The opinion of the court was delivered by: Hon. Tanya Walton Pratt, Judge United States District Court Southern District of Indiana
ENTRY DISCUSSING MOTION TO DISMISS
Plaintiff Kelli J. Jack (Mr. Jack) initiated this action in Washington Township, Marion County, Indiana, Small Claims Court, Cause Number 49K07-1005-SC-02631. Defendants Midland Credit Management and Bowman Heintz Boscia & Vician, P.C. (collectively the Defendants) removed the action to the district court. At this Court's direction, Ms. Jack filed a more definite statement on January 3, 2011. See Dkts. 15 and 16 (hereinafter referred to as the "Supplemental Complaint"). Defendants argue that the Supplemental Complaint fails to state a claim upon which relief could be granted and seek dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6).
For the reasons explained below the Motion to Dismiss [Dkt 17] is granted in part and denied in part.
In evaluating a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court assumes all well-pleaded allegations of the complaint are true and views them in the light most favorable to the plaintiff. Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010). To satisfy the notice-pleading standard of Rule 8 of the Federal Rules of Civil Procedure, a complaint must provide a "short and plain statement of the claim showing that the pleader is entitled to relief," which is sufficient to provide the Defendant with "fair notice" of the claim and its basis. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) and quoting Fed.R.Civ.P. 8(a)(2)). "To survive a motion to dismiss, the complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'..A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the Defendant is liable for the misconduct alleged." Ashcroft v. Iqbal,129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). The complaint "must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to relief above the speculative level." Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., 536 F.3d 663, 668 (7th Cir. 2008) (quoting Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008)). Additionally, Pro se complaints are construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. Erickson, 551 U.S. at 94 (citation omitted); Obriecht v. Raemisch, 517 F.3d 489, 491 n. 2 (7th Cir. 2008).
Ms. Jack alleges that a credit account was opened with FCNB-Spiegel ("Spiegel") using the name Kelli Renbarger and Ms. Jack's personal information in March 1998. Ms. Jack was not aware of and did not authorize this account.
On or about August 2000, Ms. Jack requested a copy of her credit report for review before applying for a mortgage. The credit report listed Spiegel as a creditor with a negative payment history. Because Ms. Jack had never applied for or inquired about a Spiegel credit card she contacted Experian, TransUnion, and Equifax (collectively credit reporting agencies) and Spiegel to file a dispute. Ms. Jack never heard from Spiegel and the credit reporting agencies stated that the debt was accurate according to information provided by the creditor. Ms. Jack has never received any of the validation documents she requested.
In March 2003, the Spiegel account was "charged off as bad debt" and listed on Ms. Jack's credit report as such. Ms. Jack contacted the credit reporting agencies in April and May of 2003 and each said that the creditor had validated the debt. Beginning in December of 2005, Ms. Jack began receiving calls and letters from Simm Associates, Inc., a debt collector who had purchased the alleged "debt" owed to Spiegel earlier in the year. The letters demanding payment were sent to Kelli Jack. After sending a validation request letter in February of 2006, Ms. Jack was informed by Simm Associates that the account had been transferred to Midland Credit Management and they would be in contact to verify and/or correct the information.
In early 2007, Ms. Jack began receiving calls from a company identifying itself as Midland Credit. The caller would always ask for Kelli Renbarger to which Ms. Jack replied she had never gone by that name. Ms. Jack asked Midland Credit to send her documentation and validation using the name Kelli J. Jack to ensure it was received. Midland Credit never responded to verbal or written requests and the calls continued. More than 350 calls were received at Ms. Jack's residence and more than 500 at Ms. Jack's business. Abusive, offensive, and threatening language was used during some of the calls.
In a letter dated July 21, 2008, the Defendants instructed Ms. Jack (through a letter addressed to Kelli Renbarger), of the following:
Unless you dispute this debt, or any portion of it, within 30 days after you receive this notice, we will assume that this is valid. If you notify us in writing within the 30 day period that you dispute this debt or any portion of it, we will obtain verification of the debt or a copy of any judgment and mail it to you. If the above creditor is not your original creditor and you submit a written request within the 30 day period for the name and address of the original creditor, we will supply such information to you. If you do dispute this debt or any portion thereof, in writing in the 30 day period, or if you within the 30 day period request the name and address of the original creditor, we will cease collection of the debt or any disputed portion thereof until we mail you verification of the debt or a copy of any judgment or the name and address of the original creditor.
Ms. Jack mailed a letter to the Defendants requesting the current address of the original creditor, disputing the entire debt, and attaching a copy of the fraud affidavits, a police report she had filed, and previous requests for information. Ms. Jack also faxed two separate copies to the fax number listed on the Defendants' letterhead and received confirmation of each fax. Ms. Jack did not receive a response to the letter and her subsequent phone calls were not returned.
Ms. Jack later learned the Defendants had filed suit in the Center Township of Marion County on October 2, 2008, Cause No. 49K01-0810-SC-11293, without notifying Ms Jack. As she had no knowledge of the trial, Ms. Jack did not attend the proceeding. A default judgment in favor of the Defendants was issued and proceedings supplemental and garnishment action were scheduled. Ms. Jack learned of the judgment only when the Defendants took steps to garnish her wages. Ms. Jack filed a motion to dismiss the Center Township of Marion County Small Claims Court action on May 19, 2009. On June 30, 2009, the Small Claims court vacated the judgment and dismissed the action against Ms. Jack.
On August 14, 2009, the Defendants mailed a letter to Ms. Jack stating that the three major credit reporting agencies had been instructed to remove the Midland Credit Management account from the Ms. Jack's credit file. On December 29, 2009, Ms. Jack contacted the three credit reporting agencies to find out why the negative and inaccurate information remained on her credit file. The credit reporting agencies stated that they had received nothing from the Defendants. Ms. Jack requested but has not received a copy of the letter sent to the credit agencies.
On February 15, 2010, Ms. Jack was denied a loan because of the inaccurate information on her credit report. On February 16, 2010, and again on April 8, 2010, Ms. Jack contacted the Defendants but received no response. The credit reporting agencies once again confirmed that they have not received the necessary documents from the Defendants to remove the information from Ms. Jack's credit reports.
Ms. Jack initiated this action in Small Claims court on May 6, 2010. The original complaint alleges that the Defendants Midland Credit Management and Bowman, Heintz, Roscia & Vician are indebted to the Plaintiff in the sum of $6,000.00 for "defamation, several FCRA violations, 97 FDCPA violations, willful injury, financial injury, FCRA, and negligence. She further alleges the Defendants repeatedly violated these laws and failed to report accurately." Dkt. 1-1.
Each of Ms. Jack's claims for relief, as set forth in the supplemental complaint, are discussed below.
Ms. Jack alleges a state law defamation claim against the Defendants as Defendants knowingly and repeatedly made false written and verbal statements to Ms. Jack's employees, co-workers, and family members which harmed her reputation and business and caused emotional distress. The Defendants argue for the first time in a footnote of their reply brief that a defamation claim was not alleged in the supplemental complaint and Ms. Jack failed to allege facts in support of that claim. This undeveloped argument is summarily rejected.
B.Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq. Ms. Jack alleges the Defendants violated the FCRA which governs the furnishing of information ...