Fleming v. Equifax Information Services, LLC et al
ORDER denying 10 Motion to Dismiss for the reasons set out in the Order. Signed by Chief District Judge Daniel P. Jordan III on November 20, 2020. (SP)
Case 3:20-cv-00284-DPJ-FKB Document 22 Filed 11/20/20 Page 1 of 5
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 3:20-CV-284-DPJ-FKB
GINNY’S, INC. and MIDNIGHT
Plaintiff Fomeka Fleming claims Defendants Ginny’s, Inc. and Midnight Velvet, Inc.
violated the Fair Credit Reporting Act (“FCRA”) by reporting inaccurate monthly payment
information to a credit agency. Defendants moved to dismiss, arguing that they reported
accurate historical payment information. For the following reasons, Defendants’ Motion to
Dismiss  is denied.
Fleming alleges that her credit report reflected monthly payments of $25 each to Ginny’s
and Midnight Velvet. Compl.  ¶ 7. This information was inaccurate, Fleming says, because
the accounts with both Defendants “were closed and have a zero balance,” and therefore she “no
longer has an obligation to make monthly payments.” Id. Accordingly, Fleming asserts that
these accounts should show a monthly payment of $0. Id. ¶ 8.
Fleming discovered this alleged inaccuracy in her Equifax credit report on April 6, 2019,
and reported the dispute to Equifax approximately three weeks later. Id. ¶¶ 9–10. Defendants
received notice of the dispute but “failed or refused to report the monthly payment amount as
$0.00” on Fleming’s subsequent Equifax report. Id. ¶ 13. As a result, Fleming brought this
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action, alleging that Defendants Ginny’s and Midnight Velvet violated the FCRA by failing to
conduct a proper investigation as required by statute.1 Id. ¶¶ 17–18, 25–26, 31–32, 39–40.
Defendants now move to dismiss the Complaint, contending that they reported accurate
historical information. Defs.’ Mem.  at 6. Specifically, they say that they accurately
reported the amount Fleming owed monthly while the accounts were open. Id. The parties have
fully briefed the issues, and the Court is prepared to rule.
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. This standard “‘simply calls for enough fact to raise a
reasonable expectation that discovery will reveal evidence of’ the necessary claims or elements.”
In re S. Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir. 2008) (quoting Twombly, 550 U.S.
at 556)). When considering a Rule 12(b)(6) motion, the Court accepts all well-pleaded facts as
true and views them in the light most favorable to the plaintiff. New Orleans City v. Ambac
Assur. Corp., 815 F.3d 196, 199 (5th Cir. 2016). In a Rule 12(b)(6) analysis, courts may rely on
the complaint, its proper attachments, “‘documents incorporated into the complaint by reference,
and matters of which a court may take judicial notice.’” Dorsey v. Portfolio Equities, Inc., 540
Equifax was initially named as a Defendant, but Fleming voluntarily dismissed her claims
against the credit-reporting agency shortly after filing this action. Notice of Voluntary Dismissal
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F.3d 333, 338 (5th Cir. 2008) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
308, 322 (2007)).
Defendants’ motion ultimately comes down to the specifics of Fleming’s credit report.
They say it is “undisputed that the relevant accounts were being reported as ‘closed’ but with a
monthly payment amount greater than $0.” Defs.’ Reply  at 3–4. Fleming, on the other
hand, asserts that her report showed “scheduled monthly payment obligations [that she]
currently owed[.]” Pl.’s Resp.  at 4 (emphasis in original). Because her current monthly
payments are $0, she argues, the reported $25 current payment obligation is inaccurate. Id. at 5–
“The FCRA imposes a duty on ‘furnishers of information,’ . . . to provide accurate
information to the credit reporting agencies (CRAs).” Hall v. LVNV Funding, L.L.C., 738 F.
App’x 335, 335 (5th Cir. 2018) (quoting 15 U.S.C. § 1681s-2(a)). When a consumer disputes an
item on his or her credit report, the furnisher of the information “must ‘conduct an investigation
with respect to the disputed information,’ ‘review all relevant information provided by the
[CRA],’ ‘report the results of the investigation to the [CRA],’ and ‘modify[,] . . . delete[,] . . .
or . . . permanently block the reporting’” of the disputed information if the information turns out
to be inaccurate. Id. at 335–36 (quoting 15 U.S.C. § 1681s-2(b)(1)(A)–(E)).
“But before a plaintiff can recover on a claim that a creditor violated these requirements,
[s]he ‘must demonstrate that there was an inaccuracy in [her] credit report.’” Magee v. Ford
Motor Credit Co., LLC, No. 2:18-CV-148-KS-MTP, 2019 WL 7593371, at *2 (S.D. Miss. Nov.
15, 2019) (quoting Seay v. Trans Union, LLC, No. 7:18-CV-204-HL, 2019 WL 4773827, *2
(M.D. Ga. Sept. 30, 2019)) (citing Chiang v. Verizon New Eng. Inc., 595 F.3d 26, 37 (1st Cir.
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2010)); Hall v. LVNV Funding, LLC, No. 6:16-CV-36, 2017 WL 6403049, at *3 (E.D. Tex. Aug.
“A credit entry may be ‘inaccurate’ within the meaning of the statute either because it is
patently incorrect, or because it is misleading in such a way and to such an extent that it can be
expected to adversely affect credit decisions.” Sepulvado v. CSC Credit Servs., Inc., 158 F.3d
890, 895 (5th Cir. 1998) (citing Pinner v. Schmidt, 805 F.2d 1258 (5th Cir. 1986)).
“‘[I]nformation that is open to interpretation that is directly contradictory to the true information
is sufficiently misleading to qualify as inaccurate.’” Magee, 2019 WL 7593371, at *2 (quoting
Toliver v. Experian Info. Servs., Inc., 973 F. Supp. 2d 707, 715 (S.D. Tex. 2013)).
The parties offer differing descriptions of the disputed credit report in their memoranda,
yet the credit report itself is not in the record. The Court must therefore decide the issue based
on the way Plaintiff described the credit report in her Complaint, viewing the well-pleaded facts
in the light most favorable to her.2
Fleming alleges that “Ginny[’]s is reporting a monthly payment of $25.00 and Midnight
[Velvet] is reporting a monthly payment of $25.00.” Compl.  ¶ 7. That allegation creates a
plausible inference that Defendants are reporting that Fleming’s current payment obligation is
$25 per month to each furnisher. That would be inaccurate if it is true that the accounts “were
closed and have a zero balance.” Id. Absent the actual report, the Court cannot say whether the
In her response, Fleming appears to suggest that her credit report indicated that the accounts
were closed. See Pl.’s Resp.  at 6 (“[E]ach Defendant had been reporting its account as paid
and closed. . . . Therefore, . . . each Defendant merely needed to . . . correct its reporting of the
scheduled monthly payment amount to $0.”). But elsewhere she says Defendants “are reporting
current scheduled monthly payment obligations[.]” Id. at 7 (emphasis added); see also id. at 1
(asserting that Defendants reported that debts were “still owed”). So even considering Plaintiff’s
legal memorandum, the issue remains unclear. Regardless, the Court’s review under Rule
12(b)(6) is limited to the pleadings and documents referenced in them that are part of the record.
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report accurately listed the accounts as closed or otherwise indicated that the information was
historical. See Lovelace v. Equifax Info. Servs. LLC, No. CV-18-04080-PHX-DWL, 2019 WL
2410800, at *4 (D. Ariz. June 7, 2019) (denying motion to dismiss and noting that without the
credit report it was not clear from complaint whether report reflected historical information).
Defendants may ultimately have a strong argument at the summary-judgment stage. See
Magee, 2019 WL 7593371, at *3 (discussing historical reporting). But at this point, the Court
will not pre-judge that potential issue and finds under Rule 12(b)(6) that Fleming has minimally
pleaded “enough fact to raise a reasonable expectation that discovery will reveal evidence of the
necessary claims or elements.” In re S. Scrap Material Co., LLC, 541 F.3d at 587 (citation
omitted). Fleming has stated a plausible claim; the Motion to Dismiss is denied.
The Court has considered all arguments. Those not addressed would not change the
outcome. For the reasons stated, Defendants’ Motion to Dismiss  is denied.3
SO ORDERED AND ADJUDGED this the 20th day of November, 2020.
s/ Daniel P. Jordan III
CHIEF UNITED STATES DISTRICT JUDGE
The parties no doubt know what the credit report said. They should therefore consider an early
summary-judgment motion before incurring additional time and expense. While the Court has
not prejudged the issues, it seems that a healthy body of law exists that would be easier to apply
with the benefit of the actual document.
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