White v. Green Tree Servicing, LLCWhite v. Green Tree Servicing, LLC
MEMORANDUM OPINION
This action arises out of alleged violations of the Fair Credit Reporting Act (“FCRA”),
BACKGROUND
In a ruling on a motion to dismiss, this Court accepts the facts alleged in the plaintiffs complaint as true. See Aziz v. Alcolac, Inc.,
In October 2013, White attempted to refinance her mortgage through PNC so
Days before the proposed settlement date of January 29, 2014, PNC informed White that it could no longer approve her refinance because Green Tree, her mortgage servicer, reported to PNC that she was no longer current on her mortgage payments. Id. ¶ 28. White proceeded to request a payoff statement from Green Tree so that she could settle with PNC for her refinanced mortgage. Id. ¶ 30. The statement that Green Tree provided White indicated that White owed $6,751.11 in interest on her loan, as well as $154.78 in late fees. Id. Shortly thereafter, PNC informed White that according to her, Tran-sUnion credit report, she had recent derogatory collections events, which White attributes to the reporting from Green Tree that she.was behind on her payments. Id. ¶ 32. Around this time, Green Tree passed on the same information to the three major credit reporting agencies (Experian, Equifax, and Transunion). Id. ¶¶ 33-34.
On January 27, 2014, White wrote to the three reporting agencies regarding the disputed information, copying Green Tree on each letter. Id. ¶ 35. Pursuant to the Fair Credit Reporting Act (“FCRA”),
In.a February 20, 201'4 letter Green Tree responded 'to White’s RESPA claims, maintaining that White was behind on her payméhts. Id. In a February'24, 2014 letter Green Tree acknowledged receipt of White’s FCRA claims, indicating it would investigate the disputed payment information. Id. ¶42. In a February 27, 2014 letter" Green Tree acknowledged receipt of White’s MCPA inquiry, promising 'an in
White contends that Green Tree failed to investigate or correct the payment information, and that she suffered economic damages as a result. On June 17, 2014, White filed a three-count complaint in the Circuit Court for Baltimore City, alleging violations of the Maryland Consumer Protection Act (“MCPA”),
On October 22, 2014, White filed a six-count Second Amended Complaint mirroring the amended complaint she filed in Baltimore City Circuit Court.
STANDARD OF REVIEW
I.
The Supreme Court’s recent opinions in Bell Atlantic Corp. v. Twombly,
ANALYSIS
I. Preemption under the Fair Credit Reporting Act
The Fair Credit Reporting Act (“FCRA”),
Congress amended the FCRA in 1996 to address the disparity in reporting laws emerging among states that had, until then, been permitted to pass their own regulations to supplement the FCRA. Ross,
No requirement or prohibition may be imposed under the laws of any State (1) 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....
Section 1681h(e) — a preemption provision in the original FCRA — allows for certain state common law claims under the FCRA. Section 1681h(e) states:
[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 person who furnishes information to a consumer reporting agency, based on information disclosed pursuant to section 1681g, 1681h, or1681m of this title, or based on information disclosed by a user of a consumer report to or for a consumer against whom the user has taken adversé action, based in whole or in part on the report except as to false information'furnished with malice or willful intent to injure such consumer.
On its face, the broad preemption of
> a. Claims I and II are State Statutory Claims and are Preempted Under the Fair Credit Reporting Act
In Count I of the Second Amended Complaint, White alleges violations of Maryland’s Consumer Protection . Act (“MCPA”),
. b. Claim VI, to the Extent it States a Claim Based on Negligence, Does Not Fall Within the 1681h(e) Exception
In Count VI, for defamation, White alleges that Green Tree is liable for making “a series of false and misleading statements” by claiming that White was late on her mortgage payments. See Compl. ¶ 101. White argues that Count. VI survives the preemption provision through the exception in
Green Tree’s Motion makes clear, however, that it, only seeks to dismiss Count VI to the extent that the defamation claim is premised upon a theory of negligence. Indeed, Green Tree’s Motion explicitly states that it does not challenge the sufficiency of White’s allegations regarding
II. White’s Fair Credit Reporting Act Claim
In Count IV, White alleges that Green Tree violated
Through a narrow interpretation of these two provisions, Green Tree argues that the duty to conduct an investigation into disputed information pursuant to
In arguing that a plaintiff must explicitly allege that a furnisher received a report from a credit reporting agency before they can state a claim on which relief may be granted, Green Tree relies heavily on Mamila v. Absolute Collection Serv., Inc.,
Green Tree’s reliance on Mamila, however, is misplaced. In Mavilla, two plaintiffs filed suit against a collection agency for reporting unpaid debts relating to health services which the plaintiffs never actually received.
At the same time, the U.S. Courts of Appeal for the Seventh and Ninth Circuits as well as a number of federal district courts have spoken directly on this issue. Those decisions illustrate that, for purposes of an FCRA lawsuit, a plaintiff triggers the defendant-furnisher’s duty to investigate under 1681s-2(b) by merely notifying their credit reporting agency of a dispute. This is for two reasons: 1) the reporting agency has an obligation to notify the furnisher of the dispute, and 2) the reporting agency has no duty to inform the consumer once they have notified the furnisher. Instead, a plaintiff satisfies the 12(b)(6) standard by merely alleging that she notified her reporting agency of disputed credit information. See, e.g., Lang v. TCF Nat. Bank,
Thus, the general trend in the case-law is that a 1681s-2(b) claim survives a motion to dismiss despite the absence of an express allegation that a credit reporting agency provided notice to a furnisher of credit information of a dispute. This conclusion is not inconsistent with the Fourth Circuit’s decision in Movilla. Moreover, Green Tree’s other cited case-law is also unavailing.
CONCLUSION
For the reasons stated above, Green Tree’s Motion to Dismiss (ECF No. 4) is DENIED AS MOOT. Defendant’s Motion to Dismiss Counts I, II, IV and VI of the Second Amended Complaint (ECF No, 16) is GRANTED IN PART and DENIED IN PART; specifically, it is granted with respect to Counts I, II, and VI, in part, due to preemption under the Fair Credit Reporting Act, and denied with respect to White’s specific claim under the Act as set forth in Count IV.
A separate Order follows.
Notes
. Plaintiff’s Motion for Leave to Present the Court with Suppleméntal Authorities seeks to add two additional cases that address issues raised in Plaintiff’s Second Amended Complaint. Plaintiff acknowledges that the two cases are non-binding, stating "[i]f the Court feels the Supplemental Motion and such correspondence are not helpful; White withdraws ‘ the Supplemental Motion.” ECF No. 25 ¶ 2-5. This Court finds the supplemental material duplicative and no more helpful than Plaintiff’s previously cited authority; accordingly, this Court considers them withdrawn.
. Until this time, Bank of America was the servicer of the loan. Id. at ¶ 10. According to the Second Amended Complaint, Bank of America reported that White was current on her mortgage through April 2013. Id ', at ¶ 20.
. Although the provision is unspecified by the Second Amended Complaint,
. Although the provision is unspecified by the Second Amended Complaint, Section 13-301 of Maryland’s Consumer Protection Act creates a cause of action for making false or misleading statements which have the capacity to deceive or mislead consumers.
.
. Green Tree’s original Motion to Dismiss was mooted by White's Second Amended Complaint. Accordingly, Green Tree's original Motion to Dismiss (ECF No. 4) will be denied as moot.
. In Counts III and V, White alleges violations of the Real Estate Settlement Procedures Act ("RESPA”),
. Unpublished opinions are not binding precedent in the Fourth Circuit. See CTA4 Rule 32.1. Nevertheless, for the reasons set forth infra, that case is distinguishable from this case.
. Green Tree’s papers also cite to Johnson v. MBNA America Bank, NA,
. This Court recognizes one district court case which applies Mavilla to grant dismissal at the pre-discovery phase. See Bailey v. Bank of Am. Corp., No, 3:14-CV-1849-TLW,
. Accordingly, this case will proceed as a four-count Complaint consisting of the claims set forth in Counts III, IV, and V, as well as Count VI to the extent that the defamation claim is premised on false statements and not negligence.