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Evans v. Bull City Financial Solutions, Inc.

United States District Court, N.D. Georgia, Atlanta Division

June 25, 2018

VANESSA EVANS, Plaintiff,
v.
BULL CITY FINANCIAL SOLUTIONS, INC., Defendant.

          MAGISTRATE JUDGE'S ORDER AND REPORT AND RECOMMENDATION

          LINDA T. WALKER UNITED STATES MAGISTRATE JUDGE.

         This case is presently before the Court on Defendant Bull City Financial Solutions, Inc.'s Motion to Dismiss. (Doc. 5). For the reasons explained below, this Court RECOMMENDS that Defendant Bull City Financial Solutions, Inc.' s Motion to Dismiss be GRANTED IN PART AND DENIED IN PART. (Doc. 5).

         MCCALLA RAYMER. LLC'S MOTION TO DISMISS SECOND AMENDED COMPLAINT

         I. BACKGROUND

         Plaintiff Vanessa Evans (hereinafter "Plaintiff) filed this lawsuit on September 20, 2017, against Defendants Equifax Information Services, LLC ("Equifax") and Bull City Financial Solutions, Inc. ("Bull City"). Plaintiff subsequently dismissed her claims against Defendant Equifax. (Doc. 22). Plaintiffs remaining claims against Bull City are for violations of the Fair Debt Collection Practices Act, 15 U.S.C. 1692 ("FDCPA") and the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCRA"). Plaintiff alleges in her Complaint that she incurred a debt as defined by the FDCP A when she entered into a financial obligation that "was primarily for personal, family, or household purposes." (Compl. ¶ 13). Plaintiff asserts that Bull City reported her debt on her credit report. (Compl. ¶ 15). Equifax prepared and issued credit reports that included inaccurate information about the account. (Compl. ¶ 16). Plaintiff notified Equifax via letter on July 26, 2017, that she disputed the accuracy of the information Equifax was reporting. (Compl. ¶ 17). Plaintiff avers that after she disputed the information with Equifax, Bull City failed to conduct a reasonable investigation and continued to report inaccurate adverse information about the account. (Compl. ¶ 18). Plaintiff claims that Bull City (1) violated the Sections 1692d, 1692e, and 1692f of the FDCP A when it reported inaccurate information about her account; (2) violated the FCRA when it willfully failed to fully investigate her dispute "by failing to review all information regarding the same" and failed to correctly report results of an accurate investigation to the credit reporting agencies; and (3) violated the FCRA when it negligently failed to conduct its investigation in good faith.

         Bull City argues Plaintiffs FDCP A claim should be dismissed because she fails to allege sufficient facts showing that Bull City is a debt collector or that the account at issue is a debt as defined by the FDCPA. Bull City further contends that Plaintiffs FCRA claim is insufficiently pled because she does not plead any specific facts in support of her claims. Bull City points out that Plaintiffs Complaint does not include any indication as to what Bull City reported, when it was reported, who Bull City reported the information to, and when Bull City allegedly failed to investigate her dispute. Additionally, Bull City contends that Plaintiffs Complaint contains no allegation that Equifax notified Bull City of her dispute.

         II. LEGAL ANALYSIS

         A. Rule 12(b)(6) Motion to Dismiss Standard

         Dismissal for failure to state a claim is warranted if, assuming the truth of the factual allegations of a plaintiffs complaint, there is a dispositive legal issue which precludes relief. Neitzke v. Williams, 490 U.S. 319, 326 (1989); Allen v. USAA Cas. Ins. Co., 790 F.3d 1274, 1278 (11th Cir. 2015) (explaining that "dismissal is proper when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action"); Brown v. Crawford Cty. 960 F .2d 1002, 1009-10 (11th Cir. 1992). Additionally, a complaint may be dismissed if it does not must contain specific factual matter, accepted as true, to state a claim that is plausible on its face and to suggest the required elements of the claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1296 (11th Cir. 2007). Factual allegations in a complaint need not be detailed but "must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n. l (2002)). Thus, a complaint, "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. At 555.

         B. Plaintiff's FDCPA Claim

         Bull City argues Plaintiffs FDCPA claim should be dismissed because she fails to allege sufficient facts showing that it is a debt collector or that the account at issue is a debt as defined by the FDCPA.

         1. Debt Collector

         Bull City contends that Plaintiff fails to state a FDCP A claim because she does not allege facts tending to show that it is a debt collector. In support, Bull City points out that Plaintiffs Complaint fails to include facts which tend to indicate that it regularly collects or attempts to collect debts owed or due another or that Bull City uses the mail or other instrumentalities in any business the principal purpose of which is the collection of debts. In response, Plaintiff argues Bull City holds itself out in the public domain as a debt collector because it advertises on its website that it provides "accounts receivable management solutions" and collects "more than any other accounts receivable management company."

         The FDCPA was passed in 1977 in order to protect consumers from unfair debt collection practices. 15 U.S.C. § 1692(e) ("It is the purpose of this subchapter to eliminate abusive debt collection practices by debt collectors ... [and] to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged ... ."); Acosta v. Campbell, 309 Fed.Appx. 315, 320 (11th Cir. 2009). The Act's prohibitions on improper collection methods only apply to debt collectors. The FDCPA generally precludes '"debt collectors'' from making false or misleading representations and from engaging in various abusive and unfair practices." Acosta, 309 Fed.Appx. at 320; see also Heintz v. Jenkins, 514 U.S. 291 (1995). Thus, Plaintiff must plausibly allege that Bull City is a debt collector within the meaning of the FDCPA. Reese v. Ellis, Painter,Ratterree & Adams,678 F.3d 1211, 1216, 1218 (11th Cir. 2012) (explaining that "in order to state a plausible FDCPA claim under Section 1692e, a plaintiff must allege, among other things ... that the defendant is a debt collector"); see also Goia v. CitiFinancial Auto,499 Fed.Appx. 930, 938 (11th Cir. 2012). The Act generally ...


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