United States District Court, W.D. Missouri, Western Division
Fernando J. Gaitan, Jr., United States District Judge.
pending before the Court is Defendant Sun Loan Company
Missouri, Inc.'s Motion to Dismiss (Doc. # 18);
Counsel's Motion to Withdraw as Attorney (Doc. # 20);
Plaintiff's Motion for Leave to File First Amended
Complaint (Doc. # 29) and the parties' Joint Motion for
Extension of Time to File Proposed Scheduling Order (Doc. #
initially filed a four count Complaint against Sun Loan
Company Missouri, Inc. (“Sun Loan”), Royal
Management Corporation, Equifax Information Services, LLC and
Experian Information Solutions, Inc. for violations of the
Fair Credit Reporting Act (hereafter “FCRA”), 15
U.S.C. §§ 1581, et seq. On September 20,
2011, plaintiff filed a Chapter 13 Bankruptcy in the Western
District of Missouri. Plaintiff had an unsecured loan with
Sun Loan that was discharged through plaintiff's Chapter
13 Plan. Plaintiff had three unsecured loans with defendant
Noble under the names of Merit Brokerage, National Finance
and Noble Finance that were also discharged in bankruptcy.
Plaintiff received her bankruptcy discharge on June 22, 2016.
On December 27, 2016, Plaintiff requested and reviewed her
credit reports from Equifax, Experian and Trans Union.
Through a review of these reports, plaintiff became aware
that the defendants were misreporting information on each of
her reports. On February 8, 2017, plaintiff sent letters with
her bankruptcy information to Experian disputing
defendants' incorrect reporting. Plaintiff alleges that
although defendants have removed some of the incorrect
information, her credit report still contains false
survive a motion to dismiss under 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to state a claim for relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007)). A pleading that merely pleads
“labels and conclusions” or a “formulaic
recitation” of the elements of a cause of action, or
“naked assertions” devoid of “further
factual enhancement” will not suffice. Id.
(quoting Twombly). “Determining whether a
complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. at 1950. Under Fed.R.Civ.P. 12(b)(6) we must
accept the plaintiff's factual allegations as true and
grant all reasonable inferences in the plaintiff's favor.
Phipps v. FDIC, 417 F.3d 1006, 1010 (8th
Motion to Dismiss/Motion to Leave to File Amended
Sun Loan states that in plaintiff's February 8, 2017
dispute letter, plaintiff requested that her information be
upgraded to show “$0 Balance, not $684, ” and
further “to show Discharged, not Account Charged off;
$684 written off; $819 past due.” Plaintiff further
requested the removal of the $819 past due amount, the $684
charge off amount and the negative history from date of
filing of September 20, 2011 to the present. Defendant states
that a copy of the report generated by Experian on March 24,
2017 is attached as Exhibit G to plaintiff's Complaint
and shows that everything that plaintiff requested regarding
her credit report was completed. Defendant argues that
plaintiff's Complaint should be dismissed because the
factual allegations do not give rise to an entitlement to
relief. Defendant argues that plaintiff's Complaint is
seeking to hold Sun Loan liable for something that Sun Loan
did not do.
response, plaintiff states that while Sun Loan corrected some
of the incorrect reporting, it failed to fully correct and
remove the negative charge off payment history that was
reported during plaintiff's Chapter 13 Bankruptcy and
after her discharge. Plaintiff states that the FCRA civil
liability rules make no exception for furnishers who violate
their obligations as part of the investigation procedures
pursuant to § 1681s-2(b). Plaintiff states that any
furnisher who negligently fails to comply with any of these
investigation requirements is liable to the consumer for
actual damages, the costs of litigation and attorney fees.
Plaintiff states that after receiving notice of a dispute
from a credit reporting agency, one of a furnisher's
duties is to review the information provided by the credit
reporting agency and conduct its own investigation of the
accuracy and completeness of the disputed information.
Plaintiff states that she has properly alleged a claim
against Sun Loan because she disputed the credit information
which Sun Loan had furnished showing that the debt was
charged off with a charge off balance of $684, a past due
balance of $819, an outstanding balance of $684, and a
negative charge off payment history reported from the date of
filing of September 20, 2011 to the present. Plaintiff
alleges that Sun Loan failed to take reasonable steps through
its investigation to fully and completely correct the
inaccurate information on her report. Thus, plaintiff alleges
Sun Loan subjected itself to liability under the FCRA by
failing to conduct a reasonable investigation.
Addie v. Ocwen Loan Servicing, LLC, No.
12-256(DWF/FLN), 2012 WL 2508024 (D.Minn. June 28, 2012), the
Court noted that the language of 15 U.S.C. § 1681(a)(2)
that a consumer reporting agency, upon receipt of
notice of a dispute from a consumer, promptly notify a
furnisher of information of the dispute. 15 U.S.C.
§1681i (a)(2)(A). Thus, in order for Plaintiff to state
a claim under section 1681s-2(b)(1) against Defendant (a
furnisher of information), Plaintiff must allege that a
credit reporting agency notified Defendant of the inaccurate
information, and that the furnisher of information failed to
take required action.
Id. at *3 (internal citations omitted). In
Obarski Assoc. Recovery Sys., No. CIV. A.
13-6041JLL, 2014 WL 2119739 (D.N.J. May 20, 2014), the Court
This Court has recognized that consumers have a private right
of action to enforce a furnisher's duty to investigate. .
. .Further, this Court has held that to state a claim under
[§ 1681s-2(b)], a plaintiff must plead that (1) she sent
notice of disputed information to a consumer reporting
agency, (2) the consumer reporting agency then notified the
defendant furnisher of the dispute, and (3) the furnisher
failed to investigate and modify the inaccurate information.
. . .Thus, § 1681s-2(b) provides consumers a cause of
action against furnishers of information that receive notice
of disputed ...