Summary
denying judgment on pleadings based on an allegedly misleading bankruptcy notation subsequent to divorce
Summary of this case from Smith v. Ohio Savings Bank, F.S.B.Opinion
Case No. CV-S-01-282-LOG (PAL)
January 9, 2002
ORDER
Defendant Experian Information Solutions, Inc. moves for judgment on the pleadings (#9), which motion plaintiff Donald Spellman opposes (#14).
Experian produces credit reports, and produced a credit report for Spellman. The only negative item on that report concerned a mortgage held jointly by Spellman and his former wife. Subsequent to their divorce, Spellman's former spouse declared bankruptcy, and her liability on the mortgage was discharged. Spellman remains liable and current on the mortgage. Spellman's credit report references that the mortgage was "included in" the bankruptcy of the "primary borrower," and was discharged. In his suit, Spellman alleges Experian willfully or negligently failed to follow reasonable procedures to ensure maximum possible accuracy of the information contained on his credit report, and tailed to investigate upon Spellman's dispute. In addition, Spellman alleges in his complaint that the credit report "leaves creditors to conclude that the Plaintiff has derogatory credit and has filed bankruptcy. . . ."
Experian asserts that judgment on the pleadings is appropriate because inclusion of the complete history of the mortgage (including its inclusion in the former spouse's bankruptcy, and its discharge as to her) is appropriate (and indeed required) on Spellman's credit report, and because the credit report is not inaccurate regarding the mortgage.
Assuming, without deciding, that Experian is correct that it may accurately report, and. indeed might be required to accurately report, the complete history of the mortgage on to Spellman's credit report, including the fact that the mortgage was included in the former spouse's bankruptcy and that her liability was discharged through bankruptcy, judgment on the pleading is nevertheless inappropriate. The Court disagrees with Experian's argument that Spellman conceded that his credit report is accurate and not misleading. Ironically, in an effort to show this Court that the credit report is not misleading, Experian points out that the Spellman's credit report itself notes that the "Primary borrower filed bankruptcy." However, and in an apparent effort to ensure that this Court recognizes that `primary borrower' does not refer to Spellman but to his former spouse, Kathleen, Experian's quote to this Court from the credit report modifies the sentence by adding the name of the former spouse in square brackets: "Primary borrower [Kathleen Spellman] filed bankruptcy." Experian's resort to modifying the credit report to specifically identify Kathleen as the primary borrower best exemplifies that Spellman has adequately alleged that the credit report is misleading. By tailing to adequately and sufficiently identify that the mortgage was included in the bankruptcy of only the joint holder, Kathleen Spellman, and by tailing to adequately and sufficiently identify that only the liability of the joint holder was discharged by bankruptcy, the report can mislead the reader to the inaccurate conclusion that Spellman included the mortgage in his bankruptcy (and thereby inaccurately implying that he had declared bankruptcy) and that Spellman's liability on the mortgage was discharged. The ambiguous statement in the credit report that the unidentified "primary borrower" declared bankruptcy does not cure but amplifies the misleading nature of the report as it concerns Spellman's credit history regarding the mortgage. Accordingly, as judgment on' the pleadings is not appropriate,
THE COURT ORDERS that Defendant's Motion for Judgment on the Pleadings (#9) is DENIED.