Defendant NexBank, SSB's Motion to Dismiss Plaintiffs' First - MOTION - DISMISS July 02, 2014 (2024)

 
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 l DALLAS COUNTY 7/2/2014 4:26:16 PM GARY FITZSIMMONS. DISTRICT CLERK Cause No. DC-13-01765 Leonel DeLeon, David Futch, Shiva Olumi, & IN THE DISTRICT COURT y Stephen Perkins, Stephen Sisk, Adrian Storey, and Robert Sturm, § Plaintiffs, § vs. § Vertical Screen, Inc. d/b/a Business Information Group, Equifax Information Services, LLC, CSC Credit Services, Inc., Experian Information Solutions, Inc., Asset Acceptance, LLC, Bank of America Corporation a/k/a FLA Card Services, $ Capital One Bank (USA), NA, Citifinancial, Inc., Comn Credit Corporation, Inc., First Horizon Home Loan Corporation, First United Bank & DALLAS COUNTY, TEXAS Trust Company, General Electric Capital Corporation, General Electric Money Bank § Lending, Inc, d/b/a GEMB Lending, Inc., GMAC d/b/a Ally Financial Inc. d/b/a GMAC LLC d/b/a GMAC, Inc., HSBC Card Services, Inc., Innovate Loan Servicing Corporation, Sterling Jewelers, Inc. d/b/a Jared Jewelers, KeyBank, NA, Liberty s Mediation Group, Inc., Toyota Motor Credit § Corporation d/b/a Lexus Financial Services d/b/a Lexus Financial Savings Bank, LVNV Funding LLC, Merrick Bank, National Credit Adjusters, 8 LLC, NexBank, SSB, PNC Bank, National Association, Portfolio Recovery Associates, Iuc., Procollect, Inc., Specialized Loan Servicing, LLC, Target National Bank, U.S. Bank National Association, United Revenue Corporation, VeriChek, Inc., Wells Fargo Bank, N.A., Wells Fargo Financial Mortgage, LLC, and Alliance Data Systems Corporation, § Defendants. § 298" JUDICIAL DISTRICT DEFENDANT NEXBANK SSB’S MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED PETITION AND REQUEST FOR DISCLOSURE UNDER THE TEXAS CITIZENS PARTICIPATION ACTDEFENDANT’S MOTION TO DISMISS UNDER CITIZENS, PARTICIPA TION ACT bof27TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW NexBank SSB, Defendant in the above-styled cause (“Defendant” or“NexBank”), and files Defendant's Motion to Dismiss Plaintiffs’ First Amended Petition andRequest for Disclosure Under the Texas Citizens Participation Act (the “Motion”) in response toPlaintiffs’ First Amended Petition and Request for Disclosure (the “Amended Petition”) byPlaintiffs Leonel DeLeon, David Futch, Shiva Olumi, Stephen Perkins. Stephen Sisk, AdrianStorey, and Robert Sturm (collectively, “Plaintiffs”), Plaintiffs in the above-styled cause. Insupport of the foregoing, Defendant would respectfully show as follows: TABLELh OF sCONTENTSINTRODUCTION.PROCEDURAL HISTORY AND BACKGROUND... THE COMMERCIAL LOAN 0... THE INDIVIDUAL LOAN ......... 10ARGUMENTS AND AUTHORITIES A The Claims Against NexBank Are Subject to the TCPA. ..ccccccssessccneseeseeeeetseeseete 12 A Produet in the Marketplace 14 2. Economic Well-Being 16 Mr. Perkins Cannot Establish a Prima Facie Case of Defamation Against NexBank 17 1 Mr. Perkins Cannot Establish the Alleged Statement Was False ......0.0.0c:ccceee 18 2.2 The Aileged Statement is Not Defamatory Per Se. ..cccccccccseccceeccessesteeeeseeetestsseesteeesese 21 2 3 There Can Be No Liability Without Fault 22PRAYER 24DEFENDANT'S MOTION TO DISMISS UNDER CITI ARTICL TION ACT 20827I INTRODUCTION The defamation claim against Defendant NexBank should be dismissed because the supposedly defamatory statement is privileged as to lenders who make statements to credit reporting agencies. Plaintiffs’ defamation claim against NexBank should also be dismissed because Plaintiffs Leonel DeLeon, David Futch, Shiva Olumi, Stephen Perkins, Stephen Sisk, Adrian Storey, and Robert Sturm (collectively, “Plaintiffs”) do not assert any factual basis for a supposed publication or that such supposed publication was made negligently or with malice. Moreover, the Amended Petition and Plaintiffs possess no facts to substantiate their claims that the supposed statement injured Plaintiffs in his/her profession, office, or occupation. Plaintiffs, and in particular Stephen Perkins (“Mr. Perkins”), allege by implication that xBank at some unknown point in time made an unspecified false statement to CSC Credit Services, Ine. (*CSC”) and Experian Information Solutions, Inc. (“Experian”), which later ended up in Mr. Perkins redit file. The Amended Petition fails to identify the specific alleged false statement, the specific publication by NexBank, Mr. Perkins’s profession, and Mr. Perkins’s damages, if any. Simply, Mr. Perkins’s defamation claims against NexBank are baseless. Plaintiffs’ causes of action against NexBank are based solely upon Plaintiffs’ claim thatPlaintiff Stephen Perkins’s credit file contains the following words: “NexBank SSB 701 ....” and “NexBank SSB 702 ....” Plaintiffs claim that such information caused a “barrage of personal attacks” against them and assert causes of action against NexBank for libel, common Jaw defamation, and defamation with malice. The Court should swiftly dismiss the claims against NexBank under the Texas Citizens Participation Act (*T CPA”), Chapter 27 of the Texas Civil Practice and Remedies Code. The Legislature enacted the TCPA to proteet the rights of persons to exercise their right of free onDEFENDANT'S MOTION TO DISMISS UNDER CITIZENS PARTICIPATION ACT. 3 of 27speech in connection with issues related to matters of public concern without risking expensiveand meritless lawsuits. The alleged transmission of any information or statement by NexBank toCSC or Experian is plainly related to an issue touching upon a matter of public concern becauseany alleged statement or transmission of information pertaining to Mr. Perkins’s financial statusis related to issues of “economic well-being” and a “good, product, or service in themarketplace.” Tex. Civ. Prac. & REM. CODE § 27.001(7). Thus, the TCPA applies to any allegedfalse statement made by NexBank about Mr.Perkins, and consequently, Plaintiffs. andspecifically Mr. Perkins, bears the burden of proving by “clear and specific evidence” eachessential element of Plaintiffs’ and Mr. Perkins’ claims. /d. § 27.003(a), 27.005(b), 27.005(c).Because Plaintiffs, and specifically Mr. Perkins, cannot establish each essential element of his laims, such claims must be dismissed. /d. §s 27.005(b), 27.005(c). Accordingly, pursuant to the TCPA, the Court should (1) stay all discovery in the caseuntil it has ruled on the Motion (see TEX. Civ. PRAc, & REM. CODE C § 27.003(c)); (2) hold oralargument (if necessary) within 90 days after service of the Motion (see TEX. Crv. PRAc. & REM.CODE § 27.004(a)); (3) dismiss the claims against NexBank within 30 days of any hearing on theMotion (see Tex. Civ. Prac. & REM. Copr § 27,005): and (4) award NexBank “court costs,reasonable attorney’s fees, and other expenses.” (see TEX. Civ. Prac. & REM. CODE 8 x27.009(a)(1)), and sanctions “to deter [Plaintiffs] from bringing similar actions” in the future,(see TEX. CIV, PRAC, & REM. CODE § 27.009(a)(2)). IL. PROCEDURAL HISTORY AND BACKGROUND NexBank is one of thirty-plus defendants that Plaintiffs deseribe as “Data FurnishingDebt Collectors.” Plaintiffs are individual consumers whose credit files allegedly containinaccurate, incomplete, or outdated data. Plaintiffs contend the “Data Furnishing Debt Collectors senmnneDEFENDANT" MOTION TO DISMISS UNDER CITIZENS PARTICIPATION ACT 40f27furnished inaccurate and incomplete data about each plaintiff’ to multiple credit-reporting agencies (“CRAs”), “damaging each plaintiff”! Instead of setting forth facts to support their assertion that defendants published defamatory statements concerning Plaintiffs, Plaintiffs state: The Data Furnishing Debt Collectors are in the business of collecting money; consequently, they will furnish inaccurate data about Plaintiffs to the CRAs in their zealous efforts to increase their profit margins. ... The Data Furnishing Debt Collectors pay the CRAs to report this inaceurate data about Plaintiffs to their potential creditors or employers in a campaign to extort money from anyone that will become desperate enough to pay in order to cease the barrage of personal attacks that will imperil and ultimately min their financial security.” Plaintiffs assert claims against NexBank under Section 73.001 of the Texas Civil Practice and Remedies Code (jibel) and for common law defamation and defamation with malice. Throughout the factual allegations in Plaintiffs’ Petition, NexBank is specifically referenced only one time, in connection with claims brought by one of the Plaintiffs, Stephen Perkins. Although Plaintiffs state that other defendants, CSC and Experian, “knowingly furnished false information about Mr. Perkins’s creditworthiness, credit standing, or credit capacity to thirdparties,” the only specific reference to NexBank is contained in Paragraph 83, which states: The inaccurate and incomplete information in Mr. Perkins’ credit file includes, but may not be limited to: Ally Financial 61191725....; Sears / CBNA 50499415....; BB&T 46160811....: Tarrant District Court 15324628310; Dallas County Courthouse 1007591D; Wells Fargo Home Mortgage 106112713....: Wells Fargo Home Mortgage 106112714....3 Capital One 517805972786....: Chase 465152426 wh Chase 465152426.. Citibank i/ Shell 730950... FIA CSNA 558846499776,. Heartland Leasing Corp 1806....: HSBC / Neiman: 4910001....; Keybank 321102344 ; NexBank SSB 701 NexBank SSB 702. : PNC Mortgage 433000548 Special zed Loan Servicing ' See Plaintiffs’ First Amended Petition and Request for Disclosure (“Amended Petition’) p. 12, € 47.* Plaintiffs’ Petition p. } | 49-50 (emphasis added).* Plaintiffs’ Petition p. 2 "82DEFENDANT": 'S MOTION TO DISMISS UNDER CITIZENS PARTICIPATION ACT Sof 27100439....; US Bank 51133 .) Vericheck 6724....; Wells Fargo Bank 446542018620... Wells Fargo Bank 549096019124....; Wells Fargo Bank 549096019124... America’s Servicing Company 106112714...; Chase Manhattan Mortgage 152426....; Citibank / Shell 730950... GMAC Mortgage 63011....5 America’s Servicing Company 106112713....; First Horizon Home Loans 481005998. First Horizon Home Loans 481005999 First Horizon Home Loans 481005999....: First Horizon Home Loans 481005999, ...; JP Morgan Chase XXXXXXXX3965; Wells Fargo Bank, NA XXX7219: Wells Fargo Bank, NA XXX2948; Wells Fargo Bank, NA XXX1096; Wells Fargo Bank, NA XXX2948." Although Plaintiffs refer to “Defendants” generally, there are no other specific referencesor factual allegations concerning NexBank. Plaintiffs contend “such inaccurate and incompleteinformation also constitutes false information since the Defendants previously failed to modifyand convert the inaccurate and incomplete information into accurate and complete information 5prior to the expiration of the previously triggered statutory reinvestigation period. Plaintiffsstate that the “ongoing reporting of false information continues to deprive Mr. Perkins ofcreditworthiness.”° Plaintiffs allege that certain other defendants, but not NexBank, “reported theinaccurate or unverified information” and “knowingly furnished false information about Mr.Perkins’s creditworthiness, credit standing or credit capacity to third parties. wT THE COMMERCIAL LOAN On or around March 31, 2006, NexBank SSB, as lender, and P.S. Royal Car Wash, L.P.,as borrower (“Royal Car Wash”), executed that certain Promissory Note, whereby NexBankloaned $],242,688.00 to Royal Car Wash (the “Note™); Royal Car Wash also executed a Deed ofTrust and a Security Agreement (together and including all additional loan extensions andmodifications described herein as the “Loan”). A true and correct copy of the Note, Deed of sn* Plaintiffs’ Petition pp. 23-2 ‘4,© 83 (emphasis added). Plainti: Petition p. mM* Plainti Petition p. m4 Plainti 2 Petition p. 25 paDEFENDANT’S MOTION TO DISMISS UNDER CITIZENS PARTICIPATION ACT “60627Trust, and Security Agreement are attached hereto as Exhibit “A-1” and incorporated herein byreference. The Loan is internally referenced by NexBank under Loan Number 7017874. Inconnection with the Loan, Plaintiff Stephen F. Perkins, Chuck Sackley (*Mr. Saeckley”), and GPRoyal Car Wash, LLC--the general partner of Royal Car Wash—(“Royal GP, LLC”) executedthat certain continuing and unconditional Guaranty, dated effective March 31, 2006, wherebyMr, Perkins, Mr. Sackley, and Royal GP, LLC guaranteed payment of the Loan (the“Guaranty”). A true and correct copy of the Guaranty is attached hereto as Exhibit “A-2” andincorporated herein by reference. Approximately one year later, NexBank and Royal Car Wash entered into that certainLoan Modification Agreement, dated effective January 2, 2007, increasing the prineipal amountof the Note from $1,242,688.00 to $1,726,630.00 (the “Modification”). A true and correct copyof the Modification is attached hereto as Exhibit “A-3” and incorporated herein by reference.Also on or about January 2, 2007, together with the Modification, Car Wash Resources, LP(“Car Wash Resources”) and Epic Homes. Ltd. (“Epic Homes”) (collectively, the “NewGuarantors”) executed and delivered to NexBank a Guaranty for the additional indebtedness (the“ Second Guaranty”). A true and correct copy of the Second Guaranty is attached hereto asExhibit “A-4” and incorporated herein by reference. On or around December 31, 2007, NexBank and Royal Car Wash entered into a LoanExtension and Modification Agreement, dated effective December 31, 2007, wherein NexBankloaned additional monies to Royal Car Wash and increased the principal balance of the Loanfrom $1.726,630.00 to $2,226,630.00 (the “First Loan Extension”) and extended tbe maturitydate of the Loan to August 30, 2008. A true and correct copy of the First Loan Extension isattached hereto as Exhibit “A-5” and incorporated herein by reference. In connection with theDEFENDANT'S MOTION TO DISMISS UNDER CITIZENS PARTICIPATION ACT Tof27First Loan Extension, Mr. Perkins, Mr. Sackley, and Royal GP, LLC each executed a separateAcknowledgement of Guarantor, dated effective December 31, 2007 (collectively, the “FirstAcknowledgements”). True and correct copies of the respective First Acknowledgements areattached hereto as Exhibit “A-6" and incorporated herein by reference. Around August 30, 2008, NexBank and Royal Car Wash entered into that certain SecondLoan Extension and Modification Agreement, dated effective August 30, 2008, whereinNexBank extended the maturity date of the Loan to November 30, 2008 (the “Second LoanExtension”). A true and correet copy of the Second Loan Extension is attached hereto as Exhibit“A-7" and incorporated herein by reference. In conjunetion with the Second Loan Extension,Mr. Perkins, Mr. Sackley, and Royal GP, LLC each exceuted a separate Acknowledgement ofGuarantor, dated effective August 30, 2008 (collectively, the “Second Acknowledgements”).True and correct copies of the respective Second Acknowledgements are attached hereto asExhibit “A-8” and incorporated herein by reference, Again, in November of 2008, NexBank and Royal Car Wash entered into that certainThird Loan Extension and Modification Agreement, dated effective November 30, 2008, whereinNexBank increased the principal balance of the Loan from $2,226,.630.00 to $2,691,630.00 andextended the maturity date of the Loan to November 29, 2009 (the “Third Loan Extension”). Atrue and correet copy of the Third Loan Extensien is attached hereto as Exhibit “A-9” andincorporated herein by reference. In combination with the Third Loan Extension, Mr. Perkins,Mr. Sackley, and Royal GP, LLC each executed a separate Acknowledgement of Guarantor,dated effective November 30, 2008 (collectively, the “Third Acknowledgements” and togetherwith the First and Seeond Acknowledgments, the “Guaranty Acknowledgements”). True and JANT'S MOTION TO DISMISS UNDER CET iS PARTICIPATION ACT 8 of 27correct copies of the respective Third Acknowledgements are attached hereto as Exhibit “A-10”and incorporated herein by reference. Moreover, Royal Car Wash, as grantor, executed that certain Deed of Trust, datedeffective November 30, 2008, in favor of NexBank, SSB, as beneficiary, which secured the Loanwith two (2) separate pieces of real property, as described on Exhibit A and Exhibit B attachedthereto (the “Deed of Trust”). The Deed of Trust is attached hereto as Exhibit ““A-11” and isincorporated herein by reference. By and through the First Loan Extension, Second Loan Extension, and Third LoanExtension (collectively, the “Loan Extensions”), Royal Car Wash owed more than $2.6 millionunder the Lean. Moreover, Mr. Perkins, under the Guaranty, and by and through the GuarantyAcknowledgments, unconditionally guaranteed and obligated himself to pay all principal,interest, losses, damages, costs, reasonable attorneys’ fees, and expenses suffered by NexBank ifRoyal Car Wash defaulted and failed to satisfy the Loan in full, The Loan matured on November 29, 2009, and Royal Car Wash failed to satisfy theLoan, despite NexBank making demand. On February 2, 2010, NexBank, Royal Car Wash, Mr.Perkins, Royal GP, LLC, and Car Wash Resources executed that certain Forbearance Agreement(the “Forbearance Agreement”); a true and correct copy of which is attached hereto as Exhibit“A-12” and incorporated herein by reference. Pursuant to the Forbearance Agreement, Royal CarWash executed and delivered to NexBank that certain Warranty Deed in Lieu of Foreclosure,filed on April 12, 2010 with the Denton County, Texas public records, conveying the securedreal estate collateral to NexBank (the “Deed in Lieu”). A true and correct copy of the Deed inLieu is attached hereto as Exhibit “A-13" and incorporated herein by reference. Under theForbearance Agreement and in connection with executing the Deed in Lieu, Mr. PerkinsDEFENDANT'S MOTION TO DISMISS UNDER CITIZENS: PARTICIP ATION ACT 9 of 27acknowledged and agreed NexBank would not be precluded from seeking any deficiency fromhim personally under the Guaranty, if the conveyed real property did not satisfy the outstandingbalance under the Loan. See Ex. A-12. In addition, NexBank foreclosed on a second piece of underlying real estate collateral onMay 4, 2010, more commonly known as 26770 US Highway 380 East, Little Elm, Texas 76227.As a result of the foreclosure, NexBank credited the Loan (Account/Loan Number 7017874) inthe amount of $1,547,000.00. See a true and correct copy of NexBank records related to the May4, 2010 foreclosure attached hereto as Exnipl Exhibit “A-14" (collectively, “Foreclosure Documents”)and incorporated herein by reference. NexBank also recovered a judgment against Royal CarWash, Mr. Perkins, Mr. Sackley, Royal GP, LLC, Carwash Resources, and Epic Homes in theamount of $1,619,027.39 for actual damages and attorneys’ fees, in that certain matter styledNexBank, SSB v. P.S. Royal Car Wash, LP, et al: Cause No. DC-10-04608, in the 160" JudicialDistrict Court of Dallas County, Texas (the “Deficiency Litigation”), by way of that certain FinalSummary Judgment, signed August 11. 2011 (the “Judgment”). A true and correct copy of theJudgment is attached hereto as Exhibit A-15” and incorporated herein by reference, THE INDIVIDUAL LOAN On or around June 30, 2009, NexBank SSB, as lender, and Stephen Perkins, as borrower,exeeuted that certain Promissory Note and Security Agreement (the “Individual Note”), wherebyNexBank loaned 523,000.00 to Stephen Perkins and Mr. Perkins agreed to repay the $23,000.00loan plus interest on November 29, 2009 (referred to hereinafter as the “Individual Lean”). A trueand correct copy of the Individual Note is attached hereto as Exhibit “A-16” and incorporatedherein by reference. The Individual Loan is internally referenced by NexBank under LoanNumber 7020316. Mr. Perkins also executed that certain Business Purpose Statement, wherein heDEFENDANT'S MOTION TO DISMISS UNDER CITIZENS PARTICIPATION ACT Woof 27represented that the $23,000.00 would be used for capital/business expenses of the “Car Wash,”dated June 30, 2009 (the “Business Purpose Statement”). A true and correct copy of the BusinessPurpose Statement is attached hereto as Exhibit “A-17" and incorporated herein by reference. As part of this transaction, Car Wash Resources, LP executed that certain GuarantyAgreement in favor of NexBank, SSB, dated June 30, 2009 (the “Individual Guaranty”). A trueand correct copy of the Individual Guaranty is attached hereto as Exhibit “A-18" .. and incorporatedherein by reference. In conjunction with the Individual Guaranty, Car Wash Resources caused theIndividual Loan to be secured by that certain 2005 Porsche Cayenne, Vehicle IdentificationNumber PAA29P35LA21670 (the “Porsehe”) the title to which was held by Car WashResources. True and correct copies of the Porsche Vehicle Title, Risk Grade Review, LoanApproval Request, and NexBank Collateral/Credit Monitoring (collectively, the “CollateralRecords”) are attached hereto collectively as Exhibit “A-19" and incorporated herein byreference, Mr. Perkins failed to repay the Individual Loan on November 29, 2009, and as a resultdefaulted thereunder. On or around March 29, 2010, NexBank sent Mr. Perkins that certaincorrespondence, wherein NexBank notified Mr. Perkins of tbe past due amount of $25,623.89 anddemanded payment thereof (the “Defaujt Letter”). On or around May 5, 2010, Mr. Perkinsdelivered the Porsche to NexBank and NexBank signed that certain Receipt of Vehicle (the“Receipt”). Due to the failure to repay the Individual Loan, Mr. Perkins. on behalf of Car WashResources, executed that certain Power of Attomey to Transfer Motor Vehicle, dated May 28,2010 (the “POA”), such that NexBank could sell the Porsche and use the sale proceeds to creditthe outstanding Individual Loan balance. NexBank sold the Porsche for $20,600.00, leaving anunpaid principal balance of $2,400.00. True and correct copies the Default Letter, RepossessionDEFENDANT’S MOTION TO DISMISS UNDER CITIZENS PARTICIPATION ACT. LE of 27Order, Receipt, POA, and Loan Charge Off Memorandum (collectively, the “Repo Documents”)are attached hereto collectively as Exhibit “A-2 * and incorporated herein by reference. WY. ARGUMENTS AND AUTHORITIES A, The Claims Against NexBank Are Subject to the TCPA. The purpose of the TCPA is “to encourage and safeguard the constitutional rights ofpersons to petition, speak freely, associate freely, and otherwise participate in government to themaximum extent permitted by law and, at the same time, protect the rights of a person to filemeritorious lawsuits for demonstrable injury.” TEX. Civ. PRac. & REM. Cope § 27.002. Toachieve this objective, the TCPA permits a party who has been sued based on the “exercise of theright of free speech” to file a motion to dismiss, which immediately suspends “all discovery inthe legal action... until the court has ruled on the motion.” /d. § 27.003(c). The court must thengrant the motion to dismiss if: (1) the moving party shows “by a preponderance of the evidencethat the legal action is based on, relates to, or is in response to the party’s exercise of. . . the rightof free speech”: and (2) the plaintiff fails to “establish by clear and specific evidence a primafacie case for each essential element of the claims in question.” Jd. § 27,005; see also Better Bus,Bureau of Metro. Dallas v. BH DEW, Inc.,402 S.W.3d 299, 305 (Tex. App.—Dallas 2013, nopet.) (discussing legal standards and procedural requirements for a motion to dismiss under theTCPA). When a plaintiff cannot satisfy this burden, the court must dismiss the claim and awardattomeys’ fees and costs to the defendant. TEX. Crv. PRAC. & REM. CODE § 27.009. Mr. Perkins’s claims are subject to the TCPA because, in transmitting the information,NexBank was clearly exercising its right to free speech. The statute defines the “exercise of theright of free speech” as any “communication made in connection with a matter of publicconcern.” dd. § 27.001(3). The term “matter of public concern” expressly includes issues relatedDEFENDANT'S MOTION TO DISMISS UNDER CITIZENS PARTICIPATION ACT 12 of 27to “economic well-being” and “a good, product, or service in the marketplace.” /d. § 27.001(7);see also Berter Bus. Bureau of Metro. Dallas, 402 S.W.3d at 308 (holding business reviews andratings concerned issues related to a good, product, or service in the marketplace and thus,constituted a communication about 4 matter of public concern). “A matter of public concern isdefined broadly” and thus, “the legislature expressed its intent that the [TCPAJ]. enacted toprotect the right of free speech, he construed broadly.” Shipp v. Malouf; No. 05-13-01080-CV,2014 Tex. App. LEXIS 6805, *6 (Tex.App.—Dallas June 24, 2014, motion for rehearingpending). To determine whether the communication “relates to an issue identified as a matter ofpublic concern” the court “must consider the broader context of the speech” and the“surrounding circ*mstances.” Jd. NexBank’s alleged report of Mr. Perkins’s account status and information to CSC and/orExperian pertain to matters of public concern or issues related thereto, such as: . “a good, roduct, or service in the marketplace”: (a) the Loan Mr. Perkins personally guaranteed and subsequently, on which he defaulted (Loan Number 7017874), (b) the Individual Loan, which Mr. Perkins failed to repay, and (c) the financial reports and ratings, which include account information concerning Loan Number 7017874 and Loan Number 7020316, that are used to assist the public and financial jnstitutions in selecting reliable persons with whom to conduct business, Jend money, or issue credit; and “economic well-being”: (a) the Loan Mr. Perkins personally guaranteed and subsequently, on which he defaulted (Loan Number 7017874), (b) the Individual Loan, which Mr. Perkins failed to repay. and (c) the creditworthiness orDEFENDANT'S MOTION TO DISMISS UNDER CITIZENS PARTICIPATION ACT 1 of 27trustworthiness ofa potential borrower or buyer, and (d) the financial risk incurred by a lender or financial business. I A Product in the Marketplace NexBank is in the business of making commercial loans. See Affidavit of Grant Smith. Commercial loans of varying amounts, interest rates, payment schedules, and maturity periods make up various products marketed and sold by NexBank in the financial marketplace. [d. NexBank also offers a limited number of individual loans to its clients. /d. These individual loans constitute a small fraction of NexBank’s financial products. /d, NexBank frequently secures itg commercial and individual loans with written guaranties and collateralized property. id. The types of property collateralized by NexBank in connection with its commercial loans, include, but is not limited to real property, improvements fixed to real property, fixtures, equipment, automobiles, rents, profits, ete. /¢. Regularly, NexBank secures and files a written lien against the collateralized property related to its commercial and individual loans. Jd.Nex Bank performs these actions in the regular course of its business. Ld. Moreover, it is normal and customary for NexBank to transmit payment histories or account information of its products to credit reporting agencies when the consumers of such products default on their payment obligations. /d. The same is true for personal guarantors, who default on their payment obligations in connection with NexBank products (.¢., the Loan and Individua} Loan). /é. Consistent with the above described business practices, NexBank loaned a substantial amount of money to Royal Car Wash and Mr. Perkins personally guaranteed the repayment of same. See Ex. A-1, Note; and Ex. A-2. The Loan is unquestionably a product in the financial marketplace. See Affidavit of Grant Smith. The Guaranty executed by Mr. Perkins is directly DEI DANT’S MOTION TO DISMISS UNDER CITI SS PARTICIPATION ACT 14 0f 27related to and part of the transaction that encompasses the Loan (i.e., NexBank’s product). RoyalCar Wash and Mr. Perkins, among others, failed to make full and complete payment to NexBankof amounts outstanding related to NexBank’s product--the Loan. See Exs. A-12 through A-15. Despite NexBank taking possession of certain real estate collateral to assist in satisfyingthe outstanding balance of the Loan, a deficiency persisted, which the Guaranty and GuarantyAcknowledgements obligated Mr. Perkins to pay. See Ex, A-2; Ex. A-6: Ex, A-8: and Ex. A-10.Due to Mr. Perkins’s failure to make payment of the deficiency amount related to NexBank’sproduct (the Loan), NexBank transmitted to CSC and/or Experian account informationconcerning the product it provided to Mr. Perkins and Royal Car Wash. Accordingly, NexBanksimply made a truthful statement about a NexBank product provided to Royal Car Wash and Mr.Perkins in the financial marketplace. See Young v. Krantz, No. 05-13-00853-CV, opinion filed,2014 Tex. App. LEXIS 5703 at *13-14 (Tex. App. sa Dallas May 28, 2014, no pet. hist.) (holdinginformation or statements provided to third party website, which was posted as a review andmade the basis of a poor rating, was a statement related to a good, product, or service in themarketplace). NexBank also made a loan to Mr. Perkins, individually, for capital expenditures andexpenses related to a car wash he operated. Mr. Perkins failed to make full and complete re-payment to NexBank of the outstanding balance of $25,623.89. See Ex. A-20. Like the Loan toRoyal Car Wash, the Individual Loan is a product in the financial marketplace. When Mr.Perkins failed to satisfy the Individual Loan, NexBank recovered the Porsche as collateral, soldthe Porsche, credited the Individual Loan with the amount of the sales proceeds from thePorsche, and transmitted information related to the principal amount 2,400.00—due andowing under the Individual Loan to CSC and/or Experian. Thus, NexBank did nothing more thanDEFENDANT'S MOTION TO DISMISS UNDER CIT TICIPATION ACT 15 of 27transmit truthful information about a product it provided to Mr. Perkins in the financialmarketplace. The account information and payment histories allegedly transmitted by NexBank areessentially financial reviews of debtor performance by creditors. Krantz, 2014 Tex. App. LEXIS5703 at *13-14; Berer Bus. Bureau of Metro. Dallas, 402 S.W.3d at 308. These financialreviews of debtor payment performance-—wherein a creditor reports account information orpayment histories of one of its consumers---are tantamount to the “reviews” the Dallas Court ofAppeals repeatedly holds are applicable to the TCPA. /d. Any and all information disseminatedby NexBank to CSC or Experian pertaining to the financial products described herein andreferred to as the Loan and Individual Loan, concern issues related to products offered byNexBank in the regular course of its business. such as the type of product, completion orpayment status of the product, customer/consumer financial performance, creditworthiness, andreliability.2. Economic Well-Being A person’s or business’s creditworthiness is not only important to the public, but also tofinancial businesses in similar positions as NexBank. The public and finance businesses risk theirown economic well-being each time they fend money or issue eredit to individuals or otherbusinesses. Credit reports and credit ratings published by credit reporting agencies, such as CSCand Experian, are put together to assist the public and financial businesses in selecting reliablepersons with whom to conduct business. Better Bus. Bureau of Metro. Dallas, 402 S.W.3d at308. Said credit reports and the account information and payment histories within said creditreports, and from which credit ratings are based, are created only by the transmission of accountinformation and payment histories from companies like NexBank. Accordingly, theDEFENDANT'S MOTION TO DISMISS UNDER CITIZENS PARTICIPATION ACT. 16 of 27creditworthiness and financial reliability of an individual or business is an issue that relates to theeconomic well-being of the public. Thus, eredit reports and the account information and paymenthistories in those credit reports are related to the public’s and financial businesses’ well-being. The NexBank account information for Mr. Perkins is a statement about Mr. Perkins’screditworthiness and reliability in his business/financial dealings with various privateindividuals, banks, and other businesses in the public domain. The account information andpayment history allegedly reported to CSC and/or Experian became the basis for CSC’s orExperian’s credit rating of Mr. Perkins. As such, the transmission of the delinquent andoutstanding amounts due under Loan Numbers 7017874 and 7020316 relate to an issue inconnection with a matter of public concern. Therefore, NexBank exercised its right to freespeech by communicating to CSC and Experian the finaneial account status of Mr. Perkins fromwhich CSC or Experian could create a credit report and rating to assist the public’s economicwell-being.B. Mr. Perkins Cannot Establish a Prima Facie Case of Defamation Against NexBank Because Mr. Perkins’ claims against NexBank are based on, related to, or in response toNexBank’s exercise of its right to free speech, pursuant to Section 27.005(c), Mr. Perkins isrequired to “establish by clear and specific evidence a prima facie case for each essentialelement” of his defamation claim to avoid dismissal. Tex. Civ. Prac. & Rem. Code § 27.005.“[C]lear and. specific evidence” is evidence that is “unaided by presumptions, inferences{,] orintendments.” McDonald v. Clemens, 464 S.W.2d 450, 456 (Tex. App.—-Tyler 1971, no writ). Itig an Kelel levated evidentiary standard” that requires the court to determine whether the recordalone, “unaided by inferences, would establish each essential element of the claim.” RehukDEFENDANT*S MOTION TO DISMISS UNDER CITIZENS PARTICIPATION ACT. 17 of 27Creative Servs., Inc, v. Witt, 404 S.W.3d 716, 727 (Tex.Ap.—Houston ca" Dist.] 2013, pet.denied). Mr. Perkin’s defamation claims do not meet this standard. “To establish a defamationclaim, a plaintiff must demonstrate that (1) the defendant published a factual statement (2) thatwas capable of a defamatory meaning (3) concerning the plaintiff (4) while acting with eithernegligence, if the plaintiff is a private individual, or actual malice, if the plaintiff is a publicfigure or public official, concerning the truth of the statement.” Vice v. Kasprzak, 318 S.W3d 1,12 (Tex. App.-~Houston [1st Dist.] 2009, pet. denied). Mr. Perkins’ defamation claims must be dismissed because he is unable to establishNexBank published a factual statement capable ofa defamatory meaning and that NexBankacted negligently in making the alleged statements.1 Mr. Perkins Cannot Establish the Alleged Statement Was False Whether statements are “capable of the defamatory meaning the plaintiff attributes tothem is a question of law for the court.” WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571(Tex. 1998). A statement is not capable of being defamatory unless it is false. Phila.Newspapers, lnc. v. Hepps, 475 U.S. 767, 775-78 (1986); Mellvain v. Jacobs, 794 $.W.2d 14, 15(Tex. 1990). Consequently, the plaintiff bears the burden of establishing the falsity of eachstatement that he alleges defames him. Mc/lvain, 794 S.W.2d at 15. In assessing whether this burden is met, Texas law provides that a “showing ofsubstantial truth” defeats a defamation claim. /d. at 15-16. Further, Tex. Civ. Prac. & Rem. Code§ 27.005(d) states, “[nJotwithstanding the provisions of Subsection (c), the court shall dismiss alegal action against the moving party if the moving party establishes by a preponderance of theevidence eaeh essential element ofa valid defense to the nonmovant’s claim.” The substantialDEFENDANT'S MOTION TO DISMISS UNDER CITIZENS PARTICIPATION ACT 18 of 27truth standard examines “whether the allegedly defamatory statement was more damaging to [theplaintiff's] reputation, in the mind of the average {reader], than a truthful statement would havebeen” and looks to the “gist” of whether the publication correctly conveys the underlying facts.Mcllvain, 794 $.W.2d at 16. “(Discrepancies as to details do not demonstrate falsity fordefamation purposes.” LTV of San Antonio, Inc. v. Ardmore, Inc., 82 S.W.3d 609, 612 (Tex.App.-San Antonia 2002, no pet.) The substantial truth doctrine precludes liability for apublication that correctly conveys a statement’s sting although erring in the details. KTRKTelevision, Ine, v. Robinson, 409 $.W.3d 682, 692 (Tex.App.-Houston [1" Dist.] 2013, pet.denied). Mr. Perkins alleges in his Amended Petition at Paragraph 83 that his credit file includesthe inaceurate and incomplete information of “NexBank SSB 701....; NexBank SSB 702...”NexBank has conclusively established accounts and corresponding amounts still owing forwhich Mr. Perkins is personally associated and liable, such as, Loan Numbers 7017874 and7020316 (Le., respectively, the Loan and Individual Loan). Thus, the alleged transmission orpublication of “NexBank SSB 701....; NexBank SSB 702....” a.k.a. Loan Numbers 7017874 and7020316 to CSC and/or Experian in connection with Mr. Perkins is not only substantially true,but completely true. A statement relaying undisputed facts cannot be defamatory. Newspaper Holdings, Inc. v.Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80 (Tex.App.—Houston [1" Dist.] 2013, pet.denied) (newspaper’s account of investigation into retirement home was accurate, it could not bethe basis ofa defamation claim). “If the underlying facts as to the gist of the defamatory chargeare undisputed, then we can disregard any variance with respect to items of secondaryimportance and determine substantial truth as a matter of law.” Mellvain, 794 S.W.2d at 16.DEFED T'S MOTION TO DISMISS UNDER CITIZENS PARTICIPATION ACT 19 of 27Despite providing only the first three (3) digits of each account, no doubt exists that“NexBank SSB 701....; NexBank SSB 702....°-~the NexBank accounts Mr. Perkins alleges areinaccurate or incomplete--are the exact same NexBank accounts, which correspond with LoanNumber 7017874 (Ze.. the Loan) and Loan Number 7020316 (ie., the Individual Loan). SeeAffidavit of Grant Smith. Because Mr. Perkins does not deny he was personally associated withand liable for the Loan and Individual Loan, Mr. Perkins cannot establish a prima facie case fordefamation. Mr. Perkins cannot deny he personally guaranteed the Loan or had the Judgmententered against him. See Ex. A-2; Ex. A-15. Moreover, Mr. Perkins admits in the AmendedPetition that he never notified NexBank in writing or otherwise to dispute the accuracy orcompleteness of information related to “NexBank SSB 701....; NexBank SSB 702..." SeeAmended Petition, p. 24-25 at Paragraph 85; Affidavit of Grant Smith. Thus, Mr. Perkinsseemingly admits NexBank never furnished false information ahout him to any third party. Infact, Mr. Perkins provides no other allegations or information about any alleged inaccurate orincomplete information in connection with “NexBank SSB 701....; NexBank SSB 702...” Mr. Perkins has continuously owed NexBank outstanding amounts related to the Loan, 

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