved the following
[E]ach plaintiff filed for Chapter 13 bankruptcy protection,
whereupon a bankruptcy court confirmed a financial
reorganization plan. Thereafter, each plaintiff assert[ed]
that they ordered credit reports which showed effectively
“inaccurate, misleading, or incomplete”
information for accounts that were included in their
confirmed bankruptcy plans. Despite each plaintiff notifying
the credit reporting agencies of the alleged inaccuracy, they
assert[ed] that their credit reports continued to show the
inaccurate account information.
Mamisay v. Experian Info. Sols., Inc., No.
16-CV-05684-YGR, 2017 WL 1065170, at *3 (N.D. Cal. Mar. 21,
2017). The legal question at the summary judgment stage of
litigation became whether the FCRA “prohibit[ed]
defendants from reporting historically accurate information
about delinquent accounts-such as the account's
outstanding balance-after a Chapter 13 bankruptcy
plan is confirmed, but before the debt has been
discharged.” Id. (emphasis in original).
analyzing the effect of a Chapter 13 confirmation order, the
court in Mamisay found that it did not absolve or
erase debt owed to a financial institution. Id. at
*5. The court reasoned that, for example, a bankruptcy
petition could be dismissed if the debtor fails to comply
with the plan, meaning the debt would then be owed as if
bankruptcy was never filed. See Id. As such,
“the legal status of a debt does not change until the
debtor is discharged from bankruptcy.” Id.
(citations omitted); see also 11 U.S.C. §
1328(a) (providing that if a Chapter 13 debtor successfully
completes all payments under a confirmed plan, the
indebtedness is discharged). Taken one step further, it would
not be inaccurate to report a debt's balance as
outstanding or the account as delinquent subsequent to a
Chapter 13 plan's confirmation, but before the debt has
been discharged, if the debtor no longer makes the payments
required under the loan schedule. See Mamisay, 2017
WL 1065170, at *4-7 & n.8; see also Mosley v.
Monterey Fin. Servs., LLC, No. 1:16-cv-03614-MHC-AJB,
2017 WL 8186861, at *4 (N.D.Ga. May 10, 2017)
(“[R]eview of the cases cited by both parties and
unearthed in the Court's own research has shown that
district courts . . . have repeatedly and persuasively
rejected the argument that it is ‘inaccurate or
misleading' as a matter of law simply to report
delinquent debts that have not been discharged in
bankruptcy.”) (collecting cases).
the Complaint and Ms. Barry's response to the motion
repeatedly state that the Farm Bureau account could not be
adverse and delinquent as reported “because the account
is being paid through the Plaintiffs' Chapter 13 plan . .
. .” (ECF No. 70 at ¶¶ 99-100, 108, 111; ECF
No. 125 at 2-3.) Ms. Barry argues that “reporting of
the loan as past due and delinquent based on the
pre-confirmation terms was inaccurate” and that
“reporting the account as past due during the Chapter
13 bankruptcy was, at the very least, incomplete.” (ECF
No. 125 at 3; see also ECF No. 70-1 at 40
(“The Farm Bureau Bank FSB account . . . should be
showing paid on time through a Chapter  plan or it should
stop as of the date of the filing [of] the Chapter 13
[confirmation], and indicate it is being paid through the
plan.”).) However, the cases cited above that the Court
finds persuasive run counter to that proposition. Even if Ms.
Barry only technically fell behind on her loan payments
because the monthly payment under the Chapter 13 plan did not
satisfy the monthly payment she originally promised to pay
Farm Bureau under the loan's terms, (see ECF No.
122 at 8), the rationale previously discussed leads the Court
to conclude that the information reported still is not
inaccurate. Again, the entry of a confirmation order does not
change the debt's legal status. See, e.g.,
Mamisay, 2017 WL 4065170, at *5. A Chapter 13 plan
allowing Ms. Barry to pay the loan at a lower
monthly rate does not concurrently insinuate that the account
cannot become delinquent; under the plan she is no longer
making payments according to the loan's terms.
the case law's reasoning, if Ms. Barry fails to make the
payments as prescribed under the bankruptcy plan and it
subsequently is dissolved, then she would be held to the
loan's terms as if she never filed bankruptcy. See
Id. In that scenario, her account would be overdue at an
amount representing the difference between the payments made
under the bankruptcy plan and the payments that she
originally agreed to pay during the plan's existence.
Further, other district courts have rejected the proposition
advanced by Ms. Barry that the failure to report that an
account is included in a Chapter 13 bankruptcy proceeding is
incomplete for purposes of the FCRA. See, e.g.,
Doster v. Experian Info. Sols., Inc., No.
16-CV-04629-LHK, 2017 WL 264401, at *5 (N.D. Cal. Jan. 20,
2017) (“[E]ven if Plaintiff is correct that
Plaintiff's credit report did not reflect the terms of
Plaintiff's Chapter 13 bankruptcy plan, this would not be
an inaccurate or misleading statement that could sustain a
FCRA claim . . . .”).
these reasons, the Court finds that Ms. Barry has failed to
show an inaccuracy in Farm Bureau's reporting of her
account. As there is no inaccuracy under the FCRA, Ms.
Barry's claim pursuant to 15 U.S.C. § 1681s-2(b)
must fail. Cf. Chiang v. Verizon New England Inc.,
595 F.3d 26, 41 (1st Cir. 2010) (“Chiang was required
to present evidence of actual inaccuracies in his account . .
. . He has not done so. . . . For this reason, too, summary
judgment was appropriate on Chiang's FCRA claim.”).
Accordingly, the Court GRANTS summary
judgment to Farm Bureau on Count II.
Count IV: Defamation
Bureau argues in its motion that Ms. Barry's defamation
claim is preempted by the FCRA. (ECF No. 122 at 5-7.) The
FCRA contains two preemption provisions applicable to the
duties of information furnishers enumerated in 15 U.S.C.
§ 1681s-2, and each of the two has been amended since
the FCRA's implementation. See 15 U.S.C.
§§ 1681t(b), 1681h(e). Section 1681t(b) provides
No requirement or prohibition may be imposed under the laws
of any State (1) with respect to any subject matter regulated
under . . . (F) section 1681s-2 of this title, relating to
the responsibilities of persons who furnish ...