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Seckinger v. Bank of America, N.A.

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

January 6, 2017

MALLIE SECKINGER, Plaintiff,
v.
BANK OF AMERICA, N.A., and EQUIFAX INFORMATION SERVICES, LLC, Defendants.

          REPORT AND RECOMMENDATION

         In this Fair Credit Reporting Act (FCRA) case, defendant Bank of America (BOA) moves to dismiss the state law claims, set forth in sections III, V, VI, VII, and VIII[1] of the Second Amended Complaint (SAC), as pre-empted by federal law. Doc. 38. Plaintiff Mallie Seckinger opposes the motion. Doc. 41.

         1. BACKGROUND

          Seckinger alleges claims against both BOA and Equifax Information Services (Equifax) for the reporting of negative information on his credit report. Doc. 36 (SAC). He claims he made a final payment of an "agreed settlement amount" on a disputed BOA account balance. Id. at ¶¶ 7-8. BOA accepted the payment, removed the disputed account from his credit report, and closed the account "as agreed." Id. at ¶ 9. Then, to his surprise, "defendants" reinserted the delinquent account information on his credit report. Id. at ¶ 10. From April through December 2014, Plaintiff thrice disputed the negative information with Equifax and then disputed the report directly with BOA. Id. at ¶¶ 12-17. However, the negative information remained on his credit report, despite his objections. Id. at ¶¶ 21-24. He alleges damages stemming from BOA's "false reporting" of a delinquent account and both defendants' failure to properly investigate his disputes.

         Plaintiff alleges that this conduct violates §§ 1681s-2 and 1681i of the FCRA and the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390. He also alleges various claims arising from state law, including invasion of his right to privacy, "malicious" defamation, and "tortious debt collection practices, " warranting punitive damages. BOA seeks dismissal of Seckinger's state-law claims because they are preempted by the Fair Credit Reporting Act.

         II. ANALYSIS

         A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint, not whether the plaintiff will ultimately prevail on the merits. Scheur v. Rhodes, 416 U.S. 232, 236 (1974). The 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 (2009) (citing Bell Ail. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff is required to plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557 (while there is no probability requirement at the pleading stage, "something beyond . . . mere possibility . . . must be alleged.").

         Plaintiff claims BOA violated the FCRA and a host of state laws. The FCRA protects consumers from having inaccurate information about their credit status circulated to credit reporting agencies. Pickney v. SLMFin. Corp., 433 F.Supp.2d 1316, 1318 (N.D.Ga.2005) (internal cites omitted). Furnishers of information to credit reporting agencies have a duty to, among other things, investigate disputed information and report the results of these investigations to credit reporting agencies. Id. The FCRA contains two preemption provisions, §§ 1681h(e) and 1681t(b)(1)(F). Section 1681t(b)(1)(F) applies to "furnishers" of credit information to credit reporting agencies, like BOA:

Section 1681t(b)(1)(F) provides, "No 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). The subject matter under § 1681s-2 includes a prohibition against furnishers providing "any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate." 15 U.S.C. § 1681s-2. Plaintiff alleges that Defendants generated false, malicious, and defamatory documents and submitted them to credit reporting agencies. This conduct falls within § 1681s-2 as it implicates Defendants' responsibilities as furnishers of information to consumer reporting agencies. As such, it is clear that § 1681t(b)(1)(F) preempts Plaintiffs state law [ ] claim.

See Howard v. DirecTV Grp., Inc., 2012 WL 1850922 at *7 (S.D. Ga. May 21, 2012).

         Taking the allegations of the SAC as true, Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002), BOA was merely a "furnisher" of "false, malicious, and defamatory" information to Equifax (and other credit reporting agencies). Howard, 2012 WL 1850922 at *7; see generally, SAC. As such, BOA's conduct[2] in reporting and affirming negative information on plaintiffs credit report clearly falls under the FCRA preemption provision set forth in § 1681t(b)(1)(F). Daley v. JPMorgan Chase & Co., 2014 WL 12115909 at *4 (N.D.Ga. May 19, 2014) (dismissing defamation, tortious interference with business relations, invasion of privacy, and intentional infliction of emotional distress claims as preempted by § 1681t because they "all relate to the defendants' alleged malicious reporting of false information to credit reporting agencies."); Blackburn v. BAC Home Loans Servicing, LP, 2012 WL 4049433 at *6 (M.D. Ga. Sept. 13, 2012) (any "claims based on allegations that BAC reported inaccurate credit information to credit bureaus clearly arise from conduct regulated by § 1681s-2" and was thus preempted by the FCRA).

         Plaintiffs state daw claims for "tortious debt collections practices"[3] (assuming such a tort exists either under statute or in the common law, or that plaintiffs SAC can be read to state a claim instead for "unreasonable bill-collection practices" as recharacterized in his opposition to the motion to dismiss) and violation of O.C.G.A. § 10-1-390 etseq[4]are thus preempted by the FCRA and should be DISMISSED.

         Finally, defendant seeks dismissal of Seckinger's request for punitive damages. Doc. 38 at 14. Plaintiff quotes O.C.G.A. § 51-12-5.1(b) to conclude that BOA acted with a "degree of wantonness and that entire want of care which would raise the presumption of a conscious indifference to the consequences" in misreporting and failing to aggressively investigate his disputed credit report item. Doc. 36 at ¶ 100; see O.C.G.A. § 51-12-5.1(a) (punitive damages may be awarded only where "it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences."). However, "[t]hreadbare recitals of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678; Fed.R.Civ.P. 8. The SAC asserts no facts that would support a finding of maliciousness or willful misconduct sufficient to justify a punitive damages award, under either state law or the FCRA[5].

         III. CONCLUSION

         Defendant Bank of America's motion to dismiss claims III, V, VI, VII, and VIII from the Second ...


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