Daniel v. Equable Ascent Financial, LLC et al
Filing
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OPINION AND ORDER granting 20 Defendants' Motion to Dismiss. Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROCHELLE DANIEL,
Plaintiff,
Case No.
v.
14-11117
EQUABLE ASCENT FINANCIAL, LLC, and
VELOCITY PORTFOLIO GROUP,
Defendants.
/
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
Pending before the court is a Motion to Dismiss, filed by Defendants Equable
Ascent Financial, LLC (“EAF”) and Velocity Portfolio Group (“VPG”) filed on August 21,
2014 (Dkt. # 20). Having reviewed the briefs, the court concludes a hearing is
unnecessary. See E.D. Mich. LR 7.1(f)(2). The court will grant the motion.
I. BACKGROUND
The following facts are taken from Plaintiff’s complaint, and are assumed to be
true for the purposes of this motion. On March 16, 2012, Plaintiff received a copy of her
TransUnion credit report, and discovered that EAF had requested a copy of her credit
report on November 23, 2011. (Dkt. # 1, Pg. ID 2.) When she contacted EAF to
ascertain its reason for requesting her credit report, in-house counsel for EAF informed
her that EAF was a debt buyer and had a permissible purpose for accessing her credit
report, citing 15 U.S.C. § 1681b(a)(3)(E). (Id.) Several months later, Plaintiff called
EAF and a representative asked her whether it was possible that Plaintiff had an
account under someone else’s name, given that EAF had no record of Plaintiff’s name
or social security number in its system. (Id. at Pg. ID 3.) EAF requsted that Plaintiff
send it an unredacted copy of her credit report, so that it could compare it with a debt
portfolio it had investigated as a possible investor, but Plaintiff declined “this type of
witch hunt.” (Id.) Plaintiff further alleges that she had a similar experience with VPG,
which was also unable to find Plaintiff’s name or social security number in its system.
(Id.) No further detail is provided.
II. STANDARD
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests
the sufficiency of a complaint’s allegations. Federal Rule of Civil Procedure 8(a)(2)
requires that a complaint contain “a short and plain statement of the claim showing that
the pleader is entitled to relief[.]” In order to survive a motion to dismiss, the complaint
must allege “[f]actual allegations . . . enough to raise a right to relief above the
speculative level . . . on the assumption that all the allegations in the complaint are
true[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Accordingly, the court
views the complaint in the light most favorable to the plaintiff and takes all well-pleaded
factual allegations as true. Tackett v. M&G Polymers, USA, LLC, 561 F.3d 478, 488
(6th Cir. 2009); Carrier Corp. v. Outokumu Oyj, 673 F.3d 430, 400 (6th Cir. 2012).
However, the court “need not accept as true legal conclusions or unwarranted factual
inferences.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not shown—that the pleader is
entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
III. DISCUSSION
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Defendants rely on § 1681b(a)(1)(3)(E) which states, in relevant part:
any consumer reporting agency may furnish a consumer report . . . [t]o a
person which it has reason to believe . . . intends to use the information, as
a potential investor or servicer, or current insurer, in connection with a
valuation of, or an assessment of the credit or prepayment risks associated
with, an existing credit obligation.
Defendants argue that, as debt buyers, they accessed Plaintiff’s credit information
because they intended to use the information in connection with their valuation of the
credit risks associated with a debt portfolio that contained one of Plaintiff’s credit
obligations. Plaintiff counters that “the desire to determine whether a consumer is a
‘potential’ investment for debt collection does not constitute a permissible purpose
under subsection (E), which refers only to those transactions where there is a
‘consumer relationship’” (Dkt. # 23, Pg ID 79.) Plaintiff is wrong. “[N]o part of the
FCRA prevents third-parties from searching a person's credit report, even ones with no
previous relationship to the person, provided that the inquiry is done for permissible
purposes.” Perez v. Portfolio Recovery Associates, LLC, No.12-1603, 2012 WL
5373448, at *2 (D.P.R. Oct. 30, 2012). The plain language of § 1681b(a)(1)(3)(E)
specifically contemplates access to credit report for potential investors, who (by
definition) do not have a pre-existing relationship with the consumer.
Plaintiff concedes that Defendants are debt buyers (Dkt. # 23, Pg ID 79 n.2) and
by doing so pins her case on an erroneous assumption that debt buyers may not obtain
her credit report for the purpose of informing their decision as to whether to purchase
her debt. Because her claim fails as a matter of law, the motion to dismiss the first
cause of action must be granted.
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The intrusion upon seclusion claim fails for the same reason. To state a claim for
intrusion upon seclusion, a plaintiff must assert “(1) the existence of a secret and private
subject matter; (2) a right possessed by plaintiff to keep that subject matter private; and
(3) the obtaining of information about that subject matter by defendant through some
method objectionable to the reasonable man.” Tobin v. Michigan Civil Service
Commission, 416 Mich. 661, 672 (1982) (citation omitted). Because Defendants’
acquisition of Plaintiff’s credit report was permissible, Plaintiff possessed no right to
keep the report private.
Plaintiff also requests leave to amend in the event the court determines her
complaint fails to state a claim. Because her claims fail as a matter of law, amendment
would be futile.
IV. CONCLUSION
IT IS ORDERED that Defendants’ Motion to Dismiss (Dkt. # 20) is GRANTED.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: October 22, 2014
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, October 22, 2014, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
(313) 234-5522
S:\Cleland\JUDGE'S DESK\C2 ORDERS\14-11117.DANIEL.MotDismiss.ml.wpd
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