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Mariusz G. Jarzyna v. Home Properties

February 4, 2011


The opinion of the court was delivered by: Eduardo C. Robreno, J.



Mariusz G. Jarzyna ("Plaintiff") has brought a five count complaint against Home Properties, L.P. ("L.P.") and Fair Collections and Outsourcing, Inc. ("FCO") (collectively, "Defendants"). Count I of Plaintiff's complaint is asserted against FCO only and alleges violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCRA"). Counts II thru V are against both FCO and L.P. Count II alleges a violation of the Federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"). Count III alleges a violation of Pennsylvania's Fair Credit Extension Uniformity Act, 73 Pa. Cons. Stat. Ann. § 2270 et seq. ("FCEU"). Count IV alleges a violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 Pa. Cons. Stat. Ann. § 201-1 et seq. ("UTPCPL"). Count V alleges a violation of 18 Pa. Cons. Stat. Ann. § 7311.


Plaintiff brings this action against Defendants L.P and FCO on behalf of himself and others similarly situated. Defendant L.P is owned by Home Properties, Inc. Home Properties, Inc. conducts its business in Pennsylvania through L.P. Defendant L.P. is the management entity appointed by Home Properties, Inc. to manage and administer the Glen Brook Apartments in Glendon, PA ("Glen Brook"). Defendant FCO is a national debt collection company and consumer reporting agency ("CRA"). (Amended Compl. ¶ 5-18.)

Plaintiff alleges that he resided at Glen Brook pursuant to a lease agreement with L.P. Plaintiff was subjected to L.P.'s and FCO's tenant screening process. At the end of the lease's stated tenancy, Plaintiff retained possession of the apartment and converted his lease to a month-to-month lease. On September 1, 2009, Plaintiff gave the required one month's notice stating that he planned to vacate on October 1, 2009. Defendant L.P. worked with Plaintiff and tried to make him a deal on another apartment, but this deal fell through. When this deal fell through, Plaintiff again put in his notice.

On October 23, 2009, after giving his second notice, Plaintiff received a late notice under his door with a balance due of $1,300. (Id. at Exh. D.) On October 31, 2009, Plaintiff tendered the apartment back. On November 1, 2009, Plaintiff checked his online balance with Glen Brook and learned that his balance increased to $2,200. Additionally, Defendant L.P. failed to send Plaintiff an accounting of his $500.00 security deposit within the statutorily prescribed 30-day period. As a result of this delay, Plaintiff alleges that L.P. waived any right to claim and/or collect this money under the lease agreement. (Id. at ¶ 47-56.)

On June 21, 2010, L.P. contacted Plaintiff via FCO. Plaintiff received a collection letter from FCO for alleged non-payment of a "past due account" in the amount of $1,897.92. (Id. at Exh. E.) On July 17, 2010, Plaintiff timely sent a letter to FCO disputing the debt and asking for verification. (Id. at Exh. F.) Despite Plaintiff's letter, Defendant FCO continued its collection actions. On July 23, 2010, FCO furnished Plaintiff with an invoice from Glen Brook as purported verification. (Id. at Exh. G.) Then, on July 28, 2010, FCO called Plaintiff's cell phone in an effort to collect the debt and also contacted his relatives seeking information as to Plaintiff's location. (Id. at ¶ 57-61.)

Plaintiff alleges that FCO creates and furnishes information for its clients (i.e., property managers such as L.P.), and it does this as an active contributor and member of the National Multifamily Housing Council ("NMHC") and in accordance with NMHC's promulgation of Multifamily Information and Transactions Standards ("MITS"). A MITS Standard is a set of definitions and rules to facilitate the automatic transfer of data between different types of software packages that are used regularly by owners and managers of multifamily real estate projects. (Id. at ¶ 14.)

Plaintiff states that pursuant to MITS, L.P. and FCO utilize standard, automated platforms to perform resident screening and collection activities. When a tenant comes to L.P. or any other FCO client seeking to rent an apartment, the tenant fills out an "application" which is then entered into the property managers' (i.e., L.P.'s) system and software. This information is then transmitted pursuant to a common MITS Standard to FCO. FCO's computer systems then trace personal identifiers against data compiled by other MITS participants in combination with data obtained from other CRAs such as Equifax, Experian, and TransUnion. The end result of FCO's efforts is what FCO and the industry have labeled a "Credit Report."

By regularly compiling and selling such "Credit Reports" for a fee or through dues or other cooperative basis, FCO operates as a CRA. (Id. at ¶ 20-29.) The FCRA regulates the collection, maintenance, and disclosure of consumer report information by CRAs. Despite the fact that Defendant FCO assembles and compiles consumer information in the form of its Credit Report for distribution and sale to apartment complex owners and managers and other business entities on a regular basis nationwide, FCO does not provide to consumers disclosure of all of the information in FCO's files that pertain to those consumers. Nor does FCO disclose to consumers the notice of their rights under the FCRA. (Id. at ¶ 32.)

In sum, Plaintiff alleges that he is a "consumer," that FCO and L.P. are "debt collectors," and that each was attempting to collect a "debt" under the FDCPA. Moreover, Plaintiff alleges that FCO is both a "furnisher" and a "credit reporting agency" under the FCRA. Based on these classifications, Plaintiff argues that both Defendants violated federal and state law.


Both Defendants have filed motions to dismiss based on Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Court will first address Defendant FCO's motion and then it will discuss L.P.'s motion.

A. Legal Standard for Motion to Dismiss In considering a motion to dismiss for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), the court must "accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party." DeBenedictis v. Merrill Lynch & Co., Inc., 492 F.3d 209, 215 (3d Cir. 2007) (internal citations omitted). In order to withstand a motion to dismiss, a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 & n.3 (2007). This "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555 (internal citation omitted). Although a plaintiff is entitled to all reasonable inferences from the facts alleged, a plaintiff's legal conclusions are not entitled to deference and the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986) (cited with approval in Twombly, 550 U.S. at 555).

The pleadings must contain sufficient factual allegations so as to state a facially plausible claim for relief. See, e.g., Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009). A claim possesses such 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.'" Id. (quoting Ashcroft v. Iqbal, ---U.S. ----, 129 S.Ct. 1937, 1949 (2009)). In deciding a Rule 12(b)(6) motion, the court is to limit its inquiry to the facts alleged in the complaint and its attachments, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents. See Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

B. FCO's Motion to Dimiss*fn2

With this standard of review in mind, the Court turns to consider the merits of Defendant FCO's motion to dismiss.

1. Count I - Violations of the FCRA Count I of Plaintiff's complaint alleges violations of the FCRA. In particular, Plaintiff claims that Defendant FCO violated the FCRA by negligently, willfully, and/or recklessly engaging in certain conduct (i.e., utilizing credit reports for purposes other than those contemplated under the FCRA). FCO argues that an examination of each of the claims demonstrates that Plaintiff has failed to allege that FCO, an alleged CRA, engaged in any conduct that was directed at Plaintiff. Further, FCO argues that Plaintiff did not make any request or demand on FCO that would require a response thus triggering the requirements of the FCRA.

Plaintiff has alleged facts that, if true, would establish that FCO is a CRA subject to various provisions in the FCRA. For example, in Plaintiff's complaint, Plaintiff points out that FCO refers to one of the products it regularly prepares and sells as a "Credit Report." (Amended Compl. ¶ 1.) Moreover, in Plaintiff's response to Defendant FCO's motion to dismiss, Plaintiff cites language on FCO's website explicitly describing FCO as "an approved credit reporting agency." (Doc. no. 36 at 31.) Based on Plaintiff's allegations and for purposes of adjudicating this motion to dismiss, the Court finds that FCO is a CRA.*fn3

As a CRA, FCO is subject to the disclosure, investigation, reinvestigation, and dispute resolution requirements of the FCRA. Plaintiff has alleged facts that, if true, establish that FCO has not abided by the requirements set forth in the FCRA. In paragraphs 30-34 of Plaintiff's amended complaint, Plaintiff specifically alleges that FCO does not disclose to consumers all the information in FCO's files that pertain to those consumers nor does it even disclose to those consumers that it is operating and functioning as a CRA. Additionally, when a consumer disputes the completeness or accuracy of any information contained in a credit report, the CRA must conduct a reasonable reinvestigation. Cushman v. Trans Union Corp., 115 F.3d 220, 223-24 (3d Cir. 1997). The FCRA requires the CRA to do more than verify a debt with the original source. Dixon-Rollins v. Experian Info. Solutions, Inc., et al., No. 09-0646, 2010 WL ...

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