PAREDES v. SALLIE MAE
Filing
5
OPINION. Signed by Judge Noel L. Hillman on 11/16/2011. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FRANKELY R. PAREDES,
Civil No. 11-2470 (NLH/KMW)
Plaintiff,
OPINION
v.
SALLIE MAE,
Defendant.
APPEARANCES:
Frankely R. Paredes
2700 Atlantic Avenue
Wildwood, NJ 08260
Pro Se
Thomas C. Regan, Esquire
LeClairRyan, a Virginia professional corporation
One Riverfront Plaza
1037 Raymond Boulevard
Sixteenth Floor
Newark, NJ 07102
Attorney for Defendant
HILLMAN, District Judge
This matter comes before the Court by way of an unopposed
motion [Doc. No. 4] by Defendant Sallie Mae, Inc.,1 (hereinafter,
“Sallie Mae” or “Defendant”) to dismiss Plaintiff Frankely Paredes’
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
The Court notes that Plaintiff failed to file an opposition to
Defendant’s motion and the time for filing opposition has expired.
1. Defendant was incorrectly named in Plaintiff’s complaint as,
Sallie Mae, rather than Sallie Mae, Inc. (Notice of Removal [Doc.
No. 1] 1; see also Mot. to Dismiss [Doc. No. 4] 1.)
The Court has considered Defendant’s motion and decides this matter
pursuant to Federal Rule of Civil Procedure 78.
For the reasons expressed below, Defendant’s motion is granted
in part and denied in part.
I.
JURISDICTION
In this action, Plaintiff alleges claims under the Fair Credit
Reporting Act, (hereinafter, “FCRA”).
1681 et seq.
See generally 15 U.S.C. §
The Court exercises jurisdiction over Plaintiff’s
federal law claims pursuant to 28 U.S.C. § 1331.
II.
BACKGROUND
Plaintiff initiated this action in the Superior Court of New
Jersey, Law Division, Special Civil Part for Cape May County on
approximately April 4, 2011.
(Def.’s Notice of Removal [Doc. No.
1] ¶ 1; see also Ex. A to Notice of Removal, Special Civil Part
Compl.
[Doc.
No.
1-1]
(hereinafter,
“Pl.’s
Compl.”)
(stamped
“Received” on April 4, 2011).) Defendant Sallie Mae filed a timely
Notice of Removal on April 29, 2011 and removed Plaintiff’s action
to this Court pursuant to 28 U.S.C. §§ 1331, 1367, 1441, and 1446,
asserting that Plaintiff’s complaint alleged causes of action
arising under federal law, i.e., the Fair Credit Reporting Act.
(Def.’s Notice of Removal [Doc. No. 1] 1, ¶¶ 4-5.)
In the complaint, Plaintiff seeks damages in the amount of
$10,000
and
asserts
that
Plaintiff
sustained
actual
damages,
including “loss of opportunity” as a result of “multiple violations
2
of the Fair Credit Reporting Act” by Defendant.
(Pl.’s Compl. ¶
2.) Plaintiff asserts that at some time prior to April 5, 2010, “an
unknown account ... listed by the Defendant” appeared on his credit
report.
(Id. ¶ 3.)
As a result of this unknown account, Plaintiff
alleges that he sent to “Experian, a Credit Reporting [A]gency[,]
a request to investigate and the disputed [sic] of the alleged
debt[.]” (Id.)
Plaintiff contends that he received correspondence
from
on
Experian
May
12,
2010
“stating
that
the
matter
was
completed and verified by the Defendant [and] thus,” the account
would “remain[] in [Plaintiff’s] credit report as an accurate
account.”
(Id. ¶ 4.)
After receiving a response from Experian, Plaintiff asserts
that he “sent Defendant a dispute letter” via certified mail,
return receipt requested on September 28, 2010, requesting Sallie
Mae “to investigate the matter.”
(Id. ¶ 5.)
Plaintiff alleges
that Sallie Mae received his dispute letter on September 30, 2010,
but that Plaintiff never received a response from Sallie Mae. (Id.
¶¶ 6, 8.)
Plaintiff asserts that he then sent Sallie Mae a second
dispute letter via certified mail, return receipt requested on
December 1, 2010 “in a good faith effort to allow Defendant ample
opportunity to investigate[] the alleged debt[.]” (Id. ¶ 13.)
Plaintiff contends that this second dispute letter “stated that the
Plaintiff was in full dispute of the account and requested that the
matter be investigated.”
(Id.)
Plaintiff alleges that Sallie Mae
3
received the second dispute letter requesting an investigation on
December 6, 2010.
Plaintiff further asserts that on January 10,
2011, Plaintiff sent Sallie Mae “a ‘NOTICE OF INTENT TO FILE
LAWSUIT’ letter” via certified mail, return receipt requested
informing Defendant of the alleged violations of the FCRA and
Defendant’s liability.
(Id. ¶ 18.)
Plaintiff contends that the
January 10, 2011 letter “requested immediate deletion of accounts
within 72 hours as a last chance to avoid a lawsuit[.]” (Id.)
Plaintiff asserts that Sallie Mae “again failed to respond.” (Id.)
Throughout the complaint, Plaintiff cites to the following
sections of the FCRA: Sections 1681s-2(a)(3), 1681n, and 1681o.
(Pl.’s Compl. ¶¶ 9-10, 12.)
In citing Section 1681s-2(a)(3),
Plaintiff notes that any furnisher of information to a consumer
reporting agency is under a duty to provide the consumer reporting
agency with notice that a consumer disputes the completeness or
accuracy of the information provided to that consumer reporting
agency. (Id. ¶ 9.) Accordingly, Plaintiff alleges that Sallie Mae
“failed to note the account as being disputed with the National
Credit Reporting Agencies as required” under the FCRA. (Id. ¶ 17.)
In citing to Sections 1681n and 1681o, Plaintiff also notes that
willful or negligent noncompliance with the FCRA’s provisions can
result in civil liability.
(Id. ¶¶ 10, 12.)
Plaintiff thus
alleges that he has a “negative Experian credit score ... and has
been denied credit at reasonable rates because of the negligent
4
noncompliance [sic] actions and/or inactions of” Sallie Mae.
¶¶ 11, 16.)
(Id.
Plaintiff also asserts that he “applied for a credit
card and was denied because of the actions and/or inactions of”
Sallie Mae.
(Id. ¶ 16.)
Plaintiff contends that the actions of Sallie Mae “demonstrate
a willful disregard for federal law and constitute a blatant
attempt to injure or ruin the credit rating of Plaintiff[.]” (Id.
¶ 19.) Plaintiff thus asserts that Sallie Mae “has demonstrated an
inability to conduct a fair investigation [of] the alleged debt and
... attempted to coerce payment by placing this alleged debt” on
Plaintiff’s credit report and refusing to remove it.
(Id.)
Accordingly, Plaintiff demands judgment in the amount of $10,000
plus court costs, and seeks the “permanent removal of ... [the]
account from Plaintiff’s files with all three national credit
reporting agencies (Equifax, Experian, and Trans Union).”
(Id.)
In the present motion, Defendant moves to dismiss Plaintiff’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim upon which relief can be granted.
to Dismiss [Doc. No. 4] 1.)
(Mot.
Specifically, Defendant argues that
Plaintiff cannot recover under Section 1681s-2(a)(3) of the FCRA
because
“no
private
right
of
action
exists
to
enforce
the
provisions of” Section 1681s-2(a). (Mem. of Points and Authorities
in Supp. of Def.’s Mot. to Dismiss [Doc. No. 4] (hereinafter,
“Def.’s Mem.”), 3) (citing Huertas v. Galaxy Asset Mgmt., 641 F.3d
5
28, 34 (3d Cir. 2011)).
While Defendant acknowledges that a
private right of action does exist under Section 1681s-2(b) of the
FCRA, Defendant asserts that “Plaintiff does not seek to recover
for any alleged violation of Section 1681s-2(b)[.]”
4.)
(Def’s Mem.
Defendant further contends that even if Plaintiff sought to
recover under Section 1681s-2(b), Plaintiff’s complaint still fails
to state a claim for relief because Plaintiff “does not even allege
that Sallie Mae failed to conduct a reasonable investigation of his
dispute.”
(Id.)
Accordingly,
Defendant
seeks
to
dismiss
Plaintiff’s complaint with prejudice. (Proposed Order [Doc. No. 4]
1.)
III. DISCUSSION
A.
In
Standard for Motion to Dismiss
this
case,
Defendant
seeks
dismissal
of
Plaintiff’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
When considering a motion to dismiss a complaint for failure to
state a claim upon which relief can be granted pursuant to Federal
Rule of Civil Procedure 12(b)(6), a court must accept all wellpleaded allegations in the complaint as true and view them in the
light most favorable to the plaintiff.
347, 350 (3d Cir. 2005).
Evancho v. Fisher, 423 F.3d
It is well settled that a pleading is
sufficient if it contains “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).
6
FED . R. CIV . P.
A district court, in weighing a motion to dismiss, asks “‘not
whether
a
plaintiff
will
ultimately
prevail
but
whether
the
claimant is entitled to offer evidence to support the claims[.]’”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting
Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1953 (2009) (“Our decision in Twombly
expounded
the
pleading
(citation omitted).
standard
for
‘all
civil
actions[.]’”)
First, under the Twombly/Iqbal standard, a
district court “must accept all of the complaint’s well-pleaded
facts as true, but may disregard any legal conclusions.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Iqbal,
129 S. Ct. at 1949).
Second, a district court “must then determine whether the
facts alleged in the complaint are sufficient to show that the
plaintiff has a ‘plausible claim for relief.’” Fowler, 578 F.3d at
211 (citing Iqbal, 129 S. Ct. at 1950).
“[A] complaint must do
more than allege the plaintiff’s entitlement to relief.”
Fowler,
578 F.3d at 211; see also Phillips v. County of Allegheny, 515 F.3d
224, 234 (3d Cir. 2008) (“The Supreme Court’s Twombly formulation
of the pleading standard can be summed up thus: ‘stating ... a
claim requires a complaint with enough factual matter (taken as
true) to suggest’ the required element.
This ‘does not impose a
probability requirement at the pleading stage,’ but instead ‘simply
calls for enough facts to raise a reasonable expectation that
7
discovery will reveal evidence of’ the necessary element.” (citing
Twombly, 550 U.S. at 556)).
“The defendant bears the burden of
showing that no claim has been presented.”
Hedges v. U.S., 404
F.3d 744, 750 (3d Cir. 2005).
However,
“if
a
complaint
is
subject to
a
Rule 12(b)(6)
dismissal, a district court must permit a curative amendment unless
such an amendment would be inequitable or futile.”
Phillips, 515
F.3d at 245; see also Ray v. First Nat’l Bank of Omaha, 413 F.
App’x 427, 430 (3d Cir. 2011) (“A district court should not dismiss
a pro se complaint without allowing the plaintiff an opportunity to
amend his complaint unless an amendment would be inequitable or
futile.”); Burrell v. DFS Servs., LLC, 753 F. Supp. 2d 438, 444
(D.N.J. 2010) (“When a claim is dismissed pursuant to Federal Rule
of Civil Procedure 12(b)(6), leave to amend and reassert that claim
is ordinarily granted. ... A claim may be dismissed with prejudice,
however, if amending the complaint would be futile.”) (citation
omitted).
Furthermore, in ruling on the present motion, the Court
“must construe [Plaintiff’s] complaint liberally because he is
proceeding pro se.”
Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 32
(3d Cir. 2011) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
B.
Fair Credit Reporting Act
Section
1681s-2
of
the
FRCA
sets
forth
the
general
responsibilities of entities that furnish information, (“furnishers
8
of information”), to consumer reporting agencies,2 (“CRAs”).
See
generally 15 U.S.C. § 1681s-2; see also Burrell, 753 F. Supp. 2d at
446.
The term “furnishers of information” is not specifically
defined within the FCRA but generally includes any entity that
reports information to a CRA which is relevant to a consumer’s
credit rating.3
Burrell, 753 F. Supp. 2d at 446.
Under subsection
1681s-2(a), furnishers of information have a duty to provide CRAs
with accurate information relating to consumers.
Specifically,
furnishers of information are prohibited from providing CRAs with
information relating to a consumer which the furnisher “knows or
has reasonable cause to believe ... is inaccurate.”
1681s-2(a)(1)(A).
Moreover,
where
a
consumer
15 U.S.C. §
disputes
the
completeness or accuracy of any information provided by a furnisher
to
a
CRA,
the
furnisher
is
prohibited
from
providing
“the
information to any consumer reporting agency without notice that
2.
Under the FCRA, the term “consumer reporting agency” is
generally defined as an entity which “regularly engages ... in the
practice of assembling or evaluating consumer credit information or
other information on consumers for the purpose of furnishing
consumer reports to third parties[.]” 15 U.S.C. § 1681a(f). As
explained by another court in this District, “the function of such
entities is more accurately described by the common term, ‘credit
rating agencies.’”
Burrell, 753 F. Supp. 2d at 441 n.2.
Accordingly, the Court notes that the terms “credit rating agency”
and “consumer reporting agency” refer to companies such as Equifax,
Experian, and TransUnion, the three major United States companies
which track consumer credit ratings. Id.
3.
The parties do not appear to dispute that Sallie Mae is
considered a furnisher of information under the FCRA. (See, e.g.,
Pl.’s Compl. ¶ 9; Def.’s Mem. 3-4.)
9
such information is disputed by the consumer.”
Id. § 1681s-
2(a)(3).
Subsection 1681s-2(b) sets forth the duties of furnishers of
information once the furnisher receives notice from a CRA that the
completeness or accuracy of the information provided to the CRA is
disputed by the consumer.
relates
to
the
Id. § 1681s-2(b)(1).
furnisher’s
inaccuracies from the [CRAs].
obligations
“[S]ubsection (b)
after
learning
of
Thus, whereas § 1681s-2(a) purports
to require furnishers of information to ensure the accuracy of that
information
before
transmitting
it
to
a
[CRA],
§
1681s-2(b)
requires that furnishers take certain steps to investigate and
correct inaccurate information they [may] have already relayed to
the [CRAs].”
willfully
Burrell, 752 F. Supp. 2d at 447.
or negligently
consumer thereby injured.”
violates
the
“Any person who
[FCRA] is
liable
to
a
Armour v. Sallie Mae, Inc., No. 10-
3740, 2010 WL 3724524, at *2 (D.N.J. Sept. 14, 2010) (citing 15
U.S.C. §§ 1681o; 1681n)).
Accordingly, a consumer may sue a
furnisher of information for a violation of Section 1681s-2(b) that
causes him injury.
IV.
Armour, 2010 WL 3724524, at *2.
ANALYSIS
A.
FCRA Claims under Section 1681s-2(a)
In the complaint, Plaintiff asserts that Defendant committed
“multiple violations of the” FCRA.
(Pl.’s Compl. ¶ 2.)
Plaintiff
cites to Section 1681s-2(a)(3) and Defendant’s alleged violation
10
thereof, as a basis for the current suit.
(Id. ¶¶ 2, 9, 11, 16.)
However, as the Third Circuit has previously held, no private right
of action exists under the provisions of Section 1681s-2(a).4
Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 34 (3d Cir. 2011)
(concluding that plaintiff “cannot base his claim on 15 U.S.C. §
1681s-2(a)(1)(A), because no private right of action exists under
that provision.”) (citing 15 U.S.C. §§ 1681s-2(c), (d); Nelson v.
Chase Manhattan Mortg. Corp., 282 F.3d 1057, 1059 (9th Cir. 2002));
see also Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1162
(9th Cir. 2009) (finding specifically that plaintiff had “no
private right of action under § 1681s-2(a)(3) to proceed against [a
4. This holding by the Third Circuit is consistent with the
interpretation of Section 1681s-2(a) by many of its sister Courts
of Appeals. See, e.g., Purcell v. Bank of Am., -—- F.3d -—-, No.
10-3975, 2011 WL 4634216, at *1 (7th Cir. Oct. 3, 2011) (finding
“that section [1681s-2(a)] does not create a private right of
action.”); Chiang v. Verizon New England Inc., 595 F.3d 26, 35 (1st
Cir. 2010) (“Congress expressly limited furnishers' liability under
§ 1681s-2(a) by prohibiting private suits for violations of that
portion of the statute.); Gorman v. Wolpoff & Abramson, LLP, 584
F.3d 1147, 1162 (9th Cir. 2009) (recognizing that plaintiff had “no
private right of action under § 1681s-2(a)(3) to proceed against [a
furnisher of information] for its initial failure to notify the
CRAs that he disputed the ... charges.”); Saunders v. Branch
Banking & Trust Co. of Virginia, 526 F.3d 142, 149 (4th Cir. 2008)
(“FCRA explicitly bars private suits for violations of § 1681s2(a)[.]”); Bach v. First Union Nat’l Bank, 149 F. App’x 354, 358-59
(6th Cir. 2005) (“[A] consumer cannot bring a private cause of
action for a violation of a furnisher’s duty to report truthful
information” under Section 1681s-2(a)); Young v. Equifax Credit
Info. Servs., Inc., 294 F.3d 631, 639 (5th Cir. 2002) (finding that
“Section 1681s-2(c) ... provide[s] an exception to civil liability
for failure to comply with Section 1681s-2(a) (prohibiting
reporting of inaccurate information), ... and Section 1681s-2(d)
provides that enforcement of Section 1681s-2(a) shall be by
government officials[.]”).
11
furnisher of information] for its initial failure to notify the
CRAs that he disputed the ... charges.”); Martinez v. Granite State
Mgmt. & Resources, No. 08-2769, 2008 WL 5046792, at *2 (D.N.J. Nov.
20, 2008) (finding that “[t]here is, ... no private right of action
under § 1681s-2(a)(3) for violations of § 1681n or § 1681o.”).
Even prior to the Third Circuit’s explicit ruling on this
issue, several courts in this District recognized that no private
right of action exists under Section 1681s-2(a).
See, e.g.,
Burrell, 753 F. Supp 2d at 447 (finding that plaintiff’s “claims
under subsection (a) of 15 U.S.C. § 1681s-2 fail because that
portion of the FCRA does not provide a private right of action.”);
DiMedio v. HSBC Bank, No. 08-5521, 2009 WL 1796072, at *3 (D.N.J.
June 22, 2009) , 2009 WL 1796072, at *2 (concluding that plaintiff
“may not bring suit under Section [1681s-2](a) because there is no
private right of action through Section [1681n] for violations of
Section [1681s-2](a).”); Martinez, 2008 WL 5046792, at *2.
As
explained by the court in Burrell, subsections (c) and (d) of
Section 1681s-2 “combine to form an explicit bar” to private rights
of
action
under
subsection
(a).
753
F.
Supp.
2d
at
447.
“[S]ubsection (d) of § 1681s-2 prohibits private enforcement of any
of the portions of the FCRA described in paragraphs one and three
of subsection (c).
Paragraph one of subsection (c) refers to
‘subsection (a) of this section, including any regulations issued
thereunder.’”
Id. (citing 15 U.S.C. § 1681s-2(c)(1)).
12
Thus, even accepting Plaintiff’s allegations as true and
viewing them in the light most favorable to Plaintiff, Plaintiff’s
allegations against Sallie Mae under Section 1681s-2(a) fail to
state a claim upon which relief can be granted because the “bar on
private enforcement actions applies to the duties imposed on
furnishers of credit information by [Section] 1681s-2(a)[.]”
Burrell, 753 F. Supp. 2d at 448; see also Ventura v. Collectcorp
Corp., No. 11-4576, 2011 WL 4625365, at *4 (D.N.J. Sept. 30, 2011)
(dismissing
plaintiff’s
claims
under
Section
1681s-2(a)
with
prejudice, on defendant’s unopposed motion to dismiss pursuant to
Rule 12(b)(6), “because subsection (a) of the FCRA does not provide
a private right of action.”)
Accordingly, Defendant’s motion is
granted in part with respect to Plaintiff’s Section 1681s-2(a)
claims, and those claims are dismissed with prejudice, as granting
leave to amend would be futile in the absence of a private right of
action under that subsection.
See Phillips, 515 F.3d at 245; Ray,
413 F. App’x at 430 (dismissal of pro se complaint without leave to
amend is appropriate where amendment would be futile).
B.
FCRA Claims under Section 1681s-2(b)
Unlike subsection (a), subsection (b) of Section 1681s-2 may
serve as the basis for a private suit where a furnisher of
information receives notice from a CRA that the consumer disputes
the information.
No.
07-6099,
See, e.g., Cosmas v. Am. Express Centurion Bank,
2010
WL
2516468,
at
13
*7
(D.N.J.
June
14,
2010)
(“Private rights of action are permitted for claims brought under
section 1681s-2(b) where the furnisher has received notice of a
dispute from a credit collection agency.”); DiMedio, 2009 WL
1796072, at *3 (recognizing that Section 1681s-2(b) “may be the
basis of a private suit” where the “furnisher of information
receives notice” of the disputed information from the CRA) (citing
Young v. Equifax Credit Info. Servs., Inc., 294 F.3d 631, 639 (5th
Cir. 2002)). Although Plaintiff only cites specifically to Section
1681s-2(a)(3) of the FCRA, the Court must construe Plaintiff’s
complaint liberally because he is proceeding pro se.
F.3d
at
32.
Plaintiff’s
Accordingly,
complaint
the
Court
sufficiently
sets
will
Huertas, 641
consider
forth
a
whether
claim
under
subsection (b) regarding the duty of a furnisher of information to
investigate the completeness and accuracy of that information upon
receiving notice of a consumer’s dispute from the CRA.
In the District of New Jersey, courts have repeatedly found
that to state a claim under Section 1681s-2(b), a plaintiff must
demonstrate
three
specific
elements:
“(1)‘[the
consumer]
sent
notice of disputed information to a consumer reporting agency, (2)
the consumer reporting agency then notified the defendant furnisher
of the dispute, and (3) the furnisher failed to investigate and
modify the inaccurate information.’”
Cosmas, 2010 WL 2516468, at
*8 (citing DiMedio, 2009 WL 1796072, at *3); see also Armour, 2010
WL 3724524, at *2; Martinez, 2008 WL 5046792, at *3.
14
In the
complaint, Plaintiff has sufficiently alleged all three required
elements under Section 1681s-2(b).
As to the first required element -- that Plaintiff, as the
consumer, sent notice of the disputed information to a consumer
reporting agency –- Plaintiff specifically alleges that on April 5,
2010, he “sent a request to Experian, a Credit Reporting [A]gency
... to investigate and the disputed [sic] of the alleged debt[.]”
(Pl.’s Compl. ¶ 3.)
Although Plaintiff’s language is not a model
of clarity, construing the complaint liberally, the Court finds
that the complaint sufficiently alleges that Plaintiff sent the
required notice of disputed information to a CRA, namely, Experian,
by sending the April 5, 2010 letter.
With regard to the second
element of a claim under Section 1681s-2(b) -- that the CRA
notified the furnisher of information of the consumer’s dispute -the Court finds Plaintiff’s complaint also adequately alleges this
element because the complaint sets forth that after Plaintiff sent
notice
to
Experian,
Plaintiff
“received
correspondence
from
Experian stating that the matter was completed and verified by the
Defendant” and thus would remain on Plaintiff’s credit report.
(Id.
¶
4.)
allegation
Liberally
that
construing
Defendant
verified
Plaintiff’s
the
complaint,
account
to
the
Experian
sufficiently demonstrates that Experian, a CRA, notified Defendant,
a furnisher of information, that Plaintiff disputed the information
reported by Defendant. Finally, the third element of a claim under
15
Section 1681s-2(b) requires Plaintiff to plead that the furnisher
of information failed to investigate the matter and modify the
inaccurate information.
otherwise,5
“Defendant
Plaintiff’s
has
Despite Defendant’s attempt to argue
complaint
demonstrated
an
specifically
inability
investigation [of] the alleged debt[.]”
to
alleges
conduct
(Id. ¶ 19.)
a
that
fair
The Court,
recognizing Plaintiff’s status as a pro se litigant, concludes that
this assertion sufficiently alleges the third required element of
a claim under Section 1681s-2(b).
However inartfully plead, Plaintiff’s complaint, construed
liberally, sufficiently alleges all three required elements of a
claim under Section 1681s-2(b) of the FCRA.
See Martinez, 2008 WL
5046792, at *3 (concluding that plaintiff’s complaint set forth
sufficient
allegations
under
Section
1681s-2(b)
to
survive
defendant’s 12(b)(6) motion even though plaintiff only alleged one
required element –- that “she had contact with the credit reporting
agencies” –- but failed to allege whether those agencies contacted
defendant to verify the debt or that defendant’s investigation was
deficient).
Accordingly, accepting all of the complaint’s well-
pleaded facts as true, the Court finds that Plaintiff’s factual
allegations are sufficient to show that Plaintiff has a plausible
claim for relief under Section 1681s-2(b). See Fowler, 578 F.3d at
5. Defendant asserts that “Plaintiff does not even allege that
Sallie Mae failed to conduct a reasonable investigation of his
dispute.” (Def.’s Mem. 4.)
16
210-211.
Plaintiff
has
reasonable
expectation
alleged
that
facts
discovery
necessary to support his claims.
adequate
will
to
reveal
raise
a
evidence
Thus, Defendant has not meet its
burden to demonstrate that Plaintiff failed to set forth a claim
under Section 1681s-2(b), and therefore Defendant’s motion is
denied in part with respect to those claims.
V.
CONCLUSION
For the foregoing reasons, Defendant Sallie Mae’s motion to
dismiss [Doc. No. 4] is granted in part and denied in part.
appropriate Order will be entered.
Dated:
November 16, 2011
At Camden, New Jersey
/s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
17
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