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Kevin Noel v. First Premier Bank and X

March 12, 2012

KEVIN NOEL, PLAINTIFF,
v.
FIRST PREMIER BANK AND X,Y,Z CORPORATIONS, DEFENDANTS.



The opinion of the court was delivered by: (judge Conaboy)

MEMORANDUM

Here we consider the Motion of Defendant, First Premier Bank to Dismiss Plaintiff's Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) or, in the Alternative, Motion for a More Definite Statement Pursuant to Fed. R. Civ. P. 12(e). (Def.'s Mem. Supp. Mot. to Dismiss, ECF Doc. 5.) A supporting brief is attached to the motion.*fn1 (Doc. 5 at 3-24.) On February 5, 2012, Plaintiff filed a brief in opposition to Defendant First Premier Bank's motion to dismiss. (Pl.'s Mem. Opp. Mot. to Dismiss, ECF Doc. 9.) Defendant filed a reply brief on February 17, 2012. (Def.'s Reply Br, ECF Doc. 12.) Therefore, this motion is fully briefed and ripe for disposition. For the reasons discussed below, we grant Defendant's motion.

I. Background

In his Complaint, Plaintiff alleges that Defendant First

Premier Bank ("Defendant") violated the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq., because it failed to mark Plaintiff's debt as disputed when reporting the results of a dispute investigation to one or more consumer reporting agencies. (Pl.'s Compl. ¶¶ 21-25, 42, Doc. 1 at 12, 16; Doc. 9 at 1-2.) Specifically Plaintiff asserts that Defendant violated 15 U.S.C. § 1681s-2(b). (Doc. 1 at 10; Doc. 9 at 4.)

According to Plaintiff, Defendant placed "derogatory information on Plaintiff's credit report against which Plaintiff has raised certain disputes." (Doc. 9 at 1.) Plaintiff reports the basis of his dispute was the amount of the balance, interest, finance charges and the existence of a contract to support the balance, interest rate and finance charges.*fn2 (Id.) Plaintiff contends that the amount of the balance, interest and finance charges were incorrectly stated on Plaintiff's report. (Id.)

Plaintiff states that he raised the disputed matters in writing with Defendant and his "disputes were very clear and precise." (Id.) Plaintiff further avers that Defendant did not respond to Plaintiff's written concerns or take action based on them. (Id. at 2.) Plaintiff contends that, because of Defendant's inaction, he attempted to dispute the information directly with the credit reporting agency. (Id.) He maintains that when the credit reporting agency contacted Defendant, Defendant verified the information to the agency but did not add that the account was in a disputed status. (Id.)

Defendant identifies certain exhibits attached to Plaintiff's Complaint: two letters from Plaintiff to Defendant dated December 17, 2010, and April 1, 2011; a letter from Defendant to Plaintiff dated January 10, 2011; a letter from Plaintiff to TransUnion (credit reporting agency) dated August 23, 2011; and a letter from TransUnion to Plaintiff dated October 14, 2011. (Doc. 5 at 5 (citing Defendant's Exhibits B-F).)

The correspondence dated December 17, 2007, identifies the account number with an alleged balance of $417. (Doc. 5 at 49.) The letter, titled "DISPUTE AND REQUEST FOR INVESTIGATION," states the following:

I wish to dispute the above referenced account. The charges are excessive and inflated and not warranted by any existing contract.

I am requesting proof of the alleged debt. I request a copy of the initial contract, and proof of late fees, interest, etc.

I am requesting an investigation of this account pursuant to the Fair Credit Reporting Act, 15 USC 1681 s-2.

This is a disputed account, and you must mark it as disputed on my credit report. (Doc. 5 at 49.)

On January 10, 2011, Defendant sent Plaintiff a letter informing Plaintiff that he could dispute the information directly with one of the listed consumer reporting agencies or directly with Defendant in writing. (Doc. 5 at 55.) If Plaintiff chose to dispute the information with Defendant, he was instructed that the "[w]ritten correspondence should include your name, account number, the specific information that is being disputed, an explanation for the basis of the dispute, and all supporting documentation or other information reasonably required to substantiate the basis of the dispute." (Id.) Plaintiff was further informed that, by example, the documentation may include "a copy of the relevant portion of the consumer report that contains the allegedly inaccurate information; a police report; a fraud or identity theft affidavit; a court order; or account statements." (Id.)

Another letter from Plaintiff to Defendant dated April 1, 2011, is substantively identical to Plaintiff's December 17, 2011, correspondence. (Doc. 5 at 51.)

On August 23, 2011, Plaintiff addressed a letter to Trans Union Corporation. (Doc. 5 at 53.) The letter, titled "DISPUTE AND REQUEST FOR INVESTIGATION," states the following:

I wish to dispute the above referenced account. The charges are excessive and inflated and not warranted by any existing contract.

I have requested proof of the alleged debt. I request a copy of the initial contract, and proof of late fees, interest, etc., from the original alleged creditor. I have requested proof of the balance from the alleged creditor. The alleged creditor has failed to produce any contract proof of the balance.

I am requesting an investigation of this account.

(Doc. 5 at 53.)

On October 14, 2011, TransUnion responded to Plaintiff, informing him that its "investigation of the dispute is now complete." (Doc. 5 at 57.) Although the letter states the results of the investigation are listed, some information is redacted and other is illegible. The letter states that "[i]f our investigation has not resolved your dispute, you may add a 100-word statement to your report." (Doc. 5 at 57.) The letter also states that if there was a change to Plaintiff's credit history resulting from TransUnion's investigation, or if Plaintiff added a consumer statement, he could request that TransUnion send an updated report to those who received his credit report within the last two years for employment purposes, or within the last one year for any other purpose. (Id.)

On December 13, 2011, Plaintiff filed this action in the Court of Common Pleas of Schuylkill County, Pennsylvania, asserting violations of the Fair Credit Reporting Act (specifically 15 U.S.C. § 1681s-2(b) et seq.). (Doc. 1 at 8-21.) Plaintiff claims actual damages in the amount of "$1.00 more or less," and also claims entitlement to $1,000.00 in statutory damages pursuant to 15 U.S.C. § 1681 et seq. and attorney fees. (Doc. 5 at 18-19.) Defendant removed the action to this Court on January 9, 2012. (Doc. 1.)

In response to the Complaint, Defendant filed the motion to dismiss under consideration here. (Doc. 5.) As noted above, the motion is now fully briefed and ripe for disposition.

II. Discussion

With this motion Defendant alternatively seeks dismissal of Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). (Doc. 5.) We will first address Defendant's motion to dismiss.

a. Motion to Dismiss Standard

In McTernan v. City of York, 577 F.3d 521, 530 (3d Cir. 2009), the Third Circuit Court of Appeals set out the standard applicable to a motion to dismiss in light of the United States Supreme Court's decisions Bell Atlantic Corp. v. Twombly, 550 U.S. 433 (2007), and Ashcroft v. Iqbal, 566 U.S. 662, 129 S. Ct. 1937 (2009).

"[T]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true to 'state a claim that relief is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). The Court emphasized that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. Moreover, it continued, "[d]etermining whether a complaint states a plausible claim for relief will . . . be a ...


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