Navarrete v. Experian Information Solutions, Inc. et al

Filing 42

OPINION AND ORDER granting in part and denying in part 18 defendant's Request for Judicial Notice, as corrected by 29 ; denying 17 IberiaBank's Motion to Dismiss. IberiaBank shall have fourteen days from the date of this Opinion and Order to file a responsive pleading to plaintiff's Complaint. See Opinion and Order for details. Signed by Judge John E. Steele on 9/19/2016. (AMB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LUCY M. NAVARRETE,
Plaintiff,
v.

Case No: 2:16-cv-225-FtM-99MRM

EXPERIAN
SOLUTIONS,
IBERIABANK,

INFORMATION
INC.
and

Defendants.

OPINION AND ORDER
This matter comes before the Court on review of defendant
IberiaBank’s Motion to Dismiss (Doc. #17) filed on April 21, 2016.
Plaintiff filed a Response (Doc. #27) on May 19, 2016, to which
IberiaBank filed a Reply (Doc. #35) on June 7, 2016, and plaintiff
filed a sur-reply (Doc. #36) on June 14, 2016.

Also before the

Court is defendant IberiaBank’s Request for Judicial Notice (Docs.
##18, 29), originally filed on April 21, 2016 and corrected on May
23, 2016, to which plaintiff filed a Response (Doc. #28) on May
19, 2016.
I.
Plaintiff’s

Complaint

(Doc.

#1)

contains

the

following

allegations:
In September of 2015, plaintiff obtained a copy of her credit
report and noticed an inaccurate report for her IberiaBank account

#170270XXXXX.

(Id. ¶ 24.)

On September 15, 2015, plaintiff sent

a letter disputing the inaccurate report to Equifax, Experian, and
TransUnion pursuant to 15 U.S.C. § 1681i. (Id. ¶ 25.)

The letter

listed the entry that plaintiff disputed and explained that the
account was a mortgage loan and, based upon plaintiff’s payment
default in February, 2009, was foreclosed on in 2009. (Id. ¶ 26.)
Judgment was entered in the foreclosure proceeding on June 4, 2010
and the property was sold at foreclosure auction on July 9, 2010.
(Id.)

In the letter, plaintiff explained that the lender did not

pursue a deficiency on the mortgage debt, therefore pursuant to
section 95.11, Florida Statutes, the lender’s right to pursue a
deficiency action expired on July 1, 2014.

(Id.)

Plaintiff

demanded the reference to the account be removed as inaccurate
because the lender no longer had the right to collect.
TransUnion,
Dispute

Experian,

Verification

plaintiff’s
September

(ACDV)

IberiaBank

28,

2015,

and

Equifax
forms

tradeline.

TransUnion

sent

to

(Id.

Automated

IberiaBank
¶¶

returned

27,
the

(Id.)

30,

Credit

regarding
33.)

results

of

On
its

investigation and reported account #170270XXXXX as “deleted.” (Id.
¶¶ 28-29.)

On October 21, 2015, Experian returned the results of

its investigation and reported account #170270XXXXX as “remains.”
(Id. ¶¶ 31-32.)
of

its

On October 23, 2015, Equifax returned the results

investigation

and

reported

“deleted.” (Id. ¶¶ 34-35.)

2

account

#170270XXXXX

as

Plaintiff brought this action on March 22, 2016 against
IberiaBank

and

Experian

Information

Solutions,

Inc.

violations of the Fair Credit Reporting Act (FCRA).

alleging

(Doc. #1.)

Plaintiff alleges that “IberiaBank violated 15 U.S.C. § 1681s-2(b)
by failing to conduct a reasonable investigation with respect to
the

disputed

information,

failing

to

review

all

relevant

information available to it, and failing to update and/or remove
the

inaccurate

‘disputed.’”

tradeline

or

.

(Id. ¶¶ 36, 56.)

.

.

report

the

account

as

Experian Information Solutions,

Inc. filed an Answer and Affirmative Defenses (Doc. #13) on April
18, 2016 and IberiaBank filed a Motion to Dismiss (Doc. #17) on
April 21, 2016. Defendant also filed a Request for Judicial Notice
(Docs. ##18, 29), seeking judicial notice of documents filed in
the

state

court

foreclosure

proceeding,

the

Assignment

of

Mortgage, and the Purchase and Assumption Agreement between the
FDIC for Orion Bank and IberiaBank.
II.
The Court will first review IberiaBank’s Request for Judicial
Notice 1

(Docs.

##18,

29)

to

determine

1

whether

the

documents

IberiaBank filed its initial Request for Judicial Notice on
April 21, 2016. (Doc. #18.) On May 23, 2016, IberiaBank filed a
Corrected Request for Judicial Notice indicating that it had
attached the wrong Purchase and Assumption Agreement to its initial
Request for Judicial Notice, and requesting the Court to take
judicial notice of the Purchase and Assumption Agreement between

3

IberiaBank seeks judicial notice of can be properly considered
when ruling on IberiaBank’s Motion to Dismiss.
“The court may judicially notice a fact that is not subject
to reasonable dispute because it:
the

trial

court's

territorial

(1) is generally known within
jurisdiction;

or

(2)

can

be

accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.”

Fed. R. Evid. 201.

“A district

court may take judicial notice of certain facts without converting
a motion to dismiss into a motion for summary judgment.” Horne v.
Potter, 392 F. App’x 800, 802 (11th Cir. 2010) (citing Bryant v.
Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999)); Halmos
v. Bomardier Aerospace Corp., 404 F. App’x 376, 377 (11th Cir.
2010) (“[A] district court may take judicial notice of matters of
public record without converting a Rule 12(b)(6) motion unto a
Rule 56 motion.” (citation omitted)).

Additionally, a “court may

take judicial notice of a document filed in another court not for
the truth of the matters asserted in the other litigation, but
rather

to

filings.”

establish

the

fact

of

such

litigation

and

related

United States v. Jones, 29 F.3d 1549, 1553 (11th Cir.

1994) (citation omitted).

“Federal Deposit Insurance Corporation Receiver for Orion Bank and
IBERIABANK dated November 13, 2009.” (Doc. #29, p. 2.)

4

Plaintiff does not oppose the Court taking judicial notice of
the loan documents filed in the state court proceeding. (Doc. #36,
p. 1.)

Accordingly, the Court will take judicial notice of these

documents.
Plaintiff does oppose, however, the Court taking judicial
notice of the Purchase and Assumption Agreement and the Assignment
of Mortgage.

(Id. at 1-2.)

Contrary to plaintiff’s assertion

(Doc. #28, p. 3), the Court finds that the Assignment of Mortgage
is a public record, recorded in the Lee County Public Records,
Instrument

Number

Assumption

Agreement

website.

2010000056450.
is

Further,

available

on

the

the

Purchase

FDIC’s

and

government

See FAS Capital, LLC v. Carr, 7 F. Supp. 3d 1259, 1267

(N.D. Ga. 2014) (collecting cases where “courts have defined
‘public records’ to include facts found on the websites of the
FDIC and other government agencies.”).

Therefore the Court finds

both documents appropriate for judicial notice.

However, as

plaintiff questions the authenticity of these documents, the Court
declines to take judicial notice of the Assignment of Mortgage and
Purchase and Assumption Agreement at this time.
-2.)

(Doc. #36, pp. 1

See Bros. v. Saag, No. 4:13-CV-466-VEH, 2014 WL 838890, at

*4 (N.D. Ala. Mar. 4, 2014) (declining to take judicial notice of
note, mortgage, and assignment where the documents were disputed).
But see Barber v. Rubin Lublin, LLC, No. 1:13-CV-975-TWT, 2013 WL
6795158, at *3-4 (N.D. Ga. Dec. 20, 2013) (taking judicial notice

5

of conveyance, security deed, and assignment despite assertion
that they may be fraudulent where no specific basis was asserted
for believing documents were fraudulent).

Further, even if the

Court were to take judicial notice of these documents, it would
only be of the fact that the documents and the statements they
contain exist, and not for the truth of the matters asserted
therein.

Bryant v. Avado Brands, Inc., 187 F.3d at 1278.
III.

Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted).

To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”

Id. at 555.

See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more

than

an

unadorned,

This requires

the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citations
omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,

6

551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,”
v.

Berzain,

omitted).

654

F.3d

1148,

1153

(11th

Cir.

2011)

Mamani

(citations

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent

with

a

facially plausible.”

“Factual allegations that are merely

defendant’s

liability

fall

short

of

being

Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012) (internal quotation marks and citations
omitted).

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.”

Iqbal, 556 U.S. at 679.
IV.

IberiaBank moves to dismiss plaintiff’s Complaint on the
bases that (1) pursuant to the FDIC Extender statute, at the time
the dispute letter was sent, the statute of limitations had not
yet run and IberiaBank was still entitled to bring a deficiency
action and (2) IberiaBank is allowed to continue reporting the
debt for seven years regardless of the ability to collect the debt.
(Doc. #17.)

In response, plaintiff argues that (1) IberiaBank is

improperly relying on matters outside of the four corners of the
complaint, (2) the debt is barred by the Florida deficiency statute
of repose and statute of limitation for breach of contract, and

7

(3) plaintiff has adequately stated a claim against IberiaBank
under 15 U.S.C. § 1681s-2(b) for failing to reasonably investigate
and update its inaccurate and misleading credit report. (Doc. #27.)
Examining the four corners of the Complaint, and the matters
that the Court has judicially noticed, the Court is unable to
determine whether IberiaBank is in fact allowed to utilize the
FDIC Extender Statute. 2

Accordingly, the Court is unable to

determine whether IberiaBank was entitled to bring a deficiency
action at the time plaintiff sent the dispute letter.
The crux of IberiaBank’s motion to dismiss is that because
the statute of limitations had not run at the time that plaintiff
sent her dispute letter, the continued reporting of the debt was
appropriate and not a violation of the FRCA.
7.)

(Doc. #17, pp. 4-

However, plaintiff’s FCRA claim is not solely based on

IberiaBank’s failure to remove the credit report regarding the
IberiaBank tradeline.

It also alleges that IberiaBank violated

the FCRA by “failing to conduct a reasonable investigation with

2

The FDIC Extender Statute has been interpreted to not only
apply to actions brought by the conservator or receiver, but also
to the assignees of the FDIC, as they stand in the shoes of the
assignor. See LLP Mortgage Ltd. v. Tucker, 48 So. 3d 115, 116-17
(Fla. 3d DCA 2010); Caddle Co. II, Inc. v. Stamm, 633 So. 2d 45
(Fla. 1st DCA 1994) (holding that the extended statute of
limitations apples in actions brought by assignees of the FDIC).
However, the plaintiff’s Complaint doesn’t allege that IberiaBank
is an assignee of the FDIC, and the Court finds that ruling on the
merits of the allegations is more appropriately addressed at a
later stage of the proceedings.

8

respect to the disputed information, failing to review all relevant
information available to it, and failing to update and/or remove
the

inaccurate

tradeline

.

.

.

.”

(Doc.

#1,

¶¶

36,

56.)

IberiaBank has not presented any basis for dismissing plaintiff’s
FCRA

claims

regarding

these

allegations.

Accordingly,

IberiaBank’s Motion to Dismiss is denied.
Accordingly, it is now
ORDERED:
1.

Defendant’s Request for Judicial Notice (Doc. #18), as

Corrected (Doc. # 29), is granted in part and denied in part.
2.

Defendant IberiaBank’s Motion to Dismiss (Doc. #17) is

DENIED.
3.
of

this

IberiaBank shall have FOURTEEN (14) DAYS from the date
Opinion

and

Order

to

file

a

responsive

pleading

to

plaintiff’s Complaint.
DONE AND ORDERED at Fort Myers, Florida, this __19th__ day of
September, 2016.

Copies: Counsel of record

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