Motto v. Gary H. Kreppel, P.C. et al

Filing 58

Judge Rya W. Zobel: Memorandum of Decision entered granting 30 Motion to Dismiss. Judgment may be entered dismissing the complaint. (Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 11-11662-RWZ

PHYLLIS J. MOTTO
v.
GARY H. KREPPEL, P.C.; GARY H. KREPPEL;
SAMANTHA J. SMITH; STANLEY N. DEHAAN;
GE MONEY BANK; PFG OF MINNESOTA;
EQUIFAX INFORMATION SERVICES, LLC; TRANSUNION, LLC;
and EXPERIAN INFORMATION SOLUTIONS, INC.
Memorandum of Decision
June 11, 2012
ZOBEL, D.J.
Plaintiff, Phyllis J. Motto, brings this action pro se against GE Money Bank (“GE
Money”) for violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et
seq., the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and for violations of the
Massachusetts Consumer Protection Act, Mass. Gen. Laws ch. 93A. The complaint was
originally in seven counts against nine defendants, including a law firm, a debt
collection agency and three national credit reporting agencies. Plaintiff voluntarily
dismissed all defendants except GE Money (Docket ## 26, 32, 47, 53 and 54.), which
now seeks dismissal of the claims against it (Docket # 30).
Plaintiff alleges that in November 2010 she was contacted by PFG of Minnesota
(“PFG”) (one of the original defendants) to collect a debt on behalf of GE Money.
Shortly thereafter plaintiff sent written notice to PFG and GE Money disputing the debt,

requesting written proof that she in fact owes the debt, and seeking an opportunity for
plaintiff to inspect all relevant papers in their possession.
Neither defendant nor PFG responded to plaintiff’s request. In December 2010
the Gary H. Kreppel law firm (“Kreppel”) contacted plaintiff by mail in another attempt to
collect the alleged debt. On December 23, 2010, plaintiff sent Kreppel and, again, GE
Money, written notice disputing the debt. On December 28, 2010, Kreppel notified
plaintiff that it was suspending any further collection activities until the information
plaintiff requested could be provided. In February 2011, Kreppel sent plaintiff copies of
account statements purported to be hers.
Plaintiff contends, despite having never had any agreement for credit with GE
Money, it reported inaccurate balances and information to national credit agencies and
that such inaccurate information has appeared on her credit statements and has been a
substantial factor in precluding her from receiving “credit offers and opportunities,
known and unknown.”
I. FDCPA Claim
It is undisputed that GE Money is an original creditor of the debt allegedly owed
by plaintiff. The FDCPA, in relevant part, applies only to debt collectors and specifically
exempts originating creditors. 15 U.S.C. § 1692(a)(6)(f)(iii) (the term "debt collector"
excludes any person collecting or attempting to collect any debt owed or due or
asserted to be owed or due to another to the extent such activity ... concerns a debt
which was originated by such person.”). Plaintiff cites an unpublished, district court
decision from the Southern District of New York, Acheampongtieku v. Allied Interstate,
2

Inc., No. 04 Civ. 8397(HB), 2005 WL 2036153, *5 (S.D.N.Y. 2005). It does not help her.
There, the defendant was a debt collection agency and the court held that creditors
who are also “debt collector(s)” under the FDCPA may be held vicariously liable for
their agent’s conduct in violation of the FDCPA. Here, plaintiff does not allege that GE
Money is a debt collector as defined by the FDCPA, nor does plaintiff allege that the
purported debt is consumer debt, the type of debt regulated by the statute. 15 U.S.C. §
1692a(5). For these reasons, plaintiff fails to state a claim under the FDCPA.
II. FCRA Claims
Defendant does not dispute that it is a “furnisher of information” as defined by
the FCRA. Pursuant to 15 U.S.C. § 1681s–2, furnishers may not provide inaccurate
information to consumer reporting agencies, 15 U.S.C. § 1681s–2(a)(1). They also
have specific duties in the event of a dispute over furnished information, including the
duty to undertake an investigation upon receiving a notice of dispute from a credit
reporting agency, id. § 1681s–2(b). However, it is a prerequisite to maintaining an
action for failure to investigate upon notice of dispute that the furnisher must have
received notice of the dispute from one of the three national credit reporting agencies
and not from plaintiff alone. Chiang v. MBNA, 632 F. Supp. 2d 164, 167 (D. Mass.),
aff’d, 620 F.3d 30 (1st Cir. 2010). In a conclusory fashion, plaintiff states that GE Money
“failed to conduct timely and reasonable investigations of Plaintiff’s disputes after being
contacted by the relevant credit reporting agencies concerning Plaintiff’s disputes.”
However, elsewhere in the complaint plaintiff twice alleges that the credit reporting
agencies did not forward any of the “relevant information” concerning Plaintiff’s
3

disputes to the entities “originally furnishing the inaccurate information,” and in fact
brought this suit against the credit reporting agencies (now dismissed) on that basis.
Therefore, plaintiff does not adequately plead an essential prerequisite under the
FCRA.
III. Mass. Gen Laws ch. 93A Claim
Plaintiff’s ch. 93A claim as originally pled alleges that GE Money failed to allow
her to inspect and copy records concerning the alleged debt. In her opposition to
defendant’s motion, plaintiff appears to abandon this theory and argues instead that a
violation of the FDCPA is a per se violation of ch. 93A. Her latter theory fails because
she has not alleged a violation of the FDCPA (see Section I above) and her former
theory fails because she has not alleged how GE Money’s failure to allow her to inspect
caused her any actual economic harm. RSA Media, Inc. V. AK Media Group Inc., 260 F.
3d 10, 16 (1st Cir. 2001) (“Causation remains a necessary element of a successful 93A
claim.... In the absence of a causal relationship between the alleged unfair acts and the
claimed loss, there can be no recovery.”) (internal citations and quotations omitted).
See also Gather v. Credit Control Services, 623 F.Supp.2d 113, 123 (D. Mass. 2009)
(A plaintiff seeking a remedy under Mass. Gen. Laws ch. 93A, § 9 must demonstrate
that an alleged deception caused an actual loss. This holds true even for alleged per
se violations.).
IV. Conclusion
Defendant’s motion to dismiss the complaint for failure to state a claim (Docket #
30) is ALLOWED. Judgment may be entered dismissing the complaint.
4

June 11, 2012
DATE

/s/Rya W. Zobel
RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE

5