Houck v. Creditors Financial Group, LLC et al

Filing 45

MEMORANDUM ORDER granting 29 Motion for Partial Dismissal. Signed by Judge S Maurice Hicks on 9/13/2011. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
TRACY HOUCK, ET AL.

CIVIL ACTION 10-CV-1268

VERSUS

JUDGE MAURICE S. HICKS

CREDITORS FINANCIAL
GROUP, ET AL.

MAGISTRATE JUDGE
HORNSBY

MEMORANDUM ORDER
Before the Court is Defendant Trans Union LLC’s (“Trans Union”) Motion for Partial
Dismissal. (Record Document 29). The Plaintiffs, Tracy W. Houck and Angela F. Houck
(“the Houcks”), have filed no opposition to the motion therefore it is deemed unopposed.
For the reasons which follow, the Defendant’s Motion is GRANTED.
BACKGROUND
According to the Houcks, Creditors have been overzealously attempting to recover
a debt since April 2009. (Record Document 1). After contesting the debt, the harassing
behavior ceased but the Plaintiffs argue the damage to their credit history remains. (Record
Document 1 at 7).
On September 3, 2009 the Houcks sent a “dispute and request for validation” to
Trans Union. (Record Document 1 at 6). The Houcks claim Trans Union received this via
certified mail on or near September 9, 2009 but never responded. (Record Document 1 at
7). The Houcks claim Trans Union continues to report negative credit history resulting from
this debt. See Id. The Houcks accuse Trans Union of conspiring with Creditors Financial
Group, LLC to “damage their reputation for credit worthiness.” (Record Document 1 at 8).

On August 11, 2010, the Plaintiffs filed a complaint alleging violations of the Fair
Credit Reporting Act, the Fair Debt Collection Practices Act, the Louisiana Unfair Trade
Practices and Consumer Protection Law (“LUTPA”), Louisiana Consumer Credit Law
(“LCCL”), Intentional Infliction of Emotional Distress and Defamation. (Record Document
1). The Houcks also request “this Court to issue a Declaratory Judgment, Preliminary and
Permanent Injunctive Relief and Damages.” (Record Document 1 at 1).
Trans Union has filed a Motion for Partial Dismissal on (i) The Louisiana Unfair
Trade Practices and Consumer Protection Act claim; (ii) The Louisiana Consumer Credit
Law claim; (iii) The Defamation claim; and (iv) The claim for injunctive relief. (Record
Document 29-1) In the alternative, Trans Union Moves to Compel the Houcks to produce
a more definite statement on these claims. (Record Document 29-1 at 2).
LAW AND ANALYSIS

In evaluating a motion to dismiss filed pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court must accept “all well-pleaded facts as true, viewing
them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig.,
495 F.3d 191, 205 (5th Cir. 2007). However, the court “will not strain to find
inferences favorable to the plaintiff.” Southland Sec. Corp. v. INSpire Ins. Solutions
Inc., 365 F.3d 353, 361 (5th Cir. 2004).
In order to survive Defendant’s challenge to his Petition, Plaintiff must plead
“enough facts to state a claim to relief that is plausible on its face.” In re Katrina
Canal Breaches Litig., 495 F.3d at 205 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 547 (2007)). Those “[f]actual allegations must be enough to raise a right to
relief above a speculative level, on the assumption that all the allegations in the

Petition are true (even if doubtful in fact).” Id. In addition, the facts as pled must be
“specific,” and “not mere conclusory allegations.” Tuchman v. DSC Commc’ns
Corp., 14 F.3d 1061, 1067 (5th Cir. 1994). “Rule 12(b)(6) must be read in conjunction
with Rule 8(a), which required a ‘short and plain statement of the claim showing that the
pleader is entitled to relief.’ ” Lindgren v. Spears, 2010 WL 5437270 (S.D. Tex. 2010); citing
Twombly, 550 U.S. at 562-63.
I. LUTPA
The LUTPA states, in pertinent part, “[u]fair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or commerce are hereby declared
unlawful.” La. R.S. 51:1405.1 Under this claim, the Houcks state that Trans Union disclosed
information, affecting the plaintiff’s reputation, that they knew or had reason to know was
false. (Record Document 1 at 11). Further, Trans Union violated the LUTPA by “disclosing
information concerning the existence of a debt known to be reasonably disputed by the
Plaintiff without disclosing the fact.” (Record Document 1 at 12). The only other facts pled
that relate to Trans Union are that the Houcks sent Trans Union, via certified mail, a dispute
and request for validation letter, which Trans Union never responded to.
Taking all these facts in a light most favorable to the Houcks, the factual basis for
this claim is unclear and legally insufficient. Rather, it appears the Houcks have made only
conclusory accusations without any factual basis whatsoever. Noting the silence of the
Houcks on opposing this motion, the Court finds it appropriate to dismiss this claim as to
Trans Union as the Houcks have failed to state a claim upon which relief can be granted.

1

While Trans Union cites to the to La. R.S. 51:4105 and 54:4105, (Record Document
29-1 at 3) the LUTPA is located in Title 51 Chapter 13 Section1405 of the Louisiana
Revised Statutes.

II. LCCL
The LCCL prohibits unauthorized debt collection practices. The statute sets out
certain requirements of creditors when collecting debts. La. R.S. 9:3562. “Civilian
methodology instructs that where the law does not lead to ambiguous or absurd results, it
must be applied as written.” Willis-Knighton Medical Center v. Caddo Shreveport Sales and
Use Tax Com'n, 903 So.2d 1071, 1087 (2005); citing La. Civ. Code art. 9. This statute, on
its face, does not apply to Trans Union as it has not been pled that Trans Union is a
creditor but rather a credit reporting agency. (Record Document 1 at 4). Therefore, the
LCCL claim against Trans Union is dismissed.
III. Defamation
The Houcks’ defamation claim is brought under the accusation that “the
communications perpetrated by...Trans Union...are capable of a defamatory meaning on
their face and are defamatory per se.” (Record Document 1 at 15). The only
communications mentioned in the Houcks’ complaint that involve Trans Union are
presumably the credit reports Trans Union issued. There are insufficient facts in the
Houcks’ complaint to state a claim against Trans Union for defamation. Therefore, the
Houcks’ defamation claim against Trans Union is dismissed.
IV. Injunctive Relief Under the Fair Credit Reporting Act
The Houcks have requested injunctive relief against all defendants to prevent them
“from engaging in further violations of the Fair Credit Reporting Act, the Fair Debt
[C]ollection Practices Act, the Louisiana Unfair Trade Practices and Consumer Protection
Law, and the Louisiana Consumer Credit Law.” Trans Union, in its Motion for Partial
Dismissal, has moved for dismissal of the requested relief under the Fair Credit Reporting

Act. (“FCRA”). The Fifth Circuit, when dealing with this issue, has held “that the affirmative
grant of power to the FTC to pursue injunctive relief, coupled with the absence of a similar
grant to private litigants when they are expressly granted the right to obtain damages and
other relief, persuasively demonstrates that Congress vested the power to obtain injunctive
relief solely with the FTC.” Washington v. CSC Credit Services Inc., 199 F.3d 263, 268 (5th
Cir. 2000). Therefore, Trans Union is correct that injunctive relief is not available to the
Houcks under the FCRA. While it is unclear if such relief is available under the other
theories cited by the Houcks in their complaint, since they do not oppose this motion, the
Court dismisses the Houcks’ request for injunctive relief against Trans Union.
CONCLUSION
For the foregoing reasons,
IT IS ORDERED the Defendant’s Motion for Partial Dismissal be and is hereby
GRANTED. Trans Union is dismissed from following of the Houcks’ claims: (i) The
Louisiana Unfair Trade Practices and Consumer Protection Act claim; (ii) The Louisiana
Consumer Credit Law claim; (iii) The Defamation claim; (iv) All claims for injunctive relief.
THUS DONE AND SIGNED in Shreveport, Louisiana, on this 13th day of
September, 2011.