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Gomez v. Kroll Factual Data, Inc.

United States District Court, D. Colorado

December 6, 2013

JOSEPH J. GOMEZ, Plaintiff,
v.
KROLL FACTUAL DATA, INC., Defendant

Page 1104

For Joseph J. Gomez, on behalf of himself and all others similarly situated, Plaintiff: David A. Searles, James A. Francis, John J. Soumilas, LEAD ATTORNEYS, Francis & Mailman, P.C., Philadelphia, PA; Craig Carley Marchiando, Michael Allen Caddell, Caddell & Chapman, Houston, TX.

For Kroll Factual Data, Inc., Defendant: Daniel Patrick Shanahan, Sarah Lynn Lochner, LEAD ATTORNEYS, Williams & Connolly, LLP, Washington, DC; Ty Cheung Gee, LEAD ATTORNEY, Harold Alan Haddon, Haddon, Morgan & Foreman, P.C., Denver, CO.

Page 1105

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

William J. Martí nez, United States District Judge.

Plaintiff Joseph J. Gomez (" Plaintiff" ) brings this consumer class action against Defendant Kroll Factual Data, Inc. (" Defendant" ), a consumer reporting agency, for negligent and willful violations of the Fair Credit Reporting Act (" FCRA" ), 15 U.S.C. § 1681. Before the Court is Defendant's Motion to Dismiss (" Motion" ). (ECF No. 18.) For the reasons set forth below, the Motion is denied.

I. BACKGROUND

The following allegations, contained in Plaintiff's operative Amended Complaint and its attached exhibit, are accepted as true for purposes of Defendant's Motion to Dismiss.

The Office of Foreign Assets Control (" OFAC" ) maintains a federal registry of individuals and entities that are prohibited by the U.S. Department of Treasury from doing business with the United States, which is called the Specifically Designated National and Blocked Persons list (" OFAC List" ). (Compl. (ECF No. 15) ¶ 11). Defendant sells OFAC information as part of its consumer reports. ( Id. ¶ 14.) Defendant

Page 1106

has developed a product called " TruAlert" which is imbedded within one of the sections of its consumer reports. ( Id. ¶ ¶ 15, 16.) TruAlert notifies the purchaser of the credit report if the credit applicant's name is a match or " similar to" a name on the OFAC List. ( Id. ¶ 17.)

On or about January 17, 2012, Plaintiff applied for a home loan through the Waterstone Mortgage Corporation (" Waterstone" ). ( Id. ¶ 38.) Waterstone ordered Plaintiff's Residential Merged Credit Report (" Consumer Report" ) from Defendant. ( Id. ¶ 39.) The Consumer Report included a TruAlert section stating that Plaintiff uses the " AKA" (alias) " Jose Gomez." ( Id. ¶ 42; Consumer Report (ECF No. 15-2), p. 3.) The TruAlert section of the Consumer Report also stated that Plaintiff's AKA record was " similar to" " Gabriel Gomez Chavez," an individual on the OFAC List. (Compl. ¶ 43; Consumer Report, pp. 2-3.)

Plaintiff and Defendant both concede that Plaintiff is not on the OFAC list. Plaintiff does not go by the alias " Jose Gomez," he and Gabriel Gomez Chavez are not the same person, and his name does not match any of Chavez's aliases listed on the Consumer Report. ( Id. ¶ ¶ 45, 47, 48.) The Credit Report shows that Plaintiff and Gabriel Gomez Chavez have different dates of birth, addresses, and social security numbers. ( Id. ¶ ¶ 49-52.) After viewing the Consumer Report, Waterstone did not offer a home loan to Plaintiff. ( Id.)

On September 9, 2012, Plaintiff filed this action against Defendant in the United States District Court for the District of Maryland. (ECF No. 1.) On January 11, 2013, Defendant filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. ( Id.) On February 20, 2013, the case was transferred to this Court. On February 21, 2013, ...


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