Smith v. National Credit Systems, Inc.
Filing
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OPINION AND ORDER ADOPTING the 3 Report and Recommendation. PlaintiffWillie G. Smith's claim for intentional infliction of emotional distress is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2), and Plaintiff's remaining claims are ALLOWED TO PROCEED. Signed by Judge William S. Duffey, Jr on 5/15/2014. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WILLIE G. SMITH,
Plaintiff,
v.
1:13-cv-4219-WSD
NATIONAL CREDIT SYSTEMS,
INC.,
Defendant.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Walter E. Johnson’s
Order and Non-Final Report and Recommendation (“R&R”) [3], on Plaintiff
Willie G. Smith’s Complaint under the Fair Debt Collection Practices Act and the
Fair Credit Reporting Act [1].
I.
BACKGROUND1
On December 19, 2013, Plaintiff Willie G. Smith (“Plaintiff”), proceeding
pro se, filed his Complaint [1], along with an application for leave to proceed in
forma pauperis (“IFP”). On March 7, 2014, the Magistrate Judge granted Plaintiff
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The facts are taken from the R&R and the record. The parties have not objected
to any facts set out in the R&R, and finding no plain error in the Magistrate
Judge’s factual findings, the Court adopts them. See Garvey v. Vaughn, 993 F.2d
776, 779 n.9 (11th Cir. 1993).
IFP status, and conducted a frivolity review of Plaintiff’s claims, pursuant to 28
U.S.C. § 1915(e)(2).
Plaintiff asserts claims against National Credit Systems, Inc. (“Defendant”)
under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692e, and
the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681s-2(b). Plaintiff alleges
that, for an unspecified period prior to January, 2005, Plaintiff received a housing
subsidy from the United States Department of Housing and Urban Development
(“HUD”), and resided at Phillips Winters Apartments (“PWA”) in Savannah,
Georgia. In January 2005, PWA terminated Plaintiff’s subsidy. Plaintiff alleges
that this termination was retaliatory, in response to his filing fair housing
discrimination complaints against PWA, and for prevailing on a malicious eviction
claim against PWA.
On August 26, 2008, PWA initiated a dispossessory action against Plaintiff,
in the Magistrate Court of Chatham County, Georgia, for nonpayment of rent. The
Magistrate Court granted PWA a writ of dispossession, and awarded PWA
$1,074.00 in back rent and fees. In September 2008, the Magistrate Court reported
the judgment to three credit reporting agencies.
In December 2008, PWA, operating under the name “Independent
Lifestyles, Inc.,” hired Defendant to collect from Plaintiff a purported debt of
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$7,961.00 in back rent. Defendant reported a debt in that amount to TransUnion, a
credit reporting agency. On December 6, 2012, Plaintiff contacted TransUnion, to
explain that PWA had only been awarded a judgment of $1,074.00. He requested a
reinvestigation of his debt, pursuant to the FCRA, 15 U.S.C. § 1681i. TransUnion
deleted the $7,961.00 debt from Plaintiff’s credit report, in light of its
investigation.
Between December 19 and December 26, 2012, Defendant resubmitted
Plaintiff’s purported $7,961.00 debt to Equifax, another credit reporting agency.
Plaintiff contacted Equifax, and explained that this debt was not accurate. Plaintiff
again requested a reinvestigation of this debt, pursuant to the FCRA. On January
2, 2013, Equifax concluded that the $7,961.00 debt was valid.
Plaintiff alleges that the $7,961.00 is invalid. Plaint contends that this debt
lowered his credit score, and, as a result, he was denied a $20,000 grant under the
Georgia Dream Homeowner Assistance Program, and he has been denied the credit
purchase of a Hewlett Packard computer. Plaintiff alleges that Defendant violated
the FDCPA and the FCRA. Plaintiff further alleges that Defendant is liable for
intentional infliction of emotional distress under the FCRA, 15 U.S.C.
§ 1681s-2(a). Plaintiff seeks the removal of the purported debt from his credit
report, $7,000 in actual damages, $5,000 in statutory damages, and punitive
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damages, to the extent the Court deems appropriate.
On March 7, 2014, the Magistrate Judge issued his R&R, recommending
(i) that Plaintiff’s intentional infliction of emotional distress claim be dismissed for
failure to state a claim, and (ii) that Plaintiff’s other claims under the FDCPA and
FCRA be allowed to proceed. The parties did not object to the R&R.
II.
DISCUSSION
A.
Legal Standard
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1) (Supp. IV 2010);
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A
district judge “shall make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1). If no party has objected to the report and recommendation,
a court conducts only a plain error review of the record. United States v. Slay,
714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam). The parties did not object to
the findings, conclusions, or recommendations in the R&R, and the Court reviews
them for plain error.
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B.
Analysis
The Magistrate Judge determined that Plaintiff did not show that
Defendant’s conduct was outrageous enough to support a claim of intentional
infliction of emotional distress, and that Plaintiff did not show that he suffered
severe emotional distress. The Magistrate Judge recommended that Plaintiff’s
claim for intentional infliction of emotional distress be dismissed, and the Court
finds no plain error in this recommendation. See Stroman v. Bank of America
Corp., 852 F.Supp.2d 1366, 1382 (N.D. Ga. 2012) (In a case in which the plaintiff
alleged that the defendant sent incorrect information to a credit reporting agency,
“[p]laintiff . . . failed to allege facts supporting a claim for intentional infliction of
emotional distress under Georgia law, because she has not alleged the kind of
extreme and outrageous conduct that goes beyond all possible bounds of decency
and would be utterly intolerable in a civilized community.”) (quotations omitted);
see also 28 U.S.C. § 1915(e)(2)(ii) (providing that the district court must dismiss
an IFP action that “fails to state a claim on which relief may be granted”).
The Magistrate Judge determined that Plaintiff alleged facts sufficient to
find Defendant engaged in an act or omission prohibited by the FDCPA. The
Magistrate Judge recommended that Plaintiff’s claims under the FDCPA be
allowed to proceed, and the Court finds no plain error in this recommendation. See
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McDermott v. Marcus, Errico, Emmer & Brooks, P.C., 911 F. Supp. 2d 1, 59 (D.
Mass. 2012) (citing Hepsen v. Resurgent Capital Servs., LP, 383 F. App’x 877,
880-81 (11th Cir. 2010) (per curiam)) (“Stating an incorrect amount of . . . debt
undeniably violates § 1692e(2)(A).”)
The Magistrate Judge determined that Plaintiff alleged that Defendant
received notice of the disputed debt from TransUnion and Equifax, and that
Defendant did not investigate and report on the disputed debt. The Magistrate
Judge thus recommended that Plaintiff’s claim under the FCRA, 15 U.S.C.
§ 1681s-2(b), be allowed to proceed, and the Court finds no plain error in this
recommendation. See Stroman, 852 F. Supp. 2d at 1375 (“[O]nce a [credit
reporting agency] notifies a furnisher of a dispute, this triggers the furnisher’s
obligation to conduct an investigation with respect to the disputed
information . . . .”)
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Walter E. Johnson’s
Order and Non-Final Report and Recommendation [3] is ADOPTED, Plaintiff
Willie G. Smith’s claim for intentional infliction of emotional distress is
DISMISSED pursuant to 28 U.S.C. § 1915(e)(2), and Plaintiff’s remaining claims
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are ALLOWED TO PROCEED.
SO ORDERED this 15th day of May, 2014.
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