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Shenkman v. Ocwen Loan Servicing, LLC

United States District Court, S.D. Georgia, Savannah Division

November 6, 2014



LISA GODBEY WOOD, Chief District Judge.

Presently before the Court is Defendant Ocwen Loan Servicing, LLC's Motion to Dismiss. Dkt. No. 4. For the reasons stated below, Defendant's Motion is GRANTED.


The present case involves a homeowner's allegations of false credit reporting against its mortgage loan servicer. See generally Dkt. No. 1. In April 2004, Plaintiff obtained a mortgage loan through Decision One Mortgage Company to finance the purchase of his home in Glynn County, Georgia. Id . at 1911, 4. Plaintiff avers that Defendant, a Florida limited liability company, has since assumed ownership of Plaintiff's mortgage loan but has failed to provide documentation proving any actual transfer of ownership, despite Plaintiff's many requests to do So. See id. at ¶¶ 2, 5.

Plaintiff maintains that he has consistently made timely monthly mortgage loan payments, both before and after Defendant allegedly acquired ownership of his mortgage loan. Id . at ¶¶ 6, 11. Plaintiff claims that in each month since December 2013, Defendant has falsely reported to three credit bureau reporting services-Experian, Transunion, and Equifax-that Plaintiff was delinquent in his mortgage loan payments. Id . at ¶¶ 7-8. According to Plaintiff, an automobile salesman informed him that he "was five (5) months behind in his mortgage" and therefore denied him credit financing on a new automobile. Id . at ¶ 10.

Also as a result of Defendant's allegedly false credit reporting, Plaintiff states that he has been unable to refinance his home, has faced increased interest rates, and has suffered loss of his reputation, ridicule, embarrassment, shame, mortification, and injury to his feelings. Id . at ¶¶ 9, 12. After what Plaintiff categorizes as many unsuccessful attempts to contact Defendant to resolve this alleged problem, Plaintiff filed this lawsuit seeking compensatory and punitive damages. See id. at ¶¶ 13-14.

On the basis of these facts, Defendant now moves for dismissal for failure to state a claim upon which relief could be granted. Dkt. No. 4, p. 1 (citing Fed.R.Civ.P. 12(b) (6) ("Rule 12(b)(6)")). While Defendant notes that Plaintiff's Complaint "contains no causes of action and cites no law under which he seeks redress, " Defendant nevertheless identifies the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x (2014) ("FCRA"), as governing Plaintiff's allegations of false credit reporting. Id . at pp. 1-2. Defendant concludes that Plaintiff's factual allegations are insufficient to state a claim under the FCRA and that the FCRA preempts any conceivable state-law claim here. Id . at p. 2.[1]


A Rule 12(b) (6) motion to dismiss challenges the sufficiency of a plaintiff's complaint. See Fed.R.Civ.P. 12(b) (6). The complaint must set forth "a short and plain statement of the claim showing that [the plaintiff] is entitled to relief." Fed.R.Civ.P. 8(a) (2). To do so, the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Igbal , 556 U.S. 662, 678 (2009) (citing Bell Ati. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). When ruling on a motion to dismiss, a court must accept the factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Ashcroft , 556 U.S. at 678 (citing Bell Ati. Corp. , 550 U.S. at 556, 570).

A claim is plausible on its face when the plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . (citing Bell Ati. Corp. , 550 U.S. at 556). While the plausibility standard does not amount to a probability requirement, "it asks for more than a sheer possibility that a defendant has acted unlawfully." Id . (citing Bell Ati. Corp. , 550 U.S. at 556). A complaint containing facts that are "merely consistent with" the defendant's liability "stops short of the line between possibility and plausibility of entitlement to relief.'" Id . (quoting Bell Atl. Corp. , 550 U.S. at 557).

The complaint need not state with particularity the exact legal theory supporting a claim, so long as the factual allegations support some viable cause of action. Gentry v. Harborage Cottages-Stuart, LLLP , 602 F.Supp.2d 1239, 1256 n.8 (S.D. Fla. 2009) (citing Bartholet v. Reishauer A.G. (Zurich) , 953 F.2d 1073, 1078 (7th Cir. 1992)), aff'd in part, vacated in part on other grounds, 654 F.3d 1247 (11th Cir. 2011); see also St. Bernard Gen. Hosp., Inc. v. Hosp. Serv. Ass'n of New Orleans , 712 F.2d 978, 985 n.13 (5th Cir. 1983); New Home Appliance Cent., Inc. v. Thompson , 250 F.2d 881, 883 (10th Cir. 1957) ("[I]t is not the office of a complaint to plead detailed facts or state particular theories for recovery. It is sufficient... if the complaint concisely states facts upon which relief can be granted upon any legally sustainable basis.")

While Plaintiff here cites no law or legal theory, "[t]he FCRA governs claims by consumers, " such as Plaintiff, "against a furnisher of information, " like Defendant, "based on an allegation that the furnisher submitted incorrect information regarding the consumer" to a credit reporting agency ("CR7"). Green v. RBS Nat'l Bank , 288 F.Appx. 641, 642 (11th Cir. 2008) (per curiam) (citing 15 U.S.C. §§ 1681a(c), (f), 1681s-2(a)).[2] Often accompanying such FCRA claims are various claims under state law, including negligence, defamation, misrepresentation, and intentional infliction of emotional distress. See, e.g., Schlueter v. BellSouth Telecomms. , 770 F.Supp.2d 1204, 1206 (N.D. Ala. 2010). The Court therefore must determine whether Plaintiff's factual allegations are sufficient to state a facially plausible claim for relief under either the FCRA or state law.[3]

A. FCRA Claims

The FCRA imposes two duties on a furnisher of credit information: a furnisher must submit accurate information to CRAs, 15 U.S.C. § 1681s-2(a), and must investigate and respond promptly to any notice of a consumer dispute regarding such information, id. § 1681s-2(b). See Green , 288 F.Appx. at 642. The FCRA does not provide a private right of action when a furnisher submits false information to a CRA in violation of section 1681s-2(a). Id . at 642 & n.2 ("Enforcement of this provision is limited to federal agencies, federal officials, and state officials." (citing 15 U.S.C. §§ 1681s-2(c) to (d), 1681s (c) (1) (B))). By contrast, a private right of action exists when a furnisher ...

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