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Marina Shap v. Capital One Fin. Corp.

March 30, 2012


The opinion of the court was delivered by: Rufe, J.


Plaintiff Marina Shap brings this action for alleged violations of the Fair Credit Reporting Act ("FCRA" or the "Act") *fn1 against Defendants Capital One Bank (USA), N.A. and Capital One Financial Corporation (collectively, "Capital One"). Before the Court is Capital One's Motion to Dismiss the Complaint. For the reasons that follow, the Motion will be granted in part and denied in part.


The facts alleged in the Complaint are assumed to be true for the purposes of the Motion to Dismiss. By letter dated April 5, 2011, Plaintiff notified Capital One that she disputed the information contained in her credit report that she owed $7,643 to Capital One. *fn2 She claimed that the balance was inflated and not supported by an existing contract, and requested that Capital One send her a copy of her initial contract with Capital One, her payment and balance history, and proof of the interest rate, late fees, and finance charges applied to her account. *fn3 Plaintiff received a letter dated April 12, 2011 in response, informing Plaintiff that her letter had been forwarded to the "appropriate department to address the matter." *fn4 Plaintiff then disputed the debt in writing "with the relevant credit bureaus." *fn5

Plaintiff avers that "one or more of the relevant credit bureaus" conducted an investigation into the disputed debt. *fn6 When contacted by the CRAs, Capital One verified the information regarding Plaintiff's account, but failed to state that the balance owed had been disputed by Plaintiff. *fn7 In Count One, Plaintiff alleges that Capital One's verification of the debt without notifying the CRAs that the account was disputed violated § 1681s-2(b) of the FCRA. In Count Two, Plaintiff alleges that Capital One's failure to investigate the dispute after it received Plaintiff's April 5, 2011 letter also violated § 1681s-2(b). Capital One moves to dismiss both counts.


Pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissal of a complaint for failure to state a claim upon which relief can be granted is appropriate where a plaintiff's "plain statement" lacks enough substance to show that she is entitled to relief. *fn8 In determining whether a motion to dismiss should be granted, the court must consider only those facts alleged in the complaint, accepting the allegations as true and drawing all logical inferences in favor of the non-moving party. *fn9 Courts are not, however, bound to accept as true legal conclusions couched as factual allegations. *fn10 Something more than a mere possibility of a claim must be alleged; rather the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." *fn11

The complaint must set forth "direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." *fn12 The court has no duty to "conjure up unpleaded facts that might turn a frivolous . . . action into a substantial one."


Congress enacted the FCRA in 1970 "to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy." *fn13 "The FCRA is intended 'to protect consumers from the transmission of inaccurate information about them, and to establish credit reporting practices that utilize accurate, relevant, and current information in a confidential and responsible manner.'" *fn14 The FCRA imposes duties not only on credit reporting agencies ("CRAs"), but also on those who, like Capital One, furnish information to such agencies. *fn15 For example, under 15 U.S.C. § 1681s-2, a furnisher has a duty to provide accurate information to CRAs and a "duty to conduct an investigation into the completeness and accuracy of the information furnished." *fn16 An individual may assert a private cause of action for violations of § 1681s-2(b), *fn17 which provides in relevant part that:

(b) Duties of furnishers of information upon notice of dispute

(1) In general. After receiving notice pursuant to section 1681i(a)(2) of this title of a dispute with regard to the completeness or accuracy of any information provided by a person to a consumer reporting agency, the person shall--

(A) conduct an investigation with respect to the disputed information;

(B) review all relevant information provided by the consumer reporting agency pursuant to section ...

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