Opinion
HHDCV185049844S
08-08-2018
Pasquale RAFFONE v. TRANSUNION et al.
UNPUBLISHED OPINION
OPINION
Cesar A. Noble Judge
Before the court is the motion to strike of the defendant, Experian Information Solutions, Inc. (Experian). In its view, the complaint of the self-represented plaintiff, Pasquale Raffone, which purports to assert liability against Experian for removing, and failing to report, an account in good standing from his credit report following a dispute over a late payment, is legally insufficient. The court agrees and grants the motion.
The plaintiff’s complaint alleges that Experian failed to accurately report an account in good standing from Dependable Credit. After the plaintiff disputed the report of a late payment Experian completely removed it from his report. As a result of the "wrongful removal" and failure to relist the account the plaintiff claims to have suffered injury, including mental anguish and a less positive credit rating. The plaintiff’s complaint does not identify a statutory, regulatory or common-law duty on the part of Experian to list positive accounts on his credit report. The plaintiff’s objection to Experian’s motion to strike, however, identifies the Federal Credit Reporting Act (FCRA) and General Statutes § 36a-699b(d) as the basis for his claim. While the section of the FCRA upon which the plaintiff relies is not expressly identified he does reference the obligation imposed by the FCRA to correct or delete inaccurate, incomplete or unverifiable information. This obligation is found in 15 U.S.C. § 1681i(a)(5) which provides that: "If after any reinvestigation ... of any information disputed by a consumer, an item of the information is found to be inaccurate or incomplete or cannot be verified, the consumer reporting agency shall- (i) promptly delete that item of information from the file of the consumer, or modify that item of information, as appropriate, based on the results of the reinvestigation; and (ii) promptly notify the furnisher of that information that the information has been modified or deleted from the file of the consumer." Section 36a-699b(d) similarly, but not identically, provides that "[i]f the credit rating agency determines, upon reinvestigation, that an item of information is inaccurate or incomplete, but can be modified so as to make such information accurate and complete, the credit rating agency shall promptly modify such information." The complaint seeks compensatory damages of $5,000, punitive damages of $3,000 and costs in the amount of $2,000.
15 U.S.C.A. § 1681 et seq.
In its Motion to Strike, Experian assumed that the plaintiff’s claim is based on the FCRA. It asserts that the complaint is legally insufficient because the FCRA only requires a consumer reporting agency to accurately report that data which it actually reports and imposes absolutely no obligation to report particular items of information. In his objection to the motion to strike the plaintiff attempts to recast his claim so as to assert a cause for, as best the court can determine, a failure to accommodate a request to correct and modify an inaccurate entry in a credit report in violation of the FCRA and "more importantly," General Statutes § 36a-699b(d). Experian asserts in its reply to the plaintiff’s objection to the motion to strike that the plaintiff’s complaint does not allege that Experian performed a reinvestigation, determined that its report of the account in question was ‘inaccurate or incomplete," and then failed to "modify such information."
Experian also argues that the complaint fails to state facts which might support a claim for punitive damages. Because the court holds that Experian has no duty to report specific data under the FCRA and the compliant fails to satisfy the conditions of § 36a-699b(d), it need not address this argument.
"The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
"Although we are mindful of our policy to be solicitous of pro se litigants; see, e.g., Shobeiri v. Richards, 104 Conn.App. 293, 296, 933 A.2d 728 (2007), such policy is applicable only when it does not interfere with the rights of other parties ... the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." (Internal quotation marks omitted.) Mercer v. Cosley, 110 Conn.App. 283, 294 n. 9, 955 A.2d 550 (2008). "For justice to be done any latitude given to pro se litigants cannot interfere with the rights of other parties, nor can we disregard completely our rules of practice." (Internal quotation marks omitted.) Shah v. Administrator, Unemployment Compensation Act, 114 Conn.App. 170, 177, 968 A.2d 971 (2009), citing Gonzalez v. Commissioner of Correction, 107 Conn.App. 507, 513, 946 A.2d 252, cert. denied, 289 Conn. 902, 957 A.2d 870 (2008).
The plaintiff’s complaint alleges Experian "wrongfully removed" and failed to relist the Dependable Credit account. Complaint ¶¶ 3 & 5. The wrong complained of presumes there was an obligation to list the Dependable Credit account in the plaintiff’s credit report. No such obligation exists. "FCRA does not require credit reporting agencies to include all relevant information about an individual, only that the information present on a credit report be accurate." Aclys International, LLC v. Equifax, Inc., No. 2:08-CV-00954, 2010 WL 1816248, at *3 (D. Utah May 5, 2010), aff’d sub nom Aclys Int’l v. Equifax, 438 F.App’x 689 (10th Cir. 2011). A claim that a credit report is incomplete or misleading because certain information was deleted is not actionable under the FCRA. Swanson v. Central Bank & Trust Co., No. CIV.A. 5:03-255-JMH, 2005 WL 1719363, at *2 (E.D.Ky. July 14, 2005). The court in Davis v. Equifax Information Services, LLC, 346 F.Supp.2d 1164 (N.D.Ala. 2004), found no violation of the FCRA in either the deletion of an account or a delay in reinserting the account in a plaintiff’s credit file because the FCRA imposes no duty to reinsert an account once deleted nor a duty to include all existing or derogatory or favorable information about a consumer in their reports. Id., 1171-72, citing Statements of General Policy or Interpretations Under the Fair Credit Reporting Act, 16 C.F.R., Subchapter F, Pt. 600, Appendix, pp. 492-519.
Moreover, a careful review of § 36a-399b reveals that it imposes no affirmative duty to report all or any type of credit information. Rather, it addresses and governs the resolution of complaints by a consumer relative to inaccurate or incomplete data reported. The complaint does not allege that Experian conducted a reinvestigation, that a determination was made by it that the Dependable Credit account was inaccurate or incomplete or that the data could be modified so as to make the information accurate and complete.
While such allegations might well bring the claim within the ambit of § 36a-699b(d), the absence of any affirmative duty to include any specific data in a credit report would likely render a violation actionable only if the inaccurate data was maintained on the report.
Because no duty is imposed on Experian to list the Dependable Credit account the failure to do so does not state a claim upon which relief may be granted and the complaint is stricken.