Sevi v. Experian Information Solutions, Inc. et al

Filing 23

ORDER granting 20 Motion to Dismiss for Failure to State a Claim. On or before December 13, 2013, Plaintiff may file an Amended Complaint. Signed by Judge Roy B. Dalton, Jr. on 11/26/2013. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ROBERTO SEVI,
Plaintiff,
v.

Case No. 6:13-cv-1433-Orl-37KRS

EXPERIAN INFORMATION
SOLUTIONS, INC.; TRANSUNION,
LLC; NATIONSTAR MORTGAGE, LLC,
Defendants.
ORDER
This cause is before the Court on the Defendant Nationstar Mortgage, LLC’s
Motion to Dismiss Counts Five and Six of the Complaint and Incorporated Memorandum
of Law (Doc. 20) filed October 30, 2013. The time for opposing the motion to dismiss
has passed, and Plaintiff has not responded. Accordingly, the motion to dismiss is
unopposed. Because the motion is unopposed and meritorious, it is due to be granted.
BACKGROUND
This is an action for alleged violations of the Fair Credit Reporting Act (“FCRA”).
(Doc. 1.) Plaintiff asserts two claims against each of the Defendants, Experian
Information Solutions, Inc. (“Experian”), Transunion, LLC (“Transunion”), and Nationstar
Mortgage, LLC (“Nationstar”). (Id.) Experian and Transunion filed answers to the
complaint. (Docs. 5, 10.) Nationstar moved to dismiss counts five and six (Doc. 20), and
Plaintiff has not opposed Nationstar’s motion.
STANDARDS
To avoid dismissal under Rule 12(b)(6), the factual allegations in the complaint

must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). In making this plausibility determination, the Court must accept
the factual allegations as true; however, this “tenet . . . is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must dismiss a
cause of action when, “on the basis of a dispositive issue of law, no construction of the
factual allegations will support the cause of action.” Marshall Cnty. Bd. of Educ. v.
Marshall Cnty. Gas. Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
DISCUSSION
Nationstar contends that counts five and six should be dismissed because
Plaintiff has not alleged that Nationstar received notice of Plaintiff’s dispute from a credit
reporting agency. (Doc. 20.) Under the FCRA, receipt of such notice is a necessary
element of a claim under subsection 1681s-2(b) against a “furnisher of information”
such as Nationstar. 15 U.S.C. § 1681s-2(b) (imposing investigatory duties on “furnishers
of information upon notice of dispute . . . pursuant to section 1681i(a)(2)”); 15 U.S.C.
§ 1681i(a)(2) (requiring that the “furnisher of information” be provided notice by a
“consumer reporting agency”). Failure to allege that a furnisher of information received
the requisite notice from a consumer reporting agency will result in dismissal of claims
asserted under subsection 1681s-2(b). See Foxx v. Ocwen Loan Servicing, LLC, No.
8:11-CV-1766-T-17EAK, 2012 WL 2048252, *6 (M.D. Fla. Jun. 6, 2012) (dismissing
FCRA claims where plaintiff failed to allege that defendant received the statutory notice
from a credit reporting agency); Rambarran v. Bank of Am., N.A., 609 F. Supp. 2d 1253,
1255 (S.D. Fla. 2009) (holding that notice from a consumer instead of a credit reporting
agency is insufficient to trigger the duties imposed under the FCRA). Because the
complaint includes no allegation that Nationstar received the requisite notice, counts

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five and six of the Complaint are due to be dismissed.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Defendant Nationstar Mortgage, LLC’s Motion to Dismiss Counts Five and
Six of the Complaint and Incorporated Memorandum of Law (Doc. 20) is
GRANTED.

2.

Counts Five and Six of the Complaint (Doc. 9) are DISMISSED WITHOUT
PREJUDICE.

3.

On or before December 13, 2013, the Plaintiff may file an Amended
Complaint. If Plaintiff fails to file an Amended Complaint in the time
prescribed, this action will proceed only with respect to Counts One
through Four of the Complaint.

DONE AND ORDERED in Chambers in Orlando, Florida, on November 26, 2013.

Copies:
Counsel of Record

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