United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE.
the Court is Defendant Fed Loan Servicing's Motion to
Dismiss the complaint, Doc. 12. Plaintiff brings this suit
for violations of the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681s-2(b)(1), against
three credit furnishers. Doc. 1. After Plaintiff filed a
notice of dispute to credit reporting agencies
(“CRAs”) concerning two of Defendant's trade
lines, Defendant allegedly failed to mark them as disputed in
subsequent reports to the CRAs. The question is whether such
omissions were “incomplete or inaccurate” as to
trigger FCRA liability. 15 U.S.C. § 1681s-2(b)(1)(D).
The Court hereby grants the Motion because Plaintiff's
complaint lacks “enough facts to state a claim to
relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Motion to Dismiss Standard
complaint may be dismissed upon a motion for “failure
to state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). Federal Rule of Civil Procedure
8(a)(2) requires a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
The standard “does not require ‘detailed factual
allegations, ' but it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). Dismissal is proper
“if, viewing the well-pleaded factual allegations in
the complaint as true and in the light most favorable to the
non-moving party, the complaint does not contain
‘enough facts to state a claim to relief that is
plausible on its face.'” MacArthur v. San Juan
County, 497 F.3d 1057, 1064 (10th Cir. 2007) (quoting
Twombly, 550 U.S. at 547); see Iqbal, 556
U.S. at 676-80. The plaintiff cannot merely give
“labels and conclusions, and a formulaic recitation of
the elements of a cause of action.” Twombly,
550 U.S. at 555. Such conclusory allegations are not entitled
to the court's presumption for the plaintiff. Instead,
the plaintiff must plead facts that at least make the claims
plausible and raise the “right of relief above the
speculative level.” Id. at 558.
background on the FCRA is necessary:
[T]he FCRA obligates furnishers of information like
[Defendant] to provide accurate information to consumer
reporting agencies, 15 U.S.C. § 1681s- 2(a), and, upon
receiving notice of a dispute from a CRA, to (1) investigate
the disputed information; (2) review all relevant information
provided by the CRA; (3) report the results of the
investigation to the CRA; (4) report the results of the
investigation to all other CRAs if the investigation reveals
that the information is incomplete or inaccurate; and (5)
modify, delete, or permanently block the reporting of the
disputed information if it is determined to be inaccurate,
incomplete, or unverifiable
Pinson v. Equifax Credit Info. Servs., Inc., 316 F.
App'x 744, 750 (10th Cir. 2009) (citing 15 U.S.C. §
1681s-2(a)-(b)). Only Section 1681s-2(b) is privately
enforceable-it imposes on furnishers a duty to investigate
and correct misleading information following a
dispute-whereas federal or state agencies enforce Section
1681s-2(a)'s duties to provide accurate information in
the first place. Id.; 15 U.S.C. §§
1681s-2(c), 1681n, 1681o.
case under the FCRA is rather straightforward. On or about
October 7, 2016, he applied for a residential mortgage loan
and noticed what he believed to be “false, inaccurate
and unverifiable” information on his consumer report.
Doc. 1, at 3. He disputed two of Defendant Fed Loan
Servicing's trade lines for $2, 904 and $1, 750 to the
CRAs- TransUnion, Equifax, and Experian. Id. The
CRAs communicated this dispute to Defendant and Defendant
investigated the matter, but subsequent credit reports failed
to notate that Defendant's trade lines were disputed.
Id. at 3-4. So Plaintiff brought five claims under
Section 1681s-2(b)(1)(A)-(E) of the FCRA against Defendant.
According to the complaint, Defendant's negligent and/or
willful conduct caused Plaintiff mental and emotion distress,
denial of credit, and higher interest rates. Id. at
Plaintiff's claims is conclusory and fails to state
sufficient facts to “nudge [it] across the line from
conceivable to plausible.” Twombly, 550 U.S.
at 570. First, his claim under Section 1681s-2(b)(1)(A)
alleges that Defendant “failed to notate the
information as disputed after being contacted by the Consumer
Reporting Agencies.” Doc. 1, at 4-5. Section
1681s-2(b)(1)(A) requires furnishers to “conduct an
investigation with respect to the disputed
information.” It says nothing about notating
information as disputed or correcting misleading information.
To the contrary, Plaintiff concedes at various points in his
complaint that Defendant did conduct a post-dispute
investigation. See Doc. 1, at 3 (“Plaintiff
received re-investigation results where Defendants failed to
notate that the information was being disputed . . . .
Defendants verified to TransUnion, Equifax and Experian . . .
.”); 4 (“On or about December 9, 2016, Plaintiff
received re-investigation results . . . . On or about
February 8, 2017 Plaintiff received re-investigation results
. . . .”). Thus, Plaintiff is not entitled to relief on
his Section 1681s-2(b)(1)(A) claim.
Plaintiff's claim under Section 1681s-2(b)(1)(B) alleges
that Defendant “fail[ed] to consider all relevant
information forwarded to [it] by the consumer reporting
agencies . . . and to notate the disputed information as
disputed to [the CRAs].” Id. at 5. Plaintiff
quotes the correct statutory language, but he fails to plead
facts that make such a violation plausible. See 15
U.S.C. §§ 1681s-2(b)(1)(B) (the furnisher shall
“review all relevant information provided by the
consumer reporting agency . . .”). A “formulaic
recitation of the elements of a cause of action” is
insufficient to withstand 12(b)(6) dismissal.
Twombly, 550 U.S. at 555. Nor does failing to notate
a trade line “disputed” qualify for relief under
Section 1681s-2(b)(1)(B), which merely imposes an obligation
to “review all relevant information.”
Plaintiff's second claim also fails to state a claim upon
which relief can be granted.
Defendant allegedly violated Section 1681s-2(b)(1)(C)
“by failing to report the notation of the disputed
information to the consumer reporting agencies.” Doc.
1, at 6. Section 1681s-2(b)(1)(C) requires furnishers to
“report the results of the investigation” to the
CRAs. Plaintiff's conclusory assertion that the
underlying trade line was “disputed” does not
present “enough facts to state a claim to relief that
is plausible on its face.” Twombly, 550 U.S.
Plaintiff claims that Defendant “violated 15 U.S.C.
§ 1681s-2(b)(1)(D) by failing to report to the consumer
reporting agencies that the information was being
disputed.” Doc. 1, at 6-7. Defendant argues that
“since the duty of a furnisher to notate that a trade
line is disputed to consumer reporting agencies falls
squarely within the realm of the duty to provide accurate
information per 15 U.S.C. § 1681s-2(a), no private right
of action exists for such a claim.” Doc. 12, at 5. The
Tenth Circuit and sister circuits have squarely rejected this
argument. See Sartori v. Susan C. Little & Assocs.,
P.A., 571 F. App'x 677, 682 (10th Cir. 2014)
(unpublished); Seamans v. Temple Univ., 744 F.3d
853, 867 (3d Cir. 2014); Gorman v. Wolpoff &
Abramson, LLP, 584 F.3d 1147, 1163 (9th Cir. 2009);
Saunders v. Branch Banking & Trust Co. of Va.,
526 F.3d 142, 148 (4th Cir. 2008). Section 1681s-2(a)(3),
which is not privately enforceable, requires that furnishers
notify CRAs whether a consumer disputes the information
furnished to the CRA; yet, “a ...