Green v. Chase Bankcard Services, Inc. et al

Filing 45

ORDER: Defendant Chase Bankcard Services, Inc.'s Motion to Dismiss (Doc. # 27 ) is granted. Defendant Trans Union, LLC's Motion to Dismiss, or for More Definite Statement (Doc. # 28 ) is granted. Green may file an amended complaint a ddressing the issues discussed in this Order by April 6, 2017. As the amended complaint must be filed before the mediation scheduled on April 21, 2017, the Court will be disinclined to grant an extension of this deadline. Signed by Judge Virginia M. Hernandez Covington on 3/25/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
IRIS GREEN,
Plaintiff,
v.

Case No. 8:16-cv-3252-T-33AAS

CHASE BANKCARD SERVICES, INC.,
EXPERIAN INFORMATION SOLUTIONS,
INC., EQUIFAX INFORMATION
SERVICES, LLC, and TRANS UNION,
LLC,
Defendants.
______________________________/
ORDER
This matter comes before the Court pursuant to Defendants
Chase Bankcard Services, Inc.’s Motion to Dismiss (Doc. #
27), filed on January 13, 2017, and Trans Union, LLC’s Motion
to Dismiss or for More Definite Statement (Doc. # 28), filed
on January 25, 2017. Plaintiff Iris Green filed responses on
March 21, 2017. (Doc. ## 41, 42). For the reasons that follow,
the Motions are granted and the Complaint is dismissed with
leave to amend.
I.

Background
In December of 2015, Green realized that there was

inaccurate

information

on

her

1

credit

report,

which

she

obtained from the consumer reporting agencies, Defendants
Experian Information Solutions, Equifax Information Services,
and Trans Union. (Doc. # 1 at ¶¶ 7, 10). Green disputed the
inaccurate reporting by Chase and requested that the three
consumer reporting agencies update her credit report “to
correct the inaccurate reporting by [] Chase to the credit
reporting

agencies.”

(Id.

at

¶

11).

Green

“specifically

disputed the account listed on [her] credit report reported
by [] Chase due to mathematical errors and demanded its
correction.” (Id. at ¶ 12).
According to Green, Chase is a “furnisher of information”
under the Fair Credit Reporting Act (FCRA) as well as “a
creditor

and

debt

collector

as

defined

by”

the

Florida

Consumer Collection Practices Act (FCCPA) and the Fair Debt
Collection

Practices

Act

(FDCPA),

who

has

“attempted

to

collect a consumer debt from [Green] within the last two
years.”

(Id.

“communicat[ed]

at

¶

with

4).

Green

[Green]

also

knowing

alleges

that

that

[Green]

[]

Chase
is

represented by undersigned counsel.” (Id. at ¶ 25).
Experian, Equifax, and Trans Union received Green’s
dispute letter and then “upon information and belief, sent
either

a

consumer

dispute

verification

form

and/or

an

electronic automated consumer dispute verification form to []
2

Chase.” (Id. at ¶ 13). Nevertheless, “despite having received
a dispute letter from [Green] and from undersigned counsel,
Defendants

failed

to

properly

conduct

a

reasonable

investigation and make the correction to [Green’s] credit
profile.” (Id. at ¶ 14). As a result, Green alleges she
incurred damages, including her “impaired ability to rebuild
[her] credit worthiness,” third-parties being misinformed
about Green’s account, her “inability to obtain and benefit
from new credit,” and the “mental and emotional pain, anguish,
humiliation, and embarrassment of credit denials.” (Id. at ¶
15).
Green

initiated

this

action

on

November

23,

2016,

alleging violations of the FCRA, 15 U.S.C. §§ 1681 et seq.,
by all Defendants, as well as violations of the FDCPA, 15
U.S.C. §§ 1692 et seq., and the FCCPA, Fla. Stat. §§ 559.55
et seq., by Chase. (Doc. # 1). Equifax and Experian filed
their Answers on December 30, 2016. (Doc. ## 16, 19). Chase
then filed its Motion to Dismiss, (Doc. # 27), on January 13,
2017, and Trans Union followed with its Motion to Dismiss or
for More Definite Statement, (Doc. # 28), on January 25, 2017.
Green responded on March 21, 2017. (Doc. ## 41, 42). The
Motions are now ripe for review.

3

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,
[w]hile 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
raise a right to relief above the speculative level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted). 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]he scope
of

review

must

be

limited

to

the

four

corners

of

the

complaint.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337
(11th Cir. 2002).

4

Alternatively, when a pleading is “so vague or ambiguous
that the [defendant] cannot reasonably prepare a response,”
the court can order the plaintiff to plead a more definite
statement of the claim. Fed. R. Civ. P. 12(e). But, “[t]he
court should not do so if it would frustrate the concept of
notice pleading.” Blair v. Philips Elecs. N. Am. Corp., No.
8:16-cv-3529-T-30JSS, 2017 WL 770960, at *1 (M.D. Fla. Feb.
28, 2017)(citing U.S. by Clark v. Ga. Power Co., 301 F. Supp.
538, 544 (N.D. Ga. 1969)).
III. Analysis
A.

Chase’s Motion
1.

FCRA

In Count I, Green alleges that Chase violated numerous
sections of the FCRA, including 15 U.S.C. §§ 1681s(2)(B),
1681g, and 1681i. (Doc. # 1 at ¶ 18). The Court notes that §
1681s(2)(B)

is

inapplicable

in

this

action

because

that

section governs the administrative enforcement of the FCRA by
the Federal Trade Commission. 15 U.S.C. § 1681s. And, although
mislabeled in the Complaint, Green quotes § 1681s-2(a), which
prohibits furnishers of credit information from providing
false information.

“However, the statute explicitly bars

private suits for violations of this provision.” Peart v.
Shippie, 345 F. App’x 384, 386 (11th Cir. 2009); see also §
5

1681s-2(c)(1) (stating that § 1681s-2(a) does not create a
private right of action).
Still, the FCRA does create a private right of action
for the enforcement of another section Green cites, § 1681s2(b), which “requires furnishers of credit information to
investigate the accuracy of said information upon receiving
notice of a dispute.” Peart, 345 F. App’x at 386 (citing §
1681s-2(b)). Thus, the Court will analyze Green’s claim under
§ 1681s-2(b).
Section 1681s-2(b) states:
After
receiving
notice
pursuant
to
section
1681i(a)(2) of this title of a dispute with regard
to the completeness or accuracy of any information
provided by a person to a consumer reporting agency,
the person shall—
(A) conduct an investigation with respect to the
disputed information;
(B) review all relevant information provided by the
consumer reporting agency pursuant to section
1681i(a)(2) of this title;
(C) report the results of the investigation to the
consumer reporting agency;
(D) if the investigation finds that the information
is incomplete or inaccurate, report those results
to all other consumer reporting agencies to which
the person furnished the information and that
compile and maintain files on consumers on a
nationwide basis; and
(E) if an item of information disputed by a consumer
is found to be inaccurate or incomplete or cannot
be verified after any reinvestigation under
paragraph (1), for purposes of reporting to a
6

consumer reporting agency only, as appropriate,
based on the results of the reinvestigation
promptly—
(i) modify that item of information;
(ii) delete that item of information; or
(iii) permanently block the reporting of that
item of information.
15 U.S.C. § 1681s-2(b)(1). Essentially, this section requires
furnishers of information to conduct an investigation after
being

notified

by

a

consumer

reporting

agency

that

the

information it furnished is disputed.
Chase argues that Green does not provide sufficient
factual allegations as to how Chase violated § 1681s-2(b).
Green states in a conclusory fashion that Chase and the other
Defendants

“failed

to

properly

conduct

a

reasonable

investigation,” but does not specify whether Chase conducted
an insufficient investigation or whether Chase failed to
investigate at all. Nor does Green elaborate as to how Chase’s
investigation, if one was initiated, was unreasonable. See
Smith v. Bank of Am. Home Loans, 968 F. Supp. 2d 1159, 1167
(M.D. Fla. 2013)(“It is unclear whether plaintiffs allege
that Bank of America failed to conduct any investigation. To
the extent an investigation was conducted, it is unclear how
the investigation failed to meet the requirements of the
statute. Therefore, plaintiffs have failed to put Bank of

7

America on notice as to the nature of their alleged violation
of 15 U.S.C. § 1681s-2(b).”)(emphasis original).
Chase also takes issue with the vague allegation that
Green reported “mathematical errors” regarding her account to
the consumer reporting agencies. Mathematical errors in the
calculation of the debt plausibly would result in inaccurate
information about the debt being included in Green’s credit
report. But, without more information, such as which charges
in Green’s Chase account were incorrectly calculated or the
basis for Green’s belief that there was a miscalculation,
Green has not put Chase on notice of the claim against them.
Thus, the Court agrees that Green has not sufficiently stated
a claim under § 1681s-2(b).
Green also has not — and cannot — state an FCRA claim
under the other sections cited in Count I. Section 1681g sets
out the procedures that consumer reporting agencies must
follow when they receive a request for information from a
consumer. 15 U.S.C. § 1681g(a) (“Every consumer reporting
agency shall, upon request, . . . clearly and accurately
disclose to the consumer . . .”). As Green has only alleged
that Chase is a furnisher of information — not a consumer
reporting agency — this section does not apply to Chase.
Similarly,

Section

1681i

“requires
8

a

consumer

reporting

agency to reinvestigate disputed information in a consumer’s
file if the consumer notifies the agency that the information
is disputed.” Allmond v. Bank of Am., No. 3–07–cv–186–J–33JRK,
2008 WL 205320, at *3 (M.D. Fla. Jan. 23, 2008)(citing 15
U.S.C. § 1681i). Thus, Green also cannot maintain a claim
against Chase under this section.
Thus, Green may only proceed on her FCRA claim against
Chase under § 1681s-2(b), for which the Court grants her leave
to amend to address the issues discussed above.
2.

FDCPA

In Count III, Green alleges that Chase violated 15 U.S.C.
§ 1692c(a)(2) of the FDCPA. Section 1692c(a)(2) states
Without the prior consent of the consumer given
directly to the debt collector or the express
permission of a court of competent jurisdiction, a
debt collector may not communicate with a consumer
in connection with the collection of any debt—
(2) if the debt collector knows the consumer is
represented by an attorney with respect to such
debt and has knowledge of, or can readily ascertain,
such attorney’s name and address, unless the
attorney fails to respond within a reasonable
period of time to a communication from the debt
collector or unless the attorney consents to direct
communication with the consumer.
15 U.S.C. § 1692c(a)(2).
The FDCPA defines a “debt collector” as “any person who
uses any instrumentality of interstate commerce or the mails

9

in

any

business

the

principal

purpose

of

which

is

the

collection of any debts, or who regularly collects or attempts
to collect, directly or indirectly, debts owed or due or
asserted to be owed or due another.” 15 U.S.C. § 1692a(6). In
contrast, the FDCPA defines a “creditor” as
any person who offers or extends credit creating a
debt or to whom a debt is owed, but such term does
not include any person to the extent that he
receives an assignment or transfer of a debt in
default solely for the purpose of facilitating
collection of such debt for another.
15 U.S.C. § 1692a(4). The term “debt collector” does not
include “any person collecting or attempting to collect any
debt owed or due or asserted to be owed or due another to the
extent

such

activity

.

.

.

concerns

a

debt

which

was

originated by such person,” 15 U.S.C. § 1692a(6)(F)(ii),
except

that

such

a

“creditor”

does

qualify

as

a

“debt

collector” if the creditor, “in the process of collecting his
own debts, uses any name other than his own which would
indicate that a third person is collecting or attempting to
collect such debts,” 15 U.S.C. § 1692a(6).
In the Complaint, Green states that Chase is both “a
creditor and debt collector as defined by the FCCPA and
FDCPA.” (Doc. # 1 at ¶ 4). Green alleges that Chase “attempted
to collect a consumer debt from [Green]” within the last two

10

years. (Id.). But, the Complaint only elaborates on Chase’s
failure to investigate and correct purportedly inaccurate
information about Green’s account with Chase and Chase’s
communications with Green relating to that conduct. Thus,
taking the Complaint’s allegations as true, much of Chase’s
conduct was performed in its capacity as a creditor.
Chase, as a creditor of Green, is not subject to the
FDCPA for seeking repayment of the debt if it did not “use[]
any name other than [its] own” during its collection activity.
15 U.S.C. § 1692a(6); see Craig v. Park Fin. of Broward Cty.,
Inc., 390 F. Supp. 2d 1150, 1154 (M.D. Fla. 2005)(“In their
Complaint, the Plaintiffs allege that Park Finance financed
a car loan for the Plaintiffs, and then sought repayment of
the loan. Based on these allegations, the Court concludes
that Defendant Park Finance is a creditor and is therefore
not covered by the Fair Debt Collection Practices Act.”); see
also Kelliher v. Target Nat’l Bank, 826 F. Supp. 2d 1324,
1327–28 (M.D. Fla. 2011)(citing Craig and acknowledging that
“the federal FDCPA does not apply to original creditors”).
Thus, to the extent Green’s claim involves Chase’s direct
communications with Green regarding credit reporting done in
its capacity as a creditor, Green’s FDCPA claim under §
1692c(a)(2) fails as a matter of law.
11

Although her allegations are conclusory, Green does also
identify Chase as a “debt collector” under the FDCPA who has
“attempted to collect a consumer debt from” Green. (Doc. # 1
at ¶ 4). And, while Green alleges in Count III that Chase
“communicat[ed]

with

[Green]

knowing

that

[]

[Green]

is

represented by undersigned counsel,” she does not make this
allegation in the background section of the Complaint, nor
does Green provide factual allegations regarding the time or
nature of these communications. (Doc. # 1 at ¶ 25). Thus, if
possible, Green may amend her FDCPA claim regarding Chase’s
direct contact with Green in its capacity as a debt collector.
3.

FCCPA

In Count II, Green alleges that Chase violated two
sections of the FCCPA, Fla. Stat. §§ 559.72(9) and (18). (Doc.
# 1 at ¶ 20). Section 559.72(9) states that no person shall
“[c]laim, attempt, or threaten to enforce a debt when such
person knows that the debt is not legitimate, or assert the
existence of some other legal right when such person knows
that the right does not exist.” Fla. Stat. § 559.72(9).
Section 559.72(18) states that no person shall:
[c]ommunicate with a debtor if the person knows
that the debtor is represented by an attorney with
respect to such debt and has knowledge of, or can
readily ascertain, such attorney’s name and
address, unless the debtor’s attorney fails to
12

respond within 30 days to a communication from the
person, unless the debtor’s attorney consents to a
direct communication with the debtor, or unless the
debtor initiates the communication.
Fla. Stat. § 559.72(18).
Chase argues that Green’s FCCPA claim is preempted by
the FCRA. (Doc. # 27 at 6). “Under the Supremacy Clause,
Congress is empowered to preempt state statutory law when
acting within constitutional limits by expressly so stating
within the language of a federal statute.” Bauer v. Target
Corp., No. 8:12-cv-978-T-AEP, 2012 WL 4054296, at *4 (M.D.
Fla. Sept. 14, 2012)(citing U.S. Const. art. VI, cl. 2). The
FCRA explicitly prohibits claims under the laws of “any State”
with respect to conduct regulated under § 1681s-2 relating to
the “responsibilities of persons who furnish information to
consumer reporting agencies.” 15 U.S.C. § 1681t(b).
To the extent Green bases her FCCPA claim against Chase
on its credit reporting activities, her claim is preempted by
the FCRA. See Osborne v. Vericrest Fin., Inc., No. 8:11–cv–
716–T–30TBM, 2011 WL 1878227, at *2–3 (M.D. Fla. May 17, 2011)
(“Defendant’s motion to dismiss based on preemption is granted
to the extent that the FCCPA claim is premised on credit
reporting activity.”); see also Allmond, 2008 WL 205320, at

13

*7 (citing Knudson v. Wachovia Bank, 513 F. Supp. 2d 1255,
1259 (M.D. Ala. 2007)).
But,
survives
collecting

“an

‘unfair

[FCRA]
is

debt

collection

preemption’
separate

if

from

the
the

practices
defendant’s

defendant’s

claim
debt
credit

reporting.” Menashi v. Am. Home Mortg. Servicing, Inc., No.
8:11-cv-1346-T-23EAJ, 2011 WL 4599816, at *2 (M.D. Fla. Oct.
4, 2011)(quoting Ross v. Fed. Deposit Ins. Corp., 625 F.3d
808, 810, 817 (4th Cir. 2010)). Separate debt collection
activity by Chase would not be preempted by the FCRA, and
Green does allege that Chase “attempted to collect a consumer
debt from [Green]” within “the last two years.” (Doc. # 1 at
¶ 4). And, while Chase’s attempts to collect a debt in its
capacity as creditor would not expose it to liability under
the FDCPA, “the FCCPA has been interpreted to apply to
original creditors as well as debt collection agencies.”
Kelliher, 826 F. Supp. 2d at 1327–28.
Therefore, Green’s FCCPA claim is not preempted so far
as it relates to Chase’s debt collection activity or direct
communications with Green that are separate from its credit
reporting activity. However, the Complaint does not provide
sufficient factual allegations regarding Chase’s separate
debt

collection

attempts

or
14

communications

with

Green.

Accordingly, Green may amend, if possible, her FCCPA claim
based on Chase’s direct communications with her to collect a
debt.
B.

Trans Union’s Motion

In its Motion, Trans Union argues that Count I, Green’s
FCRA claim against it, should be dismissed because Green has
failed to plead sufficient factual allegations to state a
claim. (Doc. # 28). The Court finds that Count I should be
dismissed with leave to amend.
1.

Section 1681s(2)(B)

First, Trans Union argues that Green has failed to state,
and cannot state, a claim under 15 U.S.C. § 1681s(2)(B) of
the FCRA. (Id. at 4). As previously noted, some FCRA sections
cited in the Complaint, § 1681s(2)(B) and § 1681s-2(a), are
inapplicable in this action. And, to the extent Green attempts
to assert a claim under § 1681s-2(b), which outlines the
responsibilities of furnishers of information to consumer
reporting agencies, Green has also failed to state a claim
against Trans Union.
Section

1681s–2

responsibilities

on

of
persons

the
who

FCRA

“imposes

furnish

certain

information

to

consumer reporting agencies.” Chipka v. Bank of Am., 355 F.
App’x 380, 383 (11th Cir. 2009). But, Trans Union is not a
15

“furnisher of information” under the FCRA; rather, it is a
“consumer

reporting

agency”

to

which

furnishers

of

information provide information. See 15 U.S.C. § 1681a(f)
(defining “consumer reporting agency” as “any person which,
for monetary fees, dues, or on a cooperative nonprofit basis,
regularly engages in whole or in part in the practice of
assembling or evaluating consumer credit information or other
information

on

consumers

for

the

purpose

of

furnishing

consumer reports to third parties, and which uses any means
or

facility

of

interstate

commerce

for

the

purpose

of

preparing or furnishing consumer reports”); see also (Doc. #
1 at ¶ 7)(identifying Trans Union as a “consumer reporting
agency” under the FCRA). Therefore, the claim against Trans
Union under § 1681s-2(a) fails as a matter of law.
2.

Section 1681g

Next, Trans Union argues that Green has not stated a
claim under 15 U.S.C. § 1681g, which governs how consumer
reporting

agencies

information.

See

15

respond
U.S.C.

to
§

consumers’
1681g(a)

requests

(“Every

for

consumer

reporting agency shall, upon request, . . . clearly and
accurately disclose to the consumer (1) All information in
the consumer’s file . . . [and] (2) The sources of the
information . . .”). Trans Union contends “[n]owhere in the
16

Complaint does [Green] state facts to establish the elements
of a claim based on § 1681g.” (Doc. # 28 at 4). The Court
agrees.
Green fails to allege that she requested a disclosure of
her consumer information from Trans Union. Rather, Green
asserts she “made disputes to the credit bureaus” but they
“failed to properly conduct a reasonable investigation and
make the corrections to [Green’s] credit profile.” (Doc. # 1
at ¶¶ 11, 14). While this allegation lies at the heart of a
§ 1681i claim, it fails to establish a claim under § 1681g.
If Green wishes to state a claim under § 1681g, she must plead
that she requested a disclosure of her information from Trans
Union in her amended complaint.
3.

Section 1681i

Trans Union argues that Green has not sufficiently pled
what information it reported that was allegedly inaccurate or
incomplete. According to Trans Union, Green’s allegation that
Trans Union’s reports included “mathematical errors” is too
vague and conclusory because it “fails to provide notice about
what

piece

of

reported

information

contains

alleged

mathematical errors and what the information would report
without the alleged mathematical errors.” (Doc. # 28 at 5).

17

As

the

Court

already

determined

regarding

Chase’s

Motion, Green’s vague reference to mathematical errors does
not provide sufficient factual support for her allegation
that Defendants violated the FCRA. In order to put Trans Union
on notice, Green must allege facts regarding the mathematical
errors included in her credit report in her amended complaint.
4.

Punitive Damages

The FCRA provides for punitive damages where a violation
is willful. 15 U.S.C. § 1681(n)(a)(2). But, Trans Union
insists that Green’s claim for punitive damages should be
dismissed because Green has not sufficiently alleged that
Trans Union willfully violated the FCRA. (Doc. # 28 at 6).
Green alleges that all Defendants “engag[ed] in willful and
negligent acts” in violation of the FCRA. (Doc. # 1 at ¶
18)(emphasis added). Yet, the Complaint does not contain
factual allegations to support that any violation by Trans
Union was willful. As the Court has given Green an opportunity
to amend her FCRA claim against Trans Union, Green can address
this issue in her amended complaint.
5.

More Definite Statement

Trans Union requests that, if the Court does not dismiss
Green’s FCRA claim, that the Court alternatively require Green
to

submit

a

more

definite

statement.
18

As

the

Court

has

dismissed the claim against Trans Union with leave to amend,
a more definite statement is not required.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant Chase Bankcard Services, Inc.’s Motion to
Dismiss (Doc. # 27) is GRANTED.

(2)

Defendant Trans Union, LLC’s Motion to Dismiss, or for
More Definite Statement (Doc. # 28) is GRANTED.

(3)

Green may file an amended complaint addressing the issues
discussed in this Order by April 6, 2017. As the amended
complaint must be filed before the mediation scheduled
on April 21, 2017, the Court will be disinclined to grant
an extension of this deadline.
DONE and ORDERED in Chambers in Tampa, Florida, this

25th day of March, 2017.

19