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Grossman v. Trans Union, LLC

United States District Court, Third Circuit

January 21, 2014

TRANS UNION, LLC, ET AL., Defendants.



January 17, 2014 Currently pending in the aforementioned matter is Defendant Ocwen Loan Servicing, LLC’s (“Ocwen”) motion to dismiss Counts VI, IX, XI, and XIII of Plaintiff Charles Grossman’s (“Plaintiff”) Amended Complaint (ECF No. 30). Ocwen asserts that all four claims are preempted by the federal Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681, et. seq. For the reasons that follow, the Court grants Ocwen’s motion.


This action arises from Plaintiff’s disputes with Ocwen regarding a notation on Plaintiff’s credit reports that shows Plaintiff as paying under a partial payment agreement (“PPA”) for one of his Ocwen mortgage loan accounts. Pl.’s Mem. L. Supp. Resp. Opp’n Def.’s Mot. Dismiss 1, ECF No. 37-2 (“Resp. Opp’n”); Am. Compl. ¶ 19. Plaintiff asserts that the PPA notation is inaccurate and should have been deleted because of his forbearance agreement was terminated and he is current on his monthly loan payments. Resp. Opp’n 1.

Plaintiff specifically asserts that Ocwen furnished inaccurate information regarding Plaintiff’s loan account to the defendant credit reporting agencies Trans Union, LLC, Experian Information Solutions, Inc., and Equifax Information Services, LLC (collectively, “CRAs”). Id. He alleges that the PPA notation was repeatedly removed from and then reinserted into his credit reports since 2005. Id.; Am. Compl. ¶¶ 23, 24, 27, 29, 34, 35. According to Plaintiff, Ocwen oscillated between acknowledging that the PPA notation was a mistake and claiming that it was correct. Id. ¶¶ 26, 30, 32, 34.

Plaintiff claims that while Ocwen made the representation to him that his loan was to be placed in a “fresh start program” in 1996, to help reestablish his credit following his three-year forbearance period (1993-1996), this representation was false. Id. ¶ 48. Plaintiff alleges that Ocwen kept Plaintiff’s loan account in perpetual contractual delinquency by not capitalizing the $11, 000 in principal and interest accrued during Plaintiff’s three year forbearance period. Id. ¶ 49. Instead, Ocwen categorized the accrued principal and interest as “interest arrearage, ” keeping it in a separate suspended column on Plaintiff’s repayment log and applying only a small amount of Plaintiff’s monthly payments towards the interest arrearage, such that the arrearage would not be satisfied for several years. Id.

Plaintiff claims to have been disputing the aforementioned inaccurate information with Ocwen and the CRAs since 2005. Def.’s Mot. Dismiss 4, ECF No. 35. Plaintiff avers that Ocwen failed to conduct timely and reasonable investigations of his disputes. Id. at 5. He alleges that he has applied for and been denied various loans and extensions of consumer credit on many different occasions based on the allegedly inaccurate information in his credit report. Id. Lastly, Plaintiff alleges that his credit reports still indicate that he is paying under a PPA. Id.

Plaintiff’s amended complaint consists of thirteen counts against Ocwen and CRAs.[1] Ocwen moves to dismiss from Plaintiff’s Amended Complaint only Counts VI (Defamation); IX (Violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201.1 et. seq. (“CPL”));[2] XI (Negligence); and XIII (Invasion of Privacy/False Light), on the basis that these four state causes of action are preempted by federal law.


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, 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). A contention that a state law claim is preempted by federal law is properly attacked under the Rule 12(b)(6) standard. See, e.g, Van Veen v. AT&T Corp., No. 10-cv-1625, 2011 WL 4001004, at *2 (E.D. Pa., May 25, 2011) (granting in party a Rule 12(b)(6) motion to dismiss on the grounds that the plaintiff’s state law claim was preempted by federal law); Burrell v. DFS Servs., LLC, 753 F.Supp.2d 438, 440 (D.N.J. 2010).


Plaintiff agrees that his state statutory claim against Ocwen is preempted under § 1681t(b)(1)(F). See Resp. Opp’n 9. Therefore, the Court now must determine whether the FCRA’s preemptory effect likewise bans Plaintiff’s common law claims against Ocwen. For Ocwen to prevail in this motion to dismiss, the Court must find that § 1681t(b)(1)(F) carries a blanket preemption of both state statutory and common law claims. Plaintiff’s position is that § ...

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