IN THE DISTRICT COURT OF CREEK COURT K

STATE OF OKLAHOMA CREEK COUNTY SAPULPA

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WILLIAM DUTTON, JR.,
STACEY WHITE, and
SHANNON WHITE,
Plaintiffs,
VS.
WELLS FARGO BANK, N.A. ,
Defendant.
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JAN 1 0
TI ME ERK
Amanda VanOrsdol, COURT CL
Case No. CJ-2011-120
Judge Douglas W. Golden
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR
PARTIAL INTERLOCUTORY SUMMARY ADJUDICATION
The Plaintiffs, William Dutton, Jr. and Stacey White and Shannon White,
for their response to Defendant's Motion for Summary Judgment, or in the
Alterative, Motion for Partial Interlocutory Summary Adjudication (Defendant's
Motion), state the following:
STATEMENT OF UNDISPUTED MATERIAL FACTS
1. On October 15, 2003, Plaintiff William Dutton, Jr. ("Dutton")
executed a Note and Mortgage for certain real property located in Creek County
(the Property) to Country Investments Inc. , d/b/a Freedom Mortgage, which were
later acquired by Defendant Wells Fargo Bank, N.A. See Note, attached as
Exhibit 1; see also Mortgage, attached as Exhibit 2.
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2. Plaintiffs Stacey White and Shannon White have made payments on
the Mortgage held by Defendant and have resided at the Property since 2003.
3. Because of Defendant's failure to properly credit Plaintiffs'
mortgage payments, Defendant twice attempted to improperly foreclose on the
Property, once in Creek County CJ-04-868 and again in CJ-08-698. Defendant
dismissed both cases.
4. Pursuant to dismissal of CJ -08-698, the parties in the present case
entered into a March 3, 2010 Settlement Agreement, which assigned both
parties certain responsibilities, including tasking Defendant Wells Fargo with
"Tak[ing] all available steps to clear any negative credit reporting from January
1, 2004 to the date of this Agreement .... " See Settlement Agreement, attached
as Exhibit 3.
STATEMENT OF DISPUTED MATERIAL FACTS
5. Plaintiffs incorporate by reference paragraphs 1-4.
6. Defendant never intended to comply with the term of the Settlement
Agreement requiring it to clear any negative reports on Plaintiffs' credit reports.
See Affidavit of William Dutton, Jr., attached as Exhibit 4; see also Affidavit of
Stacey White, attached as Exhibit 5; Affidavit of Shannon White, attached as
Exhibit 6; Expert's Report, attached as Exhibit 7.
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a. According to the Mfidavit of Plaintiffs' attorney in Creek Co.
CJ -08-698, the parties had a verbal agreement that
Defendant would clear Dutton's negative credit reporting
within 90 days after execution of the Settlement Agreement.
See Affidavit of Howard Perkins, Jr., attached as Exhibit 8.
7. Since execution of the Settlement Agreement up to the filing of this
case, Plaintiffs made every monthly payment due on the Note
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See Spreadsheet,
copies of payments, and copies of certified mailings/FedEx mailings, attached
collectively as Exhibit 9; see also Exhibits 5-6.
8. Plaintiffs' payment arrangement with Defendant was such that
Plaintiffs would make their payments to Defendant's former counsel Baer,
Timberlake, Coulson & Cates ("Baer, Timberlake"). Baer, would
then forward those payments to Wells Fargo. See Exhibits 5, 9.
9. At times, Plaintiffs did make their payments past the due date of
the 1st of the month. See Exhibit 9.
10. However, the bulk of Plaintiffs' payments fell within the grace period
as outlined in the monthly account statements Defendant sent the Plaintiffs,
which stated that a late fee would not be assessed unless the payment was
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Plaintiffs have made every monthly mortgage payment from the date of
filing this lawsuit to the present.
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received after the 16th of the month. See Wells Fargo statements, attached as
Exhibit 10.
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a. At least some of the payments that fell outside the grace
period allowed by the Wells Fargo statements did so because
of the necessity of Baer, Timberlake having to mail the
Plaintiffs' payments to Wells Fargo. See Exhibit 9.
11. Even though Plaintiffs made every monthly payment between April
2010 and the filing of this suit, which were admittedly late at times, Defendant
has consistently and continuously failed to properly credit Plaintiffs' mortgage
payments. See Exhibits 5-6; see also Exhibits 9-10.
12. Since execution of the Settlement Agreement, Defendant has
continued to harass the Plaintiffs including, but not limited to, the following
actions:
a. Failing to communicate through counsel despite repeated
written and verbal requests that all communications be sent
through legal counsel representing the Plaintiffs, i.e., Howard D.
Perkins, Jr., and through Defendant's counsel Baer, Timberlake,
Coulson & Cates, through its associate Blake C. Parrott. See
Exhibits 4-6;
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The statements routinely state that a late fee will not be assessed until
fifteen (15) days after the payment's due date.
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b. Continuing to subject Plaintiffs to harassing and threatening
phone calls, each call wrongfully alleging a failure to timely make
mortgage payments when many payments have consistently been
within the fifteen (15) day grace period, or alleging missed
payments, and even after Plaintiffs have informed Defendant's
agents that their information is erroneous. See Exhibits 4-6; see
also Payment Correspondence, attached as Exhibit 11;
c. Sending out investigators who have personally gone on to the
Plaintiffs' Property alleging that Plaintiffs are in default on the
Note with the sole purpose of harassing Plaintiffs and causing them
intentional mental distress. See Exhibits 5-6;
d. Sending investigators out to take pictures of Plaintiffs'
Property, which at times included taking pictures of Stacey and
Shannon White's minor children and Shannon White's car, despite
the fact that Plaintiffs had not missed a single payment from April
2010 to the filing of this suit. See Exhibits 5-6, 9;
I. The Whites' minor children are currently 11, 13, and 14
years of age.
e. Sending out investigators to interrogate Plaintiffs' friends,
neighbors, and employees, despite the fact that Plaintiffs had not
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missed a single payment from April2010 to the filing of this suit.
See Exhibits 5-6, 9;
f. Sending notices directly to the Plaintiffs, and not through
counsel, alleging failure to make mortgage payments, threatening
to institute another baseless foreclosure action, despite the fact that
Plaintiffs had not missed a single payment from April 2010 to the
filing of this suit. See Exhibits 4-6, 9.
13. That the above actions on the part of Defendant have been
documented not only by the Plaintiffs, but by Defendant Wells Fargo's own
counsel, Mr. Blake Parrott with the law firm of Baer, Timberlake, Coulson &
Cates, P.C., ("Baer, Timberlake"), who were the legal representatives of the
Defendant, Wells Fargo, and who are located at 4200 Perimeter Center Drive,
Suite 100, Oklahoma City, Oklahoma 73112. See Exhibit 11.
14. Plaintiffs lost standing within the community as Plaintiff Stacey
White was a representative of the Kiefer Police Department, Stacey White was
the Chief of Police of Kiefer, and that Defendant's actions placed Stacey White
and his family under negative scrutiny in Kiefer without justification and
without cause. See Exhibits 5-6.
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15. Defendant failed to take all available steps to clear any negative
credit reporting for Dutton according to the Settlement Agreement for the time
period of January 1, 2004 through March 3, 2010. See Exhibits 4-7.
a. Plaintiff Stacey White contacted Defendant's counsel at Baer,
Timberlake on several occasions to inform Defendant that
negative reports were still on Plaintiff Dutton's credit reports.
See Credit Report Correspondence, attached as Exhibit 12.
16. Since execution of the Settlement Agreement, Defendant made
further erroneous ~ n inaccurate statements regarding Dutton's payment
history to third parties, including, but not limited to, Trans Union, Equifax, and
Experian, despite Plaintiffs informing Defendant that the information it was
transmitting was erroneous. See Exhibits 4-7, see also Exhibit 11.
a. Defendant has consistently failed to properly credit Plaintiffs'
mortgage payments, which were admittedly late at times. See
Exhibits 9-10.
17. Despite the fact that Plaintiffs' have made every mortgage payment
since April2010 until the filing of this suit and because Defendant has failed to
properly credit Plaintiffs payments, Defendant continues to wrongly demand
additional payment in contravention of the terms of the Mortgage. See Exhibits
4-6, 9-10.
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ARGUMENTS AND AUTHORITIES
A. The Summary Judgment Standard.
Under Rule 13(e) of Rules for District Courts ofOklaho1na and OKLA. STAT.
tit. 12, 2056, summary judgment is appropriate only if it is apparent that
"there is no substantial controversy as to the material facts and that one of the
parties is entitled to judgment as a matter of law .... " RULES FOR DIST. CTS. OF
OKLA. 13(e); see also OKLA. STAT. tit. 12, 2056(C) ("The judgment sought should
be rendered if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law."); Residential
Funding Real Estate Holdings, LLC v. 2012 OK 49, 279 P.3d 788
("Summary process is applied where neither the material facts nor any
inferences that may be drawn from undisputed facts are in dispute, and the law
favors the movant's claim." ).
A party opposing a motion for summary judgment must provide the court
with evidentiary materials in support of such opposition. RULES FOR DIST. CTS.
OF OKLA. 13(b); see also OKLA. STAT. tit. 12, 2056(E). Such 1naterials may
include affidavits "made on personal knowledge, [showing] that the affiant is
competent to testify as to the matters stated therein, and shall set forth matters
that would be admissible in evidence at trial." RULES FOR DIST. CTS. OF OKLA.
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13(c); see also OKLA. STAT. tit. 12, 2056(E). The evidentiary material attached
to a response to a motion for summary judgment is sufficient to resist the motion
only if it "show[s] the reasonable probability, something beyond a mere
contention, that the opposing party will be able to produce competent, admissible
evidence at the time of trial which might reasonably persuade the trier of fact
in his favor on the issue in dispute." Davis v. Leitner, 1989 OK 146, 15, 782
P.2d 924; see also Seitsinger v. Dockum Pontiac, Inc., 1995 OK 29, 18, 894 P.2d
1077 (explaining the Davis v. Leitner rule as a "standard of showing that if the
case goes to trial[,] [the party opposing the motion for summary judgment] will
be able to produce admissible evidence to show a material fact in dispute."). All
facts and inferences are to be viewed in the light most favorable to the non-
moving party. Martin v. Aramark Services, Inc., 2004 OK 38, 4, 92 P.3d 96, 97.
B. Disputed Material Facts Exist as to Intentional Infliction of
Emotional Distress.
Defendant's Motion bifurcates Plaintiffs' Intentional Infliction of
Emotional Distress ("liED") claim into two categories: (1) Collection Activities
and (2) Credit Reporting. In contrast to the relatively mild description of
Collection Activities as set forth in Defendant's Motion, i.e., "(1) sending
'investigators'; (2) calling Plaintiffs to tell them the loan was past due; and (3)
threatening another foreclosure[,]" Defendant's Collection Activities were far
more nefarious. See Defendant's Motion at 11. These activities included
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threatening and harassing phone calls to Plaintiffs stating that mortgage
payments were past due or missing when they were not, threatening a baseless
foreclosure suit; Defendant's agents uninvited entry onto Plaintiffs' Property,
Defendant's agents photographing not only Plaintiffs' Property, but also Stacey
and Shannon White's minor children and Shannon White's car, and Defendant
sending investigators to interrogate Plaintiffs neighbors, friends, and
employees.
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See Exhibits 5-6, 9-10.
Defendant's Motion states Defendant's phone calls to Plaintiffs were
"Aggressive but not threatening" and cites to Plaintiff Stacey White's deposition.
Defendant's Motion t ~ 19(a). However, the actual transcript does not support
such a statement:
Q. Did anybody ever threaten you?
A. They were aggressive in nature and were citing the agreement, the
payment agreement and that being behind was a violation of that
agreement.
Exhibit N to Defendant's Motion, P. 12, L. 21-24. Stacey White does
indeed categorize the phone calls as "aggressive," but he does not answer the
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Defendant's Motion categorizes a Wells Fargo agent as speaking with Stacey
White's co-worker Christian Mattia. Defendant's Motion at , 19(e). In fact, Stacey
White, in his deposition cited as Exhibit N to Defendant's Motion, explains that
Christian Mattia was one of Police Chief White's officers, and thus White's
employee, not simply White's coworker. See Exhibit N to Defendant's Motion at P.
42, L. 2.
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question as to whether he was ever threatened. However, Plaintiffs considered
the phone calls to be threatening. See Exhibits 4-6.
Defendant attempts to justify Wells Fargo agents' intrusion onto Plaintiffs'
Property using the terms of the Mortgage: "Lender or its agent may make
reasonable entries upon and inspections of the Property." Exhibit 2 t ~ 7
(emphasis added). However, the title of para. 7 is "Preservation, Maintenance
and Protection of the Property." I d. The Mortgage does indeed allow entry onto,
and inspections of, the Property that are reasonable, i.e., that are related to the
preservation, maintenance, and protection of the Property. Paragraph 7 does
not provide for entry and inspections in order for Defendant's agents to harass
Plaintiffs when they have not missed a single payment or been less than thirty
(30) days late in making a payment.
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Nor does paragraph 7 justify Defendant's
agents photographing Stacey and Shannon White's minor children or Shannon
White's car. According to Plaintiff Shannon White, on at least one occasion,
Defendant's agent purposely photographed her minor sons while they played in
a tree. See Exhibit 6.
As to the second category of Credit Reporting, after execution of the
Settlement Agreement, Defendant made further false and inaccurate statements
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Indeed, in the event that payments were late or missing, the Mortgage
provides certain avenues of redress, including charging the mortgagor fees
according to the terms of the Note or foreclosing on the property. See Exhibit 2 at
~ ~ 1, 22.
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to credit agencies regarding Plaintiff Dutton's payment history on the Note,
including representations that Dutton has not made payments. See Exhibits 4-6.
These statements damaged Dutton's credit rating. See id.; see also Exhibit 7.
As explained above, Plaintiffs have not missed a mortgage payment up to the
filing of this suit. See Exhibit 9. Yet Defendant's monthly statements show
clearly that such payments were not accurately applied to Plaintiffs' account,
and Plaintiff Stacey White informed Defendant's counsel at Baer, Timberlake
about the issue several times. See Exhibits 10, 11.
Defendant's Motion attempts to discredit Plaintiffs' liED claims by
introducing certain legal actions against Plaintiffs Stacey and Shannon White,
arguing that Plaintiffs' standing in their community had already been
diminished by such legal actions. However, Defendant fails to make an
important distinction: the protective orders filed against Plaintiffs Stacey and
Shannon White and the criminal misdemeanor charge filed against Shannon
White are public records, and any person searching those records would discover
that each protective order and the misdemeanor charge were summarily
dismissed. Further, the garnishment served upon Stacey White's employer, the
City of Keifer, is also public record, as is the Tulsa World article to which
Defendant cites. What is not a matter of public record at least until a legitimate
foreclosure action is filed is Plaintiffs' payment history on the mortgage. See
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Exhibits P and U to Defendant's Motion. Yet, by interrogating Plaintiffs'
friends, neighbors, and employees, Defendant placed Plaintiffs' private financial
situation in the public sphere, causing Plaintiffs severe emotional distress. See
Exhibits 5-6.
Because a disputed material fact exists as to whether Defendant properly
credited Plaintiffs' payments, which in turns exposes disputed material facts as
to the reasonableness of Defendant's conduct in its collection activities and credit
reporting, summary judgment is inappropriate under the requirements of Rule
13 of Rules for District Courts of Oklahoma and OKLA. STAT. tit. 12, 2056.
C. Disputed Material Facts Exist as to Breach of Contract Claim
(Settlement Agreement).
Defendant breached the terms of the March 3, 2010, Settlement
Agreement which specifically provides that either party to that document may
sue to enforce it. See Exhibit 3 at 3 ("Nothing in this Agreement [i.e., the
Releases] shall be interpreted to apply to (a) claims arising out of the failure of
a Party to perform in conformity with the terms of this Agreement; (b) any
future disputes between the Parties which arise out of any business transactions
between the Parties .... "). The "Covenant Not to Sue" on claims covered by the
Settlement Agreement does not apply to any breach of "any term of this
agreement." Id. at 4. The waiver Defendant cites likewise does not apply to
a breach of the Settlement Agreement. I d. at 12.
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Defendant is absolutely correct that Plaintiffs did not nullify the
Settlement Agreement according to the terms of that document. However, such
a failure to nullify does not divest Plaintiffs of their right to sue Defendant for
its failure to comply with the terms of the Settlement Agreement, namely for
Defendant's failure to "Take all available steps to clear any negative credit
reporting from January 1, 2004 to the date of this Agreement, relating to the
Loan; together with any associated civil actions." Id. t ~ 2(a)(iii).
Defendant has not taken the appropriate steps to clear Plaintiffs' credit
reports. See Exhibits 4-7; see also Exhibit 12. Indeed, Defendant's Motion
admits that satisfaction of the Settlement Agreement is in dispute as to
Defendant's actions to repair Plaintiffs' credit reports. See Defendant's Motion
at 17 ("It is undisputed that all terms of the Settlement Agreement, with the
exception of the credit reporting issue, were completed either
contemporaneously with, or shortly after, the signing of the Settlement
Agreement.") (emphasis added). Defendant's execution of a single CBR change
for Plaintiff William Dutton, Jr. does not satisfy the terms of the Settlement
Agreement. See Exhibit H to Defendant's Motion.
Further, the liED claim in the present case related to Defendant providing
false and inaccurate reports to credit agencies Trans Union, Equifax, and
Experian about Plaintiff Dutton occurred after execution of the Settlement
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Agreement in March 2010. See Exhibits 4-7. Thus, the Settlement Agreement's
releases and waiver do not apply to Defendant's subsequent conduct in making
false and inaccurate reports to credit agencies, and Plaintiffs are free to pursue
their liED claim.
Because disputed material facts exist as to (1) Defendant's failure to
rectify the erroneous reports it provided according to the terms of the Settlement
Agreement, and (2) the severity and extent of Defendant's conduct in providing
false and inaccurate reports after execution of the Settlement Agreement (as
identified in Plaintiffs' liED claim), summary judgment is inappropriate under
the requirements of Rule 13 of Rules for District Courts of Oklahoma and OKLA.
STAT. tit. 12, 2056.
D. Disputed Material Facts Exist as to Breach of Contract
Claim (Mortgage agreement).
Defendant's Motion claims Plaintiffs' late mortgage payments have
incurred unpaid late fees and, thus, Defendant has a right to collect those late
fees under the Mortgage. Plaintiffs, however, assert that their mortgage
payments have not been properly credited, and Defendant has breached the
Mortgage agreement by wrongfully demanding additional payments to which it
is not entitled. See Exhibits 9-11.
As argued in Section B, supra., because a question of fact exists as to
whether Defendant has properly credited Plaintiffs' mortgage payments, which
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in turn creates a disputed material fact as to whether or not Defendant breached
the Mortgage agreement, summary judgment is inappropriate under the
requirements of Rule 13 of Rules for District Courts of Oklahon1a and OKLA.
STAT. tit. 12, 2056.
E. Disputed Material Facts Exist as to Deceit Claim.
Defendant's Motion admits that Defendant's actions or lack thereof to
rectify erroneous credit reports as required by the Settlement Agreement are in
dispute. See Defendant's Motion at 17 ("It is undisputed that all terms of the
Settlement Agreement, with the exception of the credit reporting issue,
were completed either contemporaneously with, or shortly after, the signing of
the Settlement Agreement.") (emphasis added). Defendant had no intention of
satisfying its duty to repair its false and inaccurate reports on Plaintiff Dutton's
credit as required by the Settlement Agreement. See Exhibits 4-7.
Defendant further attempts to introduce the clear and convincing evidence
standard in arguing that a "mere delay in resolving the [credit] issue is
insufficient evidence of fraud." See Defendant's Motion at 18. The evidentiary
burden on a party opposing a motion for summary judgn1ent is, of course, much
less rigorous than clear and convincing standard. Plaintiffs' burden is to present
evidence that shows a reasonable probability that they will be able to produce
competent, admissible evidence at the time of trial. See Davis v. Leitner, 1989
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OK 146, 15, 782 P .2d 924. The evidence attached to this response is sufficient
to meet that burden.
Thus, because disputed material facts exist as to Defendant's deception in
representing that it would repair Plaintiffs' negative credit reports, summary
judgment is inappropriate under the requirements of Rule 13 of Rules for
District Courts of Oklahoma and OKLA. STAT. tit. 12, 2056.
F. Disputed Material Facts Exist as to Defamation Claim.
Defendant's Motion presents two arguments in an attempt to overcome
Plaintiff Dutton's defamation claim: (1) Plaintiff has no private right of action
under the Fair Credit Reporting Act ("FCRA") because he did not first make a
complaint with a Credit Reporting Agency and (2) the FCRA preempts a state
law defamation claim. See Defendant's Motion at 18-19. Because Plaintiff
Dutton is not asserting any claims relating to the FCRA, both of Defendant's
arguments are irrelevant.
Plaintiff Dutton's defamation claim arises not from any duty Wells Fargo
owed to him under the FCRA, but rather the duty the Settlement Agreement
imposed on Wells Fargo. See Exhibit 3. Under the Settlement Agreement, Wells
Fargo shall "Take all available steps to clear any negative credit reporting from
January 1, 2004 to the date of this Agreement, relating to the Loan; together
with any associated civil actions." Id. at 2(a)(iii). Wells Fargo failed to take
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steps to clear Dutton's negative credit reports. See Exhibits 5, 7, 12. Thus, the
statements Defendant published both orally and in writing to various credit
reporting agencies, collection agencies, and/or attorneys were false and negative
representations regarding PlaintiffDutton's credit information and history prior
to the Settlement Agreement. These statements were not corrected under the
terms of the Settlement Agreement. Further, Plaintiff Stacey White informed
Wells Fargo's attorney at Baer, Timberlake that the corrections had not taken
place, yet Wells Fargo maliciously refused to take any actions to clear up the
false reports. See Exhibits 5, 7, 12.
Thus, because disputed material facts exist as to Defendant's publishing,
both orally and by writing, inaccurate and false statements it knew to be such,
summary judgment is inappropriate under the requirements of Rule 13 of Rules
for District Courts of Oklahoma and OKLA. STAT. tit. 12, 2056.
G. Disputed Material Facts Exist as to Negligence Claim.
Defendant's Motion states Plaintiffs have failed to enunciate a law or
regulation under which they may bring a negligence claim. Defendant's Motion
at 20. To clarify, Plaintiffs bring their negligence claim under.OKLA. STAT. tit.
76, 1, which states: "Every person is bound, without contract, to abstain from
injuring the person or property of another, or infringing upon any of his rights."
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Defendant's Motion argues Plaintiffs have failed to state a legal duty owed
to them and which Defendant breached. See Defendant's Motion at 20. In
addition to the duty enunciated in the statute above, the legal duty Defendant
owed to Plaintiff Dutton arises from the terms of the Settlement Agreement
wherein Defendant shall "Take all available steps to clear any negative credit
reporting from January 1, 2004 to the date of this Agreement, relating to the
Loan; together with any associated civil actions." Exhibit 3 2(a)(iii). Under
Oklahoma law, "[a]ccompanying every contract is a common-law duty to perform
it with care, skill, reasonable experience and faithfulness the thing agreed to be
done, and a negligent failure to observe any of these conditions is a tort, as well
as a breach of contract." Keel v. Titan Const. Corp, 1981 OK 148, 14, 639 P.2d.
1228.
Plaintiffs' negligence claims are based on the same facts as Plaintiffs'
breach of the Settlement Agreement and defamation claims. See Sees. C and F,
supra. Defendant breached its duty under the Settlement Agreement when it
failed to inform credit reporting agencies that information it supplied was false
and inaccurate, and when it made no attempt to correct the false and inaccurate
information. See Exhibit 7. Wells Fargo's breach of duty was the proximate
cause of the damages Plaintiff Dutton suffered from his lowered credit score. See
id.
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Thus, because disputed material facts exist as to the negligence of
Defendant's credit reporting activities, summary judgment is inappropriate
under the requirements of Rule 13 of Rules for District Courts of Oklahoma and
OKLA. STAT. tit. 12, 2056.
H. Disputed Material Facts Exist as to Invasion of
Privacy/intrusion upon Seclusion Claim.
Defendant contends its actions to collect on allegedly past due mortgage
payments were reasonable under the law and cites Munley v. ISC Financial
House, Inc. in support of its contentions. 1978 OK 123, 584 P .2d 1336. In that
case, the Court adopted the standard of"highly offensive to a reasonable person"
in determining liability for the torts of invasion of privacy and intrusion upon
seclusion. I d. at ~ 13, 17.
In Munley, the Court held creditor's actions, including dispatching agents
to debtor's apartment, asking a neighbor about debtor's whereabouts and
inquiring as to the state of her furniture, contacting the apartment manager
after debtor moved, and contacting debtor's employer to obtain contact
information were not highly offensive to a reasonable person. I d. at ~ ~ 4-7.
Such a finding was based on several factors, namely that debtor avoided all
contact with [creditor's] agents and refused to contact them. Id. t ~ 18. Debtor
went so far as to disconnect her telephone after she received a phone call from
the creditor. I d. at 4.
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The present case is distinguishable from Munley. Creditor's agents in that
case were trying to locate a debtor who actively avoided their attempts at
contact. Here, Plaintiffs have not avoided Defendant's agents either in person
or on the telephone. See Exhibits 4-6. Indeed, during several exchanges
between Plaintiffs and Defendant's agents, Plaintiffs informed Defendant's
agents that Defendant was erroneous in its belief that payments were past due
or missing. See id. Plaintiff Stacey White also relayed this information to
Defendant's counsel Baer, Timberlake in an attempt to correct Defendant's
failure to properly credit Plaintiffs' payments. See Exhibit 10. Despite relaying
such information, and despite the fact that Plaintiffs have not missed a
mortgage payment from April2010 to the filing of this suit, Plaintiffs continued
to receive phone calls threatening them with yet another baseless foreclosure
action. See id. Such a baseless foreclosure action would have been the third one
in eight (8) years! Plaintiffs were likewise subjected to Defendant's agents
repeated intrusions onto their Property when such intrusions were not
contemplated by the inspection provision in the Mortgage and were completely
unwarranted because Plaintiffs had not missed any payments. See Exhibits 5-6;
see also Exhibit 2 t ~ 7; Exhibit 9. Defendant has presented no evidence that
Plaintiffs ever avoided contact with Defendant's agents such that Defendant had
no choice but to send agents to Plaintiffs' Property, photograph it, photograph
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Plaintiffs Stacey and Shannon White's minor children and Shannon White's car,
and interrogate Plaintiffs' neighbors, friends, and employees. See Exhibits 5-6.
Thus, because disputed material facts exist as to the reasonableness of
Defendant's credit collection activities, summary judgment is inappropriate
under the requirements of Rule 13 of Rules for District Courts of Oklahoma and
OKLA. STAT. tit. 12, 2056.
CONCLUSION
On all Plaintiffs' claims, disputes of material facts exist such that
summary judgment, whether on the entire case or by partial interlocutory
summary judgment, is improper under Rule 13 of the Rules for District Courts
of Oklahoma and OKLA. STAT. tit. 12, 2056. Plaintiffs have met their burden
to resist summary judgment by providing the Court with evidence that shows a
reasonable probability that they will be able to produce competent, admissible
evidence at the time of trial.
WHEREFORE, Plaintiffs respectfully request the Court deny Defendant's
Motion and award Plaintiffs' the cost and expense of responding to Defendant's
Motion, including reasonable attorneys' fees; and for any such other and further
relief, including pre-and post-judgment interest, as the Court deems just and
proper under the circumstances.
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By:
Respectfully submitted,
Stauffer & Nathan, P.C.
e l E. Stauffer, OBA No. 13168
Jody R. Nathan, OBA No. 11685
Lawrence W. Zeringue, OBA No. 9996
Jessica L. Tait, OBA No. 30748
P.O. Box 702860
Tulsa, OK 74170-2860
Telephone (918) 592-7070
Facsimile (918) 592-7071
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on January 10, 2014, a true and
correct copy of the above and foregoing instrument was mailed via first class
mail, with proper postage to:
Mark E. Hardin
PIERCE COUCH HENDRICKSON
BAYSINGER & GREEN, LLP
Tulsa, OK 74
Attorneys for Defendant
Howard D. Perkins, Jr.
HOWARD D. PERKINS &ASSOCIATES, P.C.
P.O. Box 140218
Broken Arrow, OK 74014
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SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreemenf') is made and entered into between the Parties
on the Date of Agreement, both as defined herein, and subject to the tenns as follows:
DEF1NITIONS
Date of Agreement: F-eerumy_3._, 2010.
Parties: WeDs Fargo: Wells Fargo Bank, N .A.
Claimants: William Dutton, Jr., Stacy White and Shannon White.
Unless otherwise expressly provided, Wells Fargo and Claimants shall be collectively
referred to as the "Party" or "Parties."
Releason and Releasees: Wherever used herein the tenn Releasers shall mean
the Party, whether singular or plural, giving a release to another Party. The tenn Releasees shall
mean the Party, whether singular or plural, being released by another Party. Releasers and
Releasees, if an individual(s), shall include his/her/their present and future spouses (and common
law spouses), children, parents, relations, successors, beneficiaries, heirs, next of kin, assigns,
executors, administrators, and/or estate, or any and all other persons who could claim through
him/her/them; and if it is a business entity, each of its past, present and future directors, officers
(whether acting in such capacity or individually), shareholders, owners, partners, joint venturers,
principals, trustees, creditors, attorneys, representatives, employees, managers, parents,
subsidiaries, divisions, subdivisions, departments, affiliates, predecessors, successors, assigns
and assignees, or any agent acting or purporting to act for it or on its behalf.
RECITALS
A. William Dutton, Jr., has a mortgage loan with Wells Fargo under Account No.
708-0223912304 (the "Loan").
B. On May 21, 2008, the Parties engaged in litigation styled Wells Fargo Bank,
N.A .. Plaintiffv. William Dutton, Jr. et al., Defendants; District Court of Creek County, State of
Oklahoma, Case No. CJ-2008-698 (the "Action,).
C. In order to avoid the cost and uncertainty of further litigation and trial, the Parties
desire to compromise and settle the Action. each without admitting any liability, and to adjust
and settle their rights and obligations in connection with the Action and the Loan.
EXHIBIT.
13
D. In consideration of the mutual covenants contained in this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is agreed to among the Parties as follows:
TERMS
1. Recitals. The Recitals set forth above are incorporated herein by reference and
are made a part of this Agreement.
2. Settlement Consideration.
a. Wells Fargo shall:
i. Through counsel, execute a proposed Order disbursing the entire
balance of funds which have been paid by Claimants into the
District Court of Creek County in connection with the Action
pursuant to a April 27, 2009, Order Directing Payment of
Mortgage Payments Into Court, less poundage, if any, said funds to
be paid unto Wells Fargo, by delivering same to Wells Fargo's
attorney of record, Blake C. Parrott (the "Funds").
ii. Upon disbursement of the Funds and through counsel, execute and
file in the Action a Joint Stipulation of Dismissal Without
Prejudice;
iii. Take all available steps to clear any negative credit reporting from
January 1, 2004 to the date of this Agreement, relating to the
Loan; Together with any associated civil actions.
IV. Pay Three Thousand One-Hundred Fifty Dollars and No/100
Dollars ($3,150.00) to Claimants' attorney, Howard D. P e r ~ n s Jr.;
and
v. Release the Parties as provided for in Paragraph 3.
b. Claimants shall:
i. Through counsel, execute a proposed Order disbursing the Funds,
said Funds to be paid unto Wells Fargo, by delivering same to
Wells Fargo's attorney of record, Blake C. Parrott.
2
ii. Upon disbursement of the Funds and through counsel, execute and
file in the Action a Joint Stipulation of Dismissal Without
Prejudice;
iii. Release the Parties as provided for in Paragraph 3.
3. Releases. Releasers, hereby unconditionally and irrevocably remise, release and
forever discharge Releasees from any and all claims, counterclaims, actions, causes of action,
suits, set-offs, costs, losses, expenses, sums of money, accounts, reckonings, debts, charges,
complaints, controversies, disputes, damages, judgments, executions, promises, omissions,
duties, agreements, rights, demands, obligations and liabilities, of whatever kind or character,
direct or indirect, express or implied, whether known or unknown or capable of being known
from the beginning of time up to and including the date of this Agreement that relate to or
concern the Loan, the Action, and/or the servicing or administration of such Loan.
NOTWITHSTANDING THE ABOVE, THE PARTIES AGREE TO THE FOLLOWING
RESEllVATIONS AND EXCLUSIONS TO THE RELEASE.
Nothing in this Agreement shall be interpreted to apply to (a) claims arising out of the
failure of a Party to perform in conformity with the tenns of this Agreement; (b) any future
disputes between the Parties which arise out of any business transactions between the Parties; or
(c) extend the releases and discharges derivative from this Agreement to any business transaction
or any such relationship of any kind whatsoever other than the Loan and the Action as defined
herein, whether involving any of the businesses or individuals defined as Releasors and
Releasees or any one of such defined classes of persons or business entities.
4. Covenant Not to Sue. The Parties covenant not to sue, institute, cause to be
instituted, permit to be instituted on his/her/their/its behalf, or assist in instituting or prosecuting
any proceeding, or otherwise assert any claim against the respective Releasors and Releasees that
is covered by this Agreement. Except for any breach of any term of this agreement.
5. Attorney Lien Release. Any attorney signatory to this Agreement releases any and
all attorney liens and claims for any fees and costs against the Releasees regarding the Loan or
Action as applicable and by signing this Agreement so releases such lien right and claim.
6. Transactional Release. To the extent any claims arise in connection with entering
into this Agreement, Releasors agree to waive and release those claims, including, but not
3
limited to, claims arising under Real Estate Settlement Procedures Act (RESP A), Truth in
Lending Act (TILA), Equal Credit Opportunity Act (ECOA), Fair Credit Reporting Act (FCRA),
Fair Debt Collection Practices Act (FDCPA), or Home Ownership and Equity Protection Act
(HOEPA), and/or any state lending laws and regulations in consideration for the execution of
this Agreement. Except for breach of any tenn of this agreement.
7. Tax Indemnity. This Agreement is enforceable regardless of its tax
consequences. The Parties understand and agree that the payments set forth in this Agreement
reflect the settlement of disputed legal claims and that the Parties make no representations
regarding the Agreement's tax consequences. Claimants, however, specifically agrees that they
are solely responsible for any and all taxes, interest and penalties due and owing, if any, should
the payments or any portion thereof, be taxable.
8. Failure of Pw:pose. This Agreement is entered into only for purposes of
settlement. In the event that this Agreement is not fully executed within one hundred and eighty
(180) days of the Date of Agreement for any reason, this Agreement shall become null and void
at the option of any Party. Notice of such nullification option shall be given only in writing to
the address( es) below by the nullifying Party to the other Parties and shall be effective when
received. In that event, the Parties shall be absolved from all obligations under this Agreement,
and this Agreement, any draft thereof, and any discussion, negotiation, documentation, or other
part or aspect of the Parties' settlement discussions leading to the execution of this Agreement
shall have no effect and shall not be admissible evidence for any purpose. Any Settlement
Consideration shall be returned. In addition, the status of the Action shall revert to the status it
was in prior to settlement, and the Parties shall have all rights, claims and defenses that they had
or were asserting prior to this Agreement.
9. No Admission of Liability. This Agreement is not in any way an admission or
concession of the truth of any allegation by any Party, the validity of any claim asserted in the
Action, or any fault on the part of any Party, nor should this Agreement be construed otherwise.
Any and all such allegations are expressly denied.
10. Final and Binding Agreement. The Parties for and on behalf of their respective
Releasers and Releasees represent that they have fully read and understood this Agreement and
4
limited to, claims arising under Real Estate Settlement Procedures Act (RESPA), Truth in
Lending Act (TILA), Equal Credit Opportunity Act (ECOA), Fair Credit Reporting Act (FCRA),
Fair Debt Collection Practices Act (FDCP A), or Home Ownership and Equity Protection Act
(HOEPA), and/or any state lending laws and regulations in consideration for the execution of
this Agreement. Except for breach of any term of this agreement.
7. Tax Indemnitv. This Agreement is enforceable regardless of its tax
consequences. The Parties understand and agree that the payments set forth in this Agreement
reflect the settlement of disputed legal claims and that the Parties make no representations
regarding the Agreement's tax consequences. Claimants, however, specifically agrees that they
are solely responsible for any and all taxes, interest and penalties due and owing, if any, should
the payments or any portion thereof, be taxable.
8. Failure of Purpose. This Agreement is entered into only for purposes of
settlement. In the event that this Agreement is not fully executed within one hundred and eighty
( 180) days of the Date of Agreement for any reason, this Agreement shall become null and void
at the option of any Party. Notice of such nullification option shall be given only in writing to
the address(es) below by the nullifying Party to the other Parties and shall be effective when
received. In that event, the Parties shall be absolved from all obligations under this Agreement,
and this Agreement, any draft thereof, and any discussion, negotiation, docwnentation, or other
part or aspect of the Parties' settlement discussions leading to the execution of this Agreement
shall have no effect and shall not be admissible evidence for any purpose. Any Settlement
Consideration shall be returned. In addition, the status of the Action shall revert to the status it
was in prior to settlement, and the Parties shall have all rights, claims and defenses that they had
or were asserting prior to this Agreement.
9. No Admission of Liability. This Agreement is not in any way an admission or
concession of the truth of any allegation by any Party, the validity of any claim asserted in the
Action, or any fault on the part of any Party, nor should this Agreement be construed otherwise.
Any and all such allegations are expressly denied.
10. Final and Binding Agreement. The Parties for and on behalf of their respective
Releasors and Releasees represent that they have fully read and understood this Agreement and
4
acknowledge that this Agreement is final and binding on them and on their respective Releasers
and Releasees.
11. Knowing and Voluntary Agreement. The Parties represent that they are
represented by counsel of their choosing or that they have independently made their own analysis
and decision to enter into this Agreement, and that they consider this Agreement to be fair and
reasonable.
12. Waivers. The Parties acknowledge and agree that the released claims include all
claims of any nature and kind whatsoever, whether known or unknown, suspected or
unsuspected, which might or could have been asserted in the Action and that the Parties may
hereafter discover facts different from or in addition to, those which they now know, or believe
to be true with respect to the released claims identified herein. Nevertheless, the Parties agree
that the Agreement shall be and remain effective in all respects, notwithstanding such different
or additional facts, or discovery thereof. Except for breach of any tena of this agreement.
Notwithstanding anything else in this Agreement to the contrary, nothing herein shall in
any way change or affect the Loan or any of the tenns or provisions of any documentation
related thereto unless expressly otherwise provided for herein.
13. Construction of Agreement. Should any of the provisions or terms of this
Agreement require judicial interpretation, it is agreed that the Court interpreting or construing
this Agreement shall not apply a presumption that such provision(s) or tenn(s) shall be more
strictly construed against one Party by reason of the rule of construction that a document is to be
construed more strictly against the Party who prepared it, it being agreed that all Parties and their
counsel have participated in the preparation and review of this Agreement.
14. Complete Agreement. The Parties further agree, declare and represent that no
promise, inducement, representation or agreement not herein expressed has been made to any
Party or caused them to enter this Agreement. The Agreement contains the entire agreement
between the Parties and the tenns of the Agreement are contractual and not a mererecital. This
is a fully integrated agreement. It may not be altered or modified by oral agreement or
representation or otherwise except by a writing of subsequent date hereto signed by all parties in
interest at the time of the alteration or modification.
14 a If litigation becomes necessary to enforce any matterial condition
of this agreement the prevailing party shall be entitled to an award of their
reasonable
5
15. Severabilitv. Except for Paragraphs 2 and 3, the paragraphs of this Agreement are
severable. A finding that any particular paragraph of this Agreement is invalid and/or
unenforceable shall not affect the validity or enforceability of the remaining provisions of the
Agreement.
16. Countemarts and Facsimile Signatures. This Agreement may be executed in any
number of counterparts, and with facsimile signatures, with the same effect as if all of the Parties
hereto had signed the same document. All counterparts shall be construed together and shall
constitute one agreement. If a facsimile signature is provided, the original copy of that signature
will be sent via mail to the other Party. Absent an original signature, it is hereby understood and
agreed that a facsimile signature shall be binding upon the Parties and otherwise admissible
under the Best Evidence Rule.
17. Governing Law and Jurisdiction. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Oklahoma and the Parties consent to
venue as well as personal and subject matter jurisdiction in the Courts of the State of Oklahoma
for purposes of resolving any disputes which may hereinafter arise under this Agreement.
18. Use of Headings and Captions in Agreement. The headings and captions inserted
in this Agreement are for convenience only and in no way define, limit or otherwise describe the
scope or intent of this Agreement, or any provision hereof, or in any way affect the interpretation
of this Agreement.
19. Singular/Plural Intemretation. References to Party or Parties herein shall be
interpreted as singular and/or plural as the context of the reference dictates.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed under
seal in several counterparts, each of which is an original as of the date first written above.
Dated:
------
WELLS FARGO BANK, N.A.
By:
Jose Pinto, A Vice President
6
.. J....-/o
CLAIMANT
Dated:
By:
s}lit;'
CLAIMANT
By:
Shannon White

Dated: J
7
I, DEAN BINDER, have been retained by Stauffer & Nathan, P.C to provide an expert
opinion in connection with the case styled as William Dutton, Jr., Stacy White and
Shannon White v. Wells Fargo Bank, N.A.
EXPERT BACKGROUND AND QUALIFICATIONS
I have worked in consumer credit, consumer credit reporting and consumer credit
scoring industries for over 13 years.
From 1991 to 1997, I was employed by Equifax Credit Information Services, one of
the national credit reporting agencies. I spent most of those years in various roles,
including as a Quality Assurance Specialist, as a Maintenance Operator and as an
Assistant Manager of a team of consumer service agents, which handled thousands
of consumer contacts (both by telephone and mail) on a daily basis. In addition I
have reviewed over 100,000 consumer credit reports.
As one of the Equifax Team Leaders, I managed the Fraud Investigation Team
functions, including the reinvestigation process and adherence to productivity and
quality expectations. I worked closely with fraud victims to determine the accuracy
and validity of their consumer claims.
As a Quality Assurance Specialist, I was responsible for checking the accuracy and
integrity of specialty teams such as Consumer Fraud Victims, Mixed Credit Files,
Credit Repair Clinics, disputes and CDV processing (Consumer Dispute Verification
Forms). This included monitoring consumer calls, sampling the dispute input of
service agents and grading the adherence to company policy with respect to the
accuracy of each of the dispute events, including call scripting as needed. I followed
up with team members and delivered feedback for training purposes.
In addition to my consumer experience at Equifax, I also worked with customers
(data furnishers, purchasers and users of Equifax credit data and credit scores) at
the Small Business Sales Division selling Equifax products and services.
From 2001 to 2008, I was employed by the Fair Isaac Corporation. Fair Isaac is best
known for their work in credit risk score development. Their core product, the
"FICO" Credit Score, is wfdely known in the consumer credit and lending
environment and is by far the dominant credit risk score used in those industries.
EXHIBIT.
l:t
My time at Fair Isaac was spent in the Mid Markets Account Management and Sales
Division. I was responsible for new customer and renewal sales for a suite of Fair
Isaac loan origination products, including web-based credit decisioning, application
processing software and custom scorecards, including those specific to home
equity, revolving, indirect and direct lending. In this position, I routinely analyzed
and communicated to these new customers and renewal sales customers the effect
credit events had on an individual's FICO credit score and the impact that score
might have on the consumer and the customer.
In addition to my time at Equifax and Fair Isaac, I worked as Finance and Insurance
Manager at Morgan from 1997 to 1998. I was responsible for working directly with
lenders to secure financing for consumers purchasing large ticket recreational
vehicles. My duties included pulling and analyzing credit reports and FICO scores,
matching applicant credit risk with the most appropriate loan product given the
consumer's credit history and score. I then executed the final sales and finance
contracts between the consumer and lender. In this role I experienced first-hand
how a particular credit event could cost an individual consumer in a particular
transaction in terms of the cost and availability of consumer credit.
I have served as a credit expert for a personal finance website called Filife.com.
Filife is an lAC/Dow Jones joint venture.
I have served as a Credit and Credit Score Blogger for the New York Times.
I have not authored any publications in the last 10 years.
Because of my work at Fair Isaac and Equifax, I am well-versed on credit scoring,
scoring analysis and the use of credit scoring and credit models in the financial
services industry.
Cases from the last 4 years
Jensen v JP Morgan Chase & Co U.S.D.C., S.D. California.
Terri N. White, et al. v. Experian Information Solutions, Inc. et al. U.S.D.C C.D or
California
Johnson v Macys Retail Holding Inc. Gwinnett County Civil, State of Georgia
2
John R. Gilbert v TruWest Credit Union U.S.S.C State of Arizona
Tom Gallaway v Dell Financial Services State of South Carolina
Nicholas Hariton v Chase U.S.D.C Central California
Chase v Frank Severino Circuit Court of the Seventh Judicial Circuit, in and for Voulsia
County Florida
Judy D. Wright v. TransUnion, LLC, Equifax Information Services Civil Action
Nagy v Standard Insurance Co U.S.D.C Central California
Wells Fargo v. Cherveny U.S.S.C New York
Jestes v Saxon Mortgage U.S.D.C Central Nashville
Domercant v State Farm U.S. D.C. Northern District of Georgia Atlanta Division
Appel v PNC U.S.D.C Middle District of Florida, Tampa Division
Fregoso v Professional Collection Consultants U.S.D.C. Central District California
Haskett v Experian U.S.D.C Eastern District of Texas
Compensation
I am being paid $325 hr. for case review, report preparation, consulting, research,
investigation and travel. I am being paid $375/hr. for testimonial services, which
include depositions, hearings, and trial.
Documents Reviewed For This Matter
Dutton v Wells Petition
Dutton v Wells Third Amended Petition
Dutton v Wells Answers of Wells Fargo Bank to Plaintiffs' Third Amended Petition
Dutton v Wells Second Amended Petition
Dutton v Wells First Amended Petition
Dutton v Wells Answers
Dutton v Wells Plaintiff Dutton's Responses to Request for Admissions
Dutton v Wells Plaintiff Shannon White's Responses to Request for Admissions
Dutton v Wells Plaintiff Stacey White's Responses to Request for Admissions
Dutton v Wells Plaintiff William Dutton Responses to Discovery
Dutton v Wells Plaintiff William Dutton Responses to Admissions
Dutton v Wells Plaintiff Shannon White's Responses to Admissions
Dutton v Wells Plaintiff Stacey White's Responses to Request for Admissions
Dutton v Wells Plaintiff Shannon White's Responses to Discovery Requests
Dutton v Wells Plaintiff Stacey White's Responses to Discovery Requests
Dutton v Wells Plaintiff William Dutton Responses to Interrogatory No. 5
3
Dutton v Wells Plaintiff William Dutton Responses to 4th set of Discovery Requests
Dutton v Wells Plaintiff William Dutton Responses to 5th Request for Production
Dutton v Wells Plaintiff Shannon White's Responses to 3rd set of Discovery Requests
Dutton v Wells Plaintiff Stacey White's Responses to 3rd set of Discovery Requests
Dutton v Wells Plaintiff William Dutton Responses to 6th set of Discovery Requests
Dutton v Wells Answers of Wells Fargo Bank
Dutton v Wells Answers of Wells Fargo Bank to 2"d Amended Petition for Class
Action
Wells Fargo Mortgage Statements of William Dutton Jr 2011-2013
Miscellaneous Checks from Stacy and Shannon White to Wells Fargo Bank
Settlement Agreement between Claimants and Wells Fargo Bank
William Dutton Post Discharge Plan of Care
Letters from Stacey and Shannon White to Stauffer & Nathan
Various Witness Statements for Stacey White
Letter to William Dutton from Citi 2/12/11
Letter to William Dutton from HSBC 3/24/11
Investigation Results Letter to William Dutton from TransUnion 1/18/11
Letter to William Dutton from Home Depot Credit Services
Home Depot Account Statement of William Dutton 6/2/08
Credit Bureau Dispute Letters from William Dutton 2/28/11
TransUnion Credit Report of William Dutton 1/14/11
Equifax Credit Report of William Dutton 7/9/12
TransUnion Credit Report of William Dutton 7/29/10
TransUnion Credit Report Page of William Dutton 7/31/10
TransUnion Credit Report of William Dutton 9/28/10
Experian Credit Report of William Dutton 7/9/12
Experian Credit Report of Shannon White 7/9/12
Equifax Credit Report of Stacey White 7/9/12
Credit Reporting Agencies
1
A consumer credit report is the organized presentation of information about an
individual's credit record, which a credit-reporting agency communicates to those
requesting information about the credit history of an individual. A credit report
1
The infmmation provided in Credit Repm1ing Agencies is provided by the Federal Reserve at
http://www .federalreserve.gov/pubs/bulletin/2004/summer04 credit. pdf
4
includes information on an individual's experiences with credit, leases, collection
agency actions, monetary-related public records, and inquiries about the individual's
credit history. Credit reports, along with credit risk scores derived from the records
of credit-reporting agencies, have long been considered one of the primary factors in
credit evaluations and loan pricing decisions.- They are also widely used to select
individuals to contact for prescreened credit related solicitations.
The three national credit-reporting agencies- Equifax, Experian, and TransUnion-
collect comprehensive information on most individuals in the United States, and as a
consequence, the information that each agency maintains is vast with over
200,000,000 records maintained by each.
Credit Reporters I Grantors
2
Credit-reporting agencies collect information from "reporters" -creditors,
governmental entities, collection agencies, and third-party intermediaries. They
generally collect data every month, and they typically update their credit records
within one to seven days after receiving new information. According to industry
sources, each agency receives more than 2 billion items of information each month.
To facilitate the collection process and to reduce reporting costs, the agencies have
implemented procedures to have data submitted in a standard format, the so-called
Metro format. Data may be submitted through various media, including CD-ROM and
electronic data transfer. Reporters submit information voluntarily: No state or
federal law requires them to report data to the agencies or to use a particular format
for their reporting. As a result, the completeness and frequency of reporting can
vary.
Credit Scoring
3
Credit bureau based scores have been available since 1989 when FICO installed their
first "FICO" score at Equifax. Credit scores summarize the information on your
consumer credit report. The score is predictive of credit risk and is used by lenders
and insurance companies. FICO scores, which are the industry star:'dard, are
2
The information provided in Credit Reporters I Grantors is provided by the Federal Reserve at
http://www.federalreserve.gov/pubs/bulletin/2004/summer04 credit.pdf
3
The information provided in Credit Scoring is provided by FICO at
http://www .myfico.com/CreditEducation/Whatsln Y ourScore.aspx
5
calculated from different credit data variable groups. This data can be grouped into
five categories as outlined below.
Payment History- 35% of FICO Score
Account payment information on specific types of accounts (credit cards, retail
accounts, installment loans, finance company accounts, mortgage, etc.)
Presence of adverse public records (bankruptcy, judgments, suits, liens, wage
attachments, foreclosures etc.), collection items, and/or delinquency (past due
items)
Severity of delinquency (how long past due)
Amount past due on delinquent accounts or collection items
Time since (recency of) past due items (delinquency), adverse public records (if
any), or collection items (if any)
Number of past due items on file
Number of accounts paid as agreed
Amounts Owed- 30% of FICO Score
Amount owing on accounts
Amount owing on specific types of accounts
Lack of a specific type of balance, in some cases
Number of accounts with balances
Proportion of credit lines used (proportion of balances to total credit limits on
certain types of revolving accounts)
Proportion of installment loan amounts still owing (proportion of balance to
original loan amount on certain types of installment loans)
Length of Credit History-15% of FICO Score
Time since accounts opened
Time since accounts opened, by specific type of account
Time since account activity
New Credit- 10% of FICO Score
6
Number of recently opened accounts, and proportion of accounts that are
recently opened, by type of account
Number of recent credit inquiries
Time since recent account opening(s), by type of account
Time since credit inquiry(s)
Re-establishment of positive credit history following past payment problems
Types of Credit Used- 10% of FICO Score
Number of (presence, prevalence, and recent information on) various types of
accounts (credit cards, retail accounts, installment loans, mortgage, consumer
finance accounts, etc.)
General Allegations
4
and Opinions
Plaintiff William Dutton purchased real estate property in 2003 with a financial
institution. The loan was later transferred to Defendant Well Fargo who has
handled the servicing and accounting of the account to date. Plaintiff claims that
Wells Fargo has repeatedly failed to properly credit mortgage payments. Twice,
Wells Fargo has initiated foreclosure proceeding against Plaintiff. In March 2010, a
settlement agreement was entered into between Plaintiff and Wells Fargo,
whereby Defendant Wells Fargo agreed to (a) dismiss its action in foreclosure; (b)
waive all fees and costs associated with the foreclosure action; (c) execute a
settlement agreement which contains Wells Fargo's promise to "clear any negative
credit reporting" relating to the loan; and (d) pay $3,150 for attorneys' fees. Wells
Fargo has failed on its promise to clear the negative credit reporting resulting in
damaged credit of Plaintiff Dutton.
Opinion 1. Wells Fargo's Reporting of Plaintiff Dutton's Mortgage
Account as Severely Delinquent and Past Due is Damaging to Plaintiffs
Credit.
4
General Allegations are based mostly from the Third Amended Petition, should facts from the
Third Amended Petition change, I reserve the right to supplement my opinions.
7
I have reviewed the Plaintiff's credit reports as maintained by TransUnion from
7/29/10 and 1/14/11, Experian from 7/9/12 and by Equifax from 7/9/12. The chart
below is the late payment history report ing on the mortgage account by Wells
Fargo on Plaintif f's Equifax credit report from 7/9/12. The chart shows the number
of days past due for each month and year. For example, Well s has been reporting
that Plaint iff was 120 days past due the enti re year of 2009. Additionally, Wells
Fargo started re-reporting late payments in November 2010, continuing through
March of 2011.
--- --- ,--
I
-,--
I
I
I I
Uan
Apr
,Year Feb Mar May Jun Jul Aug

Oct Nov
-----
I
I
I
2011 30 60 30
2010 120 120 120


30
----
I
120 1. -..J.?S
f20
11Q.
1,gO 120 120
2009 120
-
......
!
2008 30 60
'
90 .120 120
.,-129
12_Q 1g0
!20
I
I
2007

120 120 120 120 30 60
I
--
1
2006

2005

I
boo4
l---
The chart below, by FICO, illustrates how scores are calcul ated from five distinct
categories of information in your credit reports. The percentages in the chart
reflect how important each of the categories is in determining a credit score.
5
5
http://www. mv fi co.com/ Credi tEducation/Whats In Y ourScore.aspx
8
Dec
I
90

Payment l1istory
Amounts ov-.ed
Length of credit hi s wry
C Nes credit
Types of credit used
The payment history category accounts for 35% of the points in a consumer's FICO
credit score. Presence, severity and recency of a delinquency is considered in the
(/Payment history" section of the FICO score. A consumer's score will be heavily
penalized when negative information, such as Wells Fargo's reporting of Plaintiff's
account as being severely delinquent over such a long period of time. A severe
delinquency can cause a creditor to list an account in default status, which can lead
to collection activities, charge-offs or, in Plaintiff's case, a foreclosure filing.
In the FICO ri sk-scoring system, the following negative events can effect one's
credit score the most: late payments, charge offs, liens, collections, repossessions,
foreclosures, settlements, bankruptcies, and judgments. Within this category, FICO
considers the severity of the negative items, the age of the negative items and the
prevalence of negative items. Recent is worse than older. More severe is worse
than less severe. The reporting of just one of these derogatory items can impact
Plaintiff' s credit score, his ability to open new accounts or refinance existing
accounts, and lead to higher interest rates. Compounding this late payment
reporting is the fact that Plaintiff has no other late payment history activity listed
on hi s other accounts or credit reports. If not for the Wells Fargo late payment
reporting, Plaintiff would have a perfect credit performance under the FICO
payment hi story category.
Pl aintiff has been directl y impact ed by the Well s Fargo reporti ng by way of account
closings and credit limit decreases.
On February 22, 2011, Home Depot Credit Services closed Plaintiff's revolving
account.
6
An adverse action letter f rom Home Depot states, "We have closed your
6
Letter from Home Depot Credit Services to William Dutton 2/22/ 11
9
account listed below based on information obtained from a consumer reporting
agency. Specifically, your credit report indicates a delinquent credit obligation,
either paid or unpaid." Plaintiff's available credit line with Home Depot was
$11,300.
7
On February 12, 2011, Citicorp Credit Services decreased Plaintiff's revolving credit
line.
8
An adverse action letter from Citi states, "We have decreased the credit line
on your Citi Diamond Preferred account to $500, of which $0 may be used for cash
advances. This decision was based on the information obtained from a consumer
reporting agency. Specifically, your credit report indicates a delinquent credit
obligation, either paid or unpaid, with another creditor."
Opinion 2. Wells Fargo did not Comply with the Terms of the
Settlement Agreement made with Plaintiff Dutton on March 3rd 2010.
On May 21, 2008, Wells Fargo and Plaintiff engaged in litigation which was a
foreclosure action initiated by Wells Fargo. Both parties agreed to compromise and
settle the action, each without admitting any liability, and to adjust and settle their
rights and obligations in connection with the action and the loan.
In the Settlement Agreement
9
, Defendant Wells Fargo agreed to (a) dismiss its
action in foreclosure; (b) waive all fees and costs associated with the foreclosure
action; (c) Take all available steps to clear any negative reporting from January 1,
2004 to the date of this agreement (March 2010), relating to the loan (d) pay
$3,150 for attorneys' fees.
Credit Reports for Plaintiff clearly show that Wells Fargo did stop reporting the
monthly severe delinquencies the month after the agreement, in April 2010.
However, they started reporting new delinquencies 8 months later in November
2010, continuing through March 2011. Additionally, they did not clear the negative
reporting prior to the Settlement Agreement as promised. The agreement
proposed all negative reporting from 2004 to 2010 be cleared. The chart below
7
Home Depot Account Statement for. William Dutton 6/28/08
8
Letter from Citi to William Dutton 2/12/11
9
Settlement Agreement 3/3/2010 between Plaintiffs and Wells Fargo Bank
10
from Plaintiff's 7/9/12 Equifax credit report shows that Well s Fargo is still reporting
late payments for Plaintiff from 2007 to the Settlement date of March 2010.
Gan
'Mar
I
Uul
I
'oct
I
Year Feb Apr May Jun Aug
s ~
Nov
- -!- -
I
2011 30 60 30
~
2010 120 120 120
~
30
..,j
2009 120 120 120 120 120 120
--
120
f ~
120 11Q. 120
-
~ 8
30 60 90 120
129 120 120 120
1f9. 120
I
1
60 2007 * 120 120 120 120 30
~ 6
*
I
2005 *
2004

I
------
The Equifax payment history key from Plaintiff's credit report shows the reported
delinquency associated with the dat e and month. Had Well Fargo cleared the
negati ve reporting, all the fi elds from 2004 to March 2010 would have the green *
symbol, whi ch is Pays or Pai d as Agreed.
II
Dec
I
90
_l
Payment History Key
Meaning Symbol
Pays or Paid as Agreed:
30-59 Days Past Due: 30
60-89 Days Past Due: 60
90-119 Days Past Due: 90
120-149 Days Past Due: 120

150-179 Days Past Due: 150.
By not changing this payment history information as outlined in the settlement
agreement, Plaintiff is likely to receive denials or credit or approvals with higher
interest rates, account closings, lower credit limits, lower credit scores, increased
interest rates on existing accounts and higher insurance premiums.
Changing payment history on an account is a process that can be performed with
little effort. Wells Fargo could have corrected this reporting via its monthly or bi-
monthly credit reporting format known as "Metro 2,
11
which is the industry
standard for reporting debtor information to credit reporting agencies. Another
option would have been submitting an AUD (Automated Universal Data Form) to
each of the bureaus. The AUD process is typically used to update a consumer's
account activity between monthly reporting cycles as detailed above.
I declare under the laws of the state of Georgia that the foregoing is true and
accurate to the best of my ability based on the documents I have received and
reviewed and that this Expert Opinion was signed in Buford, Georgia on January 10,
2014.
Dean Binder
12