In In re Ocwen Loan Servicing LLC Litig., No. 3:16-cv-00200-MMD-WGC, 2019 U.S. Dist. LEXIS 25968 (D. Nev. Feb. 19, 2019), Judge Du found that a mortgage company had a permissible purpose to ‘soft’ pull a consumer report post-bankruptcy discharge. The facts were as follows.
Plaintiffs are Christopher Marino, Henry L. Farrin, Jr., Joshua E. Hardin, Kristen Hardin, Dionne Horton, Deonca S. Bourguere, Pernell D. Hobley, and Michael D. Wittreich. (ECF No. 81 at 1, ECF No. 79.) Ocwen is a servicer of home mortgage loans, including of Plaintiffs’ mortgage loans. Sometime after obtaining the loans, Plaintiffs filed for bankruptcy and ultimately obtained discharge of their personal liabilities for the mortgage loans that Ocwen serviced. (ECF No. 1.) Despite such discharges, Ocwen performed “soft pulls” of Plaintiffs’ credit information. (ECF No. 110 at 11; ECF No. 117 at 2; ECF No. 116 at 5-6.) Plaintiffs brought separate suits in this Court alleging Ocwen violated the FCRA when it conducted the “soft pull” of their credit information despite discharge of their personal liabilities for the mortgage loans that Ocwen serviced. (See ECF [*7] No. 1 (3:16-cv-200), ECF No.13 (3:16-cv-483); 1 (3:16-cv-498), ECF No. 2 (3:16-cv-603).) Case number 3:16-cv-483 concerns four Plaintiffs—Horton, Bourguere, Hobley, and Wittreich (collectively, “Horton Plaintiffs”). (ECF No. 13 at 1 (3:16-cv-483).) The Court consolidated Plaintiffs’ cases under the lead case (3:16-cv-200) and ordered that all further pleadings be filed in the case. (ECF No. 47.) In their separate complaints, all Plaintiffs, except the Horton Plaintiffs, in gist alleged only that Ocwen willfully violated FCRA by accessing their consumer credit reports without a permissible purpose. (See, e.g., ECF No. 70 at 2, 10.) The Horton Plaintiffs additionally alleged negligence compliance. (Id. at 10.) However, the Court found the Horton Plaintiffs lacked standing to assert a claim of negligence but permitted them the opportunity to amend to cure the deficiency. (Id. at 10-11.) The Court provided the Horton Plaintiffs until April 3, 2017, to file the amended complaint, but they failed to do so. (ECF No. 78; see generally docket; see also ECF No. 71.) Plaintiffs later filed a master complaint on April 14, 2017, all asserting the same claim of willful violation3 of the FCRA against Ocwen. (ECF No. 79.) [*8] Plaintiffs subsequently moved to certify class (ECF No. 95) and Ocwen moved for summary judgment on the shared claim of willful noncompliance (ECF No. 101). Ocwen thereafter filed a motion to stay the case pending a decision by the Ninth Circuit in Vanamann v. Nationstar Mortgage, LLC (“Vanamann II”), 735 F. App’x 260 (9th Cir. 2018). (ECF No. 96.) The Court granted the motion to stay. (ECF No. 106.) Vanamann II was filed on May 18, 2018, see id., and the parties renewed their respective motions. (ECF Nos. 110, 111.)
Judge Du granted summary judgment to the mortgage company.
Ocwen contends that its permissible purposes for accessing Plaintiffs’ credit information falls under § 1681b(a)(3)(A) and (F). (ECF No. 110 at 11; ECF No. 117 at 13-14.) As to § 1681b(a)(3)(A), Ocwen claims it pulled the credit information for review of Plaintiffs’ accounts related to their mortgage agreements and the corresponding liens which continue to encumber Plaintiffs’ properties even though the personal debts were discharged. (ECF No. 110 at 11; ECF No. 117 at 2-3, 17.) As to § 1681b(a)(3)(F), Ocwen states a myriad of business reasons based on continuing servicing obligations for Plaintiffs’ mortgage loan accounts, irrespective of Plaintiffs’ bankruptcy status. (See, e.g., ECF No. 117 at 2-3, 13-14, 17.) Particularly relevant [*13] to Ocwen’s stated purposes is that Plaintiffs do not dispute5 the following facts which evidence the existence of continuing accounts and business relationships with Ocwen post-discharge: 1) All Plaintiffs remained the title owner of his or her mortgaged property following their bankruptcy discharges. 2) A lien existed on each of Plaintiffs’ properties following the bankruptcy discharges and at the time of Ocwen’s alleged soft pulls. 3) Plaintiffs Bouguere, Hobley, Wittereich and Farrin all sought loss mitigation opportunities from Ocwen to avoid foreclosure after receiving a discharge (e.g., loan modification, refinancing, account settlement, or deed-in-lieu of foreclosure). 4) Plaintiffs Hobley and Wittreich have regularly made payments on their Ocwen mortgage accounts during their bankruptcies and after receiving a discharge. They continue to make payments on their Ocwen mortgage accounts to this day. 5) Plaintiffs Hobley and Wittreich currently occupy the properties associated with their Ocwen mortgage accounts. 6) Plaintiffs Wittreich, Bouguere, and Hobley continued to pay property taxes and property insurance for the properties associated with their Ocwen mortgage accounts after their bankruptcy discharges. 7) Plaintiffs Marino, Farrin and Bouguere have all executed authorizations allowing Ocwen to access their credit information (Compare ECF No 110 at 8-11 with ECF No. 116 at 4-10.)6 Relying on Vanamann II, the Court finds that Plaintiffs’ claim for willful violation of the FCRA fails “as a matter of law.” 735 Fed. App’x at 261 (“Vanamann’s [FCRA] claim fails as a matter of law.”). Ocwen’s implicit interpretation that its soft pulls for purposes of its review of Plaintiffs’ accounts and its performance of continuing servicing duties is not objectively unreasonable under Vanamann II. In Vanamann II, the Ninth Circuit concluded that the mortgage servicer’s interpretation of the FCRA—that it could check the plaintiff’s credit as part of its review of her account after discharge—was not an objectively unreasonable interpretation, “much less” a reckless interpretation, of the FCRA because: The plain text of the [FCRA] does not prohibit a mortgage servicer from obtaining a consumer’s credit report after a bankruptcy court’s discharge of the consumer’s mortgage debt. Nor have we interpreted the [FCRA] to prohibit that practice. And the [FCRA] does not require that a consumer [*15] have personal liability on a debt in order for a credit check to be authorized. Id. at 262; see also Johnson v. Home State Bank, 501 U.S. 78, 84, 111 S. Ct. 2150, 115 L. Ed. 2d 66 (1991) (“[A] bankruptcy discharge extinguishes only one mode of enforcing a claim—namely, an action against the debtor in personam—while leaving another—namely, an action against the debtor in rem.”). In line with Vanamann II, Ocwen’s post-discharge procurement of Plaintiffs’ credit information does not amount to a willful violation of the FCRA because review of a consumer’s credit information following discharge of only the consumer’s personal liability is not prohibited under FCRA’s plain text or by this circuit. Further, a finding of willful violation is insurmountable as Ocwen maintained the right to collect on Plaintiffs’ mortgages in rem and it is undisputed that all Plaintiffs continued to own their properties after bankruptcy discharge of their personal liabilities. Accordingly, the Court grants Ocwen’s Motion (ECF No. 110) and denies Plaintiffs’ motion to be certified as class representatives and counsel (ECF No. 111) as moot.