United States District Court, W.D. Missouri, Western Division
FERNANDO J. GAITAN, JR. UNITED STATES DISTRICT JUDGE
before the Court is Defendant's Motion to Dismiss Count
II (Doc. No. 7).
Margarida Carter and Donnie Carter bring a three-count
petition against Bank of America, N.A. Plaintiffs assert they
held credit card accounts with Bank of America, N.A. (BANA).
In December 2012 or January 2013, plaintiffs assert they
received notice that BANA was releasing the debt and
reporting the same to the Internal Revenue Service.
Plaintiffs allege they paid taxes that they were obligated to
pay as a result of this debt cancellation. They then allege
that sometime after May 2015, they discovered that BANA was
still reporting the debt to various Credit Reporting Agencies
(CRAs) as well as others, and that they filed disputes with
the CRAs. They further allege that BANA continued to report
the debt in error after their filing of disputes over the
debt. Count I of the Complaint asserts a claim for
Declaratory and Injunctive Relief under §§ 527.010
and 407.025.1 R.S.Mo. Count II of the Complaint asserts a
claim for Violations of § 407.020 R.S.Mo. (the Missouri
Merchandising Practices Act, hereinafter “MMPA”).
Count III alleges a claim for Negligent and/or Willful
Violation of 15 U.S.C. § 1681s-2 (the Fair Credit
Reporting Act, hereinafter “FCRA”). Plaintiffs
indicate, with respect to Count II of the Petition, that
defendant made various inaccurate assertions to Plaintiffs,
the IRS, and plaintiffs' counsel (in addition to CRAs)
regarding whether it was continuing to pursue collection
efforts. See Petition, paragraphs 9-10, 14-16,
43-45. Plaintiffs assert that under the MMPA, defendant's
policies are unconscionable.
asserts that, under a careful reading of the complaint, all
of plaintiffs' claims in Count II are related to
defendant's alleged reporting of plaintiffs' debts to
credit reporting agencies (“CRAs”), and the FCRA
preempts all state law claims related to reports to CRAs.
Plaintiffs assert that defendant is too narrowly reading
pleading standard Rule 8 announces does not require
‘detailed factual allegations, ' but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
677-678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, (2007)). In order for a
claim to survive a motion to dismiss, ‘a complaint must
contain sufficient factual matter, accepted as true, to
"state a claim to relief that is plausible on its
face.'” Iqbal, 556 U.S.at 677-678.
asserts that the only factual allegations in plaintiffs
complete relate to inaccurate credit reporting, and therefore
plaintiff's claim is preempted by the FCRA. Defendant
notes that the FCRA is one of the statutes that
“unmistakably” preempts state law. Pursuant to
the FCRA: No requirement or prohibition may be imposed under
the laws of any State - (1) with respect to any subject
matter regulated under... (F) Section 1681s-2 of this title,
relating to the responsibilities of Persons who furnish
information to consumer reporting agencies, except [for two
inapplicable exceptions] …. 15 U.S.C. §
1681t(b)(1)(F). Missouri federal courts have held that MMPA
claims regarding furnishing of alleged improper information
to the major credit reporting agencies are preempted by the
FCRA. See Glanzer v. Bank of Am., N.A., No.
14-0298-CV-W-REL, 2014 WL 6604788 (W.D. Mo. Nov. 20, 2014) (a
claim seeking liability under state law for a creditor who
supplies inaccurate credit reporting information is preempted
by the FCRA); El Bey v. Receivables Performance Mgmt.,
LLC, No. 14-1820-CV-W-FJG, 2015 WL 196327 at *3 (W.D.
Mo. Jan. 15, 2015) (noting that MMPA claims in regard to
credit reporting practices would be preempted by the FCRA).
states that the plaintiffs' Petition is based solely on
allegations that defendant reported inaccurate information
about plaintiffs' account to CRAs. The Petition alleges
that defendant's actions were “unfair and
unconscionable” because defendant is “obligated
to provide accurate and truthful information to the IRS,
Plaintiffs and similarly situated consumers . . ., ”
and that “BoA had sufficient documentation and evidence
to know that Plaintiffs did not owe the Debt but BoA decided
to continue asserting that Plaintiffs did owe the Debt . . .,
” and also that BANA's actions “subject
consumers-like Plaintiffs-to foreseeable, inconsistent
adjudications of the status of their debts: the IRS considers
the debts waived of canceled, but BoA treats these debts as
still owed in some contexts.” (Petition, ¶¶
47-49). Defendant then goes on to note that the only context
in which the petition pleads that defendant treats the debts
as owed is at paragraphs 15-22, wherein the complaint alleges
that defendant continued to report a balance owed on
Plaintiffs' account to the CRAs. (See Petition,
¶¶ 15-22). Defendant argues that plaintiffs to not
allege that defendant sent collection letters, made phone
calls to collect on the debt, or attempted to sell or
transfer the debt. Therefore, defendant argues that Count II
is preempted by the FCRA and must be dismissed.
response, plaintiffs argue that the pending motion fails for
three reasons: (1) it fails to assume all well-pled facts as
true; (2) the Eighth Circuit recognizes that the FCRA does
not preempt laws that regulate debt collection (McIvor v.
Credit Control Services, Inc., 773 F.3d 909, 914-15 (8th
Cir.2014)); and (3) the FCRA allows state actions to survive
a motion to dismiss when plaintiffs (as here) allege malice
or willful intent. Glanzer v. Bank of Am., N.A., No.
14-0298-CV-W-REL, 2014 WL 6604788 (W.D. Mo. Nov. 20, 2014).
Plaintiffs compare their case to Wenner v. Bank of
America, N.A., 637 F.Supp.2d 944 (D. Kan. 2009), wherein
the Court found that “To the extent the claim does not
rest on the furnishing of information by a bank to a [Credit
Reporting Agency], the [state law] claim is not preempted by
the FCRA claim. Id. at 956. Here, plaintiffs argue
that they have stated in their petition that defendant made
reports to parties other than the CRAs, so at the very least,
those claims are not preempted by the FCRA. Defendant argues
in reply that these claims are pled as legal conclusions
rather than facts and the Court should pay no attention to
them; however, the Court finds that these allegations should
be considered as facts rather than legal conclusions. On this
basis, the motion to dismiss should be denied. Similarly, the
Court further finds that plaintiffs' petition
sufficiently asserts that certain of defendant's
communications were related to enforcement of the debt, and
intended to induce payment of the debt. Accordingly, the
Court finds that the motion to dismiss should be
for the foregoing reasons, Defendant's Motion to Dismiss
(Doc. No. 7) is DENIED.