Byron Bartlett v. Bank of America, NA
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cv-00975-MJG. Copies to all parties and the district court. [999586868]. [14-1895]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1895
BYRON R. BARTLETT; CONNIE J. BEALS-BARTLETT,
Plaintiffs - Appellants,
v.
BANK OF AMERICA, NA,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Marvin J. Garbis, Senior District
Judge. (1:13-cv-00975-MJG)
Submitted:
February 27, 2015
Decided:
May 20, 2015
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Scott C. Borison, LEGG LAW FIRM, LLC, San Mateo, California;
Phillip R. Robinson, CONSUMER LAW CENTER LLC, Silver Spring,
Maryland, for Appellants. Brian R. Matsui, MORRISON & FOERSTER
LLP, Washington, D.C.; Michael J. Agoglia, Angela E. Kleine,
MORRISON & FOERSTER LLP, San Francisco, California, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Byron R. Bartlett and Connie J. Beals-Bartlett appeal the
district
court’s
order
granting
Bank
of
America,
NA’s
(BOA)
motion to dismiss and dismissing for failure to state a claim
their class action complaint seeking damages for BOA’s alleged
failure to comply with the mandatory disclosure requirements of
the Fair Credit Reporting Act (FCRA) — specifically, 15 U.S.C.
§ 1681g(g) (2012).
On appeal, the Bartletts contend that the
district court erred in finding § 1681g(g) inapplicable to their
loan modification request.
We
review
de
novo
Finding no error, we affirm.
the
district
court’s
dismissal
for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6).
484
F.3d
Sec’y of State for Def. v. Trimble Navigation Ltd.,
700,
705
(4th
Cir.
2007).
“[W]hen
ruling
on
a
defendant’s motion to dismiss, a judge must accept as true all
of
the
factual
allegations
contained
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
in
the
complaint.”
However, “[f]actual
allegations must be enough to raise a right to relief above the
speculative level.”
555 (2007).
Bell Atl. Corp. v. Twombly, 550 U.S. 544,
The complaint must contain “enough facts to state a
claim to relief that is plausible on its face.”
Id. at 570.
Section 1681g(g) requires a mortgage lender to make certain
disclosures to a consumer regarding the consumer’s credit score
when
that
score
is
used
“in
connection
2
with
an
application
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initiated or sought by a consumer for a closed end loan or the
establishment of an open end loan for a consumer purpose that is
secured by 1 to 4 units of residential real property.”
15
U.S.C. § 1681g(g)(1).
of
The
FCRA
provides
a
private
right
action against a mortgage lender that willfully or negligently
fails
to
comply
§ 1681g(g).
with
the
disclosure
requirements
under
15 U.S.C. §§ 1681n, 1681o (2012).
On appeal, the Bartletts first contend that § 1681g(g) is
not limited to new closed end loan applications but applies to
any
credit
application,
including
loan
modifications.
Thus,
they argue, Connie’s request for a loan modification entitled
her to the disclosures mandated by § 1681g(g), and the district
court therefore improperly dismissed their complaint.
In support of their argument, the Bartletts discuss the
definition of “credit” and cases in which courts have held that
loan
modifications
constitute
credit
applications.
“credit” does not, however, appear in § 1681g(g).
The
term
Rather, the
relevant portion of § 1681g(g) applies to “closed end loans.”
The Bartletts point to no authority supporting a conclusion that
a request for modification of an existing loan constitutes an
application for a closed end loan under § 1681g(g).
conclude
that
the
district
court
correctly
found
Thus, we
that
the
Bartletts failed to state a claim that Connie was entitled to
the disclosures required by § 1681g(g).
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Second, the Bartletts contend that, because Byron was not a
borrower
on
the
original
mortgage
loan,
his
status
as
a
coborrower on the loan modification requests necessarily made
him
an
applicant
disclosures
for
mandated
by
a
closed
end
loan
§ 1681g(g).
The
entitled
plain
to
the
language
of
§ 1681g(g), however, requires disclosure by a mortgage lender
only when the lender “uses a consumer credit score . . . in
connection
with
consumer.”
an
application
initiated
or
sought
by
a
15 U.S.C. § 1681g(g); see Smith v. United States,
508 U.S. 223, 228-29 (1993) (defining “use”).
In their complaint, the Bartletts alleged only that BOA
obtained Connie’s credit score in assessing her eligibility for
loan modification.
They made no allegation that BOA actually
obtained or used Byron’s credit scores.
Thus, we conclude that
the district court properly dismissed the Bartletts’ claim that
Byron was entitled to the disclosures mandated by § 1681g(g).
Accordingly,
dispense
with
conclusions
are
we
oral
affirm
the
argument
adequately
district
because
presented
in
court’s
the
the
facts
order.
We
and
legal
materials
before
this court and argument would not aid the decisional process.
AFFIRMED
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