United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.
brought this action on May 19, 2017, against 16 defendants,
alleging multiple violations of the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. §§ 1681-1681x.
See Compl. [Doc. No. 1] at 3. Before the Court is a
Notice of Bankruptcy [Doc. No. 11], filed June 21, 2017, on
behalf of 15 defendants (collectively, “TXU Energy
Defendants”).TXU Energy Defendants ask the Court to stay
these proceedings with respect to them during the pendency of
bankruptcy proceedings involving Energy Future Holdings
Corporation (“EFH”). Plaintiff filed a response
in opposition [Doc. No. 12], asserting primarily that the
instant action is not one which could have commenced prior to
EFH's filing of bankruptcy.
to the Notice of Bankruptcy and attached exhibits [Doc. Nos.
11-1, 11-2], Defendant EFH and 70 affiliated companies each
filed voluntary petitions for Chapter 11 bankruptcy on April
29, 2014. See Ex. A, Pet. [Doc. No 11-1] at
On August 29, 2016, the United States Bankruptcy Court for
the District of Delaware entered an order confirming the
Third Amended Joint Plan of Reorganization, Ex. B,
Confirmation Order [Doc. No. 11-2], which went into effect
October 3, 2016, as to Texas Competitive Electric Holdings
Company LLC and its subsidiaries (“TCEH
Debtors”). See Id. at 92, 117, 120, 137,
144-49, 152-165. TXU Energy Defendants assert that all
Defendants except EFH and Experian are “TCEH
Debtors” and therefore, “Released Parties.”
See Notice of Bankruptcy [Doc. No. 11] at 3-4; Ex.
B, Confirmation Order [Doc. No. 11-2] at 112.
to § 362 of the Bankruptcy Code, the filing of a
bankruptcy petition “operates as a stay, applicable to
all entities, of . . . the commencement or continuation . . .
of a judicial . . . action or proceeding against the debtor
that was or could have been commenced before the commencement
of the case . . . or to recover a claim against the debtor
that arose before the commencement of the case[.]” 11
U.S.C. § 362(a)(1). Broadly citing to 11 U.S.C. §
362(a)(1), the Complaint [Doc. No. 1], and TXU Energy
Defendants' Notice and Ex. A, Pet. [Doc. Nos. 11, 11-1],
Plaintiff asserts that the instant action “is not one
which could have been commenced” prior to EFH's
bankruptcy filing, and therefore, any automatic stay
“effective with respect to EFH … is not
applicable to [the] instant action.” Pl.'s Resp.
[Doc. No. 12] at 1.
Tenth Circuit has adopted the “conduct theory” in
ascertaining when a claim arises for purposes of the
Bankruptcy Code. See In re Parker v. Parker, 264
B.R. 685, 696 (B.A.P. 10th Cir. 2001). A claim
arises at the time the debtor commits the conduct that gives
rise to the claim. Id.
Plaintiff has sued 16 defendants for conduct regarding a
consumer debt that allegedly was a result of identity theft.
Plaintiff states that he discovered the false information
when he was denied a mortgage loan and obtained a copy of his
credit report from Defendant Experian on May 5, 2016, and
learned that the report showed a trade line debt for $107.00
to TXU Energy. Compl. [Doc. No. 1] at 5.
Fair Credit Reporting Act (“FCRA”) provides a
consumer with a private right of action against a person who
furnishes credit information to consumer reporting agencies
if the furnisher violates a statutory duty imposed by Section
1681s-2(b)(1). These duties arise when a furnisher of
information receives notice of a dispute from a consumer
reporting agency. See 15 U.S.C. §
1681s-2(b)(1); see also Sanders v. Mountain Am. Fed.
Credit Union, 689 F.3d 1138, 1147 (10th Cir.
2012); Pinson v. Equifax Credit Info. Services,
Inc., No. 08-5063, 2009 WL 595991, at *4
(10th Cir. March 10, 2009)
(unpublished) (statutory duties listed in Section
1681s-2(b) for furnishers arise only after the furnisher
receives notice of a dispute from the credit reporting
agency). When the furnisher receives notice of the dispute
from the credit reporting agency, it must perform the
verification and correction duties outlined in Section
1681s-2(b). Sanders, 689 F.3d at 1147.
alleges in his Complaint that TXU Energy Defendants are
“furnishers of information” within the meaning of
the FCRA. See Compl. [Doc. No. 1] at 4. Plaintiff
maintains that he initiated the dispute notification process
on May 5, 2016, when he sent letters to TXU Energy Defendants
and Defendant Experian, disputing the trade line debt of
$107.00 and the accuracy of his credit report. Id.
Defendant Experian admits it is a “consumer reporting
agency” within the meaning of 15 U.S.C. §
1681a(p). See Def. Experian's Answer [Doc. No.
9] at 3.
asserts that subsequent to May 5, 2016, Defendant Experian
sent a dispute notification to TXU Energy Defendants
concerning the trade line item in Plaintiff's Experian
credit report. See Compl. [Doc. No. 1] at 6.
Plaintiff further maintains that TXU Energy Defendants
falsely verified to Defendant Experian that Plaintiff was
personally liable for the disputed debt and the amount was
still due. Id.
on the foregoing chronology of events, as alleged by
Plaintiff, the Court finds that TXU Energy Defendants'
conduct giving rise to Plaintiff's claim occurred
post-petition. Plaintiff's claim did not arise until
sometime after May 5, 2016, and the bankruptcy petition was
filed two years before. As such, Plaintiff's claim is not
subject to the automatic stay. “[B]ankruptcy was
intended to protect the debtor from the continuing costs of
pre-bankruptcy acts but not to insulate the debtor from the
costs of post-bankruptcy acts.” In re Grynberg v.
Danzig Claimants, 143 B.R. 574, 576 (D. Colo. 1990),
citing Matter of Hadden, 57 B.R. 187, 190 (Bankr.
W.D. Wis. 1986).
362(a)(1) does not operate to stay Plaintiffs claims against
TXU Energy Defendants. Accordingly, the Court declines to
stay the present action.