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Berkery v. Equifax Information Services LLC

United States District Court, E.D. Pennsylvania

December 19, 2019

JOHN C. BERKERY, SR., Plaintiff
v.
EQUIFAX INFORMATION SERVICES LLC et al., Defendants

          MEMORANDUM

          Gene E.K. Pratter united States District Judge.

         Introduction

         Pro se plaintiff John C. Berkery alleges that three consumer reporting agencies violated the Fair Credit Reporting Act, 15 U.S.C. §§ 1681, et seq., because they misreported that his Capital One credit card account was overdue. In his original complaint, Mr. Berkery admitted that he failed to make his minimum monthly payment; however, he alleged that the information was inaccurate because Capital One illegally increased his minimum monthly payment. The Court granted the consumer reporting agencies' motion to dismiss because Mr. Berkery failed to plead that the consumer reporting agencies included a factual inaccuracy on his reports, as required by the FCRA.

         Mr. Berkery then filed an amended complaint which omitted the problematic pleadings contained in his original complaint. The consumer reporting agencies now move to dismiss Mr. Berkery's amended complaint, arguing that Mr. Berkery cannot avoid dismissal of his claims by omitting the allegations that were fatal to his original complaint. Mr. Berkery also moves to strike the consumer reporting agencies' motion to dismiss. For the following reasons, the Court denies both motions.

         Background

         In ruling on this motion to dismiss, the Court must accept the facts presented in the complaint in the light most favorable to Mr. Berkery and "accept all of the allegations as true." ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994).

         Mr. Berkery alleges that three consumer reporting agencies violated the Fair Credit Reporting Act, 15 U.S.C. §§ 1681, et seq., because they misreported that the payments on his Capital One credit card account were overdue.

         On March 6, 2012, Mr. Berkery opened a Platinum Mastercard credit card account with Capital One.[1] In his original complaint, he pleaded that when he opened the account, and for the next six years, the minimum monthly payment was $25. Compl. at ¶ 7 (Doc. No. 2). He originally pleaded that he continued to pay $25 per month even after Capital One increased the minimum requirement payment on the account. Mr. Berkery also alleged that "Capital One unilaterally and without cause" raised his minimum monthly payment. Id. Mr. Berkery contended that the three defendant consumer reporting agencies-Equifax Information Services, LLC, Experian Information Solutions, Inc, and Trans Union, Corp.-allegedly misreported the Capital One account on his credit reports by stating that the account was overdue when Mr. Berkery refused to pay the increased minimum monthly payment. He pleaded that this inaccuracy resulted in a substantial loss, including the inability to obtain mortgage financing or credit, and also damaged his reputation.

         Mr. Berkery alleged that the consumer reporting agencies failed to adopt or follow reasonable procedures to assure maximum possible accuracy of his credit reports. According to Mr. Berkery, the agencies continued to report the Capital One account delinquency after he asked the agencies to reinvestigate his claims. In his original complaint, Mr. Berkery asserted that the consumer reporting agencies violated § 1681e(b) by failing to use reasonable procedures to assure maximum possible accuracy in their credit reports and § 1681i(a) by failing to reasonably reinvestigate his dispute of the allegedly inaccurate information.

         Equifax, later joined by Experian and Trans Union, filed a motion to dismiss on the basis that Mr. Berkery had not alleged a patent, factual error on his Equifax report, namely that Equifax reported the numbers incorrectly. The Court granted the motion to dismiss as to all the defendants with leave for Mr. Berkery to amend his complaint. Mem. at 10 (Doc. No. 28). In dismissing Mr. Berkery's § 1681e(b) claim, the Court held that Mr. Berkery "fail[ed] to allege that the consumer reporting agencies reported an inaccuracy" because he "admit[ted] that Capital One increased his monthly payment amount and that he continued to pay the previous, lower amount in spite of the increase." Id. at 6. The Court reasoned that "[w]hen the consumer reporting agencies reported the delinquency, they were accurate because Mr. Berkery was, in fact, delinquent." Id.

         As to Mr. Berkery's § 1681i(a) claim, the Court held that "[t]he reinvestigation Mr. Berkery requests would have required the consumer reporting agencies to decide whether Capital One was legally allowed to unilaterally increase Mr. Berkery's minimum monthly payment." Id. at 9-10. The Court held that § 1681i(a) does not obligate the consumer reporting agencies in this way, and noted "as a matter of fairness, due process and policy, it is difficult to imagine that resolving an issue such as this one extant should be assigned to the consumer reporting agency." Id. at 10.

         Mr. Berkery has since filed his amended complaint. In his amended pleadings, Mr. Berkery no longer alleges that he made monthly payments of $25 or that Capital One increased his minimum payment to greater than $25. Instead, he alleges that although he maintained his account "in a timely manner" for six years and that his account was eventually "paid in full and closed," Capital One reported to the consumer reporting agencies that the account was three months overdue. Am. Compl. at ¶ 7 (Doc. No. 30). Mr. Berkery alleges that the consumer reporting agencies produced factually inaccurate consumer reports based on this information, even after conducting reinvestigations upon Mr. Berkery's request. Id. at ¶ 25. Moreover, Mr. Berkery no longer alleges that "Capital One unilaterally and without cause" raised the minimum monthly payment. Compare Compl. at ¶ 7 (Doc. No. 2) with Am. Compl. at ¶ 7 (Doc. No. 30). The remainder of Mr. Berkery's amended complaint mirrors his original pleadings.

         The defendants again move to dismiss Mr. Berkery's amended complaint, arguing that Mr. Berkery amended his pleadings in an attempt to avoid dismissal. Mr. Berkery also moves to strike the consumer reporting agencies' motion to dismiss under Federal Rule of Civil Procedure 12(f).

         Legal ...


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