Ausar-El v. President/CEO Barclay Bank Delaware et al

Filing 29

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 12/20/2012. (c/m 11/2112 rs) (rss, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CHALRES NU AUSAR-EL
Plaintiff,
v.
BARCLAY BANK DELAWARE, et al.
Defendants.

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Civil No. PJM 12-082

MEMORANDUM OPINION
Plaintiff Charles Nu Ausar-El, proceeding without a lawyer, initially filed suit against
multiple defendants, alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. §
1692 et seq., and the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. All
Defendants other than Barclay Bank Delaware (“Barclays”) are no longer in the case.1 Barclays
filed a Motion to Dismiss on various grounds. In its July 31 Opinion (Dkt. 22), the Court
granted Barclays’ Motion as to all counts except Count V, which contained Ausar-El’s claim
under § 1681s-2(b) of the FCRA that Barclays failed to correct a debt on Ausar-El’s account. As
to this claim, the Court deferred ruling on the Motion to Dismiss and instead granted Barclays’
Motion for a More Definite Statement, directing Ausar-El to file an Amended Complaint, laying
out the elements necessary for a viable §1681s-2(b) claim.
Ausar-El has now filed what he titles “Affidavit of Fact in Support of Application For
Relief From Order.” The Affidavit purports to seek relief under Fed. Rule of Civ. Proc. 60.
Barclays opposes Ausar-El’s request for Rule 60 relief and renews its Motion to Dismiss under
Fed. Rule of Civ. Proc. 12(b)(6).

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Defendant HSBC Bank was dismissed by stipulation and Defendant American Express was
dismissed voluntarily.
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The Court finds Ausar-El has failed to make a showing that he is entitled to any relief
under Rule 60 and will deny his “Affidavit” insofar as it seeks relief under Rule 60. The Court
will also GRANT the remainder of Barclays’ Motion to Dismiss, i.e., as to the FCRA claim in
Count V.
I.
In evaluating a Rule 12(b)(6) motion to dismiss, the “court accepts all well-pled facts as
true and construes these facts in the light most favorable to the plaintiff . . . .” Nemet Chevrolet,
Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).
However, the Court need not accept as true “legal conclusions, elements of a cause of action, and
bare assertions devoid of further factual enhancement.” Id. There must be “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal, 129 S. Ct.

1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The factual
allegations must state a claim for relief that is plausible, meaning they must “permit the court to
infer more than the mere possibility of misconduct.” Iqbal, 129 S. Ct. at 1950.
Though a plaintiff proceeding without a lawyer is held to a less stringent standard than a
plaintiff with a lawyer, no plaintiff is exempt from the requirement that a complaint contain more
than mere “labels and conclusions” or “a formulaic recitation of the elements of [a] cause of
action.” Twombly, 550 U.S. at 555; see also Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The sole cause of action that the Court allowed Ausar-El to plead more definitely was an
alleged violation of 15 U.S.C. §1681s-2(b).2 Courts have held that this section gives a private
right of action when a furnisher of information (such as a credit card issuer, lender, utility, or so
forth) has notice from a consumer reporting agency of a dispute concerning inaccurately reported

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See July 31, 2012 Opinion (Dkt. 22) for further discussion.
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information and fails to investigate the information. See, e.g., Chiang v. Verizon New England
Inc., 595 F.3d 26, 35 n.7 (1st Cir. 2010); Akalwadi v. Risk Mgmt. Alternatives, Inc., 336 F. Supp.
2d 492, 509 (D. Md. 2004). The furnisher is only required to investigate if a consumer reporting
agency notifies it that a consumer has contacted the agency and disputed furnished information.
See, e.g., Edwards v. Equable Ascent, FNCL, LLC, No. 11-cv-2638 (CCC), 2012 WL 1340123,
at *5 (D.N.J. Apr. 16, 2012). As the Court explained in its prior opinion, a plaintiff bringing a
claim under §1681s-2(b) must establish that: (1) he or she notified the consumer reporting
agency of the disputed information; (2) the consumer reporting agency notified the defendant
furnisher of the dispute; and (3) the furnisher then failed to investigate and modify the inaccurate
information.
II.
Though neither the original Complaint nor the Affidavit is a model of clarity, the Court
pieces together from these and other filings the following facts alleged: In April 2009, AusarEl’s credit cards were stolen. Thereafter, unauthorized activity on the cards resulted in certain
charges against them. At least one charge, on a Barclays account, apparently remains. Ausar-El
asserts in his Amended Complaint that he has filed many disputes with consumer reporting
agencies over the past several years, including in August 2010, regarding the Barclays’
information. Ausar-El asserts that instead of responding to him regarding the allegedly
improperly furnished information, Barclays just “charged off” the debt. In support of his
pleading, Ausar-El provides certain computer print-out pages indicating that as to a Barclays
account, there was a dispute in August 2010, some part of the account was written off and some
remained due, and the account was closed at the credit grantor’s request. Ausar-El also provides
an Equifax “Online Dispute Check Status,” presumably from August 2012, that indicates that

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over the preceding year, six disputes were lodged, starting in February 2012. These documents
do not bear Ausar-El’s name and are missing pages. Ausar-El also provides an August 27, 2012
Equifax notice, sent to a Charles Ausar-El at an address different from the one on record with the
Court, a notice that references a reinvestigation into a Barclays account and reports that the
creditor verified to Equifax that the balance was reported correctly.
The Court granted Barclay’s Motion for a More Definite Statement regarding Ausar-El’s
§1681s-2(b) claim because Ausar-El’s initial complaint failed to allege that any consumer
reporting agency had notified Barclays of the existence of a dispute or that Barclays
subsequently failed to investigate the dispute.
Ausar-El’s Affidavit does not supply this omission. First, there is no assertion that a
credit reporting agency contacted Barclays during the relevant time period. While the Court
could draw a reasonable inference from Ausar-El’s documents that in summer of 2012, Equifax
contacted Barclays about a dispute, this was months after the Complaint was filed.
Even more lacking are any allegations regarding Barclay’s failure to investigate. AusarEl provides nothing more than the “unadorned, the-defendant-unlawfully-harmed-me”
accusations that Iqbal and Twombly reject. Ausar-El’s conclusory recitation that, “[i]t is clear
from the evidence and this record that the Defendant ‘ failed to investigate and modify the
inaccurate information’ as required by Law,” is devoid of any factual enhancement and is
precisely the type of bare assertion that cannot survive a motion to dismiss. The only evidence
Ausar-El provides with regards to any of Barclays’ actions is that in August 2012, Barclays
apparently responded to a dispute regarding information. This does not support Ausar-El’s
claim.
III.

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For the foregoing reasons, the Court DENIES Ausar-El’s Request for Rule 60 Relief and
GRANTS Barclays’ Motion to Dismiss the remaining § 1681s-2(b) claim in Count V.
A separate order shall ISSUE.

/s/

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PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE

November 20, 2012

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