The Statute Of Limitations Defense For Foreclosure

despritfreya

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Johnna - Here's my thoughts: Since you are concerned with the credit report and effects of BK, I would consider a Motion to Withdraw your BK13 case. . . You really don't need BK13 on your record . .
Unfortunately, while Johnna is free to file a Motion to Dismiss the Chapter 13 and it will be granted, the fact that a bankruptcy was filed will remain on the credit report for up to 10 years. It does not matter if the case was dismissed or eventually discharged.

Des.
 

PatZZ

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Recently, I started a thread about the SOL. . . . . . . . . . . . . . . . . . . . .
Duh ? I was thinking I was writing on a different thread. :oops:
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PatZZ

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Unfortunately, while Johnna is free to file a Motion to Dismiss the Chapter 13 and it will be granted, the fact that a bankruptcy was filed will remain on the credit report for up to 10 years. It does not matter if the case was dismissed or eventually discharged.

Des.
Correct. Gotta be clear on what you want to do right from the beginning. Otherwise, that filing will be life-altering. I totally disagree with that logic however. If a person finds a way to avoid bankruptcy and closes the filing, there is no reason on earth why the debtor must still suffer that punishment. No logic to that whatsoever.
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PatZZ

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PatZZ at al - Great Discussion Great Advice
Aces - Absolutely Correct - I believe Collateral Estoppel resolves the issue, even in spite of (or addition to ) SOLs, and should always be included in a basic defense, but even in absence can be argued at a later date. . . . . . . . . . . . .
We discussed this somewhere else on the forum. Collateral estoppel can ONLY come into play when the prior case involving the same plaintiff and defendant and claim came to resolution with a final judgment by the court. If there was no final judgment, then the case was not litigated/adjudicated for purposes of collateral estoppel.
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johnna

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"But if the acceleration clause in a note is optional, the debtor is not liable for payment on future nondelinquent installments "until the creditor chooses to take advantage of the clause and accelerate the balance. Unless the creditor exercises the option, the statute of limitations applies to each installment separately, and does not begin to run on any installment until it is due...."

Is this where you were going? I need to look at my loan documents."

Yes. I will assume your mortgage loan is a typical one therefore your loan has just been accelerated, at the option of the lender, by the recording of the Notice of Trustee Sale.

Des.
No it's not accelerated. They are just seeking default amounts plus lots of fees to being current. So no SOL here. Thank you for all of the input. I had to school my young attorney regarding SOL!
 

just_me

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Unfortunately, while Johnna is free to file a Motion to Dismiss the Chapter 13 and it will be granted, the fact that a bankruptcy was filed will remain on the credit report for up to 10 years. It does not matter if the case was dismissed or eventually discharged.
Des.
Good point. Not sure who said 'legal filings' are a matter of any reportable Credit Bureau authority though... 10 years is certainly excessive (as is 7 years too) and I'm beginning to believe some interpretations of Credit Bureau and Credit Reporting 'Rules' are wholly false... This leaves a multitude of items for which consumers frequently spin their wheels trying to best guess the system, not having any 'authority' and not knowing how to obtain it over unknown parties.

I'mnot an attorney, but I do know that the bankruptcy courts (end even civil courts) DO NOT report legal filings to the Credit Bureaus. However, sometimes creditor do out of spite. They have to pro-actively investigate and verify in order to report, and as well, why would they? This is costly and may or may not be done legally. This is a also a disuptable item if something like that is erroneously reported or creates and erroneous impressrion because the action was removed. This is my personal belief because I have had creditors seek to dredge up falsely presented legal items and yes, those persons can be sued. (I've had my identity stolen, so I do know about 'deceptively obtained' and/or 'decetively presented' or false items. ) I'm guessing she (Johnna) would also have to include a legal letter with her her 'notices of withdrawal' stating the fact that this withdrawal is not to be falsely reported as a actual bankruptcy when, it is in fact, not, and that any attempt will be disputed and such creditor is subject to dispute, legal action, and punitive damages. (CYA with 'attn: legal dept - just incase you dont have proper info or address of that dept)

Maybe it's just me, but given that a person can thoeretcially obtain a mortgage 2 years after bakruptcy, this withdrawl would expedite that and certainly cause less problems w credit. She can also show proof of withdraw to any persons she seeks credit from (if it remains a reportable item on credit somehow). A legitimate banking operation would then re-run her credit report without that item and this would give them an internal scoring that reflects a higher FICO. (I did work finance briefly) So I disagree that 'filing' is not the same as 'actual' if it is rather quickly withdrawn and before any disputes or other actions arise.
 

just_me

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Unfortunately, while Johnna is free to file a Motion to Dismiss the Chapter 13 and it will be granted, the fact that a bankruptcy was filed will remain on the credit report for up to 10 years. It does not matter if the case was dismissed or eventually discharged.

Des.
Oh, forgot to add, BK is only reported on discharge to the Credit Bureau(s). There is no authority to report a case that is not concluded. The (real) reason for creditor reporting of BK is to show the item is now zero balance with the discharge.
 

just_me

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We discussed this somewhere else on the forum. Collateral estoppel can ONLY come into play when the prior case involving the same plaintiff and defendant and claim came to resolution with a final judgment by the court. If there was no final judgment, then the case was not litigated/adjudicated for purposes of collateral estoppel.
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Yes, I see you are right. :oops: However, one can use conflicting prsentations (by opposing party) as a means to discredit their testimoney in the future. One can also bring to the court any differing accounting histories. The parties can't keep guessing who the correct party in interest is, nor can they keep guessing what balances are due by altering the accounting of the debt without an expectation to answer why.
 

despritfreya

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Not sure who said 'legal filings' are a matter of any reportable Credit Bureau authority though... 10 years is certainly excessive (as is 7 years too) and I'm beginning to believe some interpretations of Credit Bureau and Credit Reporting 'Rules' are wholly false...

(Reporting can) also (be) a disputable item if something like that is erroneously reported or creates and erroneous impression because the action was (dismissed - not removed). . .

I'm guessing she. . . would also have to include a legal letter with her (Motion to Dismiss, not ‘notices of withdrawal’) stating the fact that this withdrawal is not to be falsely reported as a actual bankruptcy when, it is in fact, not, and that any attempt will be disputed and such creditor is subject to dispute, legal action, and punitive damages. . .

So I disagree that 'filing' is not the same as 'actual' if it is rather quickly withdrawn and before any disputes or other actions arise. . .

Oh, forgot to add, BK is only reported on discharge to the Credit Bureau(s). There is no authority to report a case that is not concluded. The (real) reason for creditor reporting of BK is to show the item is now zero balance with the discharge.
The above "cut & paste" are excepts of the comments of "just_me" and normally I would not get involved in a conversation relating to what should or should not appear on a credit report mostly because I have no personal interest in such matters. However, due to the clear misunderstanding of the law as indicated throughout this and many other threads, I feel compelled to speak up.

1. The Fair Credit Reporting Act states in part:

§ 605. Requirements relating to information contained in consumer reports [15 U.S.C. § 1681c]

(a) Information excluded from consumer reports. Except as authorized under subsection (b) of this section, no consumer reporting agency may make any consumer report containing any of the following items of information:

(1) Cases under title 11 [United States Code] or under the Bankruptcy Act that, from the date of entry of the order for relief or the date of adjudication, as the case may be, antedate the report by more than 10 years.
2. 11 USC 301 states:

a) A voluntary case under a chapter of this title is commenced by the filing with the bankruptcy court of a petition under such chapter by an entity that may be a debtor under such chapter.

(b) The commencement of a voluntary case under a chapter of this title constitutes an order for relief under such chapter.
3. Ergo. . . based upon the terms of the FCRA and the definition of what constitutes an "order for relief", any bankruptcy, regardless of Chapter and regardless of whether or not it ended in dismissal or discharge can be reported for up to 10 years from the moment the petition (case) is filed. There are no do-overs. Once a case is filed, it is filed. What happens after it is filed is of no concern as it relates to whether or not the actual filing may be reported. If a consumer is lucky enough to get the reference removed then such was removed because the reporting agency made a choice to do so. That choice is not a legal requirement.

Des.
 

PatZZ

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Oh, forgot to add, BK is only reported on discharge to the Credit Bureau(s). There is no authority to report a case that is not concluded. The (real) reason for creditor reporting of BK is to show the item is now zero balance with the discharge.
My understanding is that credit bureaus do a regular sweep of public records to find info and then they report it.

There may not be any "authority" to report a voluntarily dismissed BK, but do they need authority to report a public record? I don't believe there is any authority that dispermits (is that a word?) a bureau from reporting a public record of any kind - even if it is voluntarily dismissed. I used to work with people's credit and I saw it in reports quite frequently. In order for anything to change in terms of reporting a BK dismissed before confirmation, it needs a change in legislation. I too think it is wrong. But many creditors probably want to know that a consumer has filed for BK - even it was dismissed. It still gives them a glimpse into the consumer's circumstances. Someone who once considered BK no doubt had some financial issues.
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just_me

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My understanding is that credit bureaus do a regular sweep of public records to find info and then they report it.

There may not be any "authority" to report a voluntarily dismissed BK, but do they need authority to report a public record? I don't believe there is any authority that dispermits (is that a word?) a bureau from reporting a public record of any kind - even if it is voluntarily dismissed. I used to work with people's credit and I saw it in reports quite frequently. In order for anything to change in terms of reporting a BK dismissed before confirmation, it needs a change in legislation. I too think it is wrong. But many creditors probably want to know that a consumer has filed for BK - even it was dismissed. It still gives them a glimpse into the consumer's circumstances. Someone who once considered BK no doubt had some financial issues.
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Generally, no, there is no 'sweep' by the credit bureaus. One has to proactively update. This is done via paid business accounts and members which pay for or utilize the services. Not much different than MERs and their little closed system of members tracking loans and ownerships (which may be tainted by design).

No one is 'required' to report anything. Don't assume your creditors have access to your legal records. The courthouse does not 'report' anything. (too costly, not their purpose, invasion of privacy, not available electronically) It is only a reportable item if the lien is actually foreclosed aka sold and then this might zero the account and be coded 'F' as the reason on your credit report. No one proactively reports 'legal', this is a myth. Credit Bureaus don't have a fast track to court records or permission to Pacer (illegal purpose). The BK is usually added only when creditors provide updating with corresponding BK code (happens all at once). This is done on discharge after they are sent finalized legal paper. There are strict rules for collections activity and reporting during BK. Anyone who doesn't follow them is liable. This is lawsuit-worthy but holding a 'responsible party' accountable rarely happens.

Consumer advocates that fought for the right to "dispute" have the process stacked against them. Too many creditors profit from default rate accounting. I don't want to jinx myself by going further, but you can IM me here also.
 

just_me

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The Fair Credit Reporting Act and The USC Bankruptcy Code are different controlling chapters of different things. They do not cross over in definitions and meaning, although referencing similar things at times. Creditor must follow BK during BK and as well follow FCRA when dealing with credit reporting. They key term in the FCRA is the adjudication (BK end=discharge), which is a final action, not an incomplete, unfinished, or withdrawn filing.

§ 605. Requirements relating to information contained in consumer reports [15 U.S.C. § 1681c]

(a) Information excluded from consumer reports. Except as authorized under subsection (b) of this section, no consumer reporting agency may make any consumer report containing any of the following items of information:

(1) Cases under title 11 [United States Code] or under the Bankruptcy Act that, from the date of entry of the order for relief or the date of adjudication, as the case may be, antedate the report by more than 10 years.
The BK Code Chapter excerpt (USC 301) actually refers to debtor/creditor relations and it's administration through the courts, NOT credit reporting. IE. Creditor shall act as if filing is same as adjudication and stop collection activity from date of filing.

And yes, most creditors stop reporting neg's at around 7 years when SOL on the debt expires (versus 10 because they can). Why I mentioned both.

The above "cut & paste" are excepts of the comments of "just_me" and normally I would not get involved in a conversation relating to what should or should not appear on a credit report mostly because I have no personal interest in such matters. However, due to the clear misunderstanding of the law as indicated throughout this and many other threads, I feel compelled to speak up.

1. The Fair Credit Reporting Act states in part:

§ 605. Requirements relating to information contained in consumer reports [15 U.S.C. § 1681c]

(a) Information excluded from consumer reports. Except as authorized under subsection (b) of this section, no consumer reporting agency may make any consumer report containing any of the following items of information:

(1) Cases under title 11 [United States Code] or under the Bankruptcy Act that, from the date of entry of the order for relief or the date of adjudication, as the case may be, antedate the report by more than 10 years.

2. 11 USC 301 states:



3. Ergo. . . based upon the terms of the FCRA and the definition of what constitutes an "order for relief", any bankruptcy, regardless of Chapter and regardless of whether or not it ended in dismissal or discharge can be reported for up to 10 years from the moment the petition (case) is filed. There are no do-overs. Once a case is filed, it is filed. What happens after it is filed is of no concern as it relates to whether or not the actual filing may be reported. If a consumer is lucky enough to get the reference removed then such was removed because the reporting agency made a choice to do so. That choice is not a legal requirement.

Des.
 

despritfreya

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Sep 8, 2011
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@just_me

Again, I refer to your comment of:

BK is only reported on discharge to the Credit Bureau(s). There is no authority to report a case that is not concluded
You are correct that terminology may differ between statutes (the use of the term "withdraw" for example). You are not correct that bks are reported only upon discharge.

A good case to read on this topic is: Childress v. Experian Info. Solutions, Inc., 790 F.3d 745 (7th Cir., 2015)

The actual provision of the FCRA states:

15 U.S. Code § 1681c - Requirements relating to information contained in consumer reports. . .

(d) Information required to be disclosed

(1) Title 11 information

Any consumer reporting agency that furnishes a consumer report that contains information regarding any case involving the consumer that arises under title 11 shall include in the report an identification of the chapter of such title 11 under which such case arises if provided by the source of the information. If any case arising or filed under title 11 is withdrawn by the consumer before a final judgment, the consumer reporting agency shall include in the report that such case or filing was withdrawn upon receipt of documentation certifying such withdrawal.
(Emphasis added.)

Now let’s move on.

Des.
 

just_me

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@just_me

Again, I refer to your comment of:

You are correct that terminology may differ between statutes (the use of the term "withdraw" for example). You are not correct that bks are reported only upon discharge.

A good case to read on this topic is: Childress v. Experian Info. Solutions, Inc., 790 F.3d 745 (7th Cir., 2015)

The actual provision of the FCRA states:

(Emphasis added.)

Now let’s move on.

Des.
Sorry no dice. (I used your refs/FCRA quotes) We will have to agree to disagree. Your last case reference is to an employment tax lien and the IRS. Plus, the '"payment" and ' lien removal' was apparently self-reported. Different animal and one I would not consider precedent, but sure, banks can find lots of different cases trying to create cause (or defense) that is wholly arguable.

Also, your additional BK quote is an 'if-then' statement. If it is reported (assumed inadvertance) Then it is updated w accurate conclusion (withdrawl, etc for a non-adjucation). This is no way shape or form gives CCRs the right to hold a consumer's credit hostage for 10 years w a misleading court item.

J-M
 

just_me

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Hi Patzz
I would think the " Doctrine of Collateral Estoppel" would barred the bank from bringing another suit.
My .02
Regards
Nj-70 Months
Acesfull/HWP
After further surfing and refresh, the doctrine of Laches would cover 'other things' and has been successfully used in cases where SOLs are in murky waters. For someone planning on an answer, assertion, or defense (in foreclosure), I would recommend including it, because nowadays these cases can last ... years... I was lucky as my basic boilerplate defense included both those items. They have become relevant with passage of time. Otherwise, one would need to know how to update a 'motion to amend' their initial filing or answer to FC. This 'permission' can sometimes be judge dependent, although it shouldn't be. And as well, always have the updated motion ready to file at same time.
 

just_me

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LOL Wanda- Every chance I can get! Just wish I could get the case resolved quicker. Those chicken-Sh%ts are planning BK. They have near-successfully evaded all criminal SOLs on it. I suppose they need maybe another 6 months to a year to cover the 10 yr S limitations they are going by.
 

despritfreya

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Sep 8, 2011
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Note: My post was initially too big so it will be split up. . .

@just_me

Your last case reference is to an employment tax lien and the IRS. Plus, the '"payment" and ' lien removal' was apparently self-reported. . .
What? I cited Childress v. Experian Info. Solutions, Inc., 790 F.3d 745 (7th Cir., 2015) Don't know what case you were reading but here is the Childress Court of Appeals decision:

Andrea M. CHILDRESS v. EXPERIAN INFORMATION SOLUTIONS, INC. No. 14–2864. United States Court of Appeals, Seventh Circuit. Argued May 27, 2015. Decided June 23, 2015. Before POSNER, MANION, and HAMILTON, Circuit Judges. POSNER, Circuit Judge:

The Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq., provides that "if any case arising or filed under Title 11 [the Bankruptcy Code] is withdrawn by the consumer before a final judgment, the consumer reporting agency shall include in the report that such case or filing was withdrawn upon receipt of documentation certifying such withdrawal." 15 U.S.C. § 1681c(d)(1). The Act further provides that "whenever 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." § 1681e(b).

The plaintiff and her husband (they are now divorced, and he is not participating in this litigation) had filed a petition for bankruptcy under Chapter 13 of the Bankruptcy Code, but later they filed a timely motion in the bankruptcy court to dismiss the petition, and the court granted the motion. That was in 2006. The defendant, a consumer credit-reporting agency, receives copies of judgments in bankruptcy cases from Lexis (which in turn retrieves them from PACER -short for Public Access to Court Electronic Records, a service that provides online access to federal court and docket information) and notes them in the credit reports of persons who have filed bankruptcy petitions. The agency reported the plaintiff's bankruptcy petition "dismissed", which was what the judgment terminating the bankruptcy case had caused to be done.

In 2009 the's (sic.) lawyer demanded that the agency remove all reference to her bankruptcy because it had been dismissed at her behest. The agency refused. In 2012 she told the agency: "my bankruptcy was not dismissed. It was voluntarily withdrawn prior to plan approval." The agency then purged the reference to the bankruptcy from her file, but did so because it would soon be seven years since she had filed her bankruptcy petition and the agency deletes reference to a bankruptcy in a consumer credit report after seven years have elapsed since the petition for bankruptcy was filed. (The Fair Credit Reporting Act requires that reporting agencies purge bankruptcy records ten years after the filing date, but the major credit-reporting agencies purge them after seven years instead.) There is no indication that had it not been for the lapse of time the agency would have added to her credit report a notation that the petition for bankruptcy had been withdrawn. But since the bankruptcy was purged from her file we needn't decide whether her letter alerting the reporting agency that the dismissal had been voluntary would count as "documentation certifying ... withdrawal" of the petition for bankruptcy. 15 U.S.C. § 1681c(d)(1).

Her suit charges that by failing to report from the outset (that is, in 2006) that the bankruptcy petition had been voluntarily withdrawn, the agency had willfully violated the provisions of the Fair Credit Reporting Act that we cited earlier. She seeks the damages that the Act provides, in 15 U.S.C. § 1681n(a), for willful violations of its provisions. And she seeks to sue on behalf not only of herself but also of all similarly situated persons. But the district court granted summary judgment in favor of the credit agency without deciding whether to certify a class.

The grant of summary judgment was correct. The key provisions of the two sections of the Fair Credit
Reporting Act that we quoted at the outset of this opinion are that the agency must report that the bankruptcy petition was withdrawn "upon receipt of documentation certifying such withdrawal" and must "follow reasonable procedures to assure maximum possible accuracy of the information concerning the" person who had filed for bankruptcy. In 2006, when the plaintiff's bankruptcy petition was withdrawn, no documentation certifying such withdrawal was or had been submitted to the agency. The plaintiff argues that the agency shouldn't (despite the statute) require such documentation, but instead should monitor all dismissals of bankruptcy petitions and investigate to determine whether they were dismissed at the request of the petitioner. A Lexis representative testified, however, that the variance in bankruptcy docket entries from bankruptcy court to bankruptcy court is so great—and there are 94 bankruptcy courts—that Lexis has been unable to develop reliable computer algorithms for determining the basis on which a particular bankruptcy case has been dismissed. What the plaintiff wants would thus require a live human being, with at least a little legal training, to review every bankruptcy dismissal and classify it as either voluntary or involuntary. That's a lot to ask—too much when one considers the alternative, which is for the agency to act only upon receiving information from the bankruptcy petitioner indicating that the petition has indeed been voluntarily dismissed. That approach is not only consistent with but implied by the phrase "upon receipt of documentation certifying such withdrawal."

We noted at the outset of this opinion that the Fair Credit Reporting Act requires only that the procedures adopted by credit-reporting agencies be "reasonable" in relation to the goal of accurate credit reporting. The procedure urged by the plaintiff is not "reasonable." It would put an enormous burden on the consumer credit-reporting agencies. Or so it seems; it was the plaintiff's burden to establish the reasonableness of her proposed procedure.

There is more that is wrong with her case. Every bankruptcy case that is "withdrawn" at the request of the petitioner is dismissed. There was therefore no inaccuracy in the statement in the plaintiff's credit report that her bankruptcy petition had been dismissed. Nor is the fact that such a petition is dismissed at the petitioner's request a reliable sign that she decided not to stiff her creditors by seeking a discharge—she may have dismissed the petition because she thought she'd be denied a discharge. To make a consumer credit report fully precise would require an investigation that went far beyond merely noting whether the petition for bankruptcy had been dismissed at the petitioner's request. The plaintiff does not want that; nor has she shown that it would be a feasible task to lay on the consumer credit-reporting agencies.

Affirmed.
Continued on next post. . .
 

despritfreya

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Part two. . .

Here is the lower court's unpublished decision that resulted in the above (and continued in the next post):

ANDREA M. CHILDRESS v. EXPERIAN INFORMATION SERVICES, INC., Case No. 1:12-cv-01529-TWP-DKL (Southern District of Indiana) July 30, 2014, ENTRY ON MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on a Motion for Summary Judgment filed by Defendant Experian Information Services, Inc. ("Experian"). Plaintiff Andrea Childress ("Ms. Childress") brought claims against
Experian for alleged violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCRA"). For the reasons discussed below, Experian's Motion is GRANTED.

I. BACKGROUND

A. Experian's Credit Reporting Business

The following material facts are not in dispute and are viewed in light most favorable to Ms. Childress as the non-moving party. Experian is a credit reporting agency ("CRA") as defined in the FCRA. As a CRA, Experian collects consumer credit information from various sources, organizes and stores the information, and then makes it available to authorized third parties, such as lenders. One source for information concerning consumers is public records, including court dockets, which can reveal information such as civil judgments, tax liens, and consumer bankruptcies. Experian includes public record bankruptcy information in consumer reports that it furnishes to third parties.

Consumer bankruptcy information is publicly available online through the Public Access to Court Electronic Records system ("PACER"). PACER is operated by the Administrative Office of the United States Courts and is a public access service that allows users to obtain case and docket information from Federal Appellate, District and Bankruptcy courts. Because each court maintains its own database with case information, the format and content of the information on the dockets may differ slightly for each jurisdiction. In bankruptcy cases, the face of each electronic docket sheet identifies, among other things, the debtor's name, case number, court, bankruptcy chapter, and current status. In most jurisdictions, the docket also includes links to access all public filings. As a general matter, PACER classifies the current status of a bankruptcy case in one of three ways: filed, dismissed, or discharged. There is no designation for "withdrawn" cases, and federal bankruptcy dockets do not use that term as a possible bankruptcy disposition classification.

Experian obtains its consumer bankruptcy information from LexisNexis Risk & Information Analytics Group, Inc. ("Lexis"). Lexis is an information services company that aggregates certain types of public records into standardized databases, and provides these records to its customers in a standardized format. PACER is the source of all of the consumer bankruptcy information that Lexis collects and provides to Experian. Based upon the information that Lexis collects from PACER, Experian reports consumer bankruptcies under Chapter 13 for up to seven years after the case is filed. In order to maximize the accuracy of the consumer report, Experian reports the disposition of bankruptcy cases exactly as they are reported by the federal bankruptcy court. Because the public bankruptcy records reflect that cases are "dismissed" as opposed to "withdrawn," and uses the term "dismissed" in its consumer reporting when the bankruptcy court reports that a petition has been dismissed, whether voluntarily or involuntarily, so did Experian.

A consumer may dispute information appearing in his or her credit report or consumer disclosure. In accordance with its procedures, Experian reviews every dispute that it receives, then conducts an internal reinvestigation and, if necessary, an external reinvestigation. Experian externally reinvestigates disputed bankruptcy information by contacting Lexis. Occasionally, a consumer sends Experian a dispute requesting that Experian report the status of a "dismissed" Chapter 13 bankruptcy as "withdrawn." Pursuant to its policy, once Experian receives documentation that adequately shows that the consumer voluntarily filed a motion to dismiss a bankruptcy petition, upon request Experian will add a statement to the consumer's file that notes that the bankruptcy was voluntarily withdrawn by the consumer. If a consumer requests that Experian expunge the reporting of a bankruptcy entirely on the basis of its "dismissed" status, Experian will inform the consumer that it may properly report the bankruptcy in accordance with the law.

B. Ms. Childress's Bankruptcy

In October 2005, Ms. Childress (then known as Andrea Holaway) and her then-husband filed a joint voluntary petition for bankruptcy under Chapter 13. The couple was not in financial distress at the time, but filed for bankruptcy because they were erroneously informed that bankruptcy could discharge their student loan debts. On November 15, 2005, Ms. Childress and her husband filed a proposed Chapter 13 plan with the bankruptcy court, to which the bankruptcy trustee objected. The bankruptcy court denied confirmation of the plan after a hearing on January 30, 2006. In doing so, the court ordered Ms. Childress and her husband to file an amended Chapter 13 plan no later than February 27, 2006, or else their case would be dismissed without any further notice or hearing. Ms. Childress and her husband did not file a modified Chapter 13 plan by the ordered deadline. However, before the court formally dismissed their case, they filed a motion for dismissal, moving the bankruptcy court to dismiss their Chapter 13 petition pursuant to 11 U.S.C. § 1307(b). On March 7, 2006, the bankruptcy court granted the couple's motion and issued an order dismissing the case. Ms. Childress's bankruptcy case was closed on May 12, 2006, following the trustee's final report.

C. Ms. Childress's Disputes with Experian

From 2005 to 2012, Experian's credit file about Ms. Childress contained information about her bankruptcy case, stating that the Chapter 13 bankruptcy had been dismissed. In July 2009, Ms. Childress, through counsel, sent a letter to Experian demanding that Experian completely remove any references to her bankruptcy from her credit file. Ms. Childress's counsel argued that reporting the bankruptcy filing on her credit report violated 15 U.S.C. § 1681c(a)(1) because the case was voluntarily dismissed, and should be treated as if the bankruptcy filing never existed. The letter included a print-out of the bankruptcy court docket. Experian responded to Ms. Childress on August 12, 2009, stating that the fact that the case was documented in the bankruptcy court records allowed it to appear on her personal credit report.

On August 16, 2012, two months before filing the present action, Ms. Childress submitted a second dispute to Experian, this time through Experian's website. She did not include any documentation, and simply stated in the online form, "MY BANKRUPTCY WAS NOT DISMISSED. IT WAS VOLUNTARILY WITHDRAWN PRIOR TO PLAN APPROVAL." (emphasis in original). That same day, Experian contacted Lexis to confirm the accuracy of the disputed bankruptcy record. Coincidentally, after Experian contacted Lexis, but before any investigation had been completed, Experian's automated systems purged all references to Ms. Childress's bankruptcy from her credit file, as it would soon be seven years since her bankruptcy had been filed. On August 24, 2012, Lexis confirmed that the bankruptcy information that had been on Ms. Childress's credit report was accurate, and Experian then informed Ms. Childress that the bankruptcy no longer appeared on her credit file. Ms. Childress filed this action two months later.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews "the record in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor." Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). However, "[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial." Hemsworth, 476 F.3d at 490 (citation omitted). "In much the same way that a court is not required to scour the record in search of evidence to defeat the motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of a claim." Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation and internal quotations omitted). "[N]either the mere existence of some alleged factual dispute between the parties . . . nor the existence of some metaphysical doubt as to the material facts . . . is sufficient to defeat a motion for summary judgment." Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted)..
 

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Part three. . .

III. DISCUSSION

Ms. Childress purports to bring a class action against Experian, alleging that Experian should have reported voluntarily dismissed bankruptcy cases as "withdrawn," not "dismissed," and also should have reported whether the bankruptcy was "'withdrawn before or after the court approved a Chapter 13 plan." She claims that Experian's failure to do so for her and the putative class members constitutes a willful violation of the bankruptcy reporting requirements of 15 U.S.C. § 1681c(d)(1), and was caused by Experian's failure to follow reasonable procedures to ensure "maximum possible accuracy" of bankruptcy reporting, in violation of § 1681e(b). Ms. Childress additionally claims that Experian "failed to conduct a reasonable reinvestigation" of her dispute to determine whether the disputed information was accurate, in violation of § 1681i. Ms. Childress has only asserted claims alleging willful violations of the FCRA and does not bring any claims for simple negligence. See 15 U.S.C. §§ 1681n, 1681o.

A. Procedural Issues

As an initial matter, the Court notes that Ms. Childress failed to comply with the requirements of both Federal Rule of Civil Procedure 56 and Local Rule 56-1 in her response to Experian's motion for summary judgment. First, Ms. Childress failed to comply with Local Rule 56-1(b) by not adequately setting forth material facts in dispute. Local Rule 56-1(b) provides that "[t]he response must include a section labeled 'Statement of Material Facts in Dispute' that identifies the potentially determinative facts and factual disputes that the party contends demonstrates a dispute of fact precluding summary judgment." While the brief contains a section with this heading, Ms. Childress's response merely refers to the entirety of her "factual statements set forth in her Motion for Class Certification and Brief in Support thereof, including all exhibits referenced and incorporated therein.". This is not sufficient to identify "potentially determinative facts" that are relevant to this motion, and the Court will not dig through Ms. Childress's unrelated motion and brief to determine which facts are material and in dispute for purposes of this motion. In addition, the "facts" that she claims are "in dispute and preclude summary judgment in this case" are not facts at all, but rather are legal questions that must ultimately be decided by the Court.

Second, in both her Statement of Material Facts in Dispute section and throughout her entire brief, Ms. Childress also did not comply with Local Rule 56-1(e) and Federal Rule of Civil Procedure 56(c)(1) in her failure to cite to evidence in the record in support of her factual assertions. "A party must support each fact that the party asserts in a brief with a citation to a discovery response, a deposition, an affidavit, or other admissible evidence. . . . The citation must refer to a page or paragraph number or otherwise similarly specify where the relevant information can be found in the supporting evidence." S.D. Ind. L.R. 56-1(e) (emphasis added); see also Fed. R. Civ. P. 56(c)(1)(A) ("A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record. . . .") (emphasis added).

Ms. Childress's brief is completely devoid of citations to the record to support her factual assertions. Almost as an afterthought, Ms. Childress includes a "Table of Exhibits" lettered A-X which is attached to her brief, but there are no citations to specific pages, nor any indication how these exhibits relate to the facts asserted in her response brief. (Filing no. 131, at ECF p. 33) (under seal). In a footnote, Ms. Childress informs the Court that her exhibits are already in the record of this case and attached in support of an unrelated motion. It is not the task of the Court "to scour the record in search of genuine issues of triable fact. We rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment." Brasic v. Heinemann's Inc., 121 F.3d 281, 285 (7th Cir. 1997) (emphasis added); see also Rice v. Ind. St. Police, 149 F. Supp. 2d 573, 578 (S.D. Ind. 2001) ("[T]he Seventh Circuit has repeatedly admonished parties opposing summary judgment that they must comply with local summary judgment rules which require them to point to admissible evidence in the record.").

Because Ms. Childress has failed to meet her burden to oppose Experian's motion for summary judgment by failing to comply with both the Federal Rules of Civil Procedure and the Local Rules, the Court will consider the facts as presented by Experian to be undisputed for purposes of this motion. See Fed. R. Civ. P. 56(e)(2); S.D. Ind. L.R. 56-1(f). "A district court does not abuse its discretion when, in imposing a penalty for a litigant's non-compliance with Local Rule [56-1], the court chooses to ignore and not consider the additional facts that a litigant has proposed." Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) (quoting Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809-10 (7th Cir. 2005)). Therefore, the only question before the Court is whether the facts, as presented by Experian and effectively unopposed by Ms. Childress, show that Experian violated the FCRA..
Continued in part four. . .