United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON DISTRICT JUDGE
matter is before the Court on the motion of defendant Green
Tree Servicing, LLC, to dismiss plaintiff's claims,
pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff has filed a
response in opposition and the issues are fully briefed.
Morlyne Young, who proceeds pro se, alleges that
defendant Ditech Financial, LLC, improperly reported negative
mortgage information that was entered in his credit reports.
Plaintiff filed suit asserting claims based on the Fair
Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681,
et seq., the Fair Debt Collection Practices Act
(FDCPA), 15 U.S.C. §§ 1692 et seq., the
Gramm-Leech-Bliley Act, 15 U.S.C. §§ 6801, et
seq., and the Dodd-Frank Wall Street Reform and Consumer
Protection Act of 2010 (Dodd-Frank), Pub.L. No. 111-203, 124
Stat. 1376 (2010) (codified in various sections of Titles 7,
12, and 15 of the U.S. Code). On April 14, 2016, the Court
dismissed plaintiff's claims under the Fair Credit
Reporting Act, the Gramm-Leech-Bliley Act, and the Dodd-Frank
Act, with prejudice, and plaintiff's FDCPA claim without
prejudice. [Doc. #15]. On June 8, 2016, plaintiff filed an
amended complaint asserting claims under the FDCPA and the
Missouri Merchandising Practices Act (MMPA), Mo.Rev.Stat.
§§ 407.010 et seq.
to the amended complaint, in April 2015, plaintiff applied to
the St. Louis County Partnership for a commercial loan in the
amount of $265, 000. The Partnership found a disqualifying
entry on plaintiff's credit report and declined to
process the loan application. When plaintiff reviewed his
credit report, he found a derogatory entry from defendant for
a debt on a mortgage. According to plaintiff, the debt
exceeded the seven-year statute of limitations and included
an additional $2, 300 fee that was not authorized by the
purpose of a motion to dismiss under Rule 12(b)(6) is to test
the legal sufficiency of the complaint. Fed.R.Civ.P.
12(b)(6). The factual allegations of a complaint are assumed
true and construed in favor of the plaintiff, “even if
it strikes a savvy judge that actual proof of those facts is
improbable.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 556 (2007) (citing Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 508 n.1 (2002)); Neitzke v.
Williams, 490 U.S. 319, 327 (1989) (“Rule 12(b)(6)
does not countenance . . . dismissals based on a judge's
disbelief of a complaint's factual allegations.”);
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (stating
that a well-pleaded complaint may proceed even if it appears
“that a recovery is very remote and unlikely”).
The issue is not whether the plaintiff will ultimately
prevail, but whether the plaintiff is entitled to present
evidence in support of his claim. Scheuer, 416 U.S.
at 236. A viable complaint must include “enough facts
to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570; see
id. at 563 (stating that the “no set of
facts” language in Conley v. Gibson, 355 U.S.
41, 45-46 (1957), “has earned its retirement”);
see also Ashcroft v. Iqbal, 556 U.S. 662, 678-84
(2009) (holding that the pleading standard set forth in
Twombly applies to all civil actions).
“Factual allegations must be enough to raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555.
ruling on a motion to dismiss, a court generally may not
consider matters outside the pleadings. Porous Media
Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)
(citations omitted). It may, however, consider matters of
public records, materials that do not contradict the
complaint, exhibits attached to the pleadings, and materials
necessarily embraced by the complaint. Mills v. City of
Grand Forks, 614 F.3d 495, 498 (8th Cir. 2010). In
conjunction with his opposition to Green Tree's motion to
dismiss, plaintiff has provided copies of his correspondence
with defendants and his credit reports. These materials are
necessarily embraced by the complaint and so the Court has
Plaintiff's MMPA Claim
argues that plaintiff's MMPA claim is preempted by a
provision of the FCRA, 15 U.S.C. § 1681t(b)(1)(F), which
prohibits state regulations on “any subject matter
regulated under Section 1681s-2.” Section 1681s-2, in
turn, regulates the responsibilities of furnishers of
information to consumer reporting agencies, including the
reporting of negative or inaccurate information.
Plaintiff's claims that defendant violated the MMPA by
improperly reporting the alleged mortgage debt are thus
preempted by the FCRA. Tyson v. Nationstar Mortgage,
LLC, No. 4:15CV00763 ERW, 2016 WL 3348400, at *7 (E.D.
Mo. June 16, 2016).
opposition to dismissal, plaintiff cites Sibley v.
Firstcollect, Inc., 913 F.Supp. 469, 473 (M.D. La.
1995), to support his contention that the FCRA does not
preempt his MMPA claim. At issue in Sibley was
whether the plaintiff could bring FDCPA claims based on a
debt collector's failure to comply with state licensing
requirements. The defendant argued that the FDCPA preempted
state-law licensing requirements. The court disagreed, citing
the plain language of 15 U.S.C. § 1692n, which
explicitly preserves the power of the states to regulate debt
collection practices, so long as the state laws are not
inconsistent with the FDCPA. However, the FCRA's
preemption provision is more restrictive than that of the
FDCPA and it explicitly preempts claims against furnishers of
information for reporting inaccurate information. This is the
very claim that plaintiff asserts here and the MMPA claim
must be dismissed.
Plaintiff's FDCPA Claims
generally alleges that defendant's debt collection
efforts and conduct abused him. Section 1692d prohibits
“conduct the natural consequence of which is to harass,
oppress, or abuse any person in connection with the
collection of a debt, ” including using threats or
profanity, placing repeated phone calls, or calling without
identifying the caller. Plaintiff has not identified any
conduct by ...