distinguish the the actual reporting at issue there are two issues here one is the the balance is past two balances and the consumer information in the case so you are steals more with the balance of power to balance the consolidated appeal to reserve five minutes for rebuttal ok let's recap the the central issue that we're here to discuss is when a consumer files bankruptcy what should happen to the credit report what should happen to the accounts that have been included in that credit report that the police have made many arguments suggesting that the consumer data industry association and its consumer reporting resource guide should essentially not count it shouldn't matter and frankly should be discarded entirely oh why doesn't it matters because the the actual metro t data that is being transmitted is a different language your honor and it matters because the c d i a is the is the association that actually actually created the language that is it issue here the hypocrisy in the argument that the cia and the c r r g should just be thrown out so frankly what you think should be what the report should look like absolutely are so when a consumer files bankruptcy the first update that we want to see happen chapter thirteen that's correct your honor although frankly depending upon the chapter filed the consumer information indicator should be updated in this particular case all of these are chapter that all of these are chapter thirteen  is correct and so the what's it look like soap on the filing of the petition your honor we would expect to see that the consumer information indicator be updated to show that the each account has been included in this particular bankruptcy the public record section should also reflect that a bankruptcy has been filed and do you dispute that these are reports that a bankruptcy had been filed no that's that's in the public record section no we do not dispute that and the way that they indicate that a particular account is included is what does date which means what they deem means included but not discharged it alerts potential when where i said that they met no day so that's one judge  called metro two alphabet soup and it can be confusing the different no data is the metro two indicator that you would see in the payment history on a credit report so if your honor were to look at your own credit report  the payment history section because you want history the payment the payment history section right so that is the section on a credit report when you look it will tell you you were thirty days late in june of two thousand and sixteen sixty days yes yes they are completely two different d's they going to be different fields so up so once it says on the report that the person has filed for bankruptcy why does it matter to anyone whether every single account is listed with the dea or not like what who is going to use that information for anything well anecdotally i can tell you that i've almost personally lost one of my clients almost lost his security clearance because if you don't have the c i on the individual accounts despite the briefing on the other side that lenders do not know whether or not an account has been included in there is not an assumption made but who is going to lend you more money when you're already in bankruptcy so lending lending money while you're in a chapter thirteen is such a common practice that most chapter thirteen trustees actually have a cap in terms of what can and can't be borrowed the code actually  going to get the loan or not is whether there's a particular debt that included or not included the that would be decided on a case by case basis the difference would be at a foundational level the yes or no are you approved are you not approved but then the follow up is ok you are approved but you're not approved at this interest rate because of x y and z now i know that the other side would like to say well that's because you're in bankruptcy it's a very natural inclination but the reality is and it is in our pleadings that when fike go calculates credit scores they do not calculate that score or the derogatory impact that a filing of a bankruptcy has based on the date of discharge it is the data filing that matters so the debtor who is in a chapter thirteen for three years according to fight go should have a better credit score than the debtor who is in  the notion that an individual account is going to affect the lending rather than the overall situation i mean what let me ask another way is this the end is this your question or is there something else that you want in terms of the credit why don't we ask the question what do you want the credit report to look right so the credit report should update to show that the account has been included in bankruptcy post confirmation the balance is should reflect the court ordered  terms of the plan and now does does the original amount of the debt show up not in the not the way metro to his show has been developed your honor the language that they are it's that the language that pelleas have developed because they wrote it under their system it does not we're not arguing that there may be another way of reporting it but the reality is the way that they're reporting this debt post confirmation does not jive with the language that they have created in metro two in metro two but you have to metro two is the language with your honor we're to pull your credit report i can assure you but if the let's take a chapter seven and if there's a chapter seven that would be reflected in the payment history section so for example if you file is what i'm asking you so that would be true also yes according to the chapter thirteen in other words it's seems to me that the goal ultimately and i think that  and opinion who wrote whose name i'm now remembering says it is that is to give the information and somebody would want and seems to be the information about it would want to as how big was the debt to begin with and what is there and arguably what is their obligation going forward add the fact that it's contingent i e that if they don't have that make them a pop back up so it seems to me to  the in this again what you're asking me is i am operating in the metro two world because that is the language that they have given what your honor wants metro to doesn't specifically give  just said it does because you said there is a separate payment history section but there is a dip the payment history section your honor will tell you how many days later you were at some point in the past but it's not going to have an actual number i was talking to have a number of sto the problem is what's being reported is misleading and this court has already ruled in gorman even if something is technically accurate it can still be misleading and this is misleading because you're not actually giving the full picture you're attempting in your reporting to suggest that this debtor prior to filing was passed do x amount so this figure of care if it's misleading if it doesn't matter to anyone i mean so it could be ascertainable at the summary judgment motion but we're not there yet because we've been but like if you need to plead that your plaintiffs didn't get loans because of these errors i mean why not though because it doesn't have i mean it doesn't need to be some indication that this harm to someone sure and i think that's that's what spokeo says and all of the pleading suggests that the credit score the ability to obtain credit is impacted by this reporting the fair how many cases we have filed you would have to understand that before cases are filed we're looking at them i can tell you anecdotally speaking one trade line just one trade line updated the proper way i have seen one hundred point swings on credit scores this is a problem and it's not going away and that one hundred point swing is a it makes a difference i mean aren't these people scores terrible no no absolutely not if you were in the chapter thirteen that frankly that is the lie that is told if you are in a chapter thirteen and you are four years into a chapter thirteen there is no reason that you cannot have a seven hundred five school that's straight from fica oh but the reality is for the millions of consumers in a chapter thirteen who are four or five close to discharge and still have a five hundred fifty credit score it's not because they file chapter thirteen it is because metro two is not being followed period so you started to talk about this before this length of time in bankruptcy it seems like you're saying the length of time in bankruptcy matters but i'm not understanding still how the d on the different lines is going to tell us the length of time you've been in bankruptcy because well there the d will tell a can it allows a particular lender to see whether or not an account is included in bankruptcy just pacifically answer your question there are different things that go into calculating a credit score but you've been telling us that the length of time in bankruptcy is really kind of what matters about whether some is going to get a loan so what is the inaccuracy here that relates to that so the problem the problem is if you have a if the public record sections shows that this person filed bankruptcy three years ago but the actual accounts doesn't show that it was included it's just another negative adverse trade lined it's affecting the underlying positive net benefit that filing the bankruptcy four years ago but it still have an answer what does have to do with how many years you've been in bankruptcy i'm sorry so that the d has to do does not have to do with how long you're in bankruptcy it shows potential lenders that you as a consumer have specifically dealt with a debt it's no longer collectible and is subject to a discharge those are all calculated into somebody's credit worthiness so now the answer is that what matters is how many debts you have not how many years you've been a bank no it's all of the above a credit report is supposed to be you should be able to look at a credit report and should tell you a story this person filed bankruptcy on this day and then on that day being clued in all of these accounts that story gets is completely misguided if the story is on day somebody filed bankruptcy they left out this debt and because of that the balance is increasing the past year balance is increasing delinquencies continue to go so the net benefit of the positive idea that you file bankruptcy four years ago you lose all of that because up here you're not giving your complete and full picture what about the willfulness allegation if you have one absolutely so the i thought there was an issue about that so in the in the yard to the extent that there was an issue of willfulness there were some it would not be in the consolidated appeal what we have alleged is that the investigation process that the fair credit reporting act mandates just doesn't happen experian has their individuals essentially rubber stamp but for it to be willful don't they need to know that this violates ficker and isn't should report accurately and they developed a language that says this is how you report accurately we're not saying it's binding we're simply saying if if congress wants credit reports to look accurate and there is a language that you developed to report accurately and your not reporting in accordance with your own recommendations and in fact what you've said in your brief is that to do so would be illogical that raises an issue with it least to get us past the please the court when i just start briefly oh very briefly with where the court finish just on willfulness yes under safeco you need to have essentially clearly established law  to get a willful violation and as drawn or pointed out there isn't any even germ of an idea of that here so you know the only other way to have a claim here would then would have would be to allege a negligent violation with actual damages or also or no could not a civil damages alleged here i mean that would be frankly needs a way to get rid of all these cases but it seems like you haven't tried to get us to do that  you're following a different strategy or something here well i mean the district court at least in some of these cases didn't address the cases on that basis and so there are motions to dismiss right so we we just could don't think that's right because it's certainly the legal norm can be established through claims of negligent violations where someone has damages so that that can and then but part of your argument maybe is no one ever has damages in this context i mean in this wealthy context well look i'm open to the possibility that it could happen but i think that the questions about what is happening when a lender is looking at lending in a chapter thirteen situation are very pertinent because you know under gorman you have the patently inaccurate standard and then you have got to be misleading in a way that's likely to affect credit decisions   credit decision in a chapter thirteen you have someone with almost all of their income devoted to the chapter thirteen plan there's going to be a trustee approval required for any any new debt this isn't your normal fike oh score based lending basically you're lending to somebody in a very specialized situation where the lender is going to look at income and collateral and you know fica is probably not going to come into play i don't want to get too far into that that's not obviously in the record and i'm starting to get anecdotal versus anecdotal but just in response to your question it may be that you there never will be a situation like that because in theory it shouldn't be affecting anybody's this is i mean that goes to like whether anyone will ever have damages for negligence but it may also go to this whether this is materially misleading or not i mean not necessarily right but plausible that a credit decision could be effective for example for somebody who is well into a chapter thirteen plan has been paying all along  but the creditor can't tell from the credit report even that much and can tell how much they're going to have to pay in the future if they continue to pay all they can tell is that there was a chapter thirteen and that there were some debts in the past which weren't paid and which made me be growing in the meanwhile i guess i gather on the credit report cards are still not being pay even though even though the  judgment is that they don't have to be paid right now right so i mean why isn't the most can the the accurate why would the goal be to get the accurate information which is the debt was x amount is the there's a chapter thirteen plan under the chapter thirteen plan they will only have to pay y amount but it's a contingent plan and if they don't pay y amount then it calls back to x amount i mean isn't that the story the actual story well a is not about requiring the best of all possible worlds it's a prohibition or cause of action based on something being inaccurate as opposed to an accurate because when or when a creditor looks at it they see that this is someone who's in chapter thirteen so that they know that these accounts and the amounts owed her contingent on completion of the chapter th don't know what it is they're going to have to pay the chapter thirteen could require them to pay seventy five percent of the debt or could require him to pay none of the debt this is true but i would submit a couple of things one is it frankly  not reasonable to expect the credit reporting in the f c r a to be dealing with that because if you've seen bankruptcy confirmation orders a chapter thirteen plans it's not as though it would be a simple matter for the c r a zur the creditors to plug in here's what's owed under the you know the plans they differ from court to court is done sometimes affair not at all clear to me i mean certainly that's not played here i'm not familiar with it being done i think it would be hard to do because again you get  a chapter thirteen plan it doesn't list creditor by creditor here's what you're owed here's the new debt it says this class gets this this class it's a direction to the trustee as to how to disperse fun about practical considerations but the decisions that have been issued by most of the district courts and your argument it's much more abstract than that and it's basically based on this to pay it now should be of some interest to creditors and that and what the amount is that he doesn't have to pay and but it's contingent and if he doesn't pay it then he may have to pay it that's the truth of the matter and i and  and you've got the question of patently inaccurate versus misleading in a material way right there arguing about whether it's patently inaccurate or not and so you get into these technical questions some absolutely not let's assume it's not patently ac  it's not remember the test is not is there more information that in a perfect world i would like to have so that i as a creditor don't have to do the work of looking at pulling up the confirmation you know the plan itself question is is there something misleading in here it's not misleading to have a report that says this person's in a chapter thirteen this is the debt that's outstanding there's nothing in the bankruptcy code or in fact that obligates creditors or credit reporting agencies that there is a confirmed plan it just says are in chapter thirteen right i believe it does because i believe that's what the stat the statutory requirement is to report the chapter but not if i don't they don't generally report i think it's not and they don't chapter thirteen supporting you know the supreme court just well that's why it's to be accurate you have to have the contingency reflected which to me means you have to put the original debt in as well well i guess where i would differ slightly is you're saying to be accurate and maybe not misleading and i don't know i don't think that's right i think it's to be more complete you know this court just had a case a few months ago versus experience and it's eight ninety one third seven forty nine where the court said you know imprecision alone is not actionable right you don't have to not be misleading you don't have to include all of the information that someone might like and it's again i guess the question is what how is someone going to be misled they might not know what is happening in the chapter thirteen but it's not that they're reading something in the credit report that is telling them something that isn't happening or that's wrong and important i think to touch briefly on this fight those who are aspect again there are no allegations wrong and maybe to pay to say that they all ten thousand dollars when in fact the plan is that the fifty dollars as long as they paid fifty dollars because any reasonable any creditor who might possibly be considering lending to somebody in a chapter thirteen is going to look at that and say ok there is a debt of ten thousand dollars or whatever subject to a plan that make go away now first of all they're not misled because they're going to understand it's contingent second not necessarily secure they basing arsenal you back up and th yeah the way it's reported i understand it's not necessarily subject to a plan i mean i think a plan yet it's likely subject to a plan potentially cost possibly subject it's certainly contention right and if the person is lending and has to get trustee approval in the real world situation how in what real world scenario is this possibly affecting their decision about whether to lend it so is this really a lying on inquiry notice being ok once there's a bankruptcy notice on the report well inquiry notice is is usually where you notice is not ok right in this context but maybe this is an exception well but again i think we're not again we're not you know we're not talking about a statute of limitations some of the question here is is about whether they're being misled into something thinking something is true that is not actually true so it's i mean the fact that they're in chapter thirteen they're being notified that this is a  that is subject to something in chapter thirteen whether it's a plan or they're going to be proposing a plan but secondly i think you have to take it the next step too because remember the test is likely to affect the actual credit decisions how is that going to play out when they're actually thinking about making the loan they're having to deal with are they going to have trustee approval they need to know how much is going of the income is going to the chapter thirteen plan and how much is available it's like all of this detail about how you have to get permission from the trustee and all this is that usually noticeable is a factor a lot how do we get i'm really i understand a lot of that is is law because there are legal restrictions on what someone can borrow in the circumstances under which they can borrow into chapter thirteen but also i think that in order to plausibly plea d their claim on a theory of misleading in a way likely to affect credit decisions they've got to plead away and it's plausibly likely to affect credit decisions and saying in some sense  affects fi co scores for i mean first of all i don't know what those doing were are they being misled into doing something but saying it effects like oh scores in a situation where they haven't even pled reason to think that fica scores are controlling the credit granting decisions in a chapter thirteen none of this is is played in the complaint one less thing i should say i think that's important is since there's all this talk about metro two this is sort of like a late arriving the i r s case the plaintiffs pled without even mentioning metro to and metro two and what when they did plead metro to the made clear it's not an industry standard in the sense that it's widely followed in every respect and people are misled if it's not followed they plead then fact ignored each of the complaints and mentions metro to its creditors routinely ignore it so having an excuse me c d i a promulgated something with the information that they're hoping to collect from creditors and a format for that it's an i guess industry standard in the sense that the industry created a format for what they would like to get that's completely different from pleading that something is write but that's those are some nice general words that alive the difference between a standard for getting information from furnitures and the standard for what gets reported in consumer reports but mean this is the problem with the current status of the case i mean which really is is this an appropriate six ad or should we allow an amendment because you stood up and you said when somebody is in chapter thirteen there's all sorts of allegations in the complaint about how this is going to affect scores so you then stand up and say well but if i can score isn't going to affect a creditor when somebody is in chapter talking about fica scores is is really generic i think it's telling that in all of these complaints there's no allegation of any single instance involving any of these plaintiffs where they were trying to get credit  have to be something that where the effect was the expect on fi co scores would have to be through something misleading no one has i mean there's no allegation that that fica that organization is being consumer isn't good enough because it's not these consumers well i think two separate things for damages purposes that would be true but i think i'm saying about these consumers outside of the damages context is that it's telling that this is all this it's like a firy in search of a problem right we don't like the way it's reported but there's no other then coun saying anecdotally there see if there's a problem there no allegations suggesting any problems no ones are fairly specific allegations and then you're the one who's standing here is telling me that not implausible played that no with regard to people in chapter thirteen and the fica score is really don't matter but i don't have any evidence of that but you would need some sort of plausible allegations that this is that what is influence the final scores because if i call scores are based on the these conventions and if i call scores are going to influence letters and you're saying no that's not true because it doesn't apply to people in chapter thirteen but that last i what i'm saying such a both hands because i'm saying that they also you know implicit in the first part of that is the idea that the fake oh score affected because it's understood that everyone follows what metro two recommends but he i think whether there are these do use or not affects the fica that just you're disagreeing with that well first of all few things on the the d s these are separate thing only two of the plaintiffs here actually have alleged could be a claim based on the d thing none of them according to their complaint raised that in their dispute letters which they would have to have done right the dispute letters here are all about saying you should have listed my debt as what it was under the plan not under you know you should investigate how it should be reported bankruptcy there's no allegation that a dispute letter said you know put  dioner no account by account that it's in bankruptcy but separate from and apart from what's alleged the idea that the fight those scores are a result of something being misleading is also not plausible because it's these complaints all ledge essentially that these are not routinely followed standards it's not that someone continuing to report the outstanding debt is what it is so maybe i'm gathering that you're not really contesting that having a d's are not affect the fica score but you're saying whether you have the does or not is not i mean i frankly i have no way of knowing whether having a d or not affects i mean it would be bizarre to me if it does but i can't speak for codes algorithms they're not a party here but the idea that they're being i mean if the litigation continued when we get discovery into what psycho does or how you know i suspect that it  would the case would go way short of that on other grounds but i think i mean it would be bizarre if fica were doing were basing things on the d because you have credit reports that show someone is in a chapter thirteen bankruptcy and you know the whole being actionable here it would have to be the result of that of someone being misled into it's not and the esera is about something being inaccurate right and inaccurate includes misleading in a way likely to affect credit scores but it's not about someone has deviated from what's a may have asked people to report apparently unsuccessfully a quick a few points were getting hung up on the word routinely there are three hundred million americans in the u s counsel has stated over and over again that we filed two hundred lawsuits i think two hundred is the discussion we were having earlier about what non misleading credit report might look like there is no industry standard for that there's only the interesting strand of the you have a g but there's no wonder she standard that requires that you say what the actual plan provides so the consumer reporting resource guide is sort of like the manual if you want call it bible of how to report  instructs so so that gets me to my next point which is that you're on or want to know earlier whether or not the trade line would show that a plan has been confirmed experience council said they didn't know what they should know because they wrote the manual and the way that you know their plan has been confirmed if you update the balance in the past you balance that is the only way under metro to that a lender would know that a plan is confirmed because they would see just metro two or anything else any other the data that's being transmitted the c r r g is the manual that says how to report under metro two that manual specifically unequivocally states that upon confirmation to the extent balances in pas assuming it's not your honor that is a very simple amendment and we're still at the twelve b sixty age would go which goes to my last point but if they saying that this metro do matter was not buying the do them it's we're not arguing that it's binding what were some of what we're suggesting is that metro two is very language that they literally developed and there in front of this panel saying don't follow it it's illogical they wrote something and or not a lender is going to be i mean it does sound that it would be pretty difficult to know for each trade line what the actual debt was reduced to how do you do that in terms of how the balance candidly that's a better argument for the bureau's the data from issues however can't make that argument and neither of them can make that argument for the past to balance the data for sure you can't make it because they're supposed to know what's in the plan correct or no there is no how how much are you past do what they have suggested in their manual is it that past you balance gets updated that's how you know a plan has been confirmed it's a yes or no with respect to the balance but that's not what and that's essentially what the all book court said in its opinion was that just because assuming that what we're arguing isn't in fact accurate doesn't necessarily mean what they're arguing is also not accurate that's the point is that we want to get somewhere that when someone is looking at this report they have a clear understanding of what has transpired the ultimate problem here is that the language that they've acquired doesn't allow them to report what they're saying that they want to report to this panel which is at some point this debtor was delinquent and this is the amount that they were delinquent at the time of filing then a plan was proposed a plan was approved and the debtor moves on they don't have in their own language a way of articulating that nuance what they have said what they have said to get around that their own solution for this is to update the balances and update the past two balances that's that's what they have prescribed ok your time is up i think your honor thank you all for your arguments this complex