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Clements v. Trans Union, LLC

United States District Court, S.D. Texas, Galveston Division

April 30, 2019

AMANDA CLEMENTS; KATHERINE ANGUS; RANDALL LESLIE; CLINTON PERRY; EDUARDO LUCIO; STEVEN LOSS; MELISSA FIKES; and DALE CARMAN; individually, and on behalf of all others similarly situated Plaintiffs,
v.
TRANS UNION, LLC; TXU ENERGY RETAIL CO., LLC; and EXPERIAN INFORMATION SOLUTIONS, INC.; and JOHN DOES 1-25 Defendants. Plaintiff Corrected Date of Last Payment Date of First Delinquency Removed from Trans Union credit file Removed from Experian credit file Reported for more than 7 years, 180 days

          MEMORANDUM AND RECOMMENDATION

          ANDREW M. EDISON, UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is Defendants' Joint Motion for Summary Judgment and Motion to Dismiss Pursuant to Rule 12(b)(1) ("Defendants' Motion for Summary Judgment"). Dkt. 133. Having considered the motion, response, reply, and applicable law, the Court recommends that Defendants' Motion for Summary Judgment be GRANTED.

         BACKGROUND

         Plaintiffs Amanda Clements, Randall Leslie, Steven Loss, Perry Clinton, Dale Carman, and Melissa Fikes (collectively, "Plaintiffs") are individuals who had accounts with TXU Energy Retail Company, LLC ("TXU") during and before 2009.[1] Defendants Trans Union LLC ("Trans Union") and Experian Information Solutions, Inc. ("Experian") are credit reporting agencies engaged in the business of assembling, evaluating, and dispersing information concerning consumers for the purposes of furnishing credit reports.

         In the Third Amended Class Action Complaint and Demand for Jury Trial ("Complaint"), Plaintiffs allege that Trans Union and Experian (collectively, "Defendants") were reporting Plaintiffs' delinquent TXU accounts for more than seven and one-half years-beyond the time period that the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCRA"), permits these accounts to be reported. Plaintiffs specifically allege claims against Defendants for violating the FCRA under (1) Section 1681c(a)(4) (for reporting old and obsolete information on Plaintiffs' credit report for longer than the statutory period allows); (2) Section 1681e (for failure to follow reasonable procedures to assure maximum possible accuracy of a credit report and avoid violations of Section 1681c); and (3) Section 1681 i (for failure to conduct a reasonable investigation in response to any consumer dispute of information appearing in that consumer's credit file). At the motion to dismiss stage, the Court dismissed Plaintiffs' Section 1681 i claim, but allowed the other claims to proceed.

         Discovery has taken place and Defendants have now moved to dismiss under Rule 12(b)(1) and for summary judgment under Rule 56.[2] The relevant facts are not in dispute. The parties agree that TXU provided two kinds of information to Defendants relating to Plaintiffs' delinquent accounts. First, TXU reported the "Date of First Delinquency" for each Plaintiff, calculating the date each Plaintiffs final bill was due. Second, TXU reported a "Date of Last Payment" for each Plaintiff, identifying when each Plaintiff last made a payment on his/her account.

         Defendants use the Date of First Delinquency provided by TXU to determine when to stop reporting delinquent accounts on credit reports. As explained in Defendants' Motion for Summary Judgment:

         Dkt. 137 at 11 (citations omitted). As a result of these policies, none of the Plaintiffs had a TXU account reported for longer than seven and one-half years after their respective Date of First Delinquency.[3]

         Defendants did not utilize the Date of Last Payment provided by TXU. This is fortunate, as TXU inadvertently reported an incorrect Date of Last Payment for each Plaintiff. The Date of Last Payment provided by TXU for each Plaintiff was much earlier in time than it should have been. An affidavit from the Senior Manager of Credit and Collections at TXU explained how this occurred:

Beginning in late 2008 and continuing through the first half of 2009, TXU migrated from its old legacy data system to its current customer relationship management system ("CRM system"). This involved migrating all of the then-current accounts to the new CRM system. TXU did discover that there was an issue with the migration where certain accounts were updated with the wrong "Date of Last Payment." Specifically, the issue potentially caused an incorrect "Date of Last Payment" to be reported to the credit bureaus for customers who had accounts during and before 2009. This issue did not, however, impact in any way the "Date of First Delinquency" reported to the credit bureaus for any consumer of TXU services and did not have affected [sic] when an item should be removed from a consumer report.

         Dkt. 112-3 at 15. In connection with this lawsuit, Defendants have provided the Court with the correct date that each Plaintiff made his/her last payment to TXU ("Corrected Date of Last Payment"). Importantly, each Corrected Date of Last Payment is within seven and one-half years from the date each Plaintiffs' TXU account was removed from the credit files at Trans Union and Experian.

         The following chart provides the relevant dates for each Plaintiff:

Plaintiff
Corrected Date of
Last Payment
Date of First Delinquency
Removed
from Trans
Union credit
file
Removed
from Experian credit file
Reported for
more than 7
years, 180
days
Amanda Clements
1/7/2011
2/28/2011
8/25/2017
12/16/2017
No
Randall Leslie
8/6/2010
10/4/2010
9/3/2017
N/A4
No
Clinton Perry
10/19/2010
11/8/2010
10/12/2017
N/A4
No
Steven Loss
9/2/2011
12/12/2011
9/6/2018
7/12/2018
No
Melissa Fikes
4/26/2013
5/13/2013
To be
removed
April 2020
To be
removed Feb.
2020
No

         This chart demonstrates that it does not matter whether the clock starts ticking on the Corrected Date of Last Payment or the Date of First Delinquency. In both cases, none of Plaintiffs' delinquent accounts have been reported beyond the seven and one-half years permitted by statute.

         Given these undisputed facts, it is no surprise that Plaintiffs readily acknowledge that none of Plaintiffs' TXU accounts were reporting for more than seven and one-half years:

Mr. Zelman: So now, with all the information that we have in front of us, it all come together at this point here now, I don't think there's a plaintiff, based on what they've shown us now in their ...

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