Arianas v. LVNV Funding, LLC

Filing 24

ORDER granting in part and denying in part 22 Motion to Dismiss for Failure to State a Claim. Signed by Judge James D. Whittemore on 1/7/2015. (KE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ELIAS ARIANAS,
Plaintiff,
Case No. 8:14-cv-01531-T-27EAJ

vs.
L VNV FUNDING LLC.,
Defendant.

ORDER
BEFORE THE COURT is Defendant's Motion to Dismiss Plaintiffs Amended Complaint
(Dkt. 22), and Plaintiffs response (Dkt. 23). Upon consideration, the motion is GRANTED in part
and DENIED in part.
BACKGROUND

Plaintiff Elias Arianas brought this action alleging violations of the Florida Consumer
Collection Practices Act ("FCCPA"), Fla. Stat.§ 559.55 et seq., and the Fair Credit Reporting Act
("FCRA"), 15 U.S.C. § 1681 et seq., stemming from a disputed debt and Defendant's reporting of
the debt to credit agencies. (Dkt. 20).
Plaintiff owed debts to Washington Mutual (the account was later acquired by Chase) and
GE, and allegedly paid them off and closed the accounts in 2008. (Id.

~~

9-15). Defendant LVNV

Funding acquired these credit accounts in September 2011, even though they had been paid off in
full. (Id.

~

16). After acquiring these accounts, Defendant allegedly furnished negative reports

regarding the accounts to the major consumer credit reporting agencies on several occasions in 2013.

1

(Id.~~

17, 28-29, 32, 35-39). In response, Plaintiff filed disputes with.Defendant and the consumer

credit reporting agencies. (Id.~~ 44, 47, 62, 70). Defendant refused to retract the negative reports.

(Id.

~~

46, 48, 59-60).
Plaintiff originally filed a two-count complaint in state court, which Defendant removed to

federal court. (See Dkt. 1). Defendant then moved to dismiss the complaint, and its motion was
granted, limiting Plaintiff's statutory damages under the FCCPA to $1000, and dismissing Plaintiff's
FCRA claim with leave to amend. (Dkt. 16). Plaintiff filed an amended complaint (Dkt. 20), which
Defendant has again moved to dismiss. (Dkt. 22).
STANDARD OF REVIEW

A complaint should contain a "short and plain statement of the claim showing that the
pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The complaint must "plead all facts establishing
an entitlement to relief with more than 'labels and conclusions' or a 'formulaic recitation of the
elements of a cause of action."' Resnick v. AvMed, Inc., 693 F.3d 1317, 1324 (11th Cir. 2012)
(quoting Bell At/. Corp. v. Twombly, 550 U.S. 554, 555 (2007)).
"[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss."

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2008) (citing Twombly, 550 U.S. at 556). "A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Id at 678 (citing Twombly, 550
U.S. at 556). This plausibility standard "asks for more than a sheer possibility that a defendant has
acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). "Determining whether a complaint states
a plausible claim for relief will ... be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense." Id. at 679 (citing Iqbal v. Hasty, 490 F.3d 143,
2

157 (2d Cir. 2007), rev 'd sub nom. Ashcroft v. Iqbal, 556 U.S. 672 (2009)). Where the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has
not shown that the pleader is entitled to relief. Id.
All of the factual allegations contained in the complaint must be accepted as true for the
purposes of a motion to dismiss, but this tenet is "inapplicable to legal conclusions." Id. at 678.
"While legal conclusions can provide the framework of a complaint, they must be supported by
factual allegations." Id at 679. All reasonable inferences must be drawn in the plaintiffs favor. St.
George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir. 2002).
DISCUSSION

Count I - FCCPA Claim

Plaintiffs state law FCCPA claim was previously limited to a maximum of $1,000 in
statutory damages. (See Dkt. 16). Defendant now moves to dismiss the FCCPA claim in the
Amended Complaint, contending it is preempted by the FCRA.
The FCRA's preemption provision states, "No requirement or prohibition may be imposed
under the laws of any State ... with respect to any subject matter regulated under ... section 1681 s-2
of this title, relating to the responsibilities of persons who furnish information to consumer reporting
agencies .... " 15 U.S.C. § 168lt(b)(l)(F). Section 168ls-2 regulates the furnishing of information
to consumer reporting agencies, but not the collection of debt. Courts have interpreted the
preemption provision to preempt claims based on furnishing of information to reporting agencies,
but an '"unfair debt collection practices claim survives [FCRA] preemption' ifthe defendant's debt
collecting is separate from the defendant's credit reporting." Menashi v. American Home Mortgage
Servicing, Inc., No. 8:1 l-cv-1346-T-23EAJ, 2011 WL 4599816 (M.D. Fla. Oct. 4, 2011), at *2

3

(quoting Ross v. FDIC, 625 F.3d 808, 810, 817 (4th Cir. 2010)); Best v. Bluegreen Corp., No.
14-80929-CIV, 2014 WL 6883083, at *3 (S.D. Fla. Dec. 4, 2014); Osborne v. Vericrest Fin., Inc.,
No. 8:1 l-cv-716-T-30TBM, 2011WL1878227, at *2-3 (M.D. Fla. May 17, 2011).
Here, Plaintiff's FCCPA claim is based on two alleged practices by Defendant: furnishing
information to the consumer reporting agencies, and seeking to collect the debt from Plaintiff,
including by references to providing information to the consumer reporting agencies. (Compare Dkt.
20 ~ 89 (d-e, j) ("Defendant violated [the FCCPA] by ... Knowingly making numerous false reports
to consumer credit reporting agencies") with id.

~

89 (f-g) ("Knowingly attempting to enforce

payments on accounts . . .") The first practice is preempted by the FCRA, but the second is not.
"Defendant's threatened conduct falls within the FCRA['s preemption clause.] But the threat itself
does not." Best, 2014 WL 6883083, at *3. Therefore, the motion to dismiss will be granted to the
extent the FCCPA claim is based on the furnishing of information to the reporting agencies, and
otherwise denied.

Count II - FCRA Claim
The FCRA imposes two separate duties on furnishers, like Defendant here. Green v. RBS

Nat'! Bank, 288 Fed. App'x 641, 642 (1lthCir.2008). First, they must provide accurate information
to the consumer reporting agencies. 15 U.S.C. § 168ls-2(a). Second, upon notice of a dispute from
a consumer reporting agency, they must investigate the accuracy of the information questioned. 15
U.S.C. § 1681 s-2(b). Plaintiff alleges Defendant has violated both duties. (See Dkt. 20 ~ 99(a-d; f;
g-j)). However, as explained in the order on the previous motion to dismiss, there is no private right
of action to enforce 15 U .S.C. § 1681 s-2(a); enforcement is reserved for federal and state regulators.

4

(Dkt. 16 at 5). See Green, 288 Fed. App'x at 642 n.2. To the extent Plaintiff continues to assert
claims under 15 U.S.C. § 1681s-2(a), they are due to be dismissed with prejudice.
Plaintiff does adequately allege violations of 15 U.S.C. § 1681s-2(b), which provides a
private right of action when furnishers fail to promptly investigate and respond to notices of disputes.

Green, 288 Fed. App'x at 642-43. To bring a claim under 15 U.S.C. § 1681s-2(b), a furnisher must
have received notice of a dispute from a consumer reporting agency. Id. at 642. In the Amended
Complaint, Plaintiff adequately alleges he provided notice of the dispute to the consumer reporting
agencies, which in turn notified Defendant. (See Dkt. 20, 62). Therefore, Defendant's motion to
dismiss will be denied with respect to claims based on 15 U.S.C. § 1681s-2(b).

Accordingly,
1) Defendant's Motion to Dismiss Plaintiffs Amended Complaint (Dkt. 22) is GRANTED

in part and DENIED in part.
2) To the extent Plaintiffs FCCPA claim (Count Dis based on Defendant's provision of
information to the consumer reporting agencies, it is DISMISSED with prejudice.
3) To the extent Count I is based on attempts at debt collection, the motion to dismiss is
DENIED.

4) To the extent Count II is based on violations of15 U.S.C. § 1681s-2(a), it is DISMISSED
with prejudice.

5) To the extent Count II is based on violations of 15 U.S.C. § 1681s-2(b), the motion to
dismiss is DENIED.

5

6) Defendant shall answer the Amended Complaint (Dkt. 20) within fourteen (14) days.

DONE AND ORDERED this _ D a y of January, 2015.

nited States District Judge
Copies to: Counsel of Record

6