Sanders v. Bank of America et al
MEMORANDUM OPINION AND ORDER GRANTING MOTIONS TO DISMISS AS TO DEFENDANTS EXPERIAN AND BANK OF AMERICA: It is ORDERED that Bank of America's 36 Motion to Dismiss, and Experian's 19 Motion to Dismiss are hereby GRANTED. The Clerk is DIR ECTED to enter judgment on this matter. Bank of America (Att: Attorneys - Agents - Directors) and Experian (Agents Directors) terminated. Signed by Senior Judge Frederick P. Stamp, Jr on 9/19/16. (Attachments: # 1 Certified Mail Return Receipt)(copy Plaintiff)(cnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 1:16CV78
BANK OF AMERICA,
ASSET ACCEPTANCE LLC,
TRANS UNION LLC
MEMORANDUM OPINION AND ORDER
GRANTING MOTIONS TO DISMISS AS TO
DEFENDANTS EXPERIAN AND BANK OF AMERICA
The pro se plaintiff, Juan Sanders, filed this civil action
against Experian, Trans Union LLC, Bank of America, NCO Fin/99,
Asset Acceptance LLC, and Comenity Bank/Express in the Circuit
Court of Preston County, West Virginia, on April 8, 2016.
4, 2016, Trans Union filed a notice of removal, which the other
defendants consented to and joined in.
The case was removed to
The plaintiff alleges that Experian and Trans Union reported
Specifically, the plaintiff alleges that Experian and Trans Union
reported late payments and debts on his accounts with Bank of
America, NCO/Fin99, Comenity Bank/Express, and Taleris Credit Union
for which he is not responsible.
The plaintiff alleges that he
disputed the accuracy of these accounts with Experian and Trans
Union and that both entities informed him that each banking
institution, including Bank of America, confirmed the accuracy of
the reported account information.
The plaintiff alleges that, as a result of the inaccurate
reports, his credit rating has been negatively affected and he was
prevented from co-signing on his son’s loans. He also alleges that
the inaccurate reports have caused him to suffer financial damage,
damage to his credit reputation, and emotional and mental distress.
He demands a declaration that his allegations breach a contract, a
permanent injunction preventing the defendants from reporting the
disputed accounts as his, $10,000.00 in compensatory damages, and
$50,000.00 in punitive damages.
Against both Experian and Bank of America, the plaintiff
brings claims under the Fair Credit Reporting Act (“FCRA”), the
West Virginia Consumer Credit and Protection Act (“WVCCPA”), and
West Virginia defamation law.
He also appears to allege a breach
of contract claim, although he does not state this as a cause of
The plaintiff’s claims against Asset Acceptance and Trans
Union were dismissed with prejudice on July 25, 2016, and August 4,
Experian moves to dismiss the complaint in its entirety as to
Experian argues that, even if taken as true, the
plaintiff’s factual allegations against Experian are insufficient
to state any of the claims for relief asserted against Experian.
Bank of America also moves to dismiss the complaint in its entirety
as to Bank of America. Like Experian, Bank of America argues that,
even if taken as true, the plaintiff’s factual allegations against
Bank of America are insufficient to state any of the claims for
relief asserted against Bank of America.
In assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
court must accept all well-pled facts contained in the complaint as
Nemet Chevrolet, Ltd v. Consumeraffairs.com, Inc., 591 F.3d
250, 255 (4th Cir. 2009). However, “legal conclusions, elements of
a cause of action, and bare assertions devoid of further factual
enhancement fail to constitute well-pled facts for Rule 12(b)(6)
Id. (citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
inferences, unreasonable conclusions, or arguments.”
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir.
It has often been said that the purpose of a motion under Rule
12(b)(6) is to test the formal sufficiency of the statement of the
claim for relief; it is not a procedure for resolving a contest
about the facts or the merits of the case.
5B Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed.
The Rule 12(b)(6) motion also must be distinguished from a
motion for summary judgment under Federal Rule of Civil Procedure
56, which goes to the merits of the claim and is designed to test
whether there is a genuine issue of material fact.
purposes of the motion to dismiss, the complaint is construed in
allegations constitute a statement of a claim under Federal Rule of
Civil Procedure 8(a).
Id. § 1357.
A complaint should be dismissed “if it does not allege ‘enough
facts to state a claim to relief that is plausible on is face.’”
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
plausibility is established once the factual content of a complaint
‘allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Nemet Chevrolet,
591 F.3d at 256 (quoting Iqbal, 129 S. Ct. at 1949).
factual allegations are not required, but the facts alleged must be
sufficient “to raise a right to relief above the speculative
Twombly, 550 U.S. at 555.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 2007). While the plaintiff’s allegations
are assumed to be true, Erickson, 551 U.S. at 93, this Court may
not ignore a clear failure in the pleading to allege facts that set
forth a claim.
See Weller v. Dep’t of Soc. Servs., 901 F.2d 387,
390-91 (4th Cir. 1990).
This Court may not rewrite a complaint to
include claims that were never presented, Barnett v. Hargett, 174
F.3d 1128, 1133 (10th Cir. 1999), construct the plaintiff’s legal
arguments for him, id., or “conjure up questions never squarely
presented” to the court.
Beaudett v. City of Hampton, 775 F.2d
1274, 1278 (4th Cir. 1985).
Experian’s Motion to Dismiss
In its motion to dismiss, Experian first asserts that there is
no claim under 15 U.S.C. § 1681s-2 because that section of the FCRA
does not provide a private cause of action.
argues that the section applies only to furnishers of information
to consumer reporting agencies (“CRAs”), not CRAs themselves.
Experian concludes that the plaintiff has no claim under this
section because Experian is a CRA, not a furnisher of information
Experian next asserts that the two possible FCRA causes of
action against CRAs are a “reasonable procedures” claim under 15
U.S.C. § 1681e(b) and a “reasonable reinvestigaton” claim under 15
U.S.C. § 1681i.
Experian argues that the § 1681e(b) claim fails
because the plaintiff did not allege that Experian failed to follow
reasonable procedures to ensure the maximum possible accuracy of
the information in the consumer report.
Experian argues that the
§ 1681i claim fails because the plaintiff’s allegations demonstrate
compliance with that section of the FCRA.
The plaintiff responds to Experian’s arguments with new facts
that he did not allege in his complaint.
To these new facts,
Experian argues in reply that it is improper to consider newly
alleged facts in a motion to dismiss.
As a preliminary matter, this Court cannot consider the
plaintiff’s new allegations, raised in his response for the first
Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234
(4th Cir. 2004) (“[A]s a general rule extrinsic evidence should not
be considered at the [Rule] 12(b)(6) stage . . . .”).
Thus, to the
refinanced real estate mortgage account from Bank of America and
other previously unasserted facts, this Court will not consider
This Court agrees with Experian that § 1681s-2 does not
provide a private cause of action.
See Saunders v. Branch Banking
& Tr. Co. of Va., 526 F.3d 142, 149 (4th Cir. 2008) (“FCRA
2(a). . . .”).
This Court also agrees with Experian that § 1681s-2
does not apply to CRAs and that Experian is a CRA to which the
section cannot apply.
See Jolly v. Acad. Collection Serv., Inc.,
400 F. Supp. 2d 851, 859 (M.D.N.C. 2005) (explaining that § 1681s-2
applies “to ‘furnishers’ of consumer information, not consumer
Accordingly, the plaintiff has no claim
under § 1681s-2.
A “reasonable procedures” claim under § 1681e(b) requires the
contains inaccurate information’ and (ii) that ‘the reporting
agency did not follow reasonable procedures to assure maximum
Hinton v. Trans Union, LLC, 654 F. Supp. 2d
440, 450 (E.D. Va. 2009) (quoting Dalton v. Capital Associated
Indus., Inc., 257 F.3d 409, 415 (4th Cir. 2001)).
plaintiff did not state any facts alleging that Experian did not
“accurately report what [it had] been told, and maintain a system
reasonably designed to prevent repetitive or systematic error,
[Experian is] in compliance with [§ 1681e(b)].”
Smith v. Auto
Mashers, Inc., 85 F. Supp. 2d 638, 641 (W.D. Va. 2000).
plaintiff alleges no facts giving rise to an inference that
Experian had reason to doubt the information it received from Bank
of America, NCO/Fin99, Comenity Bank/Express, or Taleris Credit
Further, the plaintiff does not allege that any inaccuracy
was the result of Experian’s reporting procedures.
plaintiff also has no claim under § 1681e(b).
A “reasonable reinvestigation” claim under § 1681i requires
the plaintiff to allege facts showing:
(1) the consumer report in dispute contains inaccurate or
incomplete information; (2) the plaintiff notified the
[credit reporting agency or CRA] of the alleged
inaccuracy; (3) the dispute is not frivolous or
irrelevant; (4) the CRA failed to respond or conduct a
reasonable reinvestigation of the disputed items; and (5)
the failure to reinvestigate caused the plaintiff to
suffer out-of-pocket losses or intangible damages such as
humiliation or mental distress.
Parker v. Certified Profile, LLC, No. 7:14-CV-37-BO, 2014 WL
3534129, at *2 (E.D.N.C. July 16, 2014) (citing Lazarre v. JPMorgan
Chase Bank, N.A., 780 F. Supp. 2d 1320, 1329 (S.D. Fla. 2011)).
The plaintiff’s allegations demonstrate that Experian did follow
the required reinvestigation procedures as to the disputed account
The pleadings show that the plaintiff disputed the
Bank of America, Comenity Bank/Express, and Taleris Credit Union
accounts with Experian, and that, as required by § 1681i(b),
Experian notified the plaintiff that those furnishers confirmed the
demonstrate that the plaintiff did not pursue the next available
remedy of filing a statement of dispute with Experian pursuant to
Thus, even liberally construing the pro se complaint,
the plaintiff also does not have a claim under § 1681i(b).
The next argument in Experian’s motion to dismiss is that the
plaintiff failed to state a claim under the WVCCPA because the
statute does not apply to Experian.
Specifically, Experian argues
that the WVCCPA applies to debt collectors and that Experian does
not engage in debt collection. In his response, the plaintiff does
not dispute that Experian does not engage in debt collection.
The plaintiff states WVCCPA claims under both West Virginia
Code §§ 46A-2-124 and 46A-2-127.
Section 46A-2-124 prohibits debt
collectors from “collect[ing] or attempt[ing] to collect any money
alleged to be due and owing by means of any threat, coercion or
attempt to coerce.”
W. Va. Code § 46A-2-124.
prohibits debt collectors from “us[ing] any fraudulent, deceptive
or misleading representation or means to collect or attempt to
collect claims or to obtain information concerning consumers.” Id.
§ 46A-2-127. Further, the WVCCPA defines a debt collector as “any
person or organization engaging directly in debt collection.”
§ 46A-2-122(d). The WVCCPA defines debt collection as “any action,
conduct or practice of soliciting claims for collection or in the
collection of claims owed or due or alleged to be owed or due by a
Id. § 46A-2-122(c).
The plaintiff does not allege any facts supporting that
Further, in the plaintiff’s reply, he did not dispute
Experian’s assertion that the WVCCPA does not apply to it because
it is not a debt collector.
Thus, the plaintiff has failed to
state a claim under either § 46A-2-124 or § 46A-2-127 of the
Experian next argues that § 1681h(e) of the FCRA preempts the
plaintiff’s state law defamation claim.
The plaintiff did not
reply to Experian’s argument on the defamation claim.
[N]o consumer may bring any action or proceeding in the
nature of defamation, invasion of privacy, or negligence
with respect to the reporting of information against any
consumer reporting agency . . . based on information
disclosed pursuant to [§§ 1681g, 1681h, or 1681m of the
FCRA] . . . except as to false information furnished with
malice or willful intent to injure such consumer.
15 U.S.C. § 1681h(e).
In other words, § 1681h(e) provides a
“general bar on defamation” actions and “[t]he only exception to
this bar is a narrow one, requiring proof of ‘malice or willful
intent to injure [the] consumer.’” Ross v. F.D.I.C., 625 F.3d 808,
814 (4th Cir. 2010) (quoting 15 U.S.C. § 1681h(e)).
In West Virginia, malice requires both “a deliberate intent to
injure” and “an intent to injure through the publication of false
or misleading defamatory statements known by the publisher or its
agents to be false, or an intent to injure through publication of
such defamatory statements with reckless and willful disregard for
their truth.” Sprouse v. Clay Commc’ns, Inc., 211 S.E.2d 674, 68182 (W. Va. 1975).
Here, the general bar on defamation claims applies because the
disputed information was disclosed pursuant to the sections of the
FCRA governing the disclosure of information by CRAs, §§ 1681g and
Experian disclosed the plaintiff’s consumer report to him
on September 23, 2015, and the plaintiff alleges that report
contained the inaccurate account information. The malice exception
to the general bar does not apply because the plaintiff alleges no
information in the plaintiff’s consumer report or an intent to
injure the plaintiff with false information in his consumer report.
Thus, the plaintiff’s defamation claim is barred by § 1681h(e) of
Although the plaintiff did not plead a breach of contract
Experian responds to the allegation as though it was
A breach of contract claim requires the plaintiff to
allege facts supporting “the existence of a valid, enforceable
contract; that the plaintiff has performed under the contract; that
the defendant has breached or violated its duties or obligations
under the contract; and that the plaintiff has been injured as a
Exec. Risk Indem., Inc. v. Charleston Area Med. Ctr.,
Inc., 681 F. Supp. 2d 694, 714 (S.D. W. Va. 2009).
never alleges facts supporting any of the breach of contract
elements, including the existence of a valid, enforceable contract.
Thus, the plaintiff fails to state a breach of contract claim.
In his response to Experian’s motion to dismiss, the plaintiff
asks this Court to impose sanctions on Experian’s counsel.
plaintiff does not state any basis for sanctions nor does this
Court otherwise find any basis for sanctions.
Bank of America’s Motion to Dismiss
In its motion to dismiss, Bank of America, like Experian,
argues that 15 U.S.C. § 1681s-2(a) of the FCRA does not provide a
private cause of action and that the plaintiff did not state a
claim against Bank of America under any other section of the FCRA.
As previously stated regarding the same claim against Experian,
Bank of America is correct that there is no private right of action
under § 1681s-2(a).
See Saunders, 526 F.3d at 149 (noting that
this section of the FCRA “explicitly” bars private suits).
The plaintiff does not allege any other section of the FCRA as
a cause of action.
Nonetheless, Bank of America argues that the
plaintiff has also failed to state a claim under § 1681s-2(b) to
the extent he alleges facts supporting a claim under that section.
A claim under § 1681s-2(b) requires the plaintiff to establish “(1)
that he or she notified the consumer agency of the disputed
information, (2) that the consumer reporting agency notified the
defendant furnisher of the dispute, and (3) that the furnisher then
information.” Alston v. Wells Fargo Bank, N.A., No. 8:12-cv-03671AW, 2013 WL 4507607, at *3 (D. Md. Aug. 22, 2013) (quoting Ausar-El
v. Barclay Bank Del., No. PJM-12-0082, 2012 WL 3137151, at *3 (D.
Md. July 31, 2012)).
Here, the plaintiff did not allege that
Experian notified Bank of America of the dispute or that Bank of
America failed to reasonably investigate and modify the inaccurate
Thus, the plaintiff has also failed to state a claim
under § 1681s-2(b).
Bank of America further argues that § 1681t(b)(1)(F) of the
§§ 46A-2-124 and 46A-2-127.
Section 1681t(b)(1)(F) provides that
“[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).
plaintiff alleges that Bank of America inaccurately reported his
credit information to Experian, which is conduct regulated by
Additionally, both alleged sections of the WVCCPA regulate
debt collection practices. The plaintiff does not allege any facts
supporting a claim that Bank of America attempted to collect the
alleged debt from him.
Thus, even if the claim was not preempted
by the FCRA, the plaintiff still fails to state a claim under
either alleged section of the WVCCPA.
Bank of America next argues that § 1681h(e) of the FCRA
preempts the plaintiff’s defamation claim.
Bank of America’s
argument is correct for the same reasons stated above in the
discussion of Experian’s motion to dismiss.
prevents individuals from bringing defamation claims unless the
individual also alleges that there was malice or willful intent to
The plaintiff does not state any facts to alleging malice
or a willful intent to injure. Thus, the FCRA preemption provision
applies, and the plaintiff has failed to state a defamation claim.
Like Experian, Bank of America also argues that, to the extent
the plaintiff has alleged a breach of contract claim, the claim
fails because the plaintiff did not allege the existence of a
valid, enforceable contract.
This Court agrees with Bank of
America that the plaintiff did not allege that there was a valid,
enforceable contract between him and Bank of America.
plaintiff has failed to state a claim for breach of contract.
The plaintiff asks this Court to impose sanctions on Bank of
America’s counsel as well.
Like with the request for sanctions
against Experian’s counsel, the plaintiff does not state any basis
for sanctions nor does this Court otherwise find any basis for
Accordingly, this Court denies the plaintiff’s request
for sanctions against Bank of America’s counsel.
For the reasons stated above, defendant Experian’s motion to
dismiss (ECF No. 19) is GRANTED as to defendant Experian, and
defendant Bank of America’s motion to dismiss (ECF No. 36) is
GRANTED as to defendant Bank of America.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se plaintiff by certified mail and to
counsel of record herein.
Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
September 19, 2016
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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