Miller v. Bank of America, National Ass'n
858 F. Supp. 2d 1118
S.D. Cal.2012Background
- Defendant Bank of America moved to dismiss the FAC for failure to state a claim.
- Plaintiff’s short sale of the San Diego property led to BAC reporting the short sale as a foreclosure on his credit report.
- Plaintiff alleges credit-reporting inaccuracies caused denial/higher interest on refinancing; he notified agencies and BAC in 2010.
- Seven causes of action were pleaded: three under CCRA/UCL, and four common-law claims (negligence, IIED, NIED, UCL).
- The court treated the matter as a Rule 12(b)(6) motion, reviewing alleged facts in the FAC for sufficiency and preemption issues.
- The court granted the motion to dismiss, with some claims dismissed with prejudice and others without prejudice to amend by a deadline.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the UCL claim preempted by the FCRA? | Miller argues UCL remains viable via FDCPA/FCRA theories. | BAC contends 1681t(b)(1)(F) preempts state claims against furnishers. | UCL claim preempted and dismissed with prejudice. |
| Can the UCL claim predicated on FCRA subsections 1681s-2(b) survive? | Plaintiff alleges failure to investigate violated UCL. | FCRA preempts state law claims against furnishers. | Preemption bars the UCL theory; claim dismissed. |
| Can the CCRA claim be asserted against a furnisher of information? | Plaintiff seeks damages under CCRA against BAC as furnisher. | Private actions under 1785.31 do not extend to furnishers. | CCRA claim dismissed without prejudice to amend. |
| Are the negligence claims preempted and time-barred? | Willful intent to injure keeps some state claims alive. | 1681t(b)(1)(F) preempts state common-law claims; statute of limitations bars IIED/NIED. | Negligence preempted; emotional-distress claims barred by limitations and preemption. |
Key Cases Cited
- Narog v. Certegy Check Serv., Inc., 759 F.Supp.2d 1189 (N.D. Cal. 2011) (FDCPA claims after debt settled unavailable; supports post-settlement limitation on FDCPA claims)
- Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147 (9th Cir. 2009) (FCRA duties of furnishers; private actions limited to s-2(b) proceedings)
- Winter v. I.C. Sys., Inc., 543 F.Supp.2d 1210 (S.D. Cal. 2008) (FDCPA applicability to present debt collection; limitations on post-settlement actions)
- Pulver v. Avco Fin. Serv.,, 182 Cal.App.3d 622 (Cal.App. 1986) (Private action limitations under CCRA against furnishers)
- El-RR v. Tompkins, 304 U.S. 64 (U.S. 1938) (Erie doctrine; interpretation of 'laws of any state' for preemption)