Young v. CitiFinancial Servicing LLC et al

Filing 37

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that defendant Lowes Home Centers LLC's motion to dismiss 29 is granted in part and denied in part. IT IS FURTHER ORDERED that plaintiff Marlyn Young's claims under 15 U.S. C. § 1681s-2(a), the Credit CARD Act, and the MMPA are dismissed with prejudice. Young's FCRA claim under 15 U.S.C. § 1681s-2(b) remains pending in this action. Lowes shall file its answer to this claim within the time prescribed by the federal rules. The case will be set for a Rule 16 scheduling conference by separate Order. Signed by District Judge Catherine D. Perry on 5/30/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARLYN YOUNG,
Plaintiff,
v.
CITIFINANCIAL SERVICE LLC,
et al.,
Defendants.

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No. 4:16 CV 1171 CDP

MEMORANDUM AND ORDER
Plaintiff Marlyn Young proceeds in this action pro se, claiming that
defendant Lowes Home Centers LLC violated the Fair Credit Reporting Act
(FCRA), 15 U.S.C. §§ 1681, et seq.; the Credit CARD Act, Pub. L. No. 111-24, 123
Stat. 1734 (2009); and the Missouri Merchandising Practices Act (MMPA), Mo.
Rev. Stat. §§ 407.010, et seq., by maintaining and reporting improper information in
his credit accounts, and failing to take corrective action upon receiving notice of
inaccuracies.1 Lowes now seeks to dismiss Young’s complaint in its entirety,
arguing that it fails to state a claim upon which relief can be granted. For the
following reasons, I will grant the motion in part and deny it in part.2
1

Young brings the same claims against CitiFinancial Service LLC. The claims against
CitiFinancial, however, are stayed pending arbitration. See Order, Feb. 6, 2017 (ECF #23).
2

Although I did not consider Young’s untimely response in making my decision, the assertions
made therein do not change my conclusions.

Legal Standard
Lowes seeks to dismiss Young’s complaint under Fed. R. Civ. P. 12(b)(6) for
failure to state a claim. When reviewing a Rule 12(b)(6) motion to dismiss, I
assume the allegations in the complaint to be true and construe the complaint in
plaintiff’s favor. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007);
Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d 853, 862 (8th Cir. 2010);
Anzaldua v. Northeast Ambulance & Fire Prot. Dist., 978 F. Supp. 2d 1016, 1021
(E.D. Mo. 2013). I give liberal construction to a pro se complaint, which means
that “if the essence of an allegation is discernible,” I should construe the complaint
in a way “that permits the layperson’s claim to be considered within the proper legal
framework.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (internal
quotation marks and citation omitted). To survive a motion to dismiss, the
complaint need not contain “detailed factual allegations,” but it must contain facts
with enough specificity “to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. The issue in determining a Rule 12(b)(6) motion is not
whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to
present evidence in support of the claim. See Skinner v. Switzer, 562 U.S. 521,
529-30 (2011) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

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Background3
Lowes, acting in its capacity as a retail credit card company, entered and
maintained credit information on an account of Young’s that was time-barred under
an unspecified statute of limitations. Lowes also maintained a credit entry on
Young’s account with an improper balance and imposed a rate increase without
sixty days’ notice to Young. Young learned of these occurrences upon review of
his credit report in April 2016. Young, “in conjunction with” the credit bureaus,
requested Lowes to correct the misinformation that was contained in his credit file,
but Lowes has not taken any corrective action.
Discussion
Lowes argues that Young has failed to state a claim under any of the statutes
invoked in this action. Upon review of Young’s pro se complaint and according it
liberal construction as I must, I find that Young has stated a claim under the FCRA,
and specifically 15 U.S.C. § 1681s-2(b), and the motion to dismiss will be denied as
to that claim. I will grant the motion to dismiss in all other respects.
A.

FCRA
Lowes contends that Young’s FCRA claim fails because, to the extent his

complaint can be read to invoke 15 U.S.C. § 1681s-2(a), Young lacks a private right
of action; and, to the extent the complaint can be read to invoke 15 U.S.C. §
3

The facts set out here are those alleged in the complaint, which I must assume are true for
purposes of the motion to dismiss.
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1681s-2(b), Young fails to allege that Lowes received notice of any dispute from a
consumer reporting agency.
Under 15 U.S.C. § 1681s-2(a), furnishers of information relating to a
consumer to a consumer reporting agency (CRA) have a duty to provide accurate
information. A consumer does not have a private right of action, however, to
enforce § 1681s-2(a). 15 U.S.C. § 1681s-2(d). Instead, enforcement of §
1681s-2(a) is limited to federal and state agencies and officials. Id. Because
Young cannot bring a private action against Lowes under § 1681s-2(a), his FCRA
claim will be dismissed to the extent he seeks to invoke § 1681s-2(a).
However, an individual may bring a private action against a furnisher under §
1681s-2(b) for failing to meet certain duties imposed upon furnishers after they
receive notice of a dispute from a CRA. Drew v. Capital One Bank (USA) N.A.,
No. 1:16CV00095 SNLJ, 2016 WL 3402540, at *2 (E.D. Mo. June 21, 2016). For
these duties to be triggered, and thus for a cause of action to accrue, the furnisher
must have received notice from a CRA that the credit information is in dispute.
Somlar v. Nelnet Inc., No. 4:16-CV-01037-AGF, 2017 WL 35703, at *5 (E.D. Mo.
Jan. 4, 2017). Notice of disputed information provided only by the consumer to a
furnisher does not trigger the duties imposed by § 1681s-2(b). Id.
Here, Young has pled sufficient facts to invoke § 1681s-2(b). A reading of
Young’s complaint in its entirety shows it to adequately assert that Lowes is a
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“furnisher of information” under the statute, given Young’s claim that he became
aware of the allegedly inaccurate information furnished by Lowes through his
review of credit reports provided to him by credit bureaus. In addition, to the extent
Lowes contends that Young fails to allege that it received notice of disputed
information from a CRA rather than from Young himself, a plain reading of the
complaint shows the contrary. Young specifically pleads that he, “in conjunction
with all three credit bureaus,” requested that Lowes take corrective action but that
Lowes refused. (Petn., ECF #5 at p. 2.) This factual averment is sufficient to
allege that the credit bureaus provided notice to Lowes of Young’s dispute.
Because the essence of a claim under § 1681s-2(b) is discernible from the facts
alleged in Young’s complaint, I will consider the claim to be within the proper legal
framework and permit it to go forward.
B.

Credit CARD Act
In May 2009, Congress enacted the Credit CARD Act, which amended the

Truth in Lending Act, in relevant part, to require that creditors give forty-five days’
advance notice of most increases in credit card annual percentage rates. 15 U.S.C.
§ 1637(i). See Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 201 (2011).
Lowes argues that Young fails to allege that it is a creditor and thus cannot state a
claim against it under the Act. Lowes also argues that, other than claiming a rate
increase without a sixty-day notice, Young wholly fails to allege any factual basis to
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bring his claim within the purview of the Act. I agree.
Section § 1637(i) provides that “[i]n the case of any credit card account under
an open end consumer credit plan, a creditor shall provide a written notice of an
increase in an annual percentage rate . . . not later than 45 days prior to the effective
date of the increase.” Here, Young describes Lowes as a retail credit card company
but does not allege that Lowes is a creditor in the relevant circumstances or that the
account(s) at issue are open end consumer credit plans. Further, while Young
claims that Lowes did not provide sixty days’ notice of a rate increase, § 1637(i)
does not require a sixty-day notice. Because a claim under the Credit CARD Act
cannot be discerned from the facts alleged in Young’s complaint, I will dismiss the
claim.
C.

MMPA
To the extent Young alleges that Lowes’ credit reporting practices violated

the MMPA, the claim is preempted by the FCRA. The FCRA restricts state laws
from regulating any subject matter regulated under 15 U.S.C. § 1681s-2. See 15
U.S.C. § 1681t(b)(1)(F). As described above, § 1681s-2 regulates the duties held
by furnishers of information to CRAs, including the reporting of accurate
information, conducting investigations and reviews upon notice of a dispute, and
modifying inaccurate information. Because Young challenges the accuracy of
Lowes’ reporting and its conduct in failing to take corrective action after notice of
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inaccuracies, that is, actions regulated under § 1681s-2, his claim cannot be brought
under the MMPA. See Tyson v. Nationstar Mortg., LLC, No. 4:15CV00763 ERW,
2016 WL 3348400, at *7 (E.D. Mo. June 16, 2016). See also Young v. Ditech Fin.,
LLC, No. 4:15-CV-1331 (CEJ), 2016 WL 4944102, at *2 (E.D. Mo. Sept. 16, 2016).
Young’s MMPA claim will therefore be dismissed.
Accordingly,
IT IS HEREBY ORDERED that defendant Lowes Home Centers LLC’s
motion to dismiss [29] is granted in part and denied in part.
IT IS FURTHER ORDERED that plaintiff Marlyn Young’s claims under
15 U.S.C. § 1681s-2(a), the Credit CARD Act, and the MMPA are dismissed with
prejudice. Young’s FCRA claim under 15 U.S.C. § 1681s-2(b) remains pending in
this action. Lowes shall file its answer to this claim within the time prescribed by
the federal rules.
The case will be set for a Rule 16 scheduling conference by separate Order.

_________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 30th day of May, 2017.

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