United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.
the Court is Defendants Midland Funding, LLC's and
Midland Credit Management, Inc.'s Motion to Dismiss
Amended Complaint [Doc. No. 31], filed pursuant to
Fed.R.Civ.P. 12(b)(6). The movants assert that Plaintiff has
failed to allege sufficient facts in her Amended Complaint to
state a claim against them under the Fair Credit Reporting
Act, 15 U.S.C. §§ 1681-1681x, or the Fair Debt
Collection Practices Act, 15 U.S.C. §§ 1692-1692p.
They contend Plaintiff simply recites the language of the
statutes in a formulaic manner and fails to provide factual
allegations from which liability under either statute could
reasonably be inferred.
survive a motion to dismiss [under Rule 12(b)(6)], a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
“[W]here the well-pleaded facts do not permit the court
to infer more than the possibility of misconduct, the
complaint has alleged - but it has not ‘show[n]' -
‘that the pleader is entitled to relief.'”
Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Thus, in
assessing plausibility, a court should first disregard
conclusory allegations and “next consider the factual
allegations in [the] complaint to determine if they plausibly
suggest an entitlement to relief.” Id. at 681.
brings suit against seven defendants for conduct regarding a
consumer debt that allegedly was a result of identity theft:
Midland Funding, LLC and Midland Credit Management, Inc.
(collectively, “Midland”); their alleged parent
company, Encore Capital Group, Inc.; three consumer reporting
agencies - TransUnion LLC, Experian Information Solutions,
Inc. and Equifax Information Services LLC; and a lender,
Credit One Bank. Plaintiff states she discovered the
fraudulent account when she obtained a copy of her consumer
report from each of the consumer reporting agencies on June
21, 2016, and learned that the reports showed a charge-off of
a $400.00 credit card debt to Credit One Bank. Plaintiff
alleges this item is inaccurate and false in that she never
had a credit account with Credit One Bank.
the allegations of the Amended Complaint as true, Plaintiff
notified each of the consumer reporting agencies by letters
sent on June 22, 2016, that she disputed the alleged debt to
Credit One Bank listed on her consumer reports (the
“Debt”). On July 6, 2016, Plaintiff received debt
collection letters from Midland regarding the Debt. On August
2, 2016, Plaintiff sent letters to Midland and Credit One
Bank disputing the Debt and disputing the accuracy of the
information regarding the Debt in her consumer reports. On
August 2, 2016, Plaintiff also sent letters to each of the
consumer reporting agencies disputing the accuracy of her
consumer reports regarding the Debt. On September 22, 2016,
Plaintiff sent each defendant another letter informing them
that information they had provided to Plaintiff was
insufficient. Plaintiff asked Midland and Credit One
Bank to submit requests to the consumer reporting agencies
instructing them to delete the Debt from her consumer
the alleged misconduct of Midland, Plaintiff states that
after Midland received notice of Plaintiff's dispute of
the Debt, Midland “failed to conduct an investigation
with respect to the disputed information;”
“failed to review all relevant information provided by
Equifax, Experian, and TransUnion;” “failed to
report true and correct results of the investigation to
Equifax, Experian, and TransUnion;” “failed to
find that the alleged debt disputed by Plaintiff was
inaccurate and report those results to Equifax, Experian, and
TransUnion and all other consumer reporting agencies;”
and “failed to find the alleged debt disputed by
Plaintiff [w]as inaccurate or unverifiable and failed to
submit a request to Equifax, Experian, and TransUnion to
delete the item and permanent[ly] block the reporting of the
alleged debt to Equifax, Experian, and TransUnion.”
See Am. Compl. [Doc. No. 27], ¶¶ 152-56.
Plaintiff states upon information and belief that
“Equifax, Experian, and TransUnion communicated some or
all of Plaintiff s dispute information to Midland” and
that Midland “verified to Equifax, Experian, and
TransUnion that Plaintiff was liable for the alleged debt
that she disputed, and that the amount remained due and
owing, and verified the date of delinquency.”
Id., ¶¶ 157-58.
Plaintiff notified Midland “in writing within the
thirty-day period of Plaintiffs receipt of the initial
communication from Midland . . . that the alleged debt was
disputed, but Midland . . . failed to cease collection of the
alleged debt until it obtained verification of the alleged
debt and mailing the same to Plaintiff” Id.
¶ 159. Midland also “failed to provide
verification of the alleged debt to Plaintiff as per
Plaintiffs request in writing.” Id. ¶
160. Plaintiff alleges that she was injured and suffered
actual damages “[a]s a result of the actions and
inactions of Defendants.” Id. ¶ 161.
Counts 17 through 31 of the Amended Complaint, Plaintiff
claims Midland's conduct violated all provisions of 15
U.S.C. § 1681s-2(b)(1) - enumerating a separate claim
for each of subparagraphs (A)-(E) as to an unnamed consumer
reporting agency (Counts 17-21), Equifax (Counts 22-26), and
Experian (Counts 27-31). In Count 52, Plaintiff claims
Midland violated 15 U.S.C. § 1692g(b).
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. Servs., Inc., 316 F.
App'x 744, 751 (10th Cir. 2009) (“notice of a
dispute received directly from the consumer does not trigger
furnishers' duties under subsection (b)”) (internal
quotation and emphasis omitted). As explained by the Tenth
Circuit: “While Congress did not want furnishers of
credit information to be exposed to suit by any and every
consumer dissatisfied with the credit information furnished,
Congress allows consumers to enforce the duty of accurate
reporting through the FCRA's dispute process.”
Sanders, 689 F.3d at 1147 (internal quotation
agrees it is a furnisher of credit information and Plaintiff
allegedly sent letters to consumer reporting agencies
disputing the Debt and the accuracy of her credit reports
regarding it. Midland asserts, however, that Plaintiff
provides insufficient facts from which to reasonably conclude
that Midland failed to perform a duty imposed by Section
1681s-2(b)(1)(A)-(E). Specifically, Subsection A required
Midland to conduct a reasonable investigation regarding the
disputed information; what is reasonable depends on the
information provided by the consumer reporting agency in the
notice of the dispute. See Maiteki v. Marten Trans.
Ltd., 828 F.3d 1272, 1275 (10th Cir. 2016). Similarly,
Subsections B and C required Midland to review all relevant
information provided by a consumer reporting agency and
report the results of the investigation to the agency.
Because Plaintiff does not allege what ...