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5942412.1 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

CASE NO. 1:22-cv-23695-BB 

PELAYO DURAN, 

Plaintiff, 

v. 

EXPERIAN INFORMATION SOLUTIONS, 

INC., EQUIFAX INFORMATION SERVICES 

LLC, TRANS UNION LLC, and NAVIENT 

SOLUTIONS LLC, 

Defendants. /

CRA DEFENDANTS’ JOINT MOTION TO DISMISS 

PLAINTIFF’S COMPLAINT AND MEMORANDUM IN SUPPORT

Pursuant to Federal Rule of Civil Procedure 12(b)(6), Equifax Information Services, LLC 

(“Equifax”), Experian Information Solutions, Inc. (“Experian”), and Trans Union LLC (“Trans 

Union”), consumer reporting agencies (“CRAs”), (collectively “Defendants”) file this Joint 

Motion to Dismiss Plaintiff’s Complaint and Memorandum in Support. In support thereof, the 

Defendants respectfully show the court as follows: 

I. INTRODUCTION 

Plaintiff Pelayo Duran’s (“Plaintiff”) claims against the Defendants should be dismissed as 

Plaintiff fails to allege any inaccuracy. Plaintiff’s Complaint is premised entirely on his erroneous 

legal conclusion that his Navient Solutions LLC (“Navient”) student loans were discharged in his 

Chapter 13 Bankruptcy case. However, student loans are not discharged in bankruptcy. 

Furthermore, Plaintiff’s claims are based on a legal dispute. In order to determine whether the 

Navient loans were discharged, CRAs must interpret the bankruptcy code and make a legal 

determination as to whether the debts were discharged in bankruptcy. Courts in this District and 

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Circuit have concluded that the CRA Defendants are not obligated to resolve such a legal dispute 

under the FCRA. Accordingly, Plaintiff’s Complaint should be dismissed, with prejudice. 

II. RELEVANT FACTUAL ALLEGATIONS 

Plaintiff filed for and obtained a Chapter 13 bankruptcy discharge in the United States 

Bankruptcy Court for the Southern District of Florida, which was docketed as Case No. 17-12716-

RAM. Complaint, ECF No. 1. ¶¶ 10, 12. See also Exhibit A. Plaintiff attaches a copy of the 

bankruptcy discharge order as Exhibit A to his Complaint. Complaint, ECF No. 1. ¶ 12; Exhibit 

A. On Schedule E/F to the Plaintiff’s bankruptcy petition, attached as Exhibit B, Plaintiff lists the 

Navient accounts as student loans. Exhibit B at 15-16. 

On February 1, 2021, the Bankruptcy Court entered the Discharge, pursuant to which 

Plaintiff was granted a discharge under 11 U.S.C. § 1328(a). Exhibit A. As the Discharge states, 

“Some debts are not discharged. Examples of debts that are not discharged are: ... debts for most 

student loans.” Id. at 1. Plaintiff was not granted a hardship discharge of the student loans and did 

not file an adversary proceeding in the Bankruptcy case to discharge the Navient student loans. 

Accordingly, the Loans were not discharged and remain due and owing. 

Plaintiff filed this Complaint claiming that his Navient accounts were discharged in his 

bankruptcy. Complaint, ECF No. 1. ¶¶ 11-12. He claims that due to the discharge, the Navient 

accounts are inaccurately reporting as “due and/or outstanding.” Id. at ¶ 14. Plaintiff alleges each 

CRA violated the FCRA by failing to establish or follow reasonable procedures in the preparation 

of Plaintiff’s credit files and by failing to conduct a reasonable reinvestigation of disputes. Id. at 

¶¶ 70-71, 80; 90-91; 100; 110-111; 120. 

III. APPLICABLE LEGAL STANDARD 

Rule 12(b)(6) permits dismissal of a complaint that fails to state a claim upon which relief 

can be granted. Although a complaint challenged by an opposing party need not contain detailed 

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factual allegations, a plaintiff must provide the “grounds” for his entitlement to relief, amounting 

to more than a “formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 555 (2007). And, in deciding a motion to dismiss pursuant to Rule 

12(b)(6), the court’s analysis is generally limited to the four corners of a complaint and the 

attached exhibits. Grossman v. Nationsbank, 225 F.3d 1228, 1231 (11th Cir. 2000). A complaint 

can only survive a Rule 12(b)(6) motion to dismiss if it contains factual allegations that are 

“enough to raise a right to relief above the speculative level, on the assumption that all the [factual] 

allegations in the complaint are true.” Twombly, 550 U.S. at 555. 

In resolving a motion to dismiss, a court may consider materials subject to judicial notice 

without converting the motion to dismiss into a motion for summary judgment. See Bryant v. 

Avado Brands, Inc., 187 F.3d 1271, 1277-78 (11th Cir. 1999); Mulhall v. Unite Here Local 

355, 618 F.3d 1279, 1289 n.10 (11th Cir. 2010); Fed. R. Evid. 201(d) (“The court may 

take judicial notice at any stage of the proceeding.”) Federal Rule of Evidence 201 permits courts 

to take judicial notice of “a fact that is not subject to reasonable dispute because it[] . . . can be 

accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” 

Fed. R. Evid. 201(b). “[M]atters of public record,” whose accuracy cannot be reasonably 

questioned, may be judicially noticed. Bryant, 187 F.3d at 1277-78. 

Here, Plaintiff’s bankruptcy petition, attached as Exhibit B, is a matter of public record. It 

can be considered without converting this Motion to a motion for summary judgment. 

IV. ARGUMENTS AND AUTHORITIES 

A. Plaintiff’s FCRA Claim Fails As a Matter of Law Because Student Loans are Not 

Discharged in a Chapter 13 Bankruptcy 

The Complaint should be dismissed because a consumer reporting agency’s accurate 

reporting is a complete defense to Plaintiff’s FCRA claims. As stated by the Eleventh Circuit, to 

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state a claim for a violation of the FCRA, “a plaintiff must show at least two things: that a consumer 

report was inaccurate and that the inaccurate report caused him to suffer damages.” Erickson v. 

First Advantage Background Servs. Corp., 981 F.3d 1246, 1251 (11th Cir. 2020) (citing Cahlin v. 

Gen. Motors Acceptance Corp., 936 F.2d 1151, 1156, 1161 (11th Cir. 1991)). “Absent those 

showings—particularly the inaccurate report—the reasonableness of the reporting agency’s 

procedures turns out not to matter.” Id. A report may be considered ‘accurate’ if it is “both factually 

correct and free from potential for misunderstanding.” Erickson v. First Advantage Background 

Servs., 981 F.3d 1246, 1248 (11th Cir. 2020). 

Plaintiff’s Navient accounts were not discharged in bankruptcy and therefore were 

accurately reporting as due and/or owing. Under 11 U.S.C. § 523(a)(8), educational benefits or 

loans are exempt from discharge under Section 727, unless “exempting such debt from discharge 

under this paragraph would impose an undue hardship on the debtor.” 11 U.S.C. § 523(a)(8). 

“Section 523(a)(8) renders student loan debt presumptively nondischargeable ‘unless’ a 

determination of undue hardship is made.” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 

260, 130 S.Ct. 1367, 1381, 76 L.Ed.2d 158 n. 13 (2010). In this regard, “the Bankruptcy Rules 

require a party seeking to determine the dischargeability of a student loan debt to commence an 

adversary proceeding by serving a summons and complaint on affected creditors.” Id. at 1376. See

also Fed. R. Bankr. P. 7001(6) (providing that, “a proceeding to determine the dischargeability of 

a debt,” is an adversary proceeding.). Plaintiff’s Complaint does not allege, nor could he allege, 

that he filed an adversary proceeding in the Bankruptcy Case to determine the dischargeability of 

the Navient accounts, because Plaintiff never took any such action. Therefore, Plaintiff’s allegation 

that the Navient accounts were discharged in his bankruptcy is merely an erroneous legal 

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conclusion that the Court is, “not bound to accept as true.” Bell Atlantic Corp. v. Twombly, 127 

S.Ct. at 1965. 

Accordingly, because the Navient student loan accounts remain nondischargeable debts 

pursuant to Section 523(a)(8) of the Bankruptcy Code and because the reporting by the CRAs is 

accurate, the Court should dismiss Plaintiff’s Complaint as to the CRAs with prejudice, pursuant 

to Fed. R. Civ. P. 12(b)(6). 

B. Plaintiff’s FCRA Claims Fail As Plaintiff’s Complaint Does Not Allege the Required 

Factual Inaccuracy; Rather It Involves A Legal Dispute That The CRAs Are Not 

Required To Adjudicate

The Complaint should also be dismissed because CRAs are neither equipped nor required 

to resolve legal disputes between a consumer and a creditor concerning the legal validity of a debt. 

A Plaintiff fails to state claims as a matter of law under Sections 1681e(b) and 1681i(1)(A) where 

plaintiff raises a legal issue, rather than alleging a factual inaccuracy. Ray v. Equifax Info. Servs., 

LLC, 327 F. App’x 819, 826 (11th Cir. 2009); see also Cahlin v. Gen. Motors Acceptance Corp., 

936 F.2d 1154, 1160 (11th Cir. 1991). The validity of a debt is a legal question that can only be 

resolved by a court of law, and CRAs are “neither qualified nor obligated to resolve [such legal 

issues] under the FCRA.” DeAndrade v. Trans Union LLC, 523 F.3d 61, 68 (1st Cir. 2008). 

Here, Plaintiff alleges that the Navient student loan accounts were discharged in his 

bankruptcy. Dkt. 1. ¶ 12. Plaintiff does not allege that he paid the Navient accounts. See generally 

Dkt. 1. Rather, Plaintiff contends that he was legally discharged from the student loans debts 

because of his bankruptcy discharge. In order to determine whether Plaintiff the student loans were 

discharged, the CRAs would have to determine the applicability of bankruptcy law to the student 

loans. The CRAs would have to investigate the exceptions to bankruptcy discharge according to 

the Bankruptcy Code and whether any of those exceptions apply to the Navient accounts in 

question. In fact, the Bankruptcy Discharge Order states, “This information is only a general 

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summary of a chapter 13 discharge; some exceptions exist. Because the law is complicated, 

you should consult an attorney to determine the exact effect of the discharge in this case.” 

Exhibit A at 2. The Order acknowledges that the law is complicated and that exceptions to the 

discharge order exist. Determining the legal effect of a bankruptcy discharge order is precisely the 

kind of legal question that credit reporting agencies are neither qualified nor obligated to answer. 

See DeAndrade, 523 F.3d at 68. 

V. CONCLUSION 

Since Plaintiff’s allegations of an inaccuracy are insufficient as a matter of law, any 

amendment would be futile and Plaintiff’s claims should therefore be dismissed with prejudice. 

See, e.g., Floyd v. City of Miami Beach, 730 F. App’x 838, 841 (11th Cir. 2018) (“the court need 

not allow any amendment where amendment would be futile.”) (citations omitted). 

For the foregoing reasons, the CRA Defendants respectfully request that the Court dismiss 

Plaintiff’s Complaint with prejudice, in its entirety and for such other relief as the Court deems 

necessary. 

Respectfully submitted, 

/s/ Alexandria Epps

Alexandria Epps 

aepps@qslwm.com

Florida Bar No. 1002739 

Quilling, Selander, Lownds, 

Winslett & Moser, P.C. 

6900 N. Dallas Parkway, Suite 800 

Plano, TX 75024 

(214) 560-5463 

(214) 871-2111 Fax 

Counsel for Trans Union LLC

/s/ Jason Daniel Joffe

Jason Daniel Joffe 

jason.joffe@squirepb.com

Florida Bar No. 13564 

Squire Sanders & Dempsey LLP 

200 S Biscayne Boulevard, 40th Floor 

Miami, FL 33131-2398 

(305) 577-7000 

(305) 577-7001 Fax 

Counsel for Equifax Information Services, 

LLC

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/s/ Maria H. Ruiz 

Maria H. Ruiz 

mruiz@kasowitz.com

Florida Bar No. 182923 

Kasowitz Benson Torres LLP 

1441 Brickell Avenue, Suite 1420 

Miami, FL 33131 

(786) 587-1044 

(305) 675-2601 Fax 

Counsel for Experian Information Solutions, 

Inc.

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CERTIFICATE OF CONFERENCE

Pursuant to LR 7.1(a)(3), I hereby certify that, on January 5, 2023, counsel for Equifax, 

Experian, and Trans Union conferred with counsel for Plaintiff via email regarding the relief 

sought by the foregoing Motion. Following such conference, counsel for Plaintiff has indicated 

they are opposed to the relief sought by this Motion. 

Respectfully submitted, 

/s/ Alexandria Epps

Alexandria Epps 

aepps@qslwm.com

Florida Bar No. 1002739 

Quilling, Selander, Lownds, 

Winslett & Moser, P.C. 

6900 N. Dallas Parkway, Suite 800 

Plano, TX 75024 

(214) 560-5463 

(214) 871-2111 Fax 

Counsel for Trans Union LLC

/s/ Jason Daniel Joffe

Jason Daniel Joffe 

jason.joffe@squirepb.com

Florida Bar No. 13564 

Squire Sanders & Dempsey LLP 

200 S Biscayne Boulevard, 40th Floor 

Miami, FL 33131-2398 

(305) 577-7000 

(305) 577-7001 Fax 

Counsel for Equifax Information Services, LLC

/s/ Maria H. Ruiz 

Maria H. Ruiz 

mruiz@kasowitz.com

Florida Bar No. 182923 

Kasowitz Benson Torres LLP 

1441 Brickell Avenue, Suite 1420 

Miami, FL 33131 

(786) 587-1044 

(305) 675-2601 Fax 

Counsel for Experian Information 

Solutions, Inc.

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CERTIFICATE OF SERVICE 

I hereby certify that on the 5th day of January 2023, the foregoing document is being served 

this day on all counsel of record identified on the below Service List via transmission of Notices 

of Electronic Filing generated by CM/ECF. 

Victor Zabaleta 

victor@pzlg.legal

Thomas J. Patti 

tom@pzlg.legal

Patti Zabaleta Law Group 

3325 Northwest 55th Street 

Fort Lauderdale, FL 33309 

(561) 866-3584 

Counsel for Plaintiff

Maria Helena Ruiz 

mruiz@kasowitz.com

Kasowitz Benson Torres LLP 

1441 Brickell Avenue, Suite 1420 

Miami, FL 33131 

(786) 587-1044 

(305) 675-2601 Fax 

Counsel for Experian Information 

Solutions, Inc. 

Drew Patrick O’Malley 

domalley@spencerfane.com

Spencer Fane LLP 

201 E. Franklin Street, Suite 2150 

Tampa, FL 33602 

(813) 424-3509 

Counsel for Navient Solutions LLC 

Jason Daniel Joffe 

jason.joffe@squirepb.com

Squire Sanders & Dempsey LLP 

200 S Biscayne Boulevard, 40th Floor 

Miami, FL 33131-2398 

(305) 577-7000 

(305) 577-7001 Fax 

Counsel for Equifax Information Services, 

LLC

/s/ Alexandria Epps 

ALEXANDRIA EPPS 

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