Arnold v. Capital One Services, LLC, et al

Filing 48

ORDER: Defendant Capital One, LLC's Partial Motion to Dismiss (Doc. # 27 ) is GRANTED, and Counts One and Two of the Complaint are DISMISSED WITH PREJUDICE. Signed by Judge Virginia M. Hernandez Covington on 10/2/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

STANLEY ARNOLD,
Plaintiff,
v.

Case No. 8:17-cv-1416-T-33AEP

CAPITAL ONE SERVICES, LLC,
et al.,
Defendants.
___________________________/
ORDER
This matter comes before the Court upon consideration of
Defendant

Capital

One

Services,

LLC’s

Partial

Motion

to

Dismiss, filed on July 31, 2017 (Doc. # 27), and Plaintiff
Stanley Arnold’s Response in Opposition, filed on September
12, 2017 (Doc. # 39).

For the reasons that follow, the

Partial Motion to Dismiss is GRANTED.
I.

Background
Arnold alleges that Capital One furnished erroneous

account

information

to

Defendant

Experian

Information

Solutions, Inc. and Defendant Trans Union, LLC, which, in
turn, reported the inaccurate information on Arnold’s credit
report.

(Doc. # 1 at ¶¶ 1-2).

Arnold brings claims pursuant

to the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681,
et seq., and the Florida Consumer Collection Practices Act
(“FCCPA”), Fla. Stat. § 559.72.

(Doc. # 1 at ¶¶ 88-144).

In the instant Motion to Dismiss, Capital One argues that
the FCCPA claims against Capital One are expressly preempted
by the FCRA.

(Doc. # 27 at 2).

In particular, Capital One

maintains that its alleged debt-collection activities were
limited to furnishing information to Experian and Trans Union,
which is conduct regulated exclusively by the FCRA pursuant to
15 U.S.C. § 1681t(b)(1)(F). (Doc. # 27 at 10).

As explained

below, the Court agrees. A brief review of the facts follows.
On

December

12,

2014,

Arnold

filed

for

voluntary bankruptcy.

(Doc. # 1 at ¶¶ 43, 45).

2015,

court

the

bankruptcy

Capital One.

discharged

(Id. at ¶ 48).

Chapter

7

On March 23,

Arnold’s

debts

to

On January 21, 2016, the

bankruptcy court confirmed the discharge. (Id. at ¶ 51). The
discharge orders eliminated Arnold’s personal liability with
respect to six Capital One accounts.

(Id. at ¶¶ 52, 54).

On October 4, 2016, Arnold’s Experian consumer report
listed the six accounts as closed and charged-off with a $0
balance due, but the report failed to reference the bankruptcy
discharge.

(Id. at ¶ 54).

report

similarly

was

accounts as past due.

Arnold’s Trans Union consumer

deficient,

and

(Id. at ¶¶

it

also

listed

55, 57, 59).

two

Arnold

alleges that Capital One communicated the debts as past due in
an attempt to collect a debt.

(Id. at ¶¶ 56, 58).

On October 10, 2016, and again on December 14, 2016,
Arnold sent dispute letters to Capitol One, Experian, and
2

Trans Union.

(Id. at ¶¶ 60, 68).

Nonetheless, Capital One

continued reporting past-due amounts in an attempt to collect
a debt.

(Id. at ¶¶ 67, 77).

On June 14, 2017, Arnold filed the instant Complaint.
(Doc. # 1). Counts One and Two allege violations of the FCCPA
against Capital One, and Capital One moves to dismiss those
counts as preempted.

(Id. at ¶¶ 88-97; Doc. # 27).

Capital

One does not move to dismiss Count Seven, which alleges that
Capital One violated the FCRA, 15 U.S.C. § 1681s-2(b). Arnold
responds in opposition. (Doc. # 39). Accordingly, the Motion
to Dismiss is ripe for review.
II.

Discussion
The

FCCPA,

Fla.

Stat.

§

559.72,

prohibits

practices in the collection of consumer debts.
Arnold

alleges

that

Capital

One

violated

certain

In Count One,
Fla.

Stat.

§ 559.72(7) by collecting a consumer debt through abusive and
harassing means – in particular, by repeatedly reporting
inaccurate information to Experian and Trans Union. (Doc. # 1
at ¶¶ 88-90).

In Count Two, Arnold alleges that Capital One

violated Fla. Stat. § 559.72(9) by knowingly attempting to
collect an illegitimate debt – again, by reporting inaccurate
account information to Experian and Trans Union. (Doc. # 1 at
¶¶ 93-96).

3

Because the FCCPA claims are premised on inaccurate
reporting, Capital One argues that the claims are preempted by
the FCRA, 15 U.S.C. § 1681t(b)(1)(F), which states:
No requirement or prohibition may be imposed under
the laws of any State-(1) with respect to any subject matter regulated
under . . .
(F) section 1681s-2 of this title, relating to the
responsibilities of persons who furnish information
to consumer reporting agencies.
15 U.S.C. § 1681t(b)(1)(F).

Section 1681s-2, in turn,

requires furnishers of information, such as Capital One, to
provide accurate information to credit reporting agencies,
such as Experian and Trans Union. 15 U.S.C. § 1681s-2(a)-(b).
This Court, as well as a majority of district courts in
Florida, consistently hold that § 1681t(b)(1)(F) preempts
FCCPA claims to the extent that the challenged debt-collection
activity is based on furnishing inaccurate information to
credit reporting agencies.

E.g., Green v. Chase Bankcard

Servs., Inc., No. 8:16-CV-3252-T-33AAS, 2017 WL 1135314, at *5
(M.D. Fla. Mar. 25, 2017); Bank of Am., N.A. v. Zaskey, No.
9:15-CV-81325, 2016 WL 4991223, at *10 (S.D. Fla. Sept. 19,
2016);

Osborne

v.

Vericrest

Fin.,

Inc.,

No.

8:11-CV-716-T-30TBM, 2011 WL 1878227, at *3 (M.D. Fla. May 17,
2011).

Conversely, an FCCPA claim survives preemption if it

alleges debt-collection activity beyond merely furnishing
information to credit reporting agencies.
4

See, e.g., Arianas

v. LVNV Funding LLC, No. 8:14-CV-01531-T27, 2015 WL 404238, at
*2 (M.D. Fla. Jan. 8, 2015) (holding that threats to report
information to credit reporting agencies falls outside the
FCRA’s preemption provision); 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)(holding that rejection of a
mortgage modification falls outside preemption provision).
In this case, the FCCPA claims are based exclusively on
Capital One’s reporting of inaccurate information.
at ¶¶ 88-90, 93-96).

(Doc. # 1

The Complaint alleges no other debt-

collection activity, and in response to the Motion to Dismiss,
Arnold identifies no such activity.
Instead, Arnold argues that the above-cited cases were
wrongly decided because the FCRA does not impliedly preempt
the FCCPA through conflict preemption or field preemption.
(Doc. # 39 at 11-15). Arnold misses the mark. The preemption
in this case derives not from implied preemption, but from
express

statutory

§ 1681t(b)(1)(F).

preemption

pursuant

to

15

U.S.C.

See Cliff v. Payco Gen. Am. Credits, Inc.,

363 F.3d 1113, 1122 (11th Cir. 2004) (discussing differences
between express, conflict, and field preemption).

Because

express preemption applies, implied preemption is irrelevant.
Am.’s Health Ins. Plans v. Hudgens, 742 F.3d 1319, 1330 n.11
(11th

Cir.

2014)

(holding

that

conflict

inapplicable where express preemption exists).
5

preemption

is

On the facts of this case, Arnold’s FCCPA claims against
Capital One are preempted by 15 U.S.C. § 1681t(b)(1)(F).
Accordingly,

it

is

ORDERED,

ADJUDGED,

and

DECREED

that

Defendant Capital One, LLC’s Partial Motion to Dismiss (Doc.
# 27) is GRANTED, and Counts One and Two of the Complaint are
DISMISSED WITH PREJUDICE.
DONE and ORDERED in Chambers in Tampa, Florida, this 2nd
day of October, 2017.

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