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Evan v. Bank of America Corporation

United States District Court, N.D. Indiana, Hammond Division

March 6, 2014

GEORGE A. EVAN, Plaintiff,
v.
BANK OF AMERICA CORPORATION, PORTFOLIO RECOVERY ASSOCIATES LLC, and EXPERIAN INFORMATION SOLUTIONS INC. Defendants.

OPINION AND ORDER

JOSEPH S. VAN BOKKELEN, District Judge.

Defendants Bank of America Corporation ("BAC")[1] and Portfolio Recovery Associates LLC ("PRA") have filed separate motions to dismiss pro se Plaintiff George A. Evan's claims against them as set out in his second amended complaint ("complaint") (DE 47). Evan has filed a consolidated response to which BAC and PRA have filed separate replies. The motions are ripe for decision.

A. Standard for Evaluating a Motion to Dismiss

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim is to test the sufficiency of the pleading, not to decide the merits of the case. See Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). Federal Rule of Civil Procedure Rule 8(a)(2) provides that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." However, "recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 661, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))[2]. As the Supreme Court has stated, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. Rather, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). A complaint is facially plausible if a court can reasonably infer from factual content in the pleading that the defendant is liable for the alleged wrongdoing. Id. (citing Twombly, 550 U.S. at 570). To be plausible, a complaint must provide enough facts to raise a reasonable expectation that discovery will reveal evidence supporting the plaintiff's allegations. See Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). The Seventh Circuit has synthesized the standard into three requirements. See id. "First, a plaintiff must provide notice to defendants of her claims. Second, courts must accept a plaintiff's factual allegations as true, but some factual allegations will be so sketchy or implausible that they fail to provide sufficient notice to defendants of the plaintiff's claim. Third, in considering the plaintiff's factual allegations, courts should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id.

B. Plaintiff's Complaint

Evan's claims against BAC and PRA involve alleged violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq.. According to Evan, since about 2004 BAC has been reporting unspecified derogatory information regarding an account he refers to as Account 1 to the three major credit reporting agencies, TransUnion LLC, Experian Information Solutions Inc., and Equifax Information Services LLC ("CRAs"). Since January 1, 2006 BAC has also been reporting derogatory information regarding an account he refers to as Account 2 to the CRAs. This derogatory information appears on his credit reports. In 2008 BAC "sold the alleged debt" of both accounts to PRA, whereupon PRA continued reporting derogatory information regarding the accounts to the CRAs, but stopped reporting derogatory information regarding Account 2 in January 2012.

Evan alleges that beginning sometime in 2010 he attempted to dispute the derogatory information in his credit report because it is more than seven years old, which, he alleges, is a violation of 15 U.S.C. § 1681c, and because it is inaccurate and cannot be verified, which he alleges is a violation of 15 U.S.C.§ 1681s-2(b). He states that his last notice of dispute was directed to the CRAs on January 8, 2013.

C. Defendants' Arguments

Defendant BAC first argues that Evan has failed to state a claim against it because 15 U.S.C. § 1682c applies only to credit reporting agencies and it is not a credit reporting agency, but a furnisher of information to credit reporting agencies.[3] Quoting from Evan's response to BAC's motion to dismiss his original complaint, BAC further contends that the basis for his claim against it is that it improperly reported information that is more than seven years old, which is forbidden by 15 U.S.C. § 1681c(a). However, it maintains that § 1681c cannot be the basis for a claim under § 1681s-2(b). Next, BAC asserts that, even if Evan had a claim under § 1681s-2, it is now barred by the statute of limitations found in § 1681p. Finally, BAC contends that Evan fails to state a claim under § 1681s-2(b) because he does not allege that a credit reporting agency notified it, pursuant to § 1681i(a)(2), that Evan was disputing the completeness or accuracy of an item of information.

Defendant PRA also insists that Evan has failed to state a claim against it under § 1681c, that his claims are time-barred, and that his § 1681s-2(b) claim fails because he did not allege that PRA received notice of a dispute from a consumer reporting agency. In addition PRA argues that Evan has not properly pleaded damages.

D. Discussion

(1) § 1681c Claims

The Court agrees that Evan fails to state a claim for relief against BAC and PRA under § 1681c. That section forbids consumer reporting agencies from including certain items of information in consumer reports. Evan has alleged no facts to plausibly suggest that the ...


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