United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
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 of the Second
Amended Complaint (SAC), as pre-empted by federal law. Doc.
38. Plaintiff Mallie Seckinger opposes the motion. Doc. 41.
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.
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
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
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).
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 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).
state daw claims for "tortious debt collections
practices" (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 etseqare thus preempted
by the FCRA and should be DISMISSED.
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.
Bank of America's motion to dismiss claims III, V, VI,
VII, and VIII from the Second ...