Kiss v. J.P. Morgan Chase Bank et al

Filing 31

OPINION & ORDER re: 22 MOTION to Dismiss Complaint Pursuant to Fed.R.Civ.P. 12(b)(6), filed by J.P. Morgan Chase Bank. For the reasons stated above, Chase Bank's Motion To Dismiss is granted. This Opinion does not impact Plaint iff's outstanding claims against the remaining Defendants. Moreover, because this is the first adjudication of Plaintiffs claims on the merits, the dismissal is without prejudice. If Plaintiff wishes to file an amended complaint, Plaintiff mus t do so within 30 days of the date of this Opinion. Plaintiff should include within that amended complaint any changes to correct the deficiencies identified in this Opinion that Plaintiff wishes the Court to consider. Plaintiff is advised that th e amended complaint will replace, not supplement the original complaint. The amended complaint must contain all of the claims and factual allegations Plaintiff wishes the Court to consider, including those against Defendants who have not joined in this Motion To Dismiss. If Plaintiff fails to abide by the 30-day deadline, his claims against Chase Bank may be dismissed with prejudice. The Clerk of Court is respectfully directed to terminate the pending Motion. (Dkt. No. 22.), and as further set forth in this order. J.P. Morgan Chase Bank terminated. (Signed by Judge Kenneth M. Karas on 7/3/2018) (ap)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

YOEL KISS,
Plaintiff,
No. 17-CV-7858 (KMK)
v.
OPINION & ORDER
CHASE BANK USA, N.A; EXPERIAN;
EQUIFAX; TRANSUNION,
Defendants.1

Appearances:
Edward B. Geller, Esq.
Bronx, NY
Counsel for Plaintiff
Christopher B. Turcotte, Esq.
The Law Office of Christopher B. Turcotte, P.C.
New York, NY
Counsel for Defendant
KENNETH M. KARAS, District Judge:
Plaintiff Yoel Kiss (“Plaintiff”) brings this Action against Chase Bank USA, N.A.
(“Chase Bank”), Experian, Equifax, and Transunion (collectively “Defendants”) for violations of
various provisions of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. (See
generally Compl. (Dkt. No. 1).) Before the Court is Defendant Chase Bank’s Motion To
Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Not. of Mot.
To Dismiss (Dkt. No. 22).) For the reasons that follow, Chase Bank’s Motion is granted.

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Defendant Chase Bank USA, N.A. is incorrectly named as J.P. Morgan Chase Bank in
the case caption. The Clerk of Court is instructed to update the case caption to reflect the proper
name.

I. Background
A. Factual Background
The following facts are drawn from Plaintiff’s Complaint and are taken as true for the
purpose of resolving the instant Motion.
On an unspecified date, Defendant Chase Bank “began efforts to collect an alleged
consumer debt from . . . Plaintiff.” (Compl. ¶ 10.) Chase Bank did so through a “campaign of
communications” with Plaintiff and by reporting an account attributed to Plaintiff to Experian,
Equifax, and Transunion, all of which are national credit bureaus. (Id. ¶ 11.) Plaintiff wrote to
Experian, Equifax, and TransUnion on July 7, 2016 to inform them of inaccuracies in his credit
report—specifically, inaccuracies in his account with Chase Bank. (Id. ¶ 12.) Experian,
Equifax, and TransUnion did not correct Plaintiff’s credit report, but rather updated the account
as “disputed.” (Id. ¶ 13.) Plaintiff next wrote to Chase Bank on August 10, 2016. (Id. at ¶ 14.)
In his correspondence to Chase Bank, Plaintiff requested “an investigation into the supporting
documentation concerning th[e] account,” as well as copies of that supporting documentation, if
any. (Id. (internal quotation marks omitted).) Chase Bank did not respond to this letter. (Id. at
¶ 15.)
On September 29, 2016, Plaintiff again wrote to Experian, Equifax, and TransUnion
requesting the same corrections. (Id. ¶ 16.) Plaintiff also informed Chase Bank of this
correspondence. (Id.) Plaintiff heard nothing from Chase Bank. (Id.) To date, the alleged error
has not been rectified and Plaintiff alleges that Defendants have failed to “conduct a reasonable
reinvestigation into the underlying documents.” (Id. ¶ 17.) Accordingly, Plaintiff alleges that all
Defendants have violated his rights under the FCRA; specifically, Plaintiff alleges violations of
15 U.S.C. §§ 1681e(b), 1681i(a)(1), 1681i(a)(4), 1681i(a)(5)(A). (Id. ¶¶ 18–29.)

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B. Procedural History
On August 16, 2017, Plaintiff filed his Complaint against all Defendants in the Supreme
Court of New York, County of Rockland. (See Compl. (Dkt. No. 1).) On October 13, 2017,
Defendant TransUnion filed a Notice of Removal from the Supreme Court of New York, County
of Rockland. (See Not. Of Removal (Dkt. No. 1).) Thereafter, on October 30, 2017, Defendant
TransUnion filed its Answer. (See TransUnion Answer (Dkt. No. 9).) Defendant Equifax filed
its Answer on November 1, 2017. (See Equifax Answer (Dkt. No. 11).) Defendant Experian
filed its Answer on December 14, 2017. (See Experian Answer (Dkt. No. 20).)
Meanwhile, on November 14, 2017, Defendant Chase Bank filed a pre-motion letter
seeking to file a Motion To Dismiss. (See Letter from Christopher B. Turcotte, Esq., to Court
(Nov. 14, 2017) (Dkt. No. 15).) The Court instructed Plaintiff to respond by December 4, 2017,
(see Order (Dkt. No. 18)), but Plaintiff failed to do so. On December 19, 2017, the Court set a
briefing schedule for Chase’s Motion To Dismiss. (Order (Dkt. No. 21).) Defendant thereafter
filed its Motion and accompanying papers on January 26, 2018. (See Dkt. Nos. 22–24.) On
February 26, 2018, Plaintiff wrote to the Court requesting an extension of time to file a response
to the Motion, (see Letter from Edward B. Geller, Esq., to Court (Feb. 26, 2018) (Dkt. No. 26)),
which the Court granted, (see Order (Dkt. No. 27)). However, On March 23, 2018, the Court
received a letter from Chase Bank stating that, on March 12, 2018, “Plaintiff’s counsel advised
[Chase Bank] that Plaintiff would not be filing an opposition to Chase [Bank]’s [M]otion,”
(Letter from Christopher B. Turcotte, Esq., to Court (Mar. 23, 2018) (Dkt. No. 28)), and the
Court deemed the Motion fully briefed, (Order (Dkt. No. 29)).

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II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “Nor does a
complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id.
(alteration and internal quotation marks omitted). Instead, a complaint’s “[f]actual allegations
must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
Although “once a claim has been stated adequately, it may be supported by showing any set of
facts consistent with the allegations in the complaint,” id. at 563, and a plaintiff must allege
“only enough facts to state a claim to relief that is plausible on its face,” id. at 570, if a plaintiff
has not “nudged [his or her] claims across the line from conceivable to plausible, the[] complaint
must be dismissed,” id.; see also Iqbal, 556 U.S. at 679 (“Determining whether a complaint
states a plausible claim for relief will . . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense. But where the well-pleaded facts do
not permit the court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” (citation omitted)
(second alteration in original) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a
notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but

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it does not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.”).
In considering Chase Bank’s Motion To Dismiss, the Court is required to “accept as true
all of the factual allegations contained in the [C]omplaint.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same). And, the
Court must “draw[] all reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot.
Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC,
699 F.3d 141, 145 (2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a
district court must confine its consideration to facts stated on the face of the complaint, in
documents appended to the complaint or incorporated in the complaint by reference, and to
matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d
99, 107 (2d Cir. 1999) (internal quotation marks omitted); see also Wang v. Palmisano, 157 F.
Supp. 3d 306, 317 (S.D.N.Y. 2016) (same).
B. Analysis
Plaintiff’s Complaint alleges that all four Defendants: (1) “violated . . . Plaintiff’s rights
under 15 U.S.C. § 1681e(b) by failing to establish and/or follow reasonable procedures to assure
maximum possible accuracy in the preparation of Plaintiff’s credit report and credit files
Defendants published and maintained,” (Compl. ¶ 19); (2) “violated 15 U.S.C. § 1681i(a)(1) on
multiple occasions by failing to conduct a reasonable reinvestigation to determine whether the
disputed information was inaccurate and record the current status of the disputed information or
delete the item from . . . Plaintiff’s credit files within the allotted 30 day time frame,” (id. ¶ 22);
(3) “violated 15 U.S.C. § 1681i(a)(4) by failing to review and consider all relevant information
purportedly submitted by [Chase Bank],” (id. ¶ 25); and (4) “violated 15 U.S.C.

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§ 168[1]i(a)(5)(A) by failing to promptly delete the disputed inaccurate items of information
from Plaintiff’s credit file or modify the item of information upon a lawful reinvestigation,” (id.
¶ 28).
Yet, as Chase Bank notes in its Motion, all four of these sections apply exclusively to
credit reporting agencies, and not to creditors such as Chase Bank. (See Def.’s Mem. of Law in
Supp. of Mot. To Dismiss (“Def.’s Mem.”) 5–7 (Dkt. No. 23).) First, 15 U.S.C. § 1681e(b) states
that “a consumer reporting agency . . . shall follow reasonable procedures to assure maximum
possible accuracy” of a consumer report. Id. (emphasis added). Second, 15 U.S.C.
§ 1681i(a)(1)(A) discusses the reinvestigation obligations of a “consumer reporting agency.”
Specifically, § 1681i(a)(1)(A) provides:
[I]f the completeness or accuracy of any item of information contained in a
consumer’s file at a consumer reporting agency is disputed by the consumer and
the consumer notifies the agency . . . of such dispute, the agency shall, free of
charge, conduct a reasonable reinvestigation to determine whether the disputed
information is inaccurate and record the current status of the disputed information,
or delete the item from the file . . . before the end of the 30-day period beginning
on the date on which the agency receives the notice of the dispute from the
consumer . . . .
Id. (emphasis added). Third, 15 U.S.C. § 1681i(a)(4) mandates that a “consumer reporting
agency shall review and consider all relevant information submitted by the consumer,” when
conducting a reinvestigation pursuant to § 1681i(a)(1)(A). 15 U.S.C. § 1681i(a)(4) (emphasis
added). The fourth and final section of the FCRA at issue, 15 U.S.C. § 1681i(a)(5)(A), states
that, if a reinvestigation results in a finding that the disputed information is:
inaccurate or incomplete or cannot be verified, the consumer reporting agency
shall—
(i) promptly delete that item of information from the file of the consumer,
or modify that item of information, as appropriate, based on the results of
the reinvestigation; and

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(ii) promptly notify the furnisher of that information that the information has been
modified or deleted from the file of the consumer.
Id. (emphasis added).
Plaintiff’s Complaint is clear that only Experian, TransUnion, and Equifax are “credit[]
reporting agenc[ies] as defined under . . . the FCRA,” (id. ¶ 8 (internal quotation marks
omitted)), and that only Experian, TransUnion, and Equifax “are regularly engaged in the
business of assembling, evaluating, and disbursing information concerning consumers for the
purpose of furnishing consumer reports, as defined in [the FCRA,] to third parties,” (id. ¶ 7). By
contrast, Chase Bank, described in the Complaint only as a “corporation,” (id. ¶ 3), is a furnisher
of credit information, see 16 C.F.R. § 660.2 (defining a “furnisher” as “an entity that furnishes
information relating to consumers to one or more consumer reporting agencies for inclusion in a
consumer report”), as the Complaint alleges that Plaintiff’s dispute with Defendants stems from
what he alleges is inaccurate information in a Chase Bank account that was furnished by Chase
Bank to Experian, TransUnion, and/or Equifax, (see Compl. ¶¶ 10–12).
There are provisions of the FCRA that do apply to the furnishers of credit information,
such as Chase Bank. See Longman v. Wachovia Bank, N.A., 702 F.3d 148, 150 (2d Cir. 2012)
(per curiam) (noting that 15 U.S.C. §§ 1681s–2(a) obligates furnishers of credit information to
“refrain from knowingly reporting inaccurate information, and to correct any information they
later discover to be inaccurate” (citations omitted)); id. at 150–51 (stating that “[c]onsumers have
the right to dispute any information reported to a credit reporting agency,” and that “[i]f a dispute
is filed with the agency . . . the furnisher of that information ha[s] a duty to reasonably
investigate and verify that the information is accurate” (citations omitted)); Munroe v. Nationstar
Mortg. LLC, 207 F. Supp. 3d 232, 236 (E.D.N.Y. 2016) (“Sections 1681s-2(a) and (b) of the
FCRA impose certain duties and obligations upon those who furnish information to consumer
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credit agencies. Those obligations include the duties to provide accurate information to
consumer reporting agencies, and to correct inaccurate information after receiving notice of a
credit dispute directly from a consumer.” (citation omitted)). Plaintiff may have sought for
Chase Bank to either correct inaccurate information or conduct an investigation, actions which
Chase Bank may have been obligated to undertake pursuant to 15 U.S.C. § 1681s–2(a) and (b).
However, Plaintiff’s Complaint is bereft of any mention of § 1681s–2(a) or (b), as Plaintiff’s
causes of action arise exclusively under §§ 1681e(b), 1681i(a)(1), 1681i(a)(4), 1681i(a)(5)(A).
(See Compl. ¶¶ 18–29.)
Even if Plaintiff, who is represented by counsel, intended to bring a claim under § 1681s–
2(a), the Second Circuit has determined that “there is no private right of action for violations of
§ 1681s–2(a).” Longman, 702 F.3d at 151; see also Galper v. JP Morgan Chase Bank, N.A., 802
F.3d 437, 445 (2d Cir. 2015) (stating that violations of 15 U.S.C. § 1681s–2(a), including the
provision that “prohibit[s] a furnisher from reporting inaccurate information to a consumer report
agency,” are “not enforceable by means of a federal or state cause of action for damages”). In
fact, the statute explicitly provides that § 1681s–2(a) “shall be enforced exclusively . . . by the
Federal agencies and officials and the State officials identified in section 1681s of this title.” 15
U.S.C. § 1681s–2(d); see also Longman, 702 F.3d at 151 (“[T]he statute plainly restricts
enforcement of [§ 1681s–2(a)] to federal and state authorities.”).
While there is a private cause of action for a furnisher’s failure to investigate a credit
dispute, see Munroe, 207 F. Supp. 3d at 237–38, Plaintiff has failed to plead any such claim here.
Again, Plaintiff fails to mention § 1681s–2(b) in his Complaint and brings no cause of action
under that section of the FCRA. (See generally Compl.) Nor does Plaintiff allege that Chase
Bank “received notice of a credit dispute from a consumer reporting agency,” as is required to

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state a claim. Munroe, 207 F. Supp. 3d at 238 (“To state a claim under section 1681s–2(b) of the
statute, a plaintiff must allege that a furnisher received notice of a credit dispute from a consumer
reporting agency.”); see also Markovskaya v. Am. Home Mortg. Servicing, Inc., 867 F. Supp. 2d
340, 344 (E.D.N.Y. 2012) (“[The] [p]laintiff’s only claim can be pursuant to Section 1681s–
2(b). . . . [S]uch a claim is stated only when [the] [p]laintiff can show that the furnisher received
information regarding a consumer’s credit directly from a credit reporting agency, and not only
from the consumer.”); Dickman v. Verizon Commc’ns, Inc., 867 F. Supp. 2d 166, 172–74
(E.D.N.Y. 2012) (“[U]nder § 1681s–2(b), a defendant has no duty to investigate a credit dispute
unless [the] defendant received notice of the dispute from a consumer reporting agency.”
(alterations and internal quotation marks omitted)); Kane v. Guar. Residential Lending, Inc., No.
04-CV-4847, 2005 WL 1153623, at *4 (E.D.N.Y. May 16, 2005) (“[T]he duty to investigate in
Subsection (b) is triggered only after a furnisher of information receives notice from a credit
reporting agency of a consumer’s dispute.” (italics omitted)). Plaintiff only alleges that he wrote
to Chase Bank requesting an investigation, (see Compl. ¶ 14), but does not once allege, even on
information and belief, that Chase Bank received notice from Equifax, Experian, TransUnion, or
any other credit reporting agency. Thus, there is no basis to even construe Plaintiff’s Complaint
to state a claim under § 1681s–2(b). See Algende v. Bay Ridge Fed. Credit Union, No. 14-CV2518, 2015 WL 1014217, at *3 (E.D.N.Y. Mar. 9, 2015) (dismissing an FCRA claim because,
while the plaintiff alleged that “he alerted Experian credit reporting agency,” he failed to allege
that “Experian informed [the] [d]efendant of the dispute as is required to trigger [the]
[d]efendant’s duties under the FCRA” (alterations omitted)); Neblett v. Chase Bank, No. 09–
CV–10574, 2010 WL 3766762, at *5 (S.D.N.Y. Sept. 27, 2010) (finding that the plaintiff had not

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stated a claim under § 1681s–2(b) because the plaintiff had “not alleged that a credit reporting
agency notified Chase Bank of a dispute over the reporting of [the plaintiff’s] credit”).
Accordingly, because 15 U.S.C. §§ 1681e(b), 1681i(a)(1), 1681i(a)(4),
1681i(a)(5)(A) have no application to Chase Bank, and because Plaintiff has failed to
plead any claim under § 1681s–2(b), Chase Bank’s Motion is granted.

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III. Conclusion
For the reasons stated above, Chase Bank's Motion To Dismiss is granted. This Opinion
does not impact Plaintiffs outstanding claims against the remaining Defendants. Moreover,
because this is the first adjudication of Plaintiffs claims on the merits, the dismissal is without
prejudice. If Plaintiff wishes to file an amended complaint, Plaintiff must do so within 30 days
of the date of this Opinion. Plaintiff should include within that amended complaint any changes
to correct the deficiencies identified in this Opinion that Plaintiff wishes the Court to consider.
Plaintiff is advised that the amended complaint will replace, not supplement, the original
complaint. The amended complaint must contain all of the claims and factual allegations
Plaintiff wishes the Court to consider, including those against Defendants who have not joined in
this Motion To Dismiss. If Plaintiff fails to abide by the 30-day deadline, his claims against
Chase Bank may be dismissed with prejudice.
The Clerk of Court is respectfully directed to terminate the pending Motion.
(Dkt. No. 22.)
SO ORDERED.
DATED:

July~, 2018
White Plains, New York

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