PARKER v. CAPITAL ONE AUTO FINANCE, CAPITAL ONE, NATIONAL ASSOCIATION N.A. et al

Filing 45

ORDER GRANTING MOTION TO DISMISS. Capital One and Onyx's Motion to Dismiss is GRANTED, [Filing No. 25], and Count IV (FDCPA claim) and Count V (FCRA claim) of Ms. Parker's Amended Complaint are DISMISSED. Count VII of Ms. Parker's Amended Complaint is not at issue in the pending motion and will proceed at this time. [Filing No. 21 at 7 (Court's screening order allowing Ms. Parker's 42 U.S.C. § 1983 due process claim to proceed).] No final judgment shall issue at this time. SEE ORDER. Signed by Judge Jane Magnus-Stinson on 12/3/2015. Copy sent to Ms. Parker via U.S. Mail. (BGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BRENDA PARKER,

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Plaintiff,
vs.
CAPITAL ONE AUTO FINANCE,
DIVISION OF CAPITAL ONE, N.A., ONYX
ACCEPTANCE CORPORATION, et al.
Defendants.

No. 1:15-cv-00826-JMS-TAB

ORDER GRANTING MOTION TO DISMISS
Presently pending before the Court is Defendants Capital One Auto Finance, a division of
Capital One N.A. (“Capital One”), and Onyx Acceptance Corporation’s (“Onyx”) Motion to
Dismiss. [Filing No. 25.] Capital One and Onyx seek dismissal of the claims brought against
them by pro se Plaintiff Brenda Parker pursuant to the Fair Debt Collection Practices Act
(“FDCPA”) and the Fair Credit Reporting Act (“FCRA”). [Filing No. 25; Filing No. 26.] For the
reasons detailed herein, the Court grants the Motion to Dismiss and dismisses Ms. Parker’s
FDCPA and FCRA claims against Capital One and Onyx. [Filing No. 25.]
I.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2) “requires only ‘a short and plain statement of the
claim showing that the pleader is entitled to relief.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(quoting Fed. R. Civ. Pro. 8(a)(2)). “Specific facts are not necessary, the statement need only ‘give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson,
551 U.S. at 93 (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)).

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A motion to dismiss asks whether the complaint “contain[s] sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). In reviewing the sufficiency of a
complaint, the Court must accept all well-pled facts as true and draw all permissible inferences in
favor of the plaintiff. See Active Disposal, Inc. v. City of Darien, 635 F.3d 883, 886 (7th Cir.
2011). The Court will not accept legal conclusions or conclusory allegations as sufficient to state
a claim for relief. See McCauley v. City of Chicago, 671 F.3d 611, 617 (7th Cir. 2011). Factual
allegations must plausibly state an entitlement to relief “to a degree that rises above the speculative
level.” Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012). This plausibility determination is “a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id.
II.
RELEVANT BACKGROUND
Ms. Parker initiated this action in May 2015 against various defendants. [Filing No. 1.]
She is proceeding pro se and her Amended Complaint was screened pursuant to 28 U.S.C.
§ 1915(e)(2). [Filing No. 21 (screening Filing No. 11).] As summarized by the Court’s Screening
Order, Ms. Parker’s claims
arise out of circumstances surrounding and preceding the repossession of her
vehicle in May of 2014. She called the police at the time the vehicle was being
towed and told officers that the creditor had “charged off” the debt in 2012 when it
reported the car loan to be an uncollectible debt. The officers reviewed papers that
the towing company had, determined that the towing company’s paperwork was
more current than [Ms. Parker’s paperwork], and allowed the towing company to
repossess her car.
[Filing No. 21 at 2.]
The Court has allowed three claims to continue: Count IV (FDCPA claim against Capital
One and Onyx); Count V (FCRA claim against Capital One and Onyx); and Count VII (due process
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claim pursuant to 42 U.S.C. § 1983 against Defendants City of Indianapolis, Officer Loyal, Officer
Pilkington, Officer Rolinson, and driver Dalias). [Filing No. 21 at 7.] Capital One and Onyx have
filed a Motion to Dismiss Ms. Parker’s claims against them. [Filing No. 25.] Ms. Parker opposes
that motion, [Filing No. 34], and it is now ripe for the Court’s consideration.
III.
DISCUSSION
A. FDCPA Claim
Ms. Parker’s Amended Complaint alleges that Capital One and Onyx violated the FDCPA
when they “deliberately falsified information and altered reported information to hinder any future
attempts of Plaintiff to recover from illegal repossession of vehicle after all Defendants self-help
tactics.” [Filing No. 11 at 23.] She contends that they “failed to follow regulations in collection
of a debt” and that they “attempted to collect fraudulent amounts claimed owed by Plaintiff by
increasing and decreasing amounts at their will.” [Filing No. 11 at 23.] Ms. Parker further alleges
that Capital One and Onyx failed to mail her a “Notice of Deficiency of Notice of Intent to Sale
Vehicle,” which she claims makes her “not liable or responsible for any amounts claimed owed.”
[Filing No. 11 at 24.]
In their Motion to Dismiss, Capital One and Onyx emphasize that Ms. Parker’s Amended
Complaint asserts that they are “creditors.” [Filing No. 26 at 3-4.] They argue that her FDCPA
claim fails as a matter of law because the statute only applies to “debt collectors,” not “creditors.”
[Filing No. 26 at 3-4.]
In response, Ms. Parker references the definitions of “creditor” and “debt collector” from
the FDCPA. [Filing No. 35 at 1 (citing 15 U.S.C. § 1692a(4) and 15 U.S.C. § 1692a(6)).] After
quoting those definitions, Ms. Parker confirms her assertion that “[t]he principle [sic] business of
Capital One and Onyx is not for collection of debts.” [Filing No. 35 at 3.] Instead, she contends
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that Capital One and Onyx are creditors that “utilized a collection agency from the initial notice
sent to Plaintiff, whereby Plaintiff disputed the claimed debt.” [Filing No. 35 at 2.] Ms. Parker
requests a chance to determine through discovery “the relationship of Defendants with the
collection agency” and “why the collection agency left the scene of collections for Defendants.”
[Filing No. 35 at 2-3.]
In reply, Capital One and Onyx again point out that Ms. Parker has conceded that they are
“creditors” and not “debt collectors.” [Filing No. 36 at 2.] Thus, they ask the Court to dismiss
Ms. Parker’s FDCPA claim. [Filing No. 36 at 2.]
The FDCPA was enacted to combat “abusive, deceptive, and unfair debt collection
practices.” 15 U.S.C. § 1692. It “applies only to ‘debt collectors’ seeking satisfaction of ‘debts’
from ‘consumers’; it does not apply to ‘creditors.’” McKinney v. Cadleway Properties, Inc., 548
F.3d 496, 500 (7th Cir. 2008). “[T]hese two categories—debt collectors and creditors—are
mutually exclusive.” Id. at 501 (citing Schlosser v. Fairbanks Capital Corp., 323 F.3d 534, 536
(7th Cir. 2003)).
Ms. Parker has confirmed that her position is that Capital One and Onyx are “creditors.”
[Filing No. 35 at 2-3.] Given that the FDCPA applies to debt collectors but not creditors, Ms.
Parker’s FDCPA claim against Capital One and Onyx fails as a matter of law. McKinney, 548
F.3d at 500. Although Ms. Parker’s Amended Complaint and response brief allude to a separate
entity that may have attempted to collect debt from her before “leaving the scene of collections,”
that entity is not a party to this lawsuit. [Filing No. 11 at 11 (“Defendant Capital One Auto Finance
assigned Plaintiff’s claimed delinquent amount to United Recovery Systems for collection”);
Filing No. 35 at 2-3.] For these reasons, Ms. Parker’s FDCPA claim against Capital One and Onyx
is dismissed.

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B. FCRA Claim
Ms. Parker’s Amended Complaint alleges that Defendants violated the FCRA “by
reporting to all three (3) credit bureaus fraudulent information which has harmed Plaintiff’s credit
standing and credit worthiness.” [Filing No. 11 at 24.] Ms. Parker cites 15 U.S.C. § 1681n and
1681o as support for her claim, alleging that Defendants willfully failed to comply with those
provisions. [Filing No. 11 at 25.] Ms. Parker further contends that Defendants failed to send her
notice no later than 30 days before furnishing negative information to consumer reporting
agencies, in violation of 15 U.S.C. § 1681a(p). [Filing No. 11 at 25.]
In their Motion to Dismiss, Capital One and Onyx ask the Court to dismiss Ms. Parker’s
FCRA claim against them because they contend she does not have a private right of action to
enforce the violations she alleges. [Filing No. 26 at 4.] Capital One and Onyx contend that even
if Ms. Parker’s allegations are true, “Section 1681s-2(c) specifically exempts violations of Section
1681s-2(a) from private civil liability” and “only designated ‘Federal agencies’ and ‘State
officials’ can enforce that section.” [Filing No. 26 at 4-5 (citations omitted).]
In response, Ms. Parker directs the Court to 15 U.S.C. § 1681h(e), which she contends
“allows a private right of action when Defendants[’] behavior is willful and deliberate as Capital
One and Onyx.” [Filing No. 35 at 4.] Ms. Parker contends that she has satisfied the pleading
requirements for her FCRA claim to proceed. [Filing No. 35 at 5.] Ms. Parker represents that she
has “notified and filed required complaint with three (3) reporting agencies back in June 2015, as
to the fraudulent information” and that those challenges remain pending. [Filing No. 35 at 5.]
Thus, Ms. Parker confirms that she “has not yet made a claim for relief under Section 1681s-2” as
“the matter is still pending with three (3) credit reporting agencies and with Capital One.” [Filing
No. 35 at 5-6.]

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In reply, Capital One and Onyx again assert that Ms. Parker’s FCRA claim should be
dismissed because she does not have a private right of action for violations of 15 U.S.C. § 1681s2a. [Filing No. 36 at 3.] They assert that her reference to 15 U.S.C. § 1681h(e) does not save her
claim because that section “does not contain any statutory proscriptions that can form the basis of
any claim” since it provides limitations of liability for state law claims not at issue in Ms. Parker’s
action. [Filing No. 36 at 3.]
15 U.S.C. § 1681s-2(a) sets forth various duties that furnishers have to provide accurate
information to consumer reporting agencies. For example, reporting fraudulent information is a
violation of 15 U.S.C. § 1681s-2(a)(1), and failing to send a consumer notice within 30 days that
negative information has been furnished is a violation of 15 U.S.C. § 1681s-2(a)(7). 15 U.S.C. §
1681s-2(c) provides that the provisions of the FCRA that set forth the amount of damages a
consumer can receive—15 U.S.C. § 1681n and 15 U.S.C. § 1681o—do not apply to any violation
of 15 U.S.C. § 1681s-2(a). 15 U.S.C. § 1681s-2(d) provides that the provisions of 15 U.S.C. §
1681s-2(a) “shall be enforced exclusively as provided under section 1681s of this title by the
Federal agencies and officials and the State officials identified” by another FCRA provision.
Based on this statutory language, it is well-established that no private right of action exists to
enforce violations of 15 U.S.C. § 1681s-2(a). See, e.g., Lang v. TCF Nat. Bank, 338 F. App’x 541,
544 (7th Cir. 2009) (“Section 1681s-2(c) specifically exempts violations of § 1681s-2(a) from
private civil liability; only the Federal Trade Commission can initiate a suit under that section.”)
(collecting cases).
15 U.S.C. § 1681s-2(b) sets forth certain reinvestigation duties that furnishers of
information have after receiving notice pursuant to 15 U.S.C. § 1681i(a)(2) that a consumer
disputes the completeness or accuracy of any information provided by a person to a consumer

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reporting agency. Individual consumers do have a private right of action against a furnisher of
information under 15 U.S.C. § 1681s-2(b). See 15 U.S.C. § 1681s-2(c) (not exempting violations
of 15 U.S.C. § 1681s-2(b) from private cause of action sections of FCRA); see also Dornhecker v.
Ameritech Corp., 99 F. Supp. 2d 918, 926 (N.D. Ill. 2000) (“individual consumers do have a private
right of action against a furnisher of information under Subsection (b) of Section 1681s-2 of the
FCRA”). “The duties § 1681s-2(b) imposes on furnishers of information arise only after the
furnisher is notified pursuant to § 1681i(a)(2) by a consumer credit reporting agency that a
consumer challenges information.” Rollins v. Peoples Gas Light & Coke Co., 379 F. Supp. 2d
964, 967 (N.D. Ill. 2005). “Therefore, only proper notice, including all relevant information
received from the consumer, triggers the furnisher’s obligation to conduct an investigation under
§ 1681s-2(b).” Id.
The Court agrees with Capital One and Onyx that based on Ms. Parker’s allegations, she
is alleging a violation of 15 U.S.C. § 1681s-2(a)(1) for the alleged reporting of fraudulent
information and a violation of 15 U.S.C. § 1681s-2(a)(7) for the alleged failure to send her notice
within 30 days that negative information had been furnished. Based on the statutory language and
the above-cited case law, however, it is well-established that Ms. Parker does not have a private
cause of action to enforce alleged violations of 15 U.S.C. § 1681s-2(a). While it is possible that
Ms. Parker could someday pursue a new private cause of action pursuant to 15 U.S.C. § 1681s2(b), she concedes in her response brief that she is not making such a claim in this litigation
because “the matter is still pending with three (3) credit reporting agencies and with Capital One.”
[Filing No. 35 at 5-6 (“Plaintiff has not yet made a claim for relief under Section 1681s-2 the
matter is still pending . . . .”).]

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Although Ms. Parker cites 15 U.S.C. §§ 1681n and 1681o as the basis for her claim in her
Amended Complaint, [Filing No. 11 at 25], she does not reference those sections as support for a
private right of action in her response brief, [Filing No. 35]. This is likely because those provisions
simply set forth the damages that a consumer can receive from a person who willfully or
negligently fails to comply with the requirements imposed by the FCRA. See 15 U.S.C. § 1681n
(civil liability for willful noncompliance); 15 U.S.C. § 1681o (civil liability for negligent
noncompliance). Instead, Ms. Parker cites 15 U.S.C. § 1681h(e) in support of her FCRA claim,
emphasizing her allegations of Capital One and Onyx’s deliberate, willful, and wanton conduct.
[Filing No. 35 at 4.] 15 U.S.C. § 1681h(e) sets forth the FCRA’s general prohibition on a consumer
bringing a defamation, invasion of privacy, or negligence action with respect to the reporting of
information against any consumer reporting agency. The Court agrees with Capital One and Onyx
that this provision is inapplicable and does not provide an independent basis for Ms. Parker’s
FCRA claim. Thus, for the reasons stated herein, Ms. Parker’s FCRA claim against Capital One
and Onyx is dismissed.
IV.
CONCLUSION
For the reasons stated herein, Capital One and Onyx’s Motion to Dismiss is GRANTED,
[Filing No. 25], and Count IV (FDCPA claim) and Count V (FCRA claim) of Ms. Parker’s
Amended Complaint are DISMISSED. Count VII of Ms. Parker’s Amended Complaint is not at
issue in the pending motion and will proceed at this time. [Filing No. 21 at 7 (Court’s screening
order allowing Ms. Parker’s 42 U.S.C. § 1983 due process claim to proceed).]
judgment shall issue at this time.
Date: December 3, 2015

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
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No final

Distribution via U.S. Mail:
Brenda Parker
1427 W. 86th St., #609
Indianapolis, IN 46260
Distribution via CM/ECF:
James J. Morrissey
Pilgrim Christakis LLP
321 North Clark St., 26th Floor
Chicago, IL 60654

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