United States District Court, S.D. Indiana, Indianapolis Division
LISA D. TERHUNE, Plaintiff,
BANK OF AMERICA, NA., Defendant.
ENTRY ON PLAINTIFF'S MOTION TO AMEND
William T. Lawrence, Senior Judge
cause is before the Court on the Plaintiff's Motion for
Leave to File a First Amended Complaint (Dkt. No. 54). The
Court, being duly advised, now DENIES the
Plaintiff's motion for the reasons set forth below.
9, 2018, the Plaintiff filed suit against the Defendant
alleging that the Defendant willfully or negligently violated
the Fair Credit Reporting Act.
to the Plaintiff, on or about December 13, 2012, the
Plaintiff filed a Chapter 13 bankruptcy proceeding, Cause No.
12-14468-RLM-7, in the Southern District of Indiana. The
Defendant was listed on the Plaintiff's Schedule D,
showing a claim in the amount of $218, 000.00. This
proceeding was subsequently converted to a Chapter 7, and the
Plaintiff received a discharge which covered the debt to the
Defendant on December 13, 2016.
approximately June 2017, the Plaintiff obtained a copy of her
credit report from Experian Information Solutions, Inc.
According to the Plaintiff:
That report contained erroneous and misleading information as
provided by a number of furnishers including [the Defendant].
Specifically, the Experian Credit Report failed to indicate
[the Plaintiff's] former debt was discharged via the
aforementioned Chapter 7 bankruptcy proceedings yet reported
the mortgage multiple times. In addition, the credit report
suggested that [the Plaintiff] owed a balloon payment on the
Dkt. No. 1 at 6. The Plaintiff sent Experian a letter dated
June 9, 2017, disputing the information and explaining to
Experian why she believed the reporting to be inaccurate and
misleading. Experian is believed to have subsequently
notified the Defendant of the dispute.
August 18, 2018, Experian informed the Plaintiff that it had
researched her dispute and determined that its reporting was
correct. However, “Experian provided a copy of the
tradeline as reported that merely reproduced the errors
identified by [the Plaintiff] in [her] original dispute
letter, ” including a balloon payment of $14, 142.00
owed to the Defendant which failed to refer to the Chapter 7
3, 2018, the Defendant moved to dismiss the Plaintiff's
Complaint. At issue was whether the Plaintiff's Complaint
adequately alleged that the credit report contained an
inaccuracy which could form the basis of the Plaintiff's
claim. According to the Plaintiff:
[T]he tradeline relative to the former obligation to [the
Defendant] still failed to indicate that the debt was
discharged, stated that [the Plaintiff] owed a balloon
payment of $14, 142.00 due December 2013, and unlike each of
the other tradelines failed to refer to [the Plaintiff's]
Chapter 7 proceedings.
Dkt. No. 1 at 6. The Court found that the facts alleged by
the Plaintiff failed to demonstrate an inaccuracy because the
tradeline was accurate at the time it was reported. Dkt. No.
52 at 3. Furthermore, the Court also rejected the
Plaintiff's argument that the inclusion of the tradeline
was misleading, noting that the credit report did in fact
show the discharge of the debt through Chapter 7 bankruptcy.
Id. Finally, taking judicial notice of the proof of
claim filed by the Defendant in the bankruptcy proceeding,
the Court found that the facts before it belied the
Plaintiff's argument that the tradeline was inaccurate at
the time it was recorded. Id. Accordingly, the Court
granted the Defendant's motion to dismiss, and on
November 28, 2018. Dkt. No. 52. In so doing, the Court stated
that “[i]f the Plaintiff believes she can in good faith
assert facts that state a claim against the Defendant, she
may file a motion for leave to file an amended complaint
within fourteen days of the date of this Entry.”
Id. at 4. The Plaintiff timely filed the motion on
December 12, 2018, and the Defendant responded on December
26, 2018. The Plaintiff has not filed a reply, and the time
for doing so has passed.
to Federal Rule of Civil Procedure 15, “[t]he court
should freely give leave when just so requires.”
However, “[a]lthough leave to amend a complaint should
be freely granted when justice so requires, the district
court need not allow an amendment . . . when the amendment
would be futile.” Bethany Pharmacal Co., Inc. v.
QVC, Inc., 241 F.3d 854, 860-61 (7th Cir. 2001).
Furthermore, amendment “is futile if it would ...