Bonner v. First Progress

Filing 5

OPINION MEMORANDUM AND ORDER: (See Full Order) IT IS HEREBY ORDERED that plaintiffs motion for leave to proceed in forma pauperis [ECF No. #2 ] is GRANTED. IT IS FURTHER ORDERED that this case is DISMISSED without prejudice pursuant to 28 U.S.C. 1915(e)(2)(B). A separate order of dismissal will be entered herewith. IT IS FURTHER ORDERED than an appeal from this dismissal would not be taken in good faith. Signed by District Judge Henry Edward Autrey on 11/19/2021. (JEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LAMONT BONNER, JR.,

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Plaintiff,
v.
FIRST PROGRESS,
Defendant.

No. 4:21-CV-1295-SPM

OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the application of self-represented plaintiff LaMont
Bonner, Jr. for leave to commence this civil action without prepayment of the required filing fee.
ECF No. 2. Having reviewed the motion and the financial information submitted in support, the
Court will grant the motion and waive the filing fee in this matter. See 28 U.S.C. § 1915(e)(2)(B).
Additionally, the Court has carefully reviewed plaintiff’s complaint and for the reasons discussed
below, the Court will dismiss this action pursuant to 28 U.S.C. § 1915(e)(2)(B).
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief may be granted. An
action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S.
319, 328 (1989). An action fails to state a claim upon which relief may be granted if it does not
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Determining whether a complaint states a plausible
claim for relief is a context-specific task that requires the reviewing court to draw upon judicial
experience and common sense. Id. at 679. The court must assume the veracity of well-pleaded
facts but need not accept as true “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.” Id. at 678 (citing Twombly, 550 U.S. at 555).
This Court must liberally construe complaints filed by laypeople. Estelle v. Gamble, 429
U.S. 97, 106 (1976). This means that “if the essence of an allegation is discernible,” the court
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) (quoting Stone
v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even self-represented complaints must
allege facts which, if true, state a claim for relief as a matter of law. Martin v. Aubuchon, 623 F.2d
1282, 1286 (8th Cir. 1980). Federal courts are not required to assume facts that are not alleged,
Stone, 364 F.3d at 914-15, nor are they required to interpret procedural rules in order to excuse
mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113
(1993).
The Complaint
On October 28, 2021, plaintiff, a resident of the State of Missouri, filed the instant action
on this Court’s ‘Civil Complaint’ form, seeking monetary and injunctive relief against defendant
First Progress for violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (FCRA)
and the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq. 1 First Progress is

Between October 12, 2021 and October 28, 2021, plaintiff filed eight (8) separate lawsuits, including the present
one, asserting violations of the FCRA and FDCPA. See Bonner v. Santander Consumer USA, No. 4:21-CV-1221
SRW (E.D. Mo); Bonner v. Equifax, No. 4:21-CV-1236 NAB (E.D. Mo); Bonner v. TransUnion, No. 4:21-CV-1237
HEA (E.D. Mo); Bonner v. I.C. System, No. 4:21-CV-1261 JCH (E.D. Mo); Bonner v. Medicredit, Inc., No. 4:211

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the only defendant listed in the caption of the complaint. In the section of the form complaint to
provide the address of First Progress, plaintiff erroneously provided the address for “I.C. System,”
a defendant he sued in a separate case, Bonner v. I.C. System, No. 4:21-CV-1261 JCH (E.D. Mo),
and which was dismissed on November 16, 2021 for failure to state a claim and/or legal frivolity.
Plaintiff’s claims, as set forth in his instant complaint are as follows:
On June 1st of 2021 the defendant began to report my payments on my account as
late. I noticed it being reported late in mid[-]July when my credit score dropped
from missed payments. I then sent the defendant a letter certified mail stating that
they should remove the late payments and why they should remove the late
payments. I then received a letter back saying that they could not remove the late
payments but they could not give me a reason why. I then sent another letter telling
them to just stop reporting the entire account to the CRA’s and gave the supporting
statements for that demand. I then received a letter saying they cannot and will not
stop reporting the account. Then in August the defendant sent a letter stating if I
don’t pay the account will be closed. I then sent a letter via priority mail with
tracking stating how they don’t have the power to close my account without my
permission. The account is now reporting as closed and late. I have asked to see
where the debt originates from and all I am sent are a bunch of statements showing
transactions. I am not being showed where the alleged debt was actually created at.
ECF No. 1 at 5.
For relief, plaintiff seeks $45,500 in monetary damages, and an order directing defendant
to “re-open [his] open end credit plan . . . and remove all late payments reported to the CRA’s.”
Id. at 5-6.
Discussion
Having carefully reviewed the instant complaint, the Court finds plaintiff’s claims against
defendant First Progress fail to survive review under 28 U.S.C. § 1915(e)(2)(B) and should be
dismissed at this time.

1278 JMB (E.D. Mo); Bonner v. First Progress, No. 4:21-CV-1295 SPM (E.D. Mo); Bonner v. Comenity Bank, No.
4:21-CV-1296 NCC (E.D. Mo); Bonner v. Manderich Law Group, LLP, No. 4:21-CV-1297 RLW (E.D. Mo).

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A. Fair Credit Reporting Act
Congress enacted the FCRA to ensure “that consumer reporting agencies exercise their
grave responsibilities with fairness, impartiality, and a respect for the consumer’s right to privacy.”
McIvor v. Credit Control Services, Inc., 773 F.3d 909, 915 (8th Cir. 2014). See also Poehl v.
Countrywide Home Loans, Inc., 528 F.3d 1093, 1096 (8th Cir. 2008) (explaining the FCRA “was
enacted in 1970 to ensure fair and accurate credit reporting, promote efficiency in the banking
system, and protect consumer privacy”); Hauser v. Equifax, Inc., 602 F.2d 811, 914 (8th Cir. 1979)
(explaining the FCRA is not meant to provide comprehensive regulation of the consumer reporting
industry, but instead establishes a broad minimum standard of reasonable procedures that must be
adopted by reporting agencies).
The FCRA places responsibilities on both a credit reporting agency (“CRA”) and those
that furnish them with information. McIvor, 773 F.3d at 915. It “has several mechanisms to protect
consumer credit information, some of which apply to credit reporting agencies while others apply
to users of the information provided by those agencies.” Poehl, 528 F.3d at 1096. Furthermore, the
FCRA “provides for recovery by a consumer upon a showing of willful or negligent failure to
follow reasonable procedures.” 2 Hauser, 602 F.2d at 914.
When a consumer directly disputes a debt with a CRA, it must “conduct a reasonable
investigation to determine whether the disputed information is inaccurate and record the current
status of the disputed information, or delete the item from the file” if it is “inaccurate, incomplete,
However, a consumer does not have a private right of action to enforce any subsection of 15 U.S.C. § 1681s-2(a),
including (a)(1) or (a)(2). See Somlar v. Nelnet Inc., No. 4:16-CV-01037-AGF, 2017 WL 35703, at *4 (E.D. Mo.
Jan. 4, 2017); see also Longman v. Wachovia Bank, N.A., 702 F.3d 148, 151 (2d Cir. 2012) (citing cases). Indeed,
the statute plainly restricts enforcement of § 1681s-2(a) to federal and state authorities. 15 U.S.C. § 1681s-2(d);
McWilliams v. Chase Home Fin., LLC, No. 4:09CV609 RWS, 2010 WL 1817783, at *3 (E.D. Mo. May 4, 2010)
(“[A]s § 1681s-2(d) indicates, enforcement of § 1681s-2(a) is limited to federal agencies and officials and state
officials identified § 1681s.”).
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or cannot be verified.” 15 U.S.C. § 1681i(a)(1)(A); 15 U.S.C. § 1681i(a)(5)(A). The term
“consumer reporting agency” means any person which, for monetary fees, dues, or on a
cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or
evaluating consumer credit information or other information on consumers for the purpose of
furnishing consumer reports 3 to third parties, and which uses any means or facility of interstate
commerce for the purpose of preparing or furnishing consumer reports. 15 U.S.C. § 1681a(f).
To state a claim for a FCRA violation against a furnisher of information, “a plaintiff must
establish (1) a dispute regarding the accuracy or completeness of information from the CRA; (2)
notice of the dispute from the CRA to the furnisher; and (3) the furnisher’s failure to conduct an
investigation, correct any inaccuracies, or notify the CRA of the results of the investigation.”
Echols v. Cavalry Portfolio Services, LLC, 2021 WL 426255, at *2 (E.D. Mo. Feb. 8, 2021). The
FCRA permits “‘an individual to bring a claim under § 1681s-2(b) against a furnisher of
information,’ for failing in certain duties imposed on such furnishers after they receive a notice of
dispute from a credit reporting agency.” Somlar v. Nelnet, Inc., No. 4:16-CV-1037 AGF, 2017 WL
35703, at *5 (emphasis in original) (quoting Drew v. Capital One Bank (USA) N.A., No. 1:16-CV95 SNLJ, 2016 WL 3402540, at *2 (E.D. Mo. June 21, 2016)) “But notice of disputed information
provided directly by the consumer to a furnisher does not trigger the duties of investigation under
section 1681s-2(b).” Id. A cause of action arises under § 1681s-2(b) only if the furnisher received
notice from a CRA, not from the consumer, that the credit information is in dispute. Id.

A “consumer report,” as defined under 15 U.S.C. § 1681a(d)(1), is “any written, oral, or other communication of
any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit
capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be
used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility
for-- (A) credit or insurance to be used primarily for personal, family, or household purposes; (B) employment
purposes. . .” or other purpose as defined under 15 U.S.C. § 1681b.

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Here, Plaintiff does not explicitly allege whether First Progress is a CRA or a furnisher of
information. Plaintiff does allege, however, that he sent a letter to First Progress “telling them to
just stop reporting the entire account to the CRA’s[.]” ECF No. 1 at 5. Thus, the Court will fairly
interpret First Progress to be a furnisher of information, not a CRA.
Plaintiff’s complaint fails to state a claim against First Progress, as a furnisher of
information, because he does not allege that he gave notice of the dispute to a CRA or that First
Progress received notice of a dispute from any CRA. Plaintiff also does not allege that First
Progress failed to conduct a reasonable investigation, or notify the CRAs of the results of the
investigation. Additionally, while plaintiff states he sent letters to First Progress requesting them
to “remove the late payments,” nowhere in his complaint does he allege that the debt was false or
inaccurate.
Thus, liberally construing the complaint, plaintiff’s allegations against defendant under the
FCRA cannot survive review under 28 U.S.C. § 1915(e)(2)(B), and the Court will dismiss this
claim for failure to state a claim and/or legal frivolity.
B. Fair Debt Collection Practices Act
Plaintiff has also not adequately alleged a claim against First Progress pursuant to 15
U.S.C. § 1692(e) of the FDCPA. The FDCPA’s purpose “is to eliminate abusive debt collection
practices by debt collectors, and to ensure that those debt collectors who refrain from using abusive
debt collection practices are not competitively disadvantaged.” Strand v. Diversified Collection
Serv., Inc., 380 F.3d 316, 318-19 (8th Cir. 2004). The FDCPA authorizes private lawsuits and fines
in order to prevent debt collectors from engaging in prohibited practices. Coyne v. Midland
Funding, LLC, 895 F.3d 1035, 1037 (8th Cir. 2018) (“[t]he FDCPA is a consumer-protection
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statute authorizing private lawsuits and weighty fines to deter wayward collection practices”). “To
establish a prima facie case in an action for violation of the Fair Debt Collection Practices Act, the
plaintiff must plead and prove (1) the defendant was a debt collector, (2) the defendant’s conduct
in attempting to collect a debt was prohibited by the Act and (3) the debt was a consumer debt.”
Webb v. SuddenLink Commc’ns, 2010 WL 3940905, at *1 (E.D. Mo. Oct. 6, 2010).
Plaintiff’s complaint fails to state a claim against First Progress because he has not alleged
that it is a debt collector within the definition the FDCPA or that First Progress engaged in a
prohibited debt collection practice under the FDCPA. Plaintiff has not identified the type of
business First Progress is, such as a bank, credit card company, or debt collection company, or
what type of collection practices they specifically engaged in as to plaintiff’s debt. Even if the
Court were to surmise that First Progress was a debt collector, the complaint does not allege any
facts that it engaged in a prohibited debt collection practice or somehow lied to him about his debt.
Additionally, plaintiff has not alleged that he did not owe the debt that First Progress was
attempting to collect from him or that his payments were not late.
Thus, liberally construing the complaint, plaintiff’s allegations against defendant under the
FDCPA cannot survive review under 28 U.S.C. § 1915(e)(2)(B), and the Court will dismiss this
claim for failure to state a claim and/or legal frivolity.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma pauperis
[ECF No. 2] is GRANTED.
IT IS FURTHER ORDERED that this case is DISMISSED without prejudice pursuant
to 28 U.S.C. § 1915(e)(2)(B). A separate order of dismissal will be entered herewith.
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IT IS FURTHER ORDERED than an appeal from this dismissal would not be taken in
good faith.
Dated this 19th day of November, 2021.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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