Belssner v. Bank of America et al
Filing
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ORDER that 8 Report and Recommendation is accepted in part. The amended complaint is dismissed without prejudice. Signed by Judge Andrew P. Gordon on 1/5/2018.(Copies have been distributed pursuant to the NEF - MMM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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CHARLES N. BELSSNER,
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Plaintiff,
v.
BANK OF AMERICA and JUAN A.
GARCIA ALVARADO,
Defendants.
Case No. 2:17-cv-01666-APG-NJK
ORDER ACCEPTING REPORT AND
RECOMMENDATION AND
DISMISSING CASE WITHOUT
PREJUDICE
(ECF No. 8)
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On November 2, 2017, Magistrate Judge Koppe recommended this case be dismissed with
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prejudice because plaintiff Charles Belssner has been unable to plead facts supporting a viable
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cause of action. ECF No. 8. Rather than object, Belssner appealed to the Ninth Circuit. ECF No.
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11. The Ninth Circuit dismissed the appeal for lack of jurisdiction. ECF No. 13.
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I conducted a de novo review of the issues set forth in the report and recommendation. 28
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U.S.C. § 636(b)(1). Judge Koppe sets forth the proper legal analysis and factual basis for the
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decision. Belssner’s amended complaint does not plausibly allege a constitutional violation
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because there is no basis to conclude defendant Bank of America or its employee, defendant Juan
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Garcia Alvarado, are state actors. See Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d
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916, 922 (9th Cir. 2011). Belssner does not plausibly allege a violation of the Americans with
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Disabilities Act because he alleges his mortgage application was denied when Bank of America
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could not verify a residential address for him, not because he was disabled. ECF No. 7 at 5.
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Belssner’s Fair Housing Act claim fails for the same reason. The FHA precludes discrimination
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based on handicaps. See 42 U.S.C. §§ 3604(f), 3605. But Belssner does not allege his mortgage
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application was denied because of a disability. He alleges it was denied because Bank of
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America could not verify a residential address for him.
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Finally, Belssner does not explain how Bank of America violated the Fair Credit
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Reporting Act. As a furnisher of information to credit reporting agencies, Bank of America has a
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duty to provide accurate information under 15 U.S.C. § 1681s–2(a). See Gorman v. Wolpoff &
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Abramson, LLP, 584 F.3d 1147, 1154 (9th Cir. 2009). However, “[d]uties imposed on furnishers
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under subsection (a) are enforceable only by federal or state agencies.” Id. (citing § 1681s–2(d)).
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Bank of America also has a duty, upon notice of a dispute regarding information it has
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furnished to a credit reporting agency, to conduct an investigation, report results of that
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investigation, and correct inaccurate or incomplete information if any is found as a result. See 15
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U.S.C. 1681s–2(b). However, “[t]hese duties arise only after the furnisher receives notice of
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dispute from a CRA; notice of a dispute received directly from the consumer does not trigger
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furnishers’ duties under subsection (b).” Id. Belssner does not allege that he lodged a dispute
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with a credit reporting agency or that the credit reporting agency gave notice of the dispute to
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Bank of America.
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However, because it is possible that Belssner might be able to adequately allege such
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claims (if sufficient facts exist), I will dismiss his claims without prejudice to his ability to file
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them in some other action.
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IT IS THEREFORE ORDERED that Magistrate Judge Koppe’s report and
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recommendation (ECF No. 8) is accepted in part. The amended complaint is dismissed without
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prejudice.
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DATED this 5th day of January, 2018.
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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE
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