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Owens v. Central Trust Bank

United States District Court, W.D. Missouri, Southern Division

November 5, 2014

TERRY D. OWENS, Plaintiff,
CENTRAL TRUST BANK, et al., Defendants.


DOUGLAS HARPOOL, District Judge.

Before the Court is the Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. 49) for failure to state a claim. The Court, after careful consideration, GRANTS IN PART AND DENIES IN PART Defendants' motion.


On February 24, 2014, the Court granted Plaintiff leave to proceed with the present case in forma pauperis. Defendants filed a motion to dismiss the complaint. On April 30, 2014, in response to Defendants' motion to dismiss, the Court granted Plaintiff thirty (30) days to file an amended complaint in order to comply with the pleading requirements under the Federal Rules of Civil Procedure. Plaintiff filed a First Amended Complaint on May 19, 2014. Defendants again filed a motion to dismiss. On August 18, 2014, the Court sustained Defendants' second motion to dismiss and allowed Plaintiff one last opportunity to address the deficiencies in his complaint. Plaintiff filed a Second Amended Complaint on September 16, 2014. Defendants now seek to dismiss Plaintiff's Second Amended Complaint for failure to state a claim.


"To survive a motion to dismiss [under 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint is facially plausible where its factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The plaintiff must plead facts that show more than a mere speculation or possibility that the defendant acted unlawfully. Id .; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While the Court accepts the complaint's factual allegations as true, it is not required to accept the plaintiff's legal conclusions. Ashcroft, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

The reviewing court must read the complaint as a whole rather than analyzing each allegation in isolation. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009). While "pro se complaints are to be construed liberally, " the Court "will not supply additional facts, nor will [it] construct a legal theory for plaintiff that assumes facts that have not been pleaded." Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004), quoting Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989).


Plaintiff pleaded sufficient facts to state a plausible claim under the Fair Credit Reporting Act (FCRA). Although the Second Amended Complaint remains disorganized, continues to assert arguments struck down by the Court, and contains over 250 pages of exhibits, the Court finds the Second Amended Complaint contains sufficient factual allegations, accepted as true, to state a plausible claim under 15 U.S.C. § 1681s-2(b) against the bank defendants.[1]

A. Claims under Section 1681s-2(b) against Bank Defendants

As stated in the Court's Order dated August 19, 2014 (Doc. 41), a furnisher of credit information has a duty to investigate the accuracy of reported information when it receives of a notice of dispute from a credit reporting agency, as stated in 15 U.S.C. § 1681s-2(b). Plaintiff's complaint previously failed to: (1) allege sufficient facts to infer Defendants' duties were triggered through receipt of a notice of dispute from a credit reporting agency, and (2) describe the purportedly incomplete or inaccurate information that was furnished by Defendants. The Second Amended Complaint provides sufficient additional information to cure the previous deficiencies.

The Second Amended Complaint alleges that Plaintiff had a credit card through Boone County National Bank, that Plaintiff noticed his credit card was used by someone else, that Defendants reported to credit reporting agencies that Plaintiff's credit card account was in default even though Defendants knew Plaintiff was not obligated to pay the debt, and that Plaintiff reported the associated errors in his credit report to the credit reporting agencies. See Second Am. Compl. ¶¶ 20-23. Plaintiff's exhibits further show that the credit reporting agencies investigated Plaintiff's disputed information and verified the debt. See Pl.'s Exs. 5, 11, 18, 27. Defendants allegedly failed to conduct an investigation and modify the erroneous or inaccurate information from Plaintiff's credit report. See Second Am. Compl. ¶¶ 69 (p. 7), 53 (p.11-12).

Accepting these factual allegations as true, the Court finds that Plaintiff sufficiently states a claim under section 1681s-2(b). Plaintiff alleges the bank defendants reported a debt to the credit reporting agencies that Plaintiff did not legitimately owe because someone fraudulently used his credit card; Defendants supposedly knew Plaintiff did not owe the debt. Accepting these allegations as true, the Court can plausibly infer that incomplete or inaccurate information that was furnished by the Defendants to credit reporting agencies. Cf. Green v. First Premier Bank, No. CIV. 11-4039-KES, 2011 WL 5837265, at *3 (D.S.D. Nov. 21, 2011) (holding Plaintiff failed to state claim where he alleged reporting of "invalid debt" but did not allege he paid the debt or any other facts suggesting that he did not legitimately owe the debt reported by the bank).

Furthermore, Plaintiff reported the alleged error to three credit reporting agencies, which verified the debt. These allegations and the Plaintiff's exhibits sufficiently infer an allegation that the bank defendants received the triggering notice required under section 1681s-2(b). See Lee v. Wells Fargo Home Mortgage, No. 11-0633-CV-W-HFS, 2011 WL 5025877, at *2 (W.D. Mo. Oct. 21, 2011) ("Had plaintiffs alleged that they themselves notified a credit reporting agency of the dispute, further discovery might be in order. Here, however, there is no such allegation."); see also Young v. LVNV Funding, LLC, No. 4:12CV01180AGF, 2012 WL 5508407, at *3 (E.D. Mo. Nov. 14, 2012) (supporting the view ...

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