O'Loughlin v. Equifax, Inc.
O'Loughlin v. Equifax, Inc.
Opinion of the Court
ORDER DENYING MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant Flagstar Bank, FSB’s Motion to Dismiss Complaint, or in the Aterna-tive, for a More Definite Statement [DE 16] (“Motion”). The Court has reviewed the Motion and the record in this case, and is otherwise advised in the premises. For the reasons discussed herein, the Court will deny the Motion.
I. BACKGROUND
Plaintiff Mark O’Loughlin asserts claims against each Defendant in this action for violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq. On May 6, 2011, O’Loughlin received a discharge of debt upon completion of a payment plan pursuant to a Chapter 13 bankruptcy. DE 1-2 at 2-13 (Complaint) ¶ 17.
After the completion of the payment plan, O’Loughlin noticed that his credit reports reflected incorrect information
II. LEGAL STANDARD
Under Rule 12(b)(6), a court shall grant a motion to dismiss where the factual allegations of the complaint cannot support the asserted cause of action. Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006) (per curiam). “Factual allegations must be enough to raise a right to relief above the speculative level Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The allegations must give a defendant fair notice of the plaintiffs claims and the grounds upon which they rest. Id. Thus, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
A complaint must be liberally construed, assuming the facts alleged therein as true and drawing all reasonable inferences from those facts in the plaintiffs favor. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. A complaint should not be dismissed simply because the court is doubtful that the plaintiff will be able to prove all of the necessary factual allegations. Id. A well-pled complaint will survive a motion to dismiss “even if it appears that a recovery is very remote and unlikely.” Id. at 556, 127 S.Ct. 1955 (internal quotation marks omitted). Nevertheless, a plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555, 127 S.Ct. 1955.
III. DISCUSSION
In the Motion, Flagstar argues that O’Loughlin’s claim against it fails because the claim rests upon violations of 15 U.S.C. § 1681s-2(a), for which Congress has not created a private cause of action. However, facts giving rise to a violation of § 1681s-2(a) can also contribute to a violation of § 1681s-2(b), for which a private cause of action does exist. Accordingly, that some of Flagstar’s complained-of conduct might violate § 1681s-2(a) does not foreclose O’Loughlin’s claim upon that same conduct under § 1681s-2(b).
The parties agree that Flagstar is a furnisher of information to a consumer reporting agency for purposes of § 1681s-2. Section 1681s-2 imposes certain obligations upon furnishers of information. Though § 1681s-2(a) and (b) both enumerate duties of a furnisher, Congress has created a private cause of action only for violations of subsection (b). See, e g., Green v. RBS Nat’l Bank, 288 Fed.Appx. 641, 642-43 (11th Cir. 2008) (per curiam).
O’Loughlin has premised Count V of the Complaint upon alleged violations of
That facts giving rise to a violation of § 1681s — 2(b) may also reflect a violation of subsection (a) does, not shield a defendant from a private suit under subsection (b) upon those facts. Seamans v. Temple Univ., 744 F.3d 853, 867 (3d Cir. 2014); Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1162-64 (9th Cir. 2009); see also Saunders v. Branch Banking & Trust Co. of Va., 526 F.3d 142, 149-50 (4th Cir. 2008) (“No court has ever suggested that a furnisher can excuse its failure to identify an inaccuracy when reporting pursuant to § 1681s — 2(b) by arguing that it should have already reported the information accurately under § 1681s-2(a).”). In this case, O’Loughlin has alleged acts by Flagstar resulting in the provision of inaccurate information to consumer reporting agencies. Compl. ¶ 69. Whether these acts will ultimately give rise to liability under § 1681s-2(b) is a question for the factfinder. But that O’Loughlin’s allegations may also suggest violations of § 1681s-2(a) does not warrant dismissal of his claim against Flagstar. See Gorman, 584 F.3d at 1164.
ORDERED AND ADJUDGED that Defendant Flagstar Bank, FSB’s Motion to Dismiss Complaint, or in the Alternative, for a More Definite Statement [DE 16] is DENIED.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 21st day of July, 2015.
. For the purpose of resolving the Motion, the Court accepts as true the facts alleged in the Complaint. See Nat’l Ass’n of Bds. of Pharmacy v. Bd. of Regents, 633 F.3d 1297, 1301 n. 3 (11th Cir. 2011).
. The Court declines to address Flagstar’s additional arguments for dismissal of the Complaint that Flagstar has raised for the first time in its Reply. See, e.g., S.D. Fla. L.R. 7.1(c); Powell v. Carey Int’l, Inc., 490 F.Supp.2d 1202, 1206 n. 4 (S.D.Fla. 2006). Further, Flagstar’s alternative request for a more definite statement (DE 16 at 8), which does not address which allegations in the Complaint are so vague or ambiguous that Flagstar could not formulate a response, fails as conclusory.
Reference
- Full Case Name
- Mark O'LOUGHLIN v. EQUIFAX, INC., Experian Information Solutions Inc., and Flagstar Bank, FSB
- Status
- Published