ANDREA M. CHILDRESS, Plaintiff-Appellant,
EXPERIAN INFORMATION SOLUTIONS, INC., Defendant-Appellee
Argued May 27, 2015.
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:12-cv-01529-TWP-DKL -- Tanya Walton Pratt, Judge.
For ANDREA M. CHILDRESS, Plaintiff - Appellant: Guerino John Cento, Attorney, CENTO LAW, LLC, Indianapolis, IN; Robert J. Palmer, Attorney, MAY, OBERFELL & LORBER, Mishawaka, IN; Eric Stephen Pavlack, Attorney, PAVLACK LAW FIRM, Indianapolis, IN.
For EXPERIAN INFORMATION SOLUTIONS, INC., improperly named as Experian Information Services, Inc., Defendant - Appellee: Logan C. Hughes, Attorney, REMINGER CO., LPA, Indianapolis, IN; Adam William Wiers, Attorney, Michael Zuckerman, Attorney, JONES DAY, Chicago, IL; Courtney E. Silver Mendelsohn, Attorney, JONES DAY, Cleveland, OH.
For LEXISNEXIS RISK DATA RETRIEVAL SERVICES, LLC, Party-in-Interest - Party-in-Interest: Donald E. Burton, Attorney, Ronald I. Raether, Jr., Attorney, FARUKI, IRELAND & COX P.L.L., Dayton, OH.
Before POSNER, MANION, and HAMILTON, Circuit Judges.
Posner, Circuit Judge.
The Fair Credit Reporting Act, 15 U.S.C. § § 1681 et seq., provides that " if any case arising or filed under Title 11 [the Bankruptcy Code] is withdrawn by the consumer before a final judgment, the consumer reporting agency shall include in the report that such case or filing was withdrawn upon receipt of documentation certifying such withdrawal." 15 U.S.C. § 1681c(d)(1). The Act further provides that " whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates." § 1681e(b).
The plaintiff and her husband (they are now divorced, and he is not participating in this litigation) had filed a petition for bankruptcy under Chapter 13 of the Bankruptcy Code, but later they filed a timely motion in the bankruptcy court to dismiss the petition, and the court granted the motion. That was in 2006. The defendant, a consumer credit-reporting agency, receives copies of judgments in bankruptcy cases from Lexis (which in turn retrieves them from PACER--short for Public Access to Court Electronic Records, a service that provides online access to federal court and docket information) and notes them in the credit reports of persons who have filed bankruptcy petitions. The agency reported the plaintiff's bankruptcy petition " dismissed," which was what the judgment terminating the bankruptcy case had caused to be done.
In 2009 the plaintiff's lawyer demanded that the agency remove all reference to her bankruptcy because it had been dismissed at her behest. The agency refused. In 2012 she told the agency: " my bankruptcy was not dismissed. It was voluntarily withdrawn prior to plan approval." The agency then purged the reference to the bankruptcy from her file, but did so because it would soon be seven years since she had filed her bankruptcy petition and the agency deletes reference to a bankruptcy in a consumer credit report after 7 years have elapsed since the petition for bankruptcy was filed. (The Fair Credit Reporting Act requires that reporting agencies purge
bankruptcy records 10 years after the filing date, but the major credit-reporting agencies purge them after 7 years instead.) There is no indication that had it not been for the lapse of time the agency would have added to her credit report a notation that the petition for bankruptcy had been withdrawn. But since the bankruptcy was purged from her file we needn't decide whether her letter alerting the reporting agency that the dismissal had been voluntary would count as " documentation certifying ... withdrawal" of the petition for bankruptcy. 15 U.S.C. § 1681c(d)(1).
Her suit charges that by failing to report from the outset (that is, in 2006) that the bankruptcy petition had been voluntarily withdrawn, the agency had willfully violated the provisions of the Fair Credit Reporting Act that we cited earlier. She seeks the damages that the Act provides, in 15 U.S.C. § 1681n(a), for willful violations of its provisions. And she seeks to sue on behalf not only of herself but also on behalf of all similarly situated persons. ...