United States District Court, N.D. Georgia, Atlanta Division
MAGISTRATE JUDGE'S ORDER AND REPORT AND
T. WALKER UNITED STATES MAGISTRATE JUDGE.
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).
RAYMER. LLC'S MOTION TO DISMISS SECOND AMENDED
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.
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
12(b)(6) Motion to Dismiss Standard
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.
Plaintiff's FDCPA Claim
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.
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
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