Arnold v. Navient Solutions, LLC
Filing
11
MEMORANDUM-DECISION and ORDER granting 6 Motion to Dismiss for Failure to State a Claim and denying 9 Motion to Remand. Clerk shall enter judgment and close case.. Signed by Senior Judge Frederick J. Scullin, Jr on 12/19/2018. (bjw, ) (Pltf served via reg mail)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
JOHN JAY S. ARNOLD, IV,
Plaintiff,
v.
1:17-CV-1277
(FJS/DJS)
NAVIENT SOLUTIONS, LLC,
Defendant.
_______________________________________________
APPEARANCES
OF COUNSEL
JOHN JAY S. ARNOLD, IV
60 State Street, Apt 5C
Albany, New York 12207
Plaintiff pro se
STRADLEY RONON STEVENS
& YOUNG, LLP
100 Park Avenue, Suite 2000
New York, New York 10017
Attorneys for Defendant
JACQUELINE M. AIELLO, ESQ.
SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
John Jay Arnold, IV (“Plaintiff”) brings this action against Navient Solutions, LLC
(“Defendant”) seeking injunctive relief. 1 There are currently two motions pending before the
1
Specifically, Plaintiff is seeking (1) an order compelling Defendant to contact the various credit
reporting agencies to request the removal of its reported delinquencies; (2) copies of his
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Court. Plaintiff has moved to remand this matter to Albany County Supreme Court pursuant to
28 U.S.C. § 1447(c). 2 See Dkt. No. 9. Defendant has moved to dismiss for failure to state a
claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 6.
II. BACKGROUND
Plaintiff 3 is an attorney duly licensed to practice law in the State of New York and is a
resident of the city of Albany. Defendant is a foreign limited liability company registered in
New York, formed in 2014 when Sallie Mae split into two distinct entities, and whose operations
include servicing and collecting on student loans.
Between July 2000 and September 2001, Plaintiff signed three separate private student
loan promissory notes (“Private Loans”). In December 2002, Plaintiff executed a Federal
Consolidation Loan Application and Promissory Note (“Federal Loan”). Defendant serviced
both the Private Loans and the Federal Loan. In April 2013, Plaintiff ceased making payments
on both the Private Loans and the Federal Loan. As a result, Defendant reported the
delinquencies to three major credit reporting agencies (“CRAs”) – Equifax, Transunion, and
Experian – which resulted in Plaintiff’s credit score being negatively affected. 4
promissory notes; (3) an order precluding Defendant from reporting any further damaging
reports to credit reporting agencies; (4) an order precluding Defendant from contacting Plaintiff
directly by any means other than e-mail as he requested; and (5) an order precluding Defendant
from transferring the ownership interest in Plaintiff’s promissory notes.
2
Plaintiff originally commenced this action in New York State Supreme Court, Albany County.
On November 20, 2017, Defendant removed the state-court action to this District.
3
Plaintiff refers to himself as Plaintiff-Petitioner or Petitioner because he originally filed this
matter in state court as an Order to Show Cause with Petition for Injunctive Relief.
4
On June 18, 2015, Plaintiff entered into a settlement agreement to resolve the delinquencies for
the Private Loans. A settlement was not reached for the delinquent Federal Loan.
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On September 18, 2017, Plaintiff entered into a contract to purchase residential real
property located in Chemung County, New York. However, due to his poor credit score,
Plaintiff was unable to obtain a residential home loan to purchase said property. Upon review of
his consumer credit report, Plaintiff discovered that Defendant had reported the three Private
Loans and the Federal Loan as four separate delinquencies, which resulted in a lower credit
score. Plaintiff asserts that, although he has settled the Private Loans, Defendant wrongfully
reported them as delinquent loans to the various CRAs. Plaintiff further alleges that Defendant
has denied all requests to amend the reports to reflect that the loans were settled and, thus, no
longer delinquent. Therefore, Plaintiff brought this lawsuit alleging violations of New York
General Business Law § 349.
III. DISCUSSION
A. Plaintiff’s motion to remand
A plaintiff may bring a motion to remand to challenge removal of an action from state
court to federal court. See 28 U.S.C. § 1447(c). “If at any time before final judgment it appears
that the district court lacks subject matter jurisdiction, the case shall be remanded.” Id. Motions
to remand “on the basis of any defect other than lack of subject matter jurisdiction must be made
within 30 days after the filing of the notice of removal,” otherwise such defects are waived. Id.
Moreover, “[i]t is well-settled that the party asserting federal jurisdiction bears the burden of
establishing jurisdiction.” Blockbuster, Inc. v. Galeno, 472 F.3d 53, 57 (2d Cir. 2006) (citation
omitted). Accordingly, on a motion to remand, the party seeking to sustain the removal bears the
burden of demonstrating that removal was proper. See id.; see also Wilds v. UPS, Inc., 262 F.
Supp. 2d 163, 171 (S.D.N.Y. 2003) (quotation and other citation omitted). If that burden is not
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met, the court must remand the case to state court. See Wilds, 262 F. Supp. 2d at 171 (quotation
omitted).
As stated, in the present matter, Plaintiff seeks injunctive relief against Defendant for the
allegedly negative reports it provided to various CRAs. In his petition, Plaintiff sought said
relief pursuant to N.Y. Gen. Bus. Law § 349. Thereafter, Defendant removed the case to this
District on the ground that these claims raise federal questions that are exclusively covered under
the Fair Credit Reporting Act (“FCRA”). Plaintiff now moves to remand, arguing that
Defendant improperly removed this action because no federal question exists.
Although Plaintiff attempts to make his claims under N.Y. Gen. Bus. Law § 349, the
Court finds that his claims fall exclusively within and are preempted by the FCRA. See
Macpherson v. JPMorgan Chase Bank, N.A., 665 F.3d 45, 47 (2d Cir. 2011). The FCRA was
enacted in 1970 “‘to protect consumers from the transmission of inaccurate information about
them, and to establish credit reporting practices that utilize accurate, relevant, and current
information in a confidential and responsible manner.’” Seamans v. Temple Univ., 744 F.3d 853,
860 (3d Cir. 2014) (quotation omitted); see also 15 U.S.C. § 1681(b). Under the FCRA, CRAs
collect consumer credit data from furnishers of information, such as banks and other lenders, and
organize it into credit reports, which commercial entities use to assess a particular consumer’s
creditworthiness. See 15 U.S.C. §§ 1681a(d); 1681(b).
Normally under the well-pleaded complaint rule, “‘the party who brings a suit is master
to decide what law he will rely upon,’” and a plaintiff may avoid federal jurisdiction by pleading
only state claims even where a federal claim is also available. Pan Am. Petroleum Corp. v.
Superior Ct. of Del. in & for New Castle Cty., 366 U.S. 656, 662-63 (1961) (quoting The Fair v.
Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S. Ct. 410, 411, 57 L. Ed 716 [(1913)]); see also
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Marcus v. AT&T Corp., 138 F.3d 46, 52 (2d Cir. 1998). However, as a corollary to the wellpleaded complaint rule, the “artful pleading rule” prevents a plaintiff from avoiding removal by
omitting necessary federal questions from his or her pleadings. Romano v. Kazacos, 609 F.3d
512, 518-19 (2d Cir. 2010) (quotation omitted). Furthermore, the “complete pre-emption”
doctrine provides that, “[o]nce an area of state law has been completely pre-empted, any claim
purportedly based on that pre-empted state law is considered, from its inception, a federal claim,
and therefore arises under federal law.” Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987)
(citation omitted).
Pursuant to the FCRA, “[n]o requirement or prohibition may be imposed under the laws
of any State . . . with respect to any subject matter regulated under . . . section 1681s-2 of this
title, relating to the responsibilities of persons who furnish information to consumer reporting
agencies[.]” 15 U.S.C. § 1681t(b)(1)(F); see also Macpherson, 665 F.3d at 47. Moreover, the
Second Circuit has held that courts should read the phrase “no requirement or prohibition”
literally and broadly to encompass both state statutory and common law. See Macpherson, 665
F.3d at 47-48.
Here, Plaintiff’s allegations concern Defendant’s responsibilities as a furnisher, including
both reporting accurate information and complying with obligations to investigate disputed
debts; therefore, the FCRA preempts these claims. See Macpherson, 665 F.3d at 47. 5
Accordingly, the Court denies Plaintiff’s motion to remand.
5
Plaintiff also asserts that the Court should remand this case because Defendant had previously
availed itself of New York state courts, but this argument is meritless. There is no case law that
would require remand simply because a defendant had been a party to a previous action in state
court.
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B. Defendant’s motion to dismiss for failure to state a claim
A motion to dismiss pursuant to Rule 12(b)(6) “challenges only the ‘legal feasibility’ of a
complaint.” Goel v. Bunge, Ltd., 820 F.3d 554, 558 (2d Cir. 2016) (quoting Global Network
Commc’ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006)). “‘To survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.”’” Elias v. Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir.
2017) (quotation omitted). “‘The plausibility standard is not akin to a “probability requirement,”
but it asks for more than a sheer possibility that a defendant has acted unlawfully.’” Id.
(quotation omitted).
Under 15 U.S.C. § 1681s-2(a), furnishers of information are prohibited from reporting
information to a CRA if the furnisher has actual knowledge (or consciously avoids knowing) that
the information is inaccurate. See 15 U.S.C. § 1681s-2(a). However, there is no private right of
action under 15 U.S.C. § 1681s-2(a). See 15 U.S.C. § 1681s-2(d). Although there is a private
right of action under 15 U.S.C. § 1681s-2(b), to state such a claim, the plaintiff must allege that
“(1) the furnisher received notice of a credit dispute from a credit reporting agency, and (2) the
furnisher thereafter acted in ‘willful or negligent noncompliance with the statute.’” Markovskaya
v. Am. Home Mortg. Servicing, Inc., 867 F. Supp. 2d 340, 343 (E.D.N.Y. 2012) (quotation
omitted). Plaintiff has not alleged facts to suggest that any CRA sent notice to Defendant of a
credit dispute; and, therefore, the Court must dismiss his claims.
Alternatively, Plaintiff has not alleged any facts to support his claims that Defendant’s
reporting was improper. The FCRA requires furnishers of information to correct “incomplete or
inaccurate” information in the possession of the CRA. See 15 U.S.C. § 1681s-2(b)(1)(D).
Plaintiff’s current consumer credit report lists both the Private Loans and the Federal Loan as
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“derogatory accounts.” Under each of the three Private Loans, Defendant reported that the
account was “paid off but for less than the full balance.” Under the Federal Loan, Defendant
reported that the “consumer disputes this account.” Based on the pleadings, this information
appears to be accurate. As both parties concede, the Private Loans were settled for an amount
less than what Plaintiff owed, and the parties never settled the Federal Loan. Additionally, as
Defendant asserts and pursuant to 15 U.S.C. § 1681c(a)(4), these delinquencies are reportable
because they occurred within the required seven-year timeframe. See 15 U.S.C. § 1681c(a)(4)
(prohibiting CRAs from “mak[ing] any consumer report containing any of the following
information . . . (4) Accounts placed for collection or charged to profit and loss which antedate
the report by more than seven years.”). For all of the above-stated reasons, the Court grants
Defendant’s motion to dismiss. 6
IV. CONCLUSION
After carefully considering the entire file in this matter, the parties’ submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff’s motion to remand, see Dkt. No. 9, is DENIED; and the Court
further
ORDERS that Defendant’s motion to dismiss, see Dkt. No. 6, is GRANTED; and the
Court further
6
The Court also notes that Plaintiff seeks only injunctive relief in this action. Although the
FCRA explicitly provides for money damages in private actions, it does not provide for
injunctive relief. See 15 U.S.C. §§ 1681n, 1681o.
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ORDERS that the Clerk of the Court shall enter judgment in favor of Defendant and
close the case.
IT IS SO ORDERED.
Dated: December 19, 2018
Syracuse, New York
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