Pennsylvania Complaint Against Big 3 Agencies and Bank of America Loan Servicing for Inaccurately Following Through with Mortgage Modification, Inaccuratley Reporting Late Payments on Credit Reports

August 3rd, 2011 by krista


IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

John Doe

 

Plaintiff,

vs.

 

BANK OF AMERICA N.A. d/b/a

BAC HOME LOANS SERVICING, LP

and Civil Action No.

TRANS UNION, LLC

and

EQUIFAX INFORMATION SERVICES LLC

and

EXPERIAN INFORMATION

SOLUTIONS, INC.

 

Defendants.

 

 

COMPLAINT

 

I.     Preliminary Statement

1.         This is an action for damages brought by individual consumers against the Defendants for violations of the Fair Credit Reporting Act (hereafter the “FCRA”), 15 U.S.C. §§ 1681 et seq.as amended, the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S.  §§ 201-1, et seq. (hereafter the “CPL”), and the Pennsylvania Fair Credit Extension Uniformity Act, 73 P.S. §§ 2270.1 et seq. (hereafter the “FCEUA”), and various other laws of the Commonwealth of Pennsylvania.

II.     Jurisdiction and Venue

2.         Jurisdiction of this Court arises under 15 U.S.C. § 1681p, 28 U.S.C. §1331, 1337, and supplemental jurisdiction exists for the state law claims pursuant to 28 U.S.C. §1367.

  1. Venue lies properly in this district pursuant to 28 U.S.C. §1391(b).

 

 

III.     Parties

  1. Plaintiff is an adult individuals residing in PA.
  2. Defendant Bank of America N.A. d/b/a BAC Home Loans Servicing, LP (“BAC”) is a business entity which regularly conducts business in Philadelphia County, Pennsylvania, and which has a principal place of business located at 450 American Street, Simi Valley, CA 93065.
  3. Defendant Trans Union, LLC (“Trans Union”) is a business entity that regularly conducts business in Philadelphia County, Pennsylvania, and which has a principal place of business located at 1510 Chester Pike, Crum Lynne, PA 19022.
  4. Defendant Equifax Information Services LLC (“Equifax”) is a business entity which regularly conducts business in Philadelphia County, Pennsylvania, and has a principal place of business located at 6 Clementon Road, East, Suite A2, Gibbsboro, New Jersey 08026.
  5. Defendant Experian Information Systems, Inc. (“Experian”) is a business entity which regularly conducts business in Philadelphia County, Pennsylvania, and which has a principal place of business located at 5 Century Drive, Parsippany, New Jersey 07054.

IV.       Factual Allegations

  1. Plaintiff’s home is secured by mortgage with Defendant BAC.  Plaintiff at all time was current on his monthly mortgage to BAC.
  2. In or around January 2010, Plaintiff contacted BAC about a modification for his mortgage. BAC advised Plaintiff that he would be placed in a three month trial period while his mortgage modification application was reviewed. BAC also provided Plaintiff with three coupons to use when making his mortgage payments during the trial period.
  3. In or about March, 2010, Plaintiff made timely payment of his first modified mortgage payment to BAC.  Thereafter, Plaintiff made timely payment of the mortgage payments for the remainder of the three month trial period.
  4. At or near the end of the three month trial period, when Plaintiff had not heard from BAC concerning his permanent mortgage modification, he contacted BAC and was advised to continue making monthly mortgage payments to BAC in the modified amount as he had done during the trial period.
  5. Plaintiff made timely monthly mortgage payments through August 2010.
  6. On or about September 3, 2010, Plaintiff was approved for his mortgage modification by BAC.  Under the terms of the Loan Modification Agreement, Plaintiff was to make an initial payment and then make his first mortgage payment at his new payment amount in November 2010.  Plaintiff made the initial payment in a timely manner and has made all other mortgage payments under the Loan Modification Agreement in a timely manner.
  7. On or about October 4, 2010, despite having received timely payments from Plaintiff for his mortgage, Defendant BAC sent Plaintiff an Act 91 Notice threatening to foreclose on his home.
  8. On or about October 12, 2010, Plaintiff called BAC in response to receiving the October 4, 2010 Act 91 Notice.  Plaintiff advised BAC that he had been approved for a mortgage modification and had made all payments in accordance with BAC’s instructions.  Plaintiff further asked why he had received the October 4, 2010 Act 91 Notice.   At that time, an employee, agent or representative of BAC told Plaintiff not to worry about the notice because it was just a “trigger letter.”  BAC’s representative did advise Plaintiff to make a $1,700 payment on his mortgage, which Plaintiff did believing the payment to be his November payment.
  9. On or about November 1, 2010, despite having received timely payments from Plaintiff for his mortgage, Defendant BAC sent Plaintiff a second Act 91 Notice advising him that he was late on his mortgage payments and threatening to foreclose on his home.
  10. On or about November 8, 2010, Plaintiff wrote and sent to BAC a detailed letter
  11. Further, Defendants began reporting derogatory and inaccurate statements and information relating to Plaintiff  and Plaintiff’s credit history to third parties (hereafter the “inaccurate information”).
  12. The inaccurate information includes the payment history for Plaintiff’s mortgage account with BAC.  Defendants are reporting that Plaintiff has been late in making his payments.
  13. The inaccurate information negatively reflects upon Plaintiff , Plaintiff’s credit repayment history, Plaintiff ’s financial responsibility as a debtor and Plaintiff’s credit worthiness.
  14. Trans Union, Equifax and Experian have been reporting the inaccurate information through the issuance of false and inaccurate credit information and consumer credit reports that they have disseminated to various persons and credit grantors, both known and unknown.
  15. Plaintiff  has disputed the inaccurate information with Trans Union, Equifax and Experian through written communications to their representatives and by following Trans Union, Equifax and Experian’s established procedures for disputing consumer credit information.
  16. Plaintiff  has disputed the inaccurate information with Trans Union, Equifax and Experian, including but not limited to, December 2010.
  17. Notwithstanding Plaintiff ’s efforts, Trans Union, Equifax and Experian have sent Plaintiffs correspondence indicating their intent to continue publishing the inaccurate information and Trans Union, Equifax and Experian continue to publish and disseminate such inaccurate information to other third parties, persons, entities and credit grantors. Trans Union, Equifax and Experian have published and disseminated consumer reports to such third parties from at least December 2010 through the present.
  18. Despite Plaintiff’s efforts, Trans Union, Equifax and Experian have never: (1) contacted Plaintiff  to follow up on, verify and/or elicit more specific information about Plaintiff ’s disputes; (2) contacted any third parties that would have relevant information concerning Plaintiff ’s disputes; (3) forwarded any relevant information concerning Plaintiff ’s disputes to the entities originally furnishing the inaccurate information; or (4) requested or obtained any credit applications, or other relevant documents from the entities furnishing the inaccurate information.
  19. BAC has also failed to conduct timely and reasonable investigations of Plaintiff’s disputes after being contacted by the credit reporting agencies and the Plaintiff directly concerning Plaintiff’s disputes, have willfully continued to report such inaccurate information to various credit reporting agencies, have failed to mark the above account as disputed and have continued to attempt to collect monies from Plaintiff regarding the inaccurate information by the aforementioned conduct.
  20. Despite Plaintiffs’ exhaustive efforts to date, Defendants have nonetheless deliberately, willfully, intentionally, recklessly and negligently repeatedly failed to perform reasonable reinvestigations of the above disputes as required by the FCRA and FCEUA, have failed to remove the inaccurate information, have failed to report on the results of their reinvestigations to all credit reporting agencies, have failed to note the disputed status of the inaccurate information and have continued to report the derogatory inaccurate information about Plaintiffs.
  21. Plaintiff ’s credit reports and file have been obtained from Trans Union, Equifax and Experian, have been reviewed by prospective and existing credit grantors and extenders of credit and the inaccurate information has been a substantial factor in precluding Plaintiff  from receiving many different credit offers and opportunities, known and unknown, and from receiving the most favorable terms in financing and interest rates for credit offers that were ultimately made.
  22. As a result of Defendants’ conduct, Plaintiffs have been harassed and embarrassed and have suffered actual damages arising from monetary losses, loss of credit and loan opportunities, out-of-pocket expenses including, but not limited to, local or long distance telephone calls, postage, faxing and other related costs, all of which will continue into the future to Plaintiffs’ great detriment and loss.
  23. As a result of Defendants’ conduct, Plaintiffs have suffered great emotional and mental pain and anguish, and Plaintiffs will continue to suffer the same for an indefinite time in the future, all to Plaintiffs’ great detriment and loss.
  24. As a result of Defendants’ conduct, Plaintiffs have suffered actual damages in the form of financial and dignitary harm arising from the injury to credit rating and reputation, and Plaintiffs will continue to suffer the same for an indefinite time in the future, all to Plaintiffs’ great detriment and loss.
  25. As a result of Defendants’ conduct, Plaintiff  has suffered a decreased credit score.
  26. At all times pertinent hereto, Defendants were acting by and through their agents, servants and/or employees who were acting within the course and scope of their agency or employment, and under the direct supervision and control of the Defendants herein.
  27. At all times pertinent hereto, the conduct of the Defendants, as well as that of their agents, servants and/or employees, was malicious, intentional, willful, reckless, and in grossly negligent disregard for federal and state laws and the rights of Plaintiffs herein.

COUNT one –VIOLATIONS OF THE FCRA

(Plaintiff v. Trans Union, Equifax and Experian)

 

  1. Plaintiff incorporates the foregoing paragraphs as though the same were set forth at length herein.
  2. At all times pertinent hereto, Trans Union, Equifax and Experian were “persons” and “consumer reporting agencies” as those terms are defined by 15 U.S.C. § 1681a(b) and (f).
  3. At all times pertinent hereto, Plaintiff is a “consumer” as that term is defined by 15 U.S.C. § 1681a(c).
  4. At all times pertinent hereto, the above-mentioned credit reports were “consumer reports” as that term is defined by 15 U.S.C. § 1681a(d).
  5. Pursuant to 15 U.S.C. §1681n and 15 U.S.C. §1681o, Trans Union, Equifax and Experian are liable to Plaintiff for engaging in the following conduct:

(a)                willfully and negligently failing to conduct a proper and reasonable reinvestigation concerning the inaccurate information after receiving notice of the disputes from Plaintiff, in violation of 15 U.S.C. §1681i(a);

(b)               willfully and negligently failing to provide prompt notice of the inaccurate information and Plaintiff’s disputes to the furnishing entities, in violation of 15 U.S.C. §1681i(a);

(c)                willfully and negligently failing to provide all relevant information provided by Plaintiff regarding the disputes of the inaccurate information to the furnishing entities, in violation of 15 U.S.C. §1681i(a);

(d)               willfully and negligently failing to review and consider all relevant information submitted by Plaintiff concerning the disputes of the inaccurate information, in violation of 15 U.S.C. §1681i(a);

(e)                willfully and negligently failing to delete the inaccurate information from Plaintiff’s credit file after reinvestigation, in violation of 15 U.S.C. §1681i(a);

(f)                willfully and negligently failing to timely and properly investigate the inaccurate information after receiving notice of the disputes from Plaintiff;

(g)               willfully and negligently failing to employ and follow reasonable procedures to assure maximum possible accuracy of Plaintiff’s credit report, information and file, in violation of 15 U.S.C. §1681e(b);

(h)               willfully and negligently failing to properly and timely delete the inaccurate information from Plaintiff’s credit files despite being unable to verify the accuracy of the information and/or being provided with proof of its inaccuracy; and

(i)                 willfully and negligently continuing to report the inaccurate information despite having knowledge of its inaccuracy and/or inability to verify the same.

  1. The conduct of Trans Union, Equifax and Experian was a direct and proximate cause, as well as a substantial factor, in bringing about the serious injuries, actual damages and harm to Plaintiff that are outlined more fully above and, as a result, Defendants are liable to Plaintiff for the full amount of statutory, actual and punitive damages, along with the attorneys’ fees and the costs of litigation, as well as such further relief, as may be permitted by law.

Count two  –VIOLATIONS OF THE FCRA

(Plaintiff v. BAC)

  1. Plaintiff incorporates the foregoing paragraphs as though the same were set forth at length herein.
  2. At all times pertinent hereto BAC is a “persons” as that term defined by 15 U.S.C. § 1681a(b).
  3. BA violated sections 1681n and 1681o of the FCRA by engaging in the following conduct:

(a)                willfully and negligently failing to conduct an investigation of the inaccurate information that Plaintiff disputed;

(b)               willfully and negligently failing to review all relevant information concerning Plaintiff account provided to BAC;

(c)                willfully and negligently failing to report the results of investigations to the relevant consumer reporting agencies;

(d)               willfully and negligently failing to report the inaccurate status of the inaccurate information to all credit reporting agencies;

(e)                willfully and negligently failing to properly participate, investigate and comply with the reinvestigations that were conducted by any and all credit reporting agencies concerning the inaccurate information disputed by Plaintiff;

(f)                willfully and negligently continuing to furnish and disseminate inaccurate and derogatory credit, account and other information concerning Plaintiff to credit reporting agencies and other entities; and

(g)               willfully and negligently failing to comply with the requirements imposed on furnishers of information pursuant to 15 U.S.C. §1681s-2(b).

  1. Defendant BAC’s conduct was a direct and proximate cause, as well as a substantial factor, in causing the serious injuries, damages and harm to Plaintiff that are outlined more fully above, and as a result, Defendants BAC is liable to compensate Plaintiff for the full amount of statutory, actual and punitive damages, along with attorneys’ fees and costs, as well as such other relief, permitted by law.

COUNT THREE – DEFAMATION

(Plaintiff v. Trans Union, Equifax and Experian)

 

60.       Plaintiff incorporates the foregoing paragraphs as though the same were set forth at length herein.

61.       Defendants Trans Union, Equifax and Experian have published statements both orally and through writing to various creditors, prospective credit grantors, other credit reporting agencies, and other entities that the above-referenced derogatory inaccurate information belong to the Plaintiff Donald Weidman.

62.       Defendants Trans Union, Equifax and Experian have published these statements each time a credit report on the Plaintiff has been requested from any creditor, prospective credit grantors furnisher or other source.

63.       The statements made by Defendants Trans Union, Equifax and Experian are false in that they inaccurately reflect Plaintiff’s credit information and debt repayment history, and paint Plaintiff as financially irresponsible and delinquent.

64.       Defendants Trans Union, Equifax and Experian have published these statements to at least every single creditor, furnisher or prospective creditor or other entity that has requested Plaintiff’s credit report.

65.       Defendants Trans Union, Equifax and Experian knew that the statements were false when made, and had no factual basis for making the statements, as Plaintiff has notified them repeatedly through writing, telephone communication and extensive documentation that the information was inaccurate for the reasons stated above.

66.       Nonetheless, Defendants Trans Union, Equifax and Experian continue to publish the false and negative statements concerning the Plaintiff’s credit history up through the present time.

67.       The written statements and publications constitute libel per se.

68.       The oral statements and publications constitute slander per se.

69.       In addition, and despite the repeated notices from Plaintiff, Defendants Trans Union, Equifax and Experian have acted with malice by failing to communicate the information provided to them by Plaintiff to all creditors, prospective creditors, furnishers of information and all other entities to whom it provides credit information concerning the Plaintiff.

70.       Defendants Trans Union, Equifax and Experian’s conduct was a direct and proximate cause, as well as a substantial factor, in bringing about the serious injuries, damages and harm to the Plaintiff that are outlined more fully above and, as a result, Defendants Trans Union, Equifax and Experian are liable to compensate the Plaintiff for the full amount of actual damages, compensatory damages and punitive damages, as well as such other relief, permitted under the law.

COUNT FOUR – DEFAMATION

(Plaintiff v. BAC)

 

71.       Plaintiff incorporates the foregoing paragraphs as though the same were set forth at length herein.

72.       At the times pertinent hereto, Defendant BAC has published statements both orally and through writing to various credit reporting agencies, collection agencies and/or attorneys that are false and negative representations concerning Plaintiff’s credit information and history.

73.       At a minimum, Defendant BAC has published these statements each time Plaintiff has notified Defendant BAC and other credit reporting agencies of Plaintiff’s dispute and each time a credit reporting agency has reinvestigated the dispute.

74.       The statements made by Defendant BAC are false as outlined above.

75.       Defendant BAC has published these statements to at least Defendants Trans Union, Equifax and Experian.

76.       Defendant BAC knew that the statements were false when made and had no factual basis for making the statements, as Plaintiff had notified them that the statements were false for the above-mentioned reasons and, nonetheless, it continues to publish such statements up through the present time.

77.       The written statements and publications constitute libel per se.

78.       The oral statements and publications constitute slander per se.

79.       In addition, and despite the repeated notices from Plaintiff, Defendant BAC has acted with malice by failing to communicate the information provided to them by Plaintiff to credit reporting agencies when responding to the reinvestigation attempts of such credit reporting agencies.

80.       The conduct of Defendant BAC was a direct and proximate cause, as well as a substantial factor, in bringing about the serious injuries, damages and harm to Plaintiff that are outlined more fully above and, as a result, Defendant BAC is liable to compensate Plaintiff for the full amount of actual, compensatory and punitive damages, as well as such other relief, permitted by law.

COUNT FIVE – FCEUA

(Plaintiff v. BAC)

81.       Plaintiff incorporate the foregoing paragraphs as though the same were set forth

at length herein.

82.       Defendant BAC is “creditor” as defined by 73 P.S. § 2270.3 of the FCEUA.

83.       Plaintiff is a “consumer” as defined by 73 P.S. § 2270.3 of the FCEUA.

84.       The above contacts between Defendant BAC and Plaintiff were “communications” relating to a “debt” as defined by 73 P.S. § 2270.3 of the FCEUA.

85.       Any violation of the FCEUA constitutes an unfair or deceptive act or practice in violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S.  § 201-1, et seq. (hereafter the “CPL”) and entitles a consumer, inter alia, to the relief available under the CPL.

86.       Defendant BAC engaged in unfair methods of competition and unfair or deceptive acts or practices, by attempting to collect the alleged debt in violation of the FCEUA.  Defendant BAC violated the FCEUA as to the Plaintiff.  Defendant BAC’s violations include, but are not limited to, violations of 73 P.S. § 2270.4(a), as evidenced by the following conduct:

(a)        The false representation of the character, amount or legal status of any debt;

(b)        Communicating or threatening to communicate to any person credit information which is known or should be known to be false, including the failure to communicate that a debt is disputed; and

(c)        using false representations and deceptive means to collect or attempt to collect a debt.

87.       Defendant BAC’s acts as described above were committed with malicious, intentional, willful, reckless, wanton and negligent disregard for the rights of the Plaintiff under the law and with the purpose of coercing to pay for the alleged missed mortgage payment.

88.       As a result of the above violations of the FCEUA, Defendant BAC is liable to Plaintiff in the sum of statutory damages, actual damages and attorneys’ fees and costs.

COUNT SIX – NEGLIGENCE

(Plaintiff v. Trans Union, Equifax and Experian)

 

89.       Plaintiff incorporates the foregoing paragraphs as if the same were set forth at length herein.

90.       Defendants Trans Union, Equifax and Experian’s negligence consists of the following:

(a)    Violating the FCRA as set forth above;

(b)      Disregarding Plaintiff’s rights and failing to comply with the laws and regulations of the Commonwealth of Pennsylvania as set forth above;

(c)    Failing to provide prompt notice of the inaccurate information to creditors;

(d)    Failing to employ and follow reasonable procedures to assure maximum possible accuracy of Plaintiff’s credit report, information and file;

(e)    Failing to properly and timely delete the inaccurate information from the Plaintiff’s credit files despite being unable to verify the accuracy of the information and/or being provided with proof of its inaccuracy; and

(f)    Continuing to report the inaccurate information despite having knowledge of the inaccuracies and/or the inability to be verified.

91.       As a result of Defendants Trans Union, Equifax and Experian’s above-mentioned conduct, Plaintiff sustained and continues to sustain the losses and damages as set forth above.

92.       The conduct of Defendants Trans Union, Equifax and Experian was a direct and proximate cause, as well as a substantial factor, in bringing about the serious injuries, damages and harm to Plaintiff that are outlined more fully above and, as a result, Defendants Trans Union, Equifax and Experian are liable to compensate the Plaintiff for the full amount of actual and compensatory damages, as well as such other relief, permitted under the law.

COUNT SEVEN – NEGLIGENCE

(Plaintiff v. BAC)

93.      Plaintiffs incorporate the foregoing paragraphs as if the same were set forth at length herein.

94.       Defendant BAC’s negligence consists of the following:

(a)    Violating the FCRA as set forth above;

(b)    Violating the FCEUA and CPL as set forth above;

(c)    Disregarding Plaintiff’s rights and failing to comply with the laws and regulations of the Commonwealth of Pennsylvania as set forth above;

(d)    Failing to report the inaccurate status of the inaccurate information to all credit reporting agencies, including those agencies to whom Defendant BAC originally furnished information; and

(e)    Failing to delete or correct the inaccurate information.

95.       As a result of Defendant BAC’s above-mentioned conduct, Plaintiff sustained and continue to sustain the losses and damages as set forth above.

96.       The conduct of Defendant BAC was a direct and proximate cause, as well as a substantial factor, in bringing about the serious injuries, damages and harm to Plaintiff that are outlined more fully above and, as a result, Defendant BAC is liable to compensate the Plaintiff for the full amount of actual and compensatory damages, as well as such other relief, permitted under the law.

COUNT EIGHT – INVASION OF PRIVACY/INTRUSION UPON SECLUSION

(Plaintiff v. BAC)

97.       Plaintiffs incorporate the foregoing paragraphs as though the same were set forth at length herein.

98.       Defendant BAC’s above actions violated Plaintiff’s right of privacy by intentionally intruding upon the solitude of the Plaintiffs.

99.       By such unauthorized invasion, Defendant BAC invaded Plaintiff’s right to privacy, destroyed Plaintiff’s peace of mind, and caused Plaintiff severe mental and emotional distress.

100.     The conduct of Defendant BAC was a direct and proximate cause, as well as a substantial factor, in bringing about the serious injuries, damages and harm to Plaintiff that are outlined more fully above and, as a result, Defendant BAC is liable to compensate the Plaintiff for the full amount of actual, compensatory and punitive damages, as well as such other relief, permitted under the law.

VI.     JURY TRIAL DEMAND

104.      Plaintiff demands trial by jury on all issues so triable.

VII.     PRAYER FOR RELIEF

WHEREFORE, Plaintiff seeks judgment in Plaintiff’s favor and damages against the Defendants, based on the following requested relief:

(a)        Actual damages;

(b)        Statutory damages;

(c)        Punitive damages;

(d)       Costs and reasonable attorney’s fees pursuant to 15 U.S.C. §§1681n, 1681o, and 73 P.S. §201-9.2(a);

(e)        An order directing that Defendants immediately delete all of the inaccurate information from Plaintiff’s credit reports and files and cease reporting the inaccurate information to any and all persons and entities to whom they report consumer credit information;

(f)        An order directing that Defendant BAC to cease and desist all contacts with Plaintiff regarding foreclosure;

(g)        An order directing that Defendants Trans Union, Equifax and Experian send to all persons and entities to whom they have reported Plaintiff’s inaccurate information within the last three years Plaintiff’s updated and corrected credit report information; and

(h)        Such other and further relief as may be necessary, just and proper.

Respectfully submitted,

FRANCIS & MAILMAN, P.C.

BY:     /s/ James A. Francis

JAMES A. FRANCIS

GEOFFREY H. BASKERVILLE

Land Title Building, 19th Floor

100 South Broad Street

Philadelphia, PA 19110

(215) 735-8600

Attorneys for Plaintiffs

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