Genevish et al v. Wells Fargo Bank, N.A. et al

Filing 28

ORDER: Defendant Wells Fargo Bank, N.A.'s Motion to Dismiss Complaint with Prejudice 25 is GRANTED. Counts One, Two, and Three of the Complaint are dismissed with prejudice. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 4/1/2013. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
STEVEN G. GENEVISH and BEVERLY
H. GENEVISH,
Plaintiffs,
v.

Case No. 8:13-cv-402-T-33AEP

WELLS FARGO BANK, N.A., ET AL.,
Defendants.
______________________________/
ORDER
This cause is before the Court pursuant to Defendant
Wells Fargo Bank, N.A.’s Motion to Dismiss Complaint with
Prejudice (Doc. # 25), which was filed on March 12, 2013.
Plaintiffs failed to file a response in opposition to the
Motion within the time allotted in the Local Rules of this
Court.

Accordingly, the Court grants the Motion as an

unopposed Motion.
I.

Background
Plaintiffs’ real property in Atlanta, Georgia was subject

to a short sale in August 2010.

In connection with that sale

and the effect it had on their credit, Plaintiffs filed a
Complaint in state court on January 16, 2013, containing the
following counts: (Count One) for violation of the Fair Credit
Reporting Act against Wells Fargo; (Count Two) for defamation
against Wells Fargo; (Count Three) for negligence against

Wells Fargo; and (Count Four) for violation of the Fair Credit
Reporting Act against Transunion, LLC, Equifax, Inc., and
Experian Information Solutions, Inc. (Doc. # 2).
Defendants removed the action to this Court on February
12, 2013. (Doc. # 1).

Transunion, Equifax, and Experian each

filed an Answer to the Complaint. (Doc. ## 10, 13, 16). Wells
Fargo filed the instant Motion to Dismiss Counts One through
Three with prejudice.
II.

Legal Standard
On a motion to dismiss, this Court accepts as true all

the allegations in the complaint and construes them in the
light most favorable to the plaintiff.

Jackson v. Bellsouth

Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).

Further,

this Court favors the plaintiff with all reasonable inferences
from the allegations in the complaint.

Stephens v. Dep’t of

Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990)
(“On a motion to dismiss, the facts stated in [the] complaint
and all reasonable inferences therefrom are taken as true.”).
However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
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raise a
level.

right

to

relief

above

the

speculative

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

In addition, courts are not “bound to

accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
Furthermore, “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.”

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

III. Analysis
Wells

Fargo

has

identified

material

deficiencies

regarding Plaintiffs’ Fair Credit Reporting Act claim asserted
in Count One of the Complaint.

Among other issues, Wells

Fargo points out that “Plaintiffs have not alleged that the
credit reporting agencies notified Wells Fargo of any dispute”
as required by 15 U.S.C. § 1681s-2(b). (Doc. # 25 at 4).
Wells Fargo also notes that “[e]ven if Plaintiffs had alleged
formal

notice

from

the

credit

reporting

agencies,

their

allegations and attached exhibits show nothing more than Wells
Fargo complied with the requirements of section 1681s-2(b) by
investigating

the

disputed

information.”

(Id.

at

6).

Furthermore, “proactive and continuous investigation is not
indicative of any willful or negligent noncompliance with the

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FCRA, which are required by the express language contained in
1681n and 1681o.” (Id. at 6-7).
Wells Fargo also argues that Plaintiffs’ defamation and
negligence claims, asserted in Counts Two and Three, are
preempted by the Fair Credit Reporting Act.

Wells Fargo has

supplied the Court with ample support for this argument. 15
U.S.C. § 1681h(e) states:
[N]o consumer may bring any action or proceeding in
the nature of defamation, invasion of privacy, or
negligence with respect to the reporting of
information against any consumer reporting agency,
any user of information, or any person who
furnishes information to a consumer reporting
agency, . . . except as to false information
furnished with malice or willful intent to injure
such consumer.
Id.
A number of courts interpreting this provision have ruled
that the FCRA preempts state negligence and defamation claims
absent allegations of malice.1 See, e.g., Lofton-Taylor v.
Verizon

Wireless,

262

F.

App’x

999,

1002

(11th

Cir.

2008)(“because there is no evidence that [a statement about
credit

information]

was

made

maliciously

with

intent

to

injure, [plaintiff’s] state law defamation and invasion of
privacy claims against [defendant] are precluded by § 1681h(e)

1

The Complaint in this case does not allege that Wells
Fargo acted with malice or intent to injure Plaintiffs.
4

of the Fair Credit Reporting Act”);

Parks v. Experian Credit

Bureau, No. 6:09-cv-1284-Orl-19DAB, 2010 U.S. Dist. LEXIS
9697, at *10 (M.D. Fla. Feb. 4, 2010)(holding that “the FCRA
preempts state law claims of negligence in the absence of
malice or willful intent to injure a consumer”); Jordan v.
Equifax Info. Servs., LLC, 410 F. Supp. 2d 1349, 1355 (N.D.
Ga. 2006)(finding that “[t]he FCRA preempts defamation and
negligent reporting claims brought pursuant to state law
unless the plaintiff can prove that the defendant acted with
malice or with a willful intent to injure him”); Jackson v.
Countrywide Home Loans, Inc., No. 2:11-cv-327-MEF, 2012 U.S.
Dist. LEXIS 29994, at *16 (M.D. Ala. Mar. 7, 2012)(dismissing
defamation claim with prejudice as preempted by the FCRA);
Consumer Data Indus. Ass’n v. King, 678 F.3d 898, 901 (10th
Cir.

2012)(holding

that

“[t]he

FCRA

leaves

no

room

for

overlapping state regulations”); Purcell v. Bank of Am., 659
F.3d 622, 624 (7th Cir. 2011)(finding that the FCRA preempted
state law defamation and negligence claims asserted against a
bank); MacPherson v. JP Morgan Chase Bank, 665 F.3d 45, 48 (2d
Cir. 2011)(ruling that the FCRA preempted state common law
claims, including a defamation claim, asserted against a
bank).
Plaintiffs, who are represented by counsel, have had the
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opportunity to respond to Wells Fargo’s Motion to Dismiss.
Plaintiffs failed to do so.

The Court thus grants the Motion

to Dismiss as an unopposed Motion.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant Wells Fargo Bank, N.A.’s Motion to Dismiss
Complaint with Prejudice (Doc. # 25) is GRANTED.

Counts One,

Two, and Three of the Complaint are dismissed with prejudice.
DONE and ORDERED in Chambers, in Tampa, Florida, this 1st
day of April, 2013.

Copies: All Counsel and Parties of Record

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