Addie v. Ocwen Loan Servicing, LLC
MEMORANDUM OPINION AND ORDER. 1. Defendant's Motion to Dismiss (Doc. No. 3 ) is GRANTED. 2. Plaintiff's Complaint (Doc. No. [1, Ex. 1]) is DISMISSED WITHOUT PREJUDICE.(Written Opinion). Signed by Judge Donovan W. Frank on 6/28/2012. (BJS)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Joseph A. Addie,
Civil No. 12-256 (DWF/FLN)
OPINION AND ORDER
Ocwen Loan Servicing, LLC,
Ryan A. Ahlberg, Esq., Ahlberg Law, PLLC, counsel for Plaintiff.
David R. Mortensen, Esq., Wilford, Geske & Cook, PA, counsel for Defendant.
This matter is before the Court on Defendant Ocwen Loan Servicing, LLC’s
(“Defendant”) Motion to Dismiss (Doc. No. 3). For the reasons stated below, the Court
grants Defendant’s motion and dismisses Plaintiff Joseph A. Addie’s
(“Plaintiff”) Complaint without prejudice.
In his Complaint, Plaintiff alleges that in late 2006 through 2007, he was a victim
of a “fraudulent real estate scheme” that resulted in Defendant reporting to credit
reporting agencies that a mortgage account in Plaintiff’s name was delinquent or in bad
standing. (Doc. No. 1, Ex. 1, Compl. ¶ 6.) Plaintiff also alleges that Defendant’s report
negatively affected his credit score and profile. (Id.) Plaintiff further alleges that in or
around March 2010, he contacted certain credit reporting agencies and requested the
deletion of errors contained in the credit reports that related to the Defendant’s initial
report, and that he “specifically identified the erroneous information as related to a
fraudulent real estate scheme.” (Id. ¶¶ 7-8.) Finally, Plaintiff alleges that the information
he provided to the credit reporting agencies was sufficient for Defendant to verify
“through court records, the validity of Plaintiff’s claims that the information was on his
reports as the result of third-party fraud.” (Id. ¶ 8.)
Plaintiff initially filed suit in Ramsey County District Court on or about
January 6, 2012. (Compl.) In his Complaint, Plaintiff alleges two counts: Count I—
Willful Noncompliance with 15 U.S.C. § 1681s-2(b)(1); and Count II—Negligent
Noncompliance with 15 U.S.C. § 1681s-2(b)(1). (Id.) Defendant removed the action to
this Court on January 31, 2012, and now moves to dismiss Plaintiff’s claims.
In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court assumes all
facts in the complaint to be true and construes all reasonable inferences from those facts
in the light most favorable to the complainant. Morton v. Becker, 793 F.2d 185, 187 (8th
Cir. 1986). In doing so, however, a court need not accept as true wholly conclusory
allegations, Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir.
1999), or legal conclusions drawn by the pleader from the facts alleged. Westcott v. City
of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). A court may consider the complaint,
matters of public record, orders, materials embraced by the complaint, and exhibits
attached to the complaint in deciding a motion to dismiss under Rule 12(b)(6). Porous
Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).
To survive a motion to dismiss, a complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
545 (2007). Although a complaint need not contain “detailed factual allegations,” it must
contain facts with enough specificity “to raise a right to relief above the speculative
level.” Id. at 555. As the United States Supreme Court recently reiterated, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,”
will not pass muster under Twombly. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555). In sum, this standard “calls for enough fact[s] to raise a
reasonable expectation that discovery will reveal evidence of [the claim].” Twombly, 550
U.S. at 556.
Motion to Dismiss
Plaintiff alleges that Defendant willfully or negligently failed to comply with the
requirements of 15 U.S.C. § 1681s-2(b)(1), specifically parts (A), (B) and (E). These
provisions outline the responsibilities of a furnisher of information (i.e., Defendant) to
consumer reporting agencies, and provide in part:
(b) Duties of furnishers of information upon notice of dispute
(1) In general
After receiving notice pursuant to section 1691i(a)(2) of this title of a
dispute with regard to the completeness or accuracy of any information
provided by a person to a consumer reporting agency, the person shall--
(A) conduct an investigation with respect to the disputed
(B) review all relevant information provided by the consumer
reporting agency pursuant to 1691i(a)(2) of this title;
(C) report the results of the investigation to the consumer reporting
(D) if the investigation finds that the information is incomplete or
inaccurate, report those results to all other consumer reporting
agencies to which the person furnished the information and that
compile and maintain files on consumers on a nationwide basis; and
(E) if an item of information disputed by a consumer is found to be
inaccurate or incomplete or cannot be verified after any
reinvestigation under paragraph (1), for purposes of reporting to a
consumer reporting agency only, as appropriate, based on the results
of the reinvestigation promptly-(i) modify that item of information;
(ii) delete that item of information; or
(iii) permanently block the reporting of that item of information.
15 U.S.C. §1681s-2(b)(1) (emphasis added).
The statute under which Plaintiff brings this action imposes certain duties (e.g., to
conduct an investigation) on a furnisher of information “[a]fter receiving notice pursuant
to section 1681i(a)(2) . . . of a dispute with regard to the completeness or accuracy” of
information provided to a consumer reporting agency. Section 1681i(a)(2), in turn,
(2) Prompt notice of dispute to furnisher of information.-(A) In general.--Before the expiration of the 5-business-day period
beginning on the date on which a consumer reporting agency receives
notice of a dispute from any consumer or a reseller in accordance with
paragraph (1), the agency shall provide notification of the dispute to any
person who provided any item of information in dispute, at the address and
in the manner established with the person. The notice shall include all
relevant information regarding the dispute that the agency has received
from the consumer or reseller.
(B) Provision of other information.--The consumer reporting agency
shall promptly provide to the person who provided the information in
dispute all relevant information regarding the dispute that is received by
the agency from the consumer or the reseller after the period referred to in
subparagraph (A) and before the end of the period referred to in paragraph
15 U.S.C. § 1681i(a)(2) (emphasis added).
The language of the statute requires that a consumer reporting agency, upon
receipt of notice of a dispute from a consumer, promptly notify a furnisher of information
of the dispute. 15 U.S.C. § 1681i(a)(2)(A). Thus, in order for Plaintiff to state a claim
under section 1681s-2(b)(1) against Defendant (a furnisher of information), Plaintiff must
allege that a credit reporting agency notified Defendant of the inaccurate information, and
that the furnisher of information failed to take required action. See, e.g., Bittinger v.
Wells Fargo Bank, N.A., 744 F. Supp. 2d 619, 629 (S.D. Texas 2010); Ori v. Fifth Third
Bank, 603 F. Supp. 2d 1171 (E.D. Wisc. 2009) (noting that the statute requires that notice
to the furnisher come from the consumer reporting agency).
Here, Plaintiff has failed to allege any facts showing that a credit reporting agency
to which Plaintiff directed his correspondence actually notified Defendant of a dispute.
This failure is fatal to his claim. Plaintiff’s Complaint only sets forth conclusory and
vague allegations that seem to suggest that, because he provided correspondence to a
credit reporting agency that he allegedly was a victim of fraud, Defendant was
automatically under a duty to investigate. As discussed above, this is not sufficient to
state a claim under section 1681s-2(b)(1). Moreover, Plaintiff has failed to provide any
information identifying the loan or debt upon which Defendant allegedly reported on, and
has not alleged facts identifying any specific errors that were made with respect to his
account with Defendant. Instead, Plaintiff summarily claims that he was a “victim of a
fraudulent real estate scheme,” but does not connect that claim with the servicing or
validity of the underlying mortgage documents.
For these reasons, the Court concludes that Plaintiff’s Complaint fails to state a
claim upon which relief can be granted and dismisses Plaintiff’s claims without
For the reasons set forth above, IT IS ORDERED that:
Defendant’s Motion to Dismiss (Doc. No. ) is GRANTED.
Plaintiff’s Complaint (Doc. No. [1, Ex. 1]) is DISMISSED WITHOUT
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: June 28, 2011
s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
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