FENTY-DEY EL v. CAVALRY PORTFOLIO SERVICES

Filing 2

OPINION. Signed by Judge John Michael Vazquez on 5/23/17. (DD, ) N/M

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CRYSTAL A. FENTY-DEY EL,

Plain tiff
Civil Action No. 17-3543
V.

F IA CSNA,

Defendant.

CRYSTAL A. FENTY-DEY EL,
Plaintiff

Civil Action No. 17-3544
V.

CAVALRY PORTFOLIO SERVICES,
Defendant.

CRYSTAL A. FENTY-DEY EL,

Plaintiff
Civil Action No. 17-3 545
V.

BCA FINANCIAL SERVICES,
Defendant.

CRYSTAL A. FENTY-DEY EL,
Plaintiff
Civil Action No. 17-3546
v.
ENHANCED RECOVERY,
OPINION

Defendant.

John Michael Vazguez, U.S.D.J.

Plaintiff seeks to bring four actions informapauperis pursuant to 28 U.S.C.

§ 1915. D.E.

1. Because the allegations in each of the four Complaints are the same, the Court addresses each
case collectively.t for the reasons discussed below, the Court GRANTS Plaintiffs application to
proceed informapatiperis but the Complaints are DISMISSED without prejudice pursuant to 28
U.S.C.

§ 1915(e)(2)(B) for failing to state a claim upon which relief can be granted. Specifically,

Plaintiff fails to plausibly plead a claim in any of the Complaints.
Under Section 1915, this Court may excuse a litigant from prepayment of fees when the
litigant “establish[es] that he is unable to pay the costs of his suit.” Walker v. People Express
Airlines, Inc., $86 f.2d 598, 601 (3d Cir. 1989). Plaintiff sufficiently establishes her inability to
pay, and the Court grants her application to proceed informa pauperis without prepayment of fees
and costs.

Each case will be referred to by the last four digits of its docket number, i.e., No. 3543, No. 3544,
No. 3545, and No. 3546. The Complaints are identical in all respects except for the named
Defendant in each case (and the date on which Plaintiff discovered the alleged violation). In No.
3543 the named Defendant is F IA CSNA. In No. 3544 the named Defendant is Cavalry Portfolio
Services. In No. 3545 the named Defendant is BCA financial Services. In No. 3546 the named
Defendant is Enhanced Recovery.
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However, when allowing a plaintiff to proceed informa pauperis, the Court must review
the complaint and dismiss the action if it determines that the action is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks monetary relief against a defendant who
is immune. 2$ U.S.C.

§ 1915(e)(2). When considering dismissal under § 1915(e)(2)(B)(ii) for

failure to state a claim on which relief can be granted, the Court must apply the same standard of
review as that for dismissing a complaint under Federal Rule of Civil Procedure 12(b)(6).
Schreane v. Seana, 506 Fed. App’x 120, 122 (3d Cir. 2012). To state a claim that survives a Rule

1 2(b)(6) motion to dismiss, a complaint must contain “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, 67$ (2009). Because Plaintiff is proceedingpro se, the Court construes the pleadings
liberally and holds them to a less stringent standard than those filed by attorneys. Haines v. Kerner,
404 U.S. 519, 520 (1972).

“The Court need not, however, credit a pro se plaintiffs ‘bald

assertions’ or ‘legal conclusions.’” D ‘Agostino v. CECOM RDEC, No. 10-4558, 2010 WL
3719623, at *1 (D.N.J. Sept. 10, 2010).
This case concerns allegations that each named Defendant in the separate cases accessed
Plaintiffs consumer credit report “without a permissible purpose.” Compl.

¶J 6-9. Plaintiff

alleges that she determined that “her consumer credit report had been accessed on various
occasions by various entities she did not recognize and without her consent.” Id.

¶ 7. Afler

examining her Transunion consumer credit report, Plaintiff alleges that she determined that “[each]
Defendant []gained access [to] Plaintiffs Experian consumer credit report.” Id.
Compl.

¶ 8; No. 3544,

¶ 8; No. 3545, Compl. ¶ 8; No. 3546, Compl. ¶ 8. Plaintiff therefore brings her Complaint
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pursuant to the F air Credit Reporting Act (“FCRA”), 15 U.S.C.

§ 1681n, alleging that each

respective Defendant violated this statute “by obtaining Plaintiffs consumer report without [a]
permissible purpose.” Id.

¶ 18(a), 23(a).

Section 16$ in creates civil liability for any person who “willfully fails to comply” with the
requirements imposed by the FCRA. 15 U.S.C.

§ 16$ ln(a).

Thtertas v. U.S. Dep’t of Ethtc., No.

08-3959, 2009 WL 3165442, at *9 (D.N.J. Sept. 28, 2009). One requirement imposed by the
FCRA is that “a person is permitted to use or obtain a credit report only if the purpose for obtaining
the report is permitted under the Act.” Id. (citing 15 U.S.C.

§ 16$lb). Thus, “[t]o state a claim

for civil liability based on Section 168 ib, a plaintiff must allege both that the defendant used or
obtained the plaintiffs credit report for an impermissible purpose, and that the violation was willful
or negligent.” Braun v. United Recovery Sys., LF, 14 F. Supp. 3d 159, 166 (S.D.N.Y. 2014). In
order to allege that a violation was “willful” or “negligent,” courts require the complaint to “allege
specific facts as to the defendant’s mental state when the defendant accessed the plaintiffs credit
report.” Id. Thus, [m]erely stating that the violation was “willful” or “negligent” is insufficient.
Id.; see also Tauro v. Asset Acceptance, No. 12—418, 2012 WL 2359954, at *5 (W.D.Pa. June 20,

2012) (“[T]he Plaintiff has not averred any facts from which the Court can infer that the Defendants
knew, or should have known, that they did not intend to use the Plaintiffs credit report for a
permissible purpose under the FCRA, all of which Plaintiff must do with provable facts in order
to state a claim.”); Huertas, 2009 WL 3165442, at *9 (“[A] plaintiff must allege, with sufficient
factual support, that the defendant willfully obtained the plaintiffs credit report without having a
purpose to review or collect on a debt. In other words, the complaint must allege facts sufficient
to demonstrate that the defendant should have known either that it did not intend to use the credit

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report in connection with a credit transaction involving the plaintiff or involving the collection of
an account of the plaintiff”) (citations, internal quotation marks, and alterations omitted).
Here, Plaintiffs only allegation in each Complaint regarding each Defendant’s mental state
is that it “will[fully]” and “negligently violated 15 U.S.C.

§ 1681b(f) by obtaining Plaintiffs

consumer report without permissible purpose.” Compi. ¶ 18(a), 23(a). Plaintiff does not provide
any factual support from which the Court could infer that each Defendant knew, or should have
known, that it was accessing Plaintiffs credit report for an impermissible purpose. Therefore,
Plaintiff fails to plausibly plead a violation of the FCRA and Plaintiffs Complaints are dismissed.
When dismissing a case brought by a pro se plaintiff, a court must decide whether the
dismissal will be with prejudice or without prejudice, which affords a plaintiff with leave to amend.
Grayson v. Mayview State Hosp., 293 f.3d 103, 110-11 (3d Cir. 2002). The district court may

deny leave to amend only if(a) the moving party’s delay in seeking amendment is undue, motivated
by bad faith, or prejudicial to the non-moving party or (b) the amendment would be futile. Adams
v. Gottid, Inc., 739 f.2d 858, 864 (3d Cir. 1984). At this point, the Court cannot conclude that
Plaintiffs claims are futile. Therefore, the Court shall provide Plaintiff thirty (30) days to file
amended complaints that cures the deficiencies set forth herein, and in accordance with Local Civil
Rule 15.1.2 If Plaintiff does not submit amended complaints curing these deficiencies within thirty

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Effective May 10, 2017, Local Civil Rule 15.1 states, in part, that:
A party who files an amended pleading in response to an Order
authorizing the filing of that pleading to cure a defect in its pleading
shall file:
(1) a copy of the amended pleading, complete with a handwritten or
electronic signature; and
(2) a form of the amended pleading that shall indicate in what
respect(s) it differs from the pleading that it amends, by
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days, the dismissals will then be with prejudice. A dismissal with prejudice means that Plaintiff
will be precluded from filing any future suit against any of the Defendants in any of the four
complaints concerning the allegations in the respective complaint. An appropriate form of Order
accompanies this Opinion.

Dated: May23, 2017

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JOHN MICHAEL VAZ9U’ U.S.D.J.

bracketing or striking through materials to be deleted and
underlining materials to be added.
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