In Shaw v. Equinox Information Solutions, Inc., 2016 WL 2344353, at *3-5 (E.D.Mich., 2016), Judge Hood denied a Motion to Dismiss a FCRA case, saying that a case was better suited for summary judgment.
Plaintiff’s cause of action is based on her contention that Defendants inaccurately reported that the account was charged off on multiple occasions over a series of months. Specifically, Plaintiff believes that Defendants violated the FCRA by reporting the debt as having been charged off in March, April, May, June, July, September and October of 2015. Plaintiff argues that “[a] creditor ‘charges off’ a debt when it ‘treats the debt as a loss or expense because payment is unlikely.’ ” Gillespie v. Equifax Information Services, LLC, 05C138, 2008 WL 4316950, at *8 n.1 (N.D. Ill. Sept. 15, 2008), citing Black’s Law Dictionary 227 (7th ed. 1999). Based on that definition, Plaintiff argues that a charge-off is an event that occurs at a definite point in time–and that point in time is when a creditor decides to treat a debt as a loss or expense. Defendants reported that the account status changed to charge-off in March of 2015. (Doc #17-2). Plaintiff contends the charge-off (identified by “CO” in the reports) should have been reported in the payment history portion of the subject trade line for the month of March, 2015, and only for March of 2015, since the account was charged off in March of 2015. Plaintiff suggests that, although the status of the account may have been a charge-off in April, May, June, July, September and October of 2015, that information must be conveyed in the account status portion of the trade line, not the payment history portion of the trade line. Defendants argue that they are entitled to dismissal of Plaintiff’s claims because Plaintiff has failed to “demonstrate” the existence of an inaccuracy. As Defendants argue, Plaintiff’s arguments are unsupported by any authority. In the words of Defendants, Plaintiff’s arguments seem to be her opinion about how things in the credit reporting industry should be reported. Defendants contend that Plaintiff’s interpretation is contrary to the FCRA. . . .Experian argues that any attempt by Plaintiff to further amend the FAC with respect to Experian would be futile because its reporting of the Ditech trade line is proper, i.e., the Ditech trade line can reflect a “charge off” for successive months in the payment history grid of her Experian report. Experian directs the Court to the Consumer Data Industry Association’s (“CDIA”) guidelines. Experian contends that the CDIA guidelines establish the universal standards for the consumer reporting industry. Experian refers to Exhibit 2 of the CDIA guidelines as evidence that the industry standard is to continue to report the charge off in successive months in the payment history grid until there is some change in the status of the trade. Experian argues that Plaintiff’s contention that Experian can only show a charge off in one month is contrary to the industry standard and wholly unsupported. Plaintiff counters that the CDIA guidelines are not legal authority but instead is a manual assembled by the credit reporting agencies themselves. Plaintiff further argues that the manual itself contains a disclaimer that provides, in part: “…AND YOU SHOULD NOT RELY ON ANY CONTENT IN THE CRRGAS TO THE SOLE BASIS FOR ACTION OR ASSUME THAT ANY TACTICS DESCRIBED THEREIN WOULD, BY THEMSELVES, ACHIEVE A PARTICULAR RESULT.” (Doc. No. 24-3, PgID 189). Plaintiff suggests that the Court should give the CRRG little, if any, weight. . . Plaintiff does expressly allege that information regarding the Ditech trade line on her credit reports issued by Experian is false, misleading, and inaccurate. Plaintiff also sets forth factual allegations that support her claims that the reports contain false and inaccurate information, namely that multiple charge-offs based on Ditech trade line(s) were on her Experian report. See FAC, ¶¶6-8. Plaintiff disputes that there were multiple charge-offs. In other words, Plaintiff is complaining that information on the Experian report is inaccurate. For purposes of surviving a Rule 12(b)(6)/12(c) motion, it seems as though Plaintiff has met her burden. Although Ditech and Experian argue that the law allows them to list the charge-offs in any month/for multiple months during the applicable seven-year period, neither Ditech nor Experian has cited any authority that supports those arguments. It is notable that only one case cited by Defendants was decided pursuant to the Rule 12(b)(6) standard (Bailey) — the other cases upon which Defendants rely were decided under the Rule 56 summary judgment standard. In Bailey, the plaintiff admitted there was no inaccurate information on her reports–and Plaintiff has not done so in this case. Under the FAC, Plaintiff contends that the listing of multiple charge-offs is inaccurate. Defendants have not shown that, even if what Plaintiff contends is true, Plaintiff cannot recover because Defendants have legal authority that allows them to list multiple charge-offs. Even Experian’s reliance on the CDIA guidelines would be more relevant at the summary judgment stage of the proceedings or at trial. Experian offers no authority for the proposition that industry guidelines or the industry standard should govern the Court’s Rule 12(b)(6)/Rule 12(c) analysis of whether Plaintiff has sufficiently pled her FCRA claims.