Picon v. Bank of America, N.A. et al
Filing
51
OPINION AND ORDER granting 21 Motion for partial dismissal and the requests for injunctive and declaratory relief are dismissed. Signed by Judge John E. Steele on 6/21/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
VIANKYNET PICON,
Plaintiff,
vs.
Case No.
2:10-cv-616-FtM-29SPC
BANK OF AMERICA, N.A., TRANSUNION
LLC, EXPERIAN INFORMATION SYSTEMS,
INC., EQUIFAX, INC.,
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Defendant Trans Union
LLC’s Motion For Partial Dismissal (Doc. #21) filed on December 22,
2010. Plaintiff Viankynet Picon (plaintiff or Picon) has not filed
a Response and the time to do so has expired.
I.
On or about November 30, 2010, plaintiff filed a Verified
Amended Complaint and Demand for Jury Trial (Complaint)(Doc. #11)
against Bank of America, N.A. (BofA), Trans Union LLC (Trans
Union), Experian Information Solutions, Inc. (Experian), Equifax
Inc. (Equifax), and FIA Card Services, N.A. for violation of the
Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq.
The following facts are summarized from plaintiff’s Complaint:
At plaintiff’s former employer, Unique Arch & Window Decor, Inc.
(Unique Arch), plaintiff was an authorized user on the company
credit card issued by BofA.
(Doc. #11, ¶28.)
On or about April 2,
2009, when plaintiff’s employment at Unique Arch ended, she went
down to a local BofA branch with the president of Unique Arch,
Maria Ramil, to have plaintiff removed from the account.
¶30.)
(Id. at
At the local BofA branch, BofA employees advised plaintiff
that she was not liable for the Unique Arch credit card.
(Id. at
¶31.) On or about April 20, 2010, plaintiff received a letter from
BofA reducing her personal BofA credit card limit citing issues on
her credit report. (Id. at ¶33.)
When plaintiff pulled her credit
report from Equifax, Trans Union and Experian, she discovered that
the Unique Arch account was listed on her credit report as 90 days
delinquent.
In or about late April and early May 2010, plaintiff mailed
BofA a letter demanding proof of her responsibility on the Unique
Arch account and disputed the report and provided supporting
documentation to Equifax, Trans Union and Experian. (Id. at ¶¶ 3742.)
On or about May 1, 2010, Trans Union notified plaintiff that
their investigation was complete and found that plaintiff was
responsible for the 90 day-delinquent United Arch account with a
balance of $10,2778 based on information received from BofA. On or
about May 3, 2010, Equifax also completed its investigation showing
that plaintiff was responsible for the debt.
The
defendants
continue
to
report
(Id. at ¶¶ 43-45.)
that
plaintiff
is
responsible for the Unique Arch credit debt. Plaintiff has had her
personal credit limit reduced and has been turned down for a credit
-2-
card due to the delinquency on her credit report.
Fearing the
significant negative impact on her credit, plaintiff began making
payments on the Unique Arch credit card.
(Id. at ¶¶ 49-60.)
Plaintiff seeks damages, attorney’s fees and costs, as well as
declaratory relief in the form of an order “directing that the
Defendants delete all of the inaccurate information from the
Plaintiff’s credit reports and files and cease reporting the
inaccurate information to any and all persons and entities to whom
they report consumer credit information.” (Id. at pp. 14, 15, 16.)
II.
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all well-pleaded factual allegations in a complaint as true
and take them in the light most favorable to plaintiff.
Erickson
v. Pardus, 551 U.S. 89, 94 (2007); Christopher v. Harbury, 536 U.S.
403,
406
(2002).
“To
survive
dismissal,
the
complaint’s
allegations must plausibly suggest that the [plaintiff] has a right
to relief, raising that possibility above a speculative level; if
they do not, the plaintiff’s complaint should be dismissed.” James
River Ins. Co. v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1274
(11th Cir. 2008)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555-56 (2007)); see also Edwards v. Prime, Inc., 602 F.3d 1276,
1291 (11th Cir. 2010). The former rule--that “[a] complaint should
be dismissed only if it appears beyond doubt that the plaintiffs
can prove no set of facts which would entitle them to relief,” La
-3-
Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir.
2004)--has been retired by Twombly. James River Ins. Co., 540 F.3d
at 1274.
Thus, the Court engages in a two-step approach: “When
there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise
to an entitlement to relief.”
Ashcroft v. Iqbal, 129 S. Ct. 1937,
1950 (2009).
Dismissal is warranted under Federal Rule of Civil Procedure
12(b)(6) if, assuming the truth of the factual allegations of
plaintiff’s complaint, there is a dispositive legal issue which
precludes relief.
Neitzke v. Williams, 490 U.S. 319, 326 (1989);
Brown v. Crawford County, Ga., 960 F.2d 1002, 1009-10 (11th Cir.
1992).
III.
Defendant Trans Union filed a motion for a partial dismissal
(Doc. #21) pursuant to Federal Rule of Civil Procedure 12(b)(6)
arguing that as a private plaintiff Picon cannot seek equitable,
declaratory, or injunctive relief under the FCRA.
“The
FCRA
is
intended
‘to
prevent
consumers
from
being
unjustly damaged because of inaccurate or arbitrary information in
a credit report.’”
Allmond v. Bank of Am., No. 3:07–cv–186, 2008
WL 2445652, at *2 (M.D. Fla. June 16, 2008)(quoting Equifax, Inc.
v. Fed. Trade Comm’n, 678 F.2d 1047, 1048 (11th Cir. 1982)). Thus,
the FCRA allows individuals to sue any person who willfully or
-4-
negligently fails to comply with its requirements.
§§ 1681n(a), 1681o(a).
15 U.S.C.
If applicable, individuals may seek actual
damages, costs, reasonable attorney’s fees and punitive damages.
15 U.S.C. §§ 1681n, 1681o.
In general “[a]bsent the clearest command to the contrary from
Congress, federal courts retain their equitable power to issue
injunctions in suits over which they have jurisdiction.” Califano
v. Yamasaki, 442 U.S. 682, 705 (1979).
The sections of the FCRA
that grant individuals a private right of action contain a list of
available remedies, and that “list does not include equitable
relief.”
Hamilton v. DirecTV, Inc., 642 F. Supp. 2d 1304, 1305
(M.D. Ala. 2009); Jones v. Sonic Auto., Inc., 391 F. Supp. 2d 1064,
1065 (M.D. Ala. 2005).
Importantly, § 1681s(a) expressly empowers
the Federal Trade Commission (FTC) to obtain injunctions for
violations of the FCRA.
15 U.S.C. § 1681s(a).
Although the Eleventh Circuit has yet to consider this issue1,
courts in this district have consistently found that by excluding
equitable relief from the list of remedies available to private
individuals, Congress intended to vest injunctive relief solely
with the FTC.
See Hamilton 642 F. Supp. 2d at 1306; Lee v. Sec.
Check, LLC, No. 3:09cv421, 2009 WL 3790455 at *4 (M.D. Fla. Nov. 9,
1
However, with regards to the Fair Debt Collection Practices
Act, which has similar provisions to FCRA, the Eleventh Circuit has
held that equitable relief is not available to a private plaintiff.
Sibley v. Fulton Dekalb Collection Serv., 677 F.2d 830, 834 (11th
Cir. 1982).
-5-
2009); Gonzalez v. Macy’s/DSNB, No. 06-61571, 2006 WL 5849317 at *1
(S.D. Fla. Dec. 12, 2006).
Additionally, the Fifth Circuit has
held that “the affirmative grant of power to the FTC to pursue
injunctive relief, coupled with the absence of a similar grant to
private litigants when they are expressly granted the right to
obtain damages and other relief, persuasively demonstrates that
Congress vested the power to obtain injunctive relief solely with
the FTC.”
Washington v. CSC Credit Servs. Inc., 199 F.3d 263, 268
(5th Cir. 2000).
This Court agrees, and finds that the FCRA does
not support a private plaintiff’s request for equitable relief.
Accordingly, it is now
ORDERED:
Defendant Trans Union LLC’s Motion For Partial Dismissal (Doc.
#21) is GRANTED and the requests for injunctive and declaratory
relief are DISMISSED.
DONE AND ORDERED at Fort Myers, Florida, this
June, 2011.
Copies:
Counsel of record
-6-
21st
day of
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?