Osborne v. TD Bank, National Association et alMOTION for Dismissal of 27 Amended ComplaintM.D. Fla.December 13, 20161 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION ------------------------------------------------------------------------------------------------------------ Meryln Osborne, Plaintiff, v. TD Bank USA, N.A.; and Trans Union LLC, Defendants. No. 6:16-cv-01780-CEM-KRS DEFENDANT TD BANK USA, N.A.’S MOTION FOR DISMISSAL OF AMENDED COMPLAINT ________________________________________________________________________ Motion Defendant TD Bank USA, N.A., respectfully moves this Court for dismissal as to Ms. Osborne’s claim in her amended complaint [Dkt. 27] against TD under the Fair Credit Reporting Act. TD makes this motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Relief requested. TD seeks a dismissal under Rule 12(b)(6) as to Ms. Osborne’s claim in her amended complaint against TD under the Fair Credit Reporting Act. Basis for relief requested. This motion is made on these grounds: I. Ms. Osborne’s claim against TD is shotgun pleading. II. The claims against TD under 15 U.S.C. § 1681i fail because that section applies only to consumer reporting agencies. Case 6:16-cv-01780-KRS Document 30 Filed 12/13/16 Page 1 of 19 PageID 200 2 III. The claims against TD under 15 U.S.C. § 1681s-2(a) fail because the Fair Credit Reporting Act provides for administrative enforcement as the exclusive remedy for any such alleged violation. IV. The amended complaint fails to state a claim against TD because it nowhere alleges any fact that can support a violation of 15 U.S.C. § 1681s-2(b). V. The amended complaint fails to state a claim against TD because it “pleads no factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Memorandum of legal authority. TD respectfully submits the following memorandum in support of its motion. Facts On a motion for dismissal under Rule 12(b), the court “must assume the truth of the material facts as alleged in the complaint.” 1 Ms. Osborne’s claims against TD therefore consist of the factual allegations in her amended complaint. 2 The court need not accept “conclusions of law” 3 or “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts,” 4 even when 1 Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 171 (2005) (quoting Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 325 (1991)). 2 See Am. Compl. [Dkt. 27], ¶¶ 17–34 at 4–7 (background). 3 Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir. 1974). Case 6:16-cv-01780-KRS Document 30 Filed 12/13/16 Page 2 of 19 PageID 201 3 pleaded as factual allegations. A court must likewise disregard “[u]nsupported conclusions of law or of mixed fact and law” 5 — even when pleaded as factual allegations. Such allegations “will not prevent dismissal”: 6 “To survive a motion to dismiss, plaintiffs must do more than merely state legal conclusions; they are required to allege some specific factual bases for those conclusions or face dismissal of their claims.” 7 And a court “need not resolve unclear questions of law in favor of the plaintiff.” 8 Moreover, a court on a motion for dismissal may take into account a defense that appears from the complaint itself. 9 The court need not “ignore facts set forth in the complaint that undermine the plaintiff’s claims.” 10 4 Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004) (quoting Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002)); accord Berry v. Coleman, 172 Fed. App’x 929, 932 (11th Cir. 2006). 5 Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003) (quoting Marsh v. Butler County, 268 F.3d 1014, 1036 n.16 (11th Cir. 2001)). 6 Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002). 7 Jackson v. BellSouth Telecomms., 372 F.3d at 1263. 8 Kansa Reins. Co. v. Congressional Mortgage Corp., 20 F.3d 1362, 1366 (5th Cir. 1994). 9 Jones v. Bock, 549 U.S. 199, 215 (2007) (“Whether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on whether the allegations in the complaint suffice to establish that ground”); Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (“A complaint may be dismissed if an affirmative defense . . . appears on the face of the complaint.” (citing Jones)); LeFrere v. Quezada, 582 F.3d 1260, 1263 (11th Cir. 2009). 10 Richardson v. DSW, Inc., No. 05 C 4599, 2005 U.S. Dist. LEXIS 26750, at *4 (N.D. Ill. Nov. 3, 2005) (citing Scott v. O’Grady, 975 F.2d 366, 368 (7th Cir. 1992)). Case 6:16-cv-01780-KRS Document 30 Filed 12/13/16 Page 3 of 19 PageID 202 4 Legal Standard To survive a motion for dismissal for failure to state a claim upon which relief can be granted, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 11 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.” 12 When a plaintiff has not “nudged [his] claims across the line from conceivable to plausible,” then dismissal is mandatory. 13 Argument This action concerns a claim that TD violated the Fair Credit Reporting Act. The amended complaint makes very few substantive allegatons about TD’s conduct: 6. Plaintiff brings this action against Defendant, TD BANK USA, N.A., based upon TD BANK’S practice of violating 15 U.S.C. § 1681i, a provision of the FCRA. 14 9. Defendant, TD BANK USA, N.A., regularly reports consumer debts, also known as “trade lines,’ to national consumer reporting agencies, including TRANS UNION and is, therefore, considered a “furnisher of information” pursuant to 15 U.S.C § 1681s-2 of the FCRA. 10. Defendant, TD BANK USA, N.A., engages in regular and routine practice of collecting on consumer debt, and management and 11 Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Twombly, 550 U.S. at 555–56. 12 Iqbal, 556 U.S. at 678. 13 Twombly, 550 U.S. at 570. 14 Am. Compl. [Dkt. 27], ¶ 6 at 2. Case 6:16-cv-01780-KRS Document 30 Filed 12/13/16 Page 4 of 19 PageID 203 5 collection of accounts receivable for entities other than TD BANK USA, N.A., and is therefore, also a debt collector as defined by the Fair Debt Collection Practices Act (FDCPA, 15 U.S.C. § 1692a(6)[)]. 15 18. On or about 05/09/2016, OSBORNE mailed a written dispute letter to TD BANK in which OSBORNE notified TD BANK that he was disputing a debt alleged owed by him to TD BANK and further stating his intent not to pay the debt. (Reference attached Exhibit “A”). 16 24. OSBORNE reasonably believes that TRANS UNION notified TD BANK regarding OSBORNE’S 5/24/2016 dispute in accordance with 15 U.S. C. § 1681i(a)(2). 25. “Upon receipt of this notice, the furnisher of information must: (1) ‘conduct an investigation with respect to the disputed information’; (2) ‘review all relevant information provided by the [CRA]’ in connection with the dispute; and (3) ‘report the results of the investigation to the [CRA].’ Id. § 1681s-2(b)(1). Should the investigation determine that the disputed information is ‘inaccurate or incomplete or cannot be verified,’ the furnisher must ‘as appropriate, based on the results of the reinvestigation promptly ... modify [,] ... delete [or] permanently block the reporting’ of that information to CRAs. Id. 15 U.S.C. § 1681s-2(b)(1)(E). The CRAs must also delete or modify the information based on the results of reinvestigation. 15 U.S.C. § 1681i(a)(5)(A)(I); see also Hinkle v. Midland Credit Mgmt., Inc., 26 Fla. L. Weekly Fed. C 483 (11th Cir. 2016). 26. The duty of TD BANK to conduct a reasonable investigation was triggered upon notice of the dispute from TRANSUNION. See Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1154 (9th Cir. 2009). 27. TD BANK failed to properly conduct a reasonable investigation and make the necessary correction to designate OSBORNE’S TD BANK trade line as “disputed” as required by 15 U.S.C. § 1681i. 28. 15 U.S.C. § 1681s-2(a)(1)(A) prohibits a furnisher from providing “any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate.” 15 Id., ¶¶ 9–10 at 3. 16 Id., ¶ 18 at 2–3. Case 6:16-cv-01780-KRS Document 30 Filed 12/13/16 Page 5 of 19 PageID 204 6 29. Further, “[i]f the completeness or accuracy of any information furnished by any person to any consumer reporting agency is disputed to such person by a consumer, the person may not furnish the information to any consumer reporting agency without notice that such information is disputed by the consumer.” 15 U.S.C. § 1681s-2(a)(1)(A) 30. TD BANK knew or should have known by receipt of OSBORNE’S 5/5/2016 letter disputing the debt and was, therefore prohibited from reporting the debt to TRANS UNION without also reporting that the debt was “disputed”. 15 U.S.C. § 1681s-2(a)(3). 31. As a result of TD BANK’S failure to properly conduct a reasonable investigation and make the necessary correction to designate OSBORNE’S TD BANK trade line as “disputed” as required by 15 U.S.C. § 1681i, false, inaccurate and derogatory information was reported. 17 I. Ms. Osborne’s claim against TD is shotgun pleading. A shotgun pleading is a pleading that “incorporate[s] every antecedent allegation by reference into each subsequent claim for relief . . . ,” 18 as a result of which “it is ‘virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.’” 19 The United States Court of Appeals for the Eleventh Circuit “has repeatedly condemned shotgun pleadings,” 20 which “wre[a]k havoc on the judicial 17 Id., ¶¶ 24–31 at 5–7. 18 Muhammad v. Muhammad, No. 15-15440, 2016 U.S. App. LEXIS 11675, at *3 (11th Cir. June 27, 2016) (quoting Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279 (11th Cir. 2006)). 19 Id. (quoting Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996)). 20 Lacroix v. W. Dist. of Ky., 627 F. App’x 816, 818 (11th Cir. 2015) (citing PVC Windoors, Inc. v. Babbitbay Beach Constr., N.V., 598 F.3d 802, 806 n.4 (11th Cir. 2010); Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 (11th Cir. 2008)). Case 6:16-cv-01780-KRS Document 30 Filed 12/13/16 Page 6 of 19 PageID 205 7 system” 21 because they “divert already stretched judicial resources into disputes that are not structurally prepared to efficiently use those resources.” 22 Ms. Osborne’s claim against TD appears in count III, which consists of six paragraphs: one paragraph incorporating 33 prior pagraphs, and five paragraphs of legal conclusions. This claim, consisting only of a wholesale adoption by reference and a series of legal conclusions, is a shotgun pleading of “[t]he most common type,” 23 from which “it is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.” 24 II. The claims against TD under 15 U.S.C. § 1681i fail because that section applies only to consumer reporting agencies. As the amended complaint acknowledges, TD is a “furnisher” of information to consumer reporting agencies. 25 Section 1681i, which the amended complaint asserts against TD in paragraphs 6, 27, and 31, applies only to consumer reporting agencies, not to furnishers. Section 1681i imposes no duty on furnishers, so a furnisher cannot violate 21 Wagner, 464 F.3d at 12 (quoting Byrne v. Nezhat, 261 F.3d 1075, 1130 (11th Cir. 2001)). 22 Id. 23 Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1321 & n. 11 (11th Cir. 2015) (“The most common type — by a long shot — is a complaint containing multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint.”). 24 Lacroix, 627 F. App’x at 818. 25 Am. Compl. [Dkt. 27], ¶ 9 at 3. Case 6:16-cv-01780-KRS Document 30 Filed 12/13/16 Page 7 of 19 PageID 206 8 section 1681i. The only provision in the Fair Credit Reporting Act that applies directly to furnishers is section 1681s-2. The claims against TD under 15 U.S.C. § 1681i therefore fail because that section applies only to consumer reporting agencies. III. The claims against TD under 15 U.S.C. § 1681s-2(a) fail because the Fair Credit Reporting Act provides for administrative enforcement as the exclusive remedy for any such alleged violation. The only allegations in the amended complaint that TD violated specific statutory provisions appear in paragraphs 27–30. Other than 15 U.S.C. § 1681i, the only statutory provisions that those paragraphs mention are 15 U.S.C. § 1681s-2(a)(1)(A) 26 and 15 U.S.C. § 1681s-2(a)(3), 27 both of which fall within subsection (a) of section 1681s-2. The Fair Credit Reporting Act provides for administrative enforcement as the exclusive remedy for any such alleged violation. The Fair Credit Reporting Act provides for civil liability through a private civil action in two sections: 15 U.S.C. §§ 1681n–o. But section 1681s-2, which establishes the “responsibilities of furnishers of information to consumer reporting agencies,” 28 provides that “sections 1681n and 1681o of this title do not apply to any violation of . . . subsection (a) of this section, including any regulations issued thereunder.” 29 “Subsection (a)” refers to section 1681s-2(a), captioned “[d]uty of furnishers of information to 26 See Am. Compl. [Dkt. 27], ¶¶ 28–29 at 6–7. 27 See id., ¶ 30 at 7. 28 15 U.S.C. § 1681s-2 (caption). 29 Id. (c)(1) (limitation on liability). Case 6:16-cv-01780-KRS Document 30 Filed 12/13/16 Page 8 of 19 PageID 207 9 provide accurate information,” and enforcement of that provision can occur only “as provided in section 1681s(c)(1)(B) of this title” 30 — which provides for enforcement by “the chief law enforcement officer of a State, or an official or agency designated by a State,” 31 who “may bring an action on behalf of the residents of the State” 32 to recover “damages for which the person would, but for section 1681s-2(c) of this title, be liable to such residents as a result of the violation” 33 of “any of paragraphs (1) through (3) of section 1681s-2(c) of this title.” 34 TD’s alleged violations under section 1681s-2(a) therefore fall within the limitation of liability under section 1681s-2(c), so administrative enforcement is the exclusive remedy under section 1681s(c)(1)(B) for those alleged violations. The claims against TD under 15 U.S.C. § 1681s-2(a) therefore fail because the Fair Credit Reporting Act provides for administrative enforcement as the exclusive remedy for any such alleged violation. IV. The amended complaint fails to state a claim against TD because it nowhere alleges any fact that can support a violation of 15 U.S.C. § 1681s-2(b). The Fair Credit Reporting Act’s scheme does provide in section 1681s-2(b) for a consumer to bring a civil action directly against a furnisher of information, after the 30 15 U.S.C. § 1681s(c). 31 Id. (c)(1) (State action for violations—authority of States). 32 Id. (c)(1)(B). 33 Id. (c)(1)(B)(ii). 34 Id. Case 6:16-cv-01780-KRS Document 30 Filed 12/13/16 Page 9 of 19 PageID 208 10 furnisher “receiv[es] notice . . . of a dispute with regard to the completeness or accuracy of any information provided by a person to a consumer reporting agency” and has had an opportunity for investigation. 35 Even if Ms. Osborne’s shotgun pleading were permissible, the amended complaint nowhere alleges any fact that can support a violation of 15 U.S.C. § 1681s-2(b). That section, titled “duties of furnishers of information upon notice of dispute,” provides: (b) Duties of furnishers of information upon notice of dispute (1) In general After receiving notice pursuant to section 1681i(a)(2) of this title of a dispute with regard to the completeness or accuracy of any information provided by a person to a consumer reporting agency, the person shall— (A) conduct an investigation with respect to the disputed information; (B) review all relevant information provided by the consumer reporting agency pursuant to section 1681i(a)(2) of this title; (C) report the results of the investigation to the consumer reporting agency; (D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis; and (E) if an item of information disputed by a consumer is found to be inaccurate or incomplete or cannot be verified after any reinvestigation under paragraph (1), for purposes of reporting to a consumer reporting agency only, as appropriate, based on the results of the reinvestigation promptly— (i) modify that item of information; (ii) delete that item of information; or 35 15 U.S.C. § 1681s-2(b) (duties of furnishers of information upon notice of dispute). Case 6:16-cv-01780-KRS Document 30 Filed 12/13/16 Page 10 of 19 PageID 209 11 (iii) permanently block the reporting of that item of information. (2) Deadline A person shall complete all investigations, reviews, and reports required under paragraph (1) regarding information provided by the person to a consumer reporting agency, before the expiration of the period under section 1681i(a)(1) of this title within which the consumer reporting agency is required to complete actions required by that section regarding that information. 36 Thus, a furnisher can violate section 1681s-2(b) only in six possible ways: (1) by failure to “conduct an investigation with respect to the disputed information,” (2) by failure to “review all relevant information provided by the consumer reporting agency,” (3) by failure to “report the results of the investigation to the consumer reporting agency,” (4) by failure to report a finding of “incomplete or inaccurate” information “to all other consumer reporting agencies to which the person furnished the information,” (5) by failure to modify, delete, or block disputed information that “is found to be inaccurate or incomplete or cannot be verified,” or (6) by taking the required actions but in an untimely manner. The amended complaint does recite such alleged violations in paragraph 47, but without any factual basis, only as legal conclusions. The only factual allegations that even approach an alleged violation of section 1681s-2(b) are paragraphs 27 and 31: 27. TD BANK failed to properly conduct a reasonable investigation and make the necessary correction to designate OSBORNE’S TD BANK trade line as “disputed” as required by 15 U.S.C. § 1681i. 37 36 15 U.S.C. § 1681s-2(b). 37 Am. Compl. [Dkt. 27], ¶ 27 at 6. Case 6:16-cv-01780-KRS Document 30 Filed 12/13/16 Page 11 of 19 PageID 210 12 31. As a result of TD BANK’S failure to properly conduct a reasonable investigation and make the necessary correction to designate OSBORNE’S TD BANK trade line as “disputed” as required by 15 U.S.C. § 1681i, false, inaccurate and derogatory information was reported. 38 But both those allegations complain that the requirement with which TD failed to comply was section 1681i, which does not apply to furnishers, rather than section 1681s-2(b). Even if the allegations in the amended complaint’s paragraphs 27 and 31 were read as referring to section 1681s-2(b), they still would not frame a viable claim. Both allegations complain of TD’s failure “to designate OSBORNE’S TD BANK trade line as ‘disputed.’” The basis for marking the tradeline as disputed is the two letters mentioned in paragraphs 18–19: 18. On or about 05/09/2016, OSBORNE mailed a written dispute letter to TD BANK in which OSBORNE notified TD BANK that he was disputing a debt alleged owed by him to TD BANK and further stating his intent not to pay the debt. (Reference attached Exhibit “A”). 19. On or about 05/24/2016, OSBORNE specifically disputed the account listed on OSBORNE’S credit report which item was reported by TD BANK; OSBORNE demanded its correction or removal by written correspondence to TRANS UNION. (Reference attached Exhibit “B”). 39 But those letters cannot support a claim under section 1681s-2(b). The letters, which are exhibited to the amended complaint and are therefore “a part of the pleading for all purposes,” 40 each consist of two sentences: 38 Id., ¶ 31 at 7. 39 Id., ¶¶ 18–19 at 4. 40 Fed. R. Civ. P. 10(c) (exhibits). Case 6:16-cv-01780-KRS Document 30 Filed 12/13/16 Page 12 of 19 PageID 211 13 The letter to TD says that “[b]ecause I am disputing this, I am not paying. Send me itemized proof.” 41 The letter to TransUnion says, “If you are reporting the above accounts on my credit report, they are disputed. Please accurately update it after your reinvestigation and send me complete-updated credit report with the first five digits hidden in my social security number.” 42 These letters offer no information about the nature or basis of Ms. Osborne’s “dispute.” More to the point, section 1681s-2(b) contains no requirement that a furnisher report to the consumer reporting agencies the fact that a consumer has disputed an item. There are circumstances in which such a duty may arise — that is, when a furnisher must report to the agencies that a consumer has disputed an item. But the duty does not arise automatically as a matter of law whenever a consumer has disputed an item. The duty arises only when a furnisher’s report does not mention the item’s disputed nature and, lacking that information, the resulting report is “misleading in such a way and to such an extent that [it] can be expected to have an adverse effect.” 43 The duty arises only where “a consumer has presented a lender with a colorable argument against liability” for the 41 Am. Compl. [Dkt. 27], Ex. A. 42 Id., Ex. B. 43 Saunders v. Branch Banking & Trust Co. of Va., 526 F.3d 142, 151 (4th Cir. 2008) (quoting Dalton v. Capital Assoc’d Indus., Inc., 257 F.3d 409, 415 (4th Cir. 2001)); accord Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1163 (9th Cir. 2009) (quoting Saunders). Case 6:16-cv-01780-KRS Document 30 Filed 12/13/16 Page 13 of 19 PageID 212 14 disputed item. 44 So even though a furnisher must sometimes report that a consumer has disputed an item, that fact “does not mean that a furnisher could be held liable on the merits simply for a failure to report that a debt is disputed.” 45 A consumer who complains of such a failure must go at least a step further: “The consumer must still convince the finder of fact that the omission of the dispute was ‘misleading in such a way and to such an extent that [it] can be expected to have an adverse effect.’” 46 The amended complaint contains no allegation from which a court or a jury can reach such a conclusion. And while there is no private cause of action under section 1681s-2(a), that subsection does offer guidance to furnishers about the standard for suspecting an inaccuracy. Section 1681s-2(a) requires that a furnisher “shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate,” 47 and establishes the standard for “reasonable cause to believe that the information is inaccurate” as “having specific knowledge, other than solely allegations by the consumer, that would cause a reasonable person to have substantial doubts about the accuracy of the 44 Shames-Yeakel v. Citizens Fin. Bank, 677 F. Supp. 2d 994, 1004 (N.D. Ill. 2009). 45 Gorman, 584 F.3d at 1163; accord Gamby v. Equifax Info. Servs., 2010 WL 46946, at *3 (E.D. Mich Jan. 7, 2010) (“a furnisher cannot be held liable on the merits for simply failing to report that a debt is disputed”). 46 Gorman, 584 F.3d at 1163 (quoting Saunders). 47 15 U.S.C. § 1681s-2(a)(1)(A) (reporting information with actual knowledge of errors). Case 6:16-cv-01780-KRS Document 30 Filed 12/13/16 Page 14 of 19 PageID 213 15 information.” 48 Ms. Osborne’s letter saying only that “I am disputing this, I am not paying” come nowhere near that standard. The amended complaint fails to state a claim against TD because it nowhere alleges any fact that can support a violation of 15 U.S.C. § 1681s-2(b). V. The amended complaint fails to state a claim against TD because it “pleads no factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” A claim lacks “facial plausibility” unless “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 49 For a claim of inaccurate credit reporting, the United States Court of Appeals for the Eleventh Circuit recognized in Cahlin v. General Motors Acceptance Corp. a requirement that the consumer’s credit report must contain an actual inaccuracy: In order to make out a prima facie violation of section 607(b), the Act implicitly requires that a consumer must present evidence tending to show that a credit reporting agency prepared a report containing “inaccurate” information. If he fails to satisfy this initial burden, the consumer, as a matter of law, has not established a violation of section 607(b), and a court need not inquire further as to the reasonableness of the procedures adopted by the credit reporting agency. 50 48 15 U.S.C. § 1681s-2(a)(1)(D) (emphasis added). 49 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 50 Cahlin v. Gen. Motors Acceptance Corp., 936 F.2d 1151, 1156 (11th Cir. 1991). Case 6:16-cv-01780-KRS Document 30 Filed 12/13/16 Page 15 of 19 PageID 214 16 The Cahlin court was addressing a consumer reporting agency’s duties under Fair Credit Reporting Act § 607 (codified at 15 U.S.C. § 1681e), but the same requirement of actual inaccuracy also applies to claims against furnishers. 51 Here, the amended complaint does refer in a vague and general way to “false, inaccurate and derogatory information” being reported, 52 but does not say how the information was allegedly false or inaccurate. Indeed, the amended complaint says nothing at all about what information TD was allegedly furnishing to the consumer reporting agencies, let alone why any such information violated the law. Without even that minimum level of detail about her credit-reporting claims, Ms. Osborne’s amended complaint’s bald conclusion does not “nudge[] [her] claims across the line from conceivable to plausible,” and dismissal is mandatory. 53 As another federal court held recently, a cause of action under the furnisher-liability statute “fails as a matter of law” and is subject to dismissal where the “complaint fails to provide any facts as to what negative information was reported, let alone the supposed inaccuracy.” 54 51 Sampson v. Wash. Mut. Bank, 453 F. App’x 863, 867 (11th Cir. 2011) (“Sampson does not allege in his complaint that he notified the defendants of any inaccuracies in his credit report, and he thus fails to state a claim under § 1681s-2(b) of the FCRA.”). 52 Am. Compl. [Dkt. 27] ¶ 31 at 7; id., ¶ 47(G) at 12. 53 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 54 O’Connor v. Capital One, N.A., No. CV 14-00209-KAW, 2014 U.S. Dist. LEXIS 74102, at *19 (N.D. Cal. May 29, 2014). Case 6:16-cv-01780-KRS Document 30 Filed 12/13/16 Page 16 of 19 PageID 215 17 The amended complaint therefore fails to state a claim against TD because it “pleads no factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Conclusion Ms. Osborne’s claim against TD is shotgun pleading. The claims against TD under 15 U.S.C. § 1681i fail because that section applies only to consumer reporting agencies. The claims against TD under 15 U.S.C. § 1681s-2(a) fail because the Fair Credit Reporting Act provides for administrative enforcement as the exclusive remedy for any such alleged violation. The amended complaint fails to state a claim against TD because it nowhere alleges any fact that can support a violation of 15 U.S.C. § 1681s-2(b), and “pleads no factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Therefore, TD respectfully asks that this Court dismiss Ms. Osborne’s claim in her amended complaint against TD under the Fair Credit Reporting Act under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Case 6:16-cv-01780-KRS Document 30 Filed 12/13/16 Page 17 of 19 PageID 216 18 December 13, 2016. DYKEMA GOSSETT PLLC /s/ Brian Melendez ____________________________________ Brian Melendez, Fla. Bar. No. 0103559 4000 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402-3903 Ph. 612.486.1589 Fax 866.637.2804 bmelendez@dykema.com in association with HILL WARD HENDERSON Sherilee J. Samuel, Fla. Bar No. 017499 Hill Ward Henderson 3700 Bank of America Plaza 101 East Kennedy Boulevard Tampa, FL 33602 Ph. 813.221.3900 Fax 813.221.2900 sherilee.samuel@hwhlaw.com Attorneys for Defendant TD Bank USA, N.A. Case 6:16-cv-01780-KRS Document 30 Filed 12/13/16 Page 18 of 19 PageID 217 19 Certificate of Service I hereby certify that on December 13, 2016, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system. DYKEMA GOSSETT PLLC s/ Brian Melendez ____________________________________ Brian Melendez, Fla. Bar No. 0103559 Dykema Gossett PLLC 4000 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402 Ph. 612.486.1589 Fax 866.637.2804 bmelendez@dykema.com 4816-1567-0589.2 ID\MELENDEZ, BRIAN Case 6:16-cv-01780-KRS Document 30 Filed 12/13/16 Page 19 of 19 PageID 218
