Pugh v. Corelogic Credco, LLC, No. 8:2013cv01602 - Document 14 (D. Md. 2013)

Court Description: MEMORANDUM OPINION (c/m to Plaintiff 10/16/13 sat). Signed by Chief Judge Deborah K. Chasanow on 10/16/13. (sat, Chambers)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : DAVID R. PUGH : v. : Civil Action No. DKC 13-1602 : CORELOGIC CREDCO, LLC : MEMORANDUM OPINION Presently pending and ready for resolution in this action alleging violations of 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 Maryland Consumer Debt Collection Act ( MCDCA ), Md. Code Ann., Com. Law, § 14-201 et seq.,1 and the Maryland Consumer Protection Act ( MCPA ), Md. Code Ann., Com. Law §§ 13-101 et seq., is a motion to dismiss filed by Defendant Defendant ). Corelogic (ECF No. 12).2 Credco, LLC. ( Corelogic or The issues are fully briefed, and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the following reasons, Defendant s motion will be granted. 1 Plaintiff refers to this statute as the Maryland Fair Debt Collection Practices Act in the complaint. 2 Although Defendant styles the motion as a motion to dismiss, it is actually a motion for judgment on the pleadings because Defendant answered the complaint prior to the motion. I. Background A. Factual Background3 David R. Pugh ( Plaintiff ), proceeding pro se, has sued Corelogic for damages resulting from a hard pull of his credit report on August 23, 2012 that allegedly reduced his credit score and resulted in credit denials, inability to apply for credit, mental anguish and emotional distress. 7, 11).4 From the limited information in (ECF No. 2 ¶¶ the complaint, Plaintiff seems to allege that Corelogic attempted to collect a debt from him which Defendant knew, or should have known, could not be done unregistered legally, alias to (Id. obtain ¶ 11), Plaintiff s Experian, a credit reporting agency. Plaintiff asserts that and Corelogic used an credit (Id. ¶ 9). uses multiple illegal report or from Specifically, aliases in conducting business, including: CREDCO, INC.; CORELOGIC CREDCO, LLC; FIRST AMERICAN CREDCO; FIRST AMERICAN CREDCO, INC.; FIRST ADVANTAGE CREDCO, LLC; and CREDCO/ONETECHNOLOGIES. (Id. ¶ 10). Plaintiff the maintains CREDCO/ONETECHNOLOGIES 3 that Defendant impermissibly to used obtain alias Plaintiff s The facts are drawn from the complaint. 4 A hard pull is a full credit inquiry conducted when someone applies for a loan or line of credit. See Harkins, Jr. v. Diversified Collection Services, Inc., No. PJM 12-1229, 2012 WL 5928997, at *1 n.1 (D.Md. Nov. 26, 2012). It has been said that each hard pull can result in the reduction of a credit score by up to five points. Id. 2 credit report. Defendant s (Id.). Finally, registration to conduct Plaintiff business contends in that Maryland has been cancelled and Defendant has willfully ignored the law in obtaining Plaintiff s credit report. (Id. ¶ 8). B. Procedural Background On April 24, 2013, Plaintiff commenced this action in the District Court of Maryland for Prince George s County. 2). (ECF No. In the complaint, Plaintiff asserted that Corelogic did not have a permissible purpose for pulling his credit report and therefore violated the FCRA, 15 U.S.C. § 1681b. Plaintiff further alleged that Corelogic violated 15 U.S.C. § 1681q by knowingly and pretenses. willfully obtaining information under false Plaintiff also averred that Defendant violated the FDCPA, 15 U.S.C. § 1692 et seq., the MCDCA, Md. Code Ann., Com. Law § 14-201 et seq., and the MCPA, Md. Code Ann., Com. Law § 13-301 et seq. Defendant removed the action to this court on June 3, 2013, citing federal basis. question (ECF No. 1). jurisdiction as the jurisdictional On the same date, Defendant filed a Notice of Intent to Defend, which is equivalent to an answer to Plaintiff s complaint. (ECF No. 4). dismiss on June state a the Plaintiff granted complaint failed for all to of the 10, claim claims 3 Defendant then moved to 2013, on upon which asserted. the ground relief (ECF that can No. be 12). Plaintiff was provided with a Roseboro notice, which advised him of the pendency of the motion and his entitlement to respond within seventeen (17) days from the date of the letter. Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (holding pro se plaintiffs responsive should material to be a advised motion of their for Plaintiff did not oppose the motion. right summary to file judgment).5 Given that the time for Plaintiff to file an opposition has elapsed, this matter is now ripe for resolution. II. Standard of Review Federal Rule of Civil Procedure 12(c) provides that [a]fter the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings. Under the circumstances presented here, the motion is governed by the same standard governing motions to dismiss for failure to state a claim under Rule 12(b)(6). Burbach Broad Co. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002). The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. Charlottesville, 464 F.3d 480, 483 (4th Presley v. City of Cir. 2006). A plaintiff s complaint need only satisfy the standard of Rule 8(a), which requires a short and plain statement of the claim 5 The record reflects that a Roseboro notice was sent to Plaintiff on June 10, 2013. (ECF No. 13). 4 showing that the pleader is entitled to relief. 8(a)(2). Fed.R.Civ.P. Rule 8(a)(2) still requires a showing, rather than a blanket assertion, of entitlement to relief. Bell. Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007). must consist of more than a formulaic That showing recitation of the elements of a cause of action or naked assertion[s] devoid of further factual enhancement. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). At this stage, all well-pled allegations in a complaint must be considered as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and all factual allegations must be construed in the light most favorable to the plaintiff, see Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). In evaluating the complaint, unsupported legal allegations not need be accepted. Revene Comm rs, 882 F.2d 870, 873 (4th Cir. 1989). v. Charles Cnty. Legal conclusions couched as factual allegations are insufficient, Iqbal, 556 U.S. at 678, as are conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). Francis v. [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, 5 but it has not show[n] . . . that the pleader is entitled to relief. 8(a)(2)). Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. Thus, [d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing experience and common sense. court to draw on its judicial Id. III. Analysis A. FCRA Claim (Count I) The sparse factual state an FCRA claim. willfully obtained allegations in the complaint do not Plaintiff merely asserts that Defendant his consumer report under false pretenses without a permissible purpose in violation of Sections 1681b and 1681q. (ECF No. 2 ¶ 15). Congress enacted the FCRA to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy. U.S. 47, 52 (2007). Safeco Ins. Co. of Am. V. Burr, 551 The FCRA imposes civil liability on any person defined to include any corporation or other entity, see 15 U.S.C. § 1681a(b) who willfully or negligently fails to comply with its requirements. Ausherman v. Bank of Am. Corp., 352 F.3d 896, 899-900 (4th Cir. 2003); see also 15 U.S.C. §§ 1681n, 1681o. Section 1681b(f) prohibits persons from us[ing] or obtain[ing] a consumer report for any purpose unless that 6 purpose is expressly authorized by the FCRA.6 To state a claim for consumer an improper use or acquisition of a report, Plaintiff must plead the following elements: (1) that there was a consumer report; (2) that Defendant used or obtained it; (3) that Defendant did so without a permissible statutory purpose; and (4) that Defendant acted with the specified culpable mental state. 5880280, Suit v. Direct TV, LLC, No. 12-cv-1784-JKB, 2012 WL at *1 (D.Md. Nov. 20, 2012); Shepherd Salgado v. Tyndall Fed. Credit Union, No. 11 Civ. 0427 (WS-B), 2011 WL 5401993, at *3 (S.D.Ala. Nov. 7, 2011); McFarland v. Bob Saks Toyota, Inc., 466 F.Supp.2d 855, 867 (E.D.Mich. 2006).7 Plaintiff must plead facts to support each element of his claim in order to survive a motion to dismiss. The allegations contained in Plaintiff s complaint do not provide sufficient notice to Defendant as required by Rule 8(a)(2) and as articulated in Ashcroft v. Iqbal, 556 U.S. 662 6 Section 1681q provides for damages when any person knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses. 15 U.S.C. § 1681q. The standard for determining when a consumer report has been obtained under false pretenses will usually be defined in relation to the permissible purposes of consumer reports which are enumerated in 15 U.S.C. § 1681b. Hansen v. Morgan, 582 F.2d 1214, 1219 (9th Cir. 1978). 7 To prevail on the theory of willful violation of the FCRA, the plaintiff must show that the defendant knowingly and intentionally committed an act in conscious disregard for the rights of the consumer. Ausherman, 352 F.3d at 900 (internal citations omitted). 7 (2009). Instead, Plaintiff simply recites elements of potential causes of action under the FCRA, but provides no factual and contextual information about Defendant s alleged violation. Because Plaintiff has failed to provide any facts giving rise to a plausible claim that Defendant violated the FCRA negligently, much less willfully, Plaintiff has not met his pleading burden. B. FDCPA Claim (Count II) Plaintiff also alleges that Defendant violated various provisions of the FDCPA, which protects consumers from abusive and deceptive Akalwadi (D.Md. v. debt Risk 2004). collection Mgmt. The practices Alts., FDCPA Inc., forbids by 336 the collectors. F.Supp.2d use any collection and provides conduct. United States v. Nat l Fin. Servs., Inc., 98 F.3d list of in false, misleading non-exhaustive means 500 or a or of 492, deceptive, 131, 135 (4th Cir. 1996). representation debt debt prohibited In order to prevail on a FDCPA claim, a Plaintiff must prove that: (1) the plaintiff has been the object of collection activity arising from consumer debt, (2) the defendant is a debtor collector as defined by the FDCPA, and (3) the defendant has engaged in an act or omission prohibited by the FDCPA. Dikun v. Streich, 369 F.Supp.2d 781, 784 (E.D.Va. 2005) (citing Fuller v. Becker & Poliakoff, 192 F.Supp.2d 1361 (M.D.Fla. 2002) 8 (citations omitted)). Thus, as a threshold matter, Plaintiff must show, rather than make a blanket assertion, that Corelogic is a debt collector within the meaning of the statute and that it used prohibited practices . . . in an attempt to collect the debt. Akalwadi, 336 F.Supp.2d at 500. Section 1692a(6) includes in the definition of debt collector any person who . . . regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. As Defendant contends, it may be that Plaintiff s conclusory allegation that Defendant is a debt collector (see ECF No. 2 ¶ 18) is insufficient to bring Defendant within the statute s purview. collector within But the even assuming meaning of Defendant the is statute, a debt Plaintiff nevertheless fails to state a claim under the FDCPA. Plaintiff avers that Defendant violated Sections 1692e(10) and 1692e(14) by obtaining his credit report using an alias or name that was not registered in Maryland. Section 1692e(10) states that a debt collector is prohibited from using any false representation collect any consumer. or deceptive debt or Section to means obtain 1692e(14) to collect information prohibits the or attempt to concerning a use of any business, company, or organization name other than the true name of the debt collector s business, company, or organization to collect a debt. Plaintiff must provide factual support bearing 9 on Defendant s purported misconduct Plaintiff fails to do here. under the FDCPA, which Specifically, Plaintiff does not allege that Defendant used an alias or unregistered name to collect a debt, which is a prerequisite to recovery under the FDCPA. Instead, Plaintiff asserts that Defendant used CREDCO/ONETECHNOLOGIES, which allegedly was never registered in Maryland, to obtain Plaintiff s credit report. Plaintiff s subsequent naked assertion that Defendant attempted to collect on a [d]ebt, which Defendant knew, or should have known, could not be done legally (ECF No. 2 ¶ 11) is devoid of further factual enhancement, Iqbal, 556 U.S. at 678, and insufficient to show actionable misconduct by Defendant. C. MCDCA (Count III) Plaintiff also claims that Defendant violated the MCDCA, which provides that in collecting or attempting to collect an alleged debt, a collector may not engage in various activities, including claim[ing], attempt[ing], or threaten[ing] to enforce a right with knowledge that the right does not exist. Ann., Com. Law § 14-202(8).8 Md. Code To establish a prima facie case under the MCDCA, Plaintiff must set forth factual allegations tending to establish two elements: (1) that Defendant did not 8 Although Plaintiff asserts that Defendant violated § 14202(5) by, [c]laiming, attempting, or threatening to enforce a right with knowledge that the right does not exist, (ECF No. 2 ¶ 22), this prohibition is found in Section 14-202(8). 10 possess the right to collect the amount of debt sought; and (2) that Defendant attempted to collect the debt knowing that it lacked the right to do so. See Harkins, 2012 WL 5928997, at *4. The key to prevailing on a claim of MCDCA is to demonstrate that the defendant acted with knowledge as to the invalidity of the debt. Stewart v. Bierman, 859 F.Supp.2d 754, 769 (D.Md. 2012) (emphasis in the original) (internal citations omitted) (dismissing plaintiff s MCDCA claim for failure to demonstrate defendant s knowledge). In Stewart v. Bierman, the court held that plaintiffs MCDCA claim failed because they merely recited the statutory language in alleging that defendants violated the MCDCA by claiming, attempting or threatening to enforce rights with the knowledge that the right did not exist. 859 F.Supp.2d at 769. This is exactly what Plaintiff has done here. Plaintiff recites the applicable statutory language, but fails to plead any factual allegations to support his legal conclusions. Consequently, this claim also fails. D. MCPA Claim (Count IV) Finally, Plaintiff alleges, again without any factual support, that Defendant engaged in unfair or deceptive trade practices in violation of the MCPA. A person may not engage in any unfair or deceptive trade practice . . . in . . . [t]he collection of consumer debts. 303(5). These deceptive and Md. Code Ann., Com. Law § 13unfair 11 trade practices include false, falsely disparaging, or misleading oral or written statement, visual description, or other representation of any kind which has the capacity, tendency, or effect of deceiving or misleading merchant consumers. cannot Section promote a 13-301(1). sponsorship, In approval, affiliation, or connection which he does not have. 301(2)(ii). addition, a status, Section 13- An entity cannot withhold a material fact if the failure deceives or tends to deceive. Section 13-301(3). A consumer, however, need not actually be misled, deceived, or damaged as a result of [a practice prohibited in this title] in order to constitute a violation of the title. Section 13-302. But a private party who brings a suit must establish that it reasonably relied misrepresentation to and its has detriment suffered on an some promise identifiable or loss, measured by the amount the consumer spent or lost as a result of his or her reliance on the seller s misrepresentation. v. Gen. Motors Corp., 397 Md. 108, 143 (2007). Lloyd Thus, Plaintiff must establish actual injury or loss, despite the language in [Section] 13-302 [i.e., that [a]ny practice prohibited by this title is a violation . . . whether or not any consumer in fact has been misled, practice. ]. deceived, or damaged as a result of that Morris v. Osmose Wood Preserving, 340 Md. 519, 538 n.10 (1995); Willis v. Countrywide Home Loans Servicing, Civ. No. CCB 09-1455, 2009 WL 5206475, at *6 (D.Md. Dec. 23, 12 2009) (dismissing MCPA claim where plaintiff failed to allege that Countrywide s misinformation regarding loan modification programs caused [plaintiff] to suffer any specific harm, apart from the debt that he already owed )). Finally, the MCPA also establishes that, by definition, the violation of several other enumerated infra, Maryland statutes, constitutes proscribed by unfair the MCPA. including or the MCDCA, discussed trade practices Section 13-301(14) deceptive See generally (enumerating incorporated statutes). Plaintiff has not pled any facts to establish Defendant s purported misconduct threshold matter, giving Plaintiff rise to has MCPA not attempted to collect on a consumer debt. liability. shown that As a Defendant Plaintiff again offers nothing more than blanket recitals of the various MCPA statutory provisions, failing tactics collecting in to show a that consumer Defendant debt. used deceptive Although Plaintiff asserts that Defendant s use of a fake and unregistered alias to conduct denials, a hard pull inability to harmed apply Plaintiff for credit, by causing mental credit anguish and emotion distress, (ECF No. 2 ¶ 12), Plaintiff does not allege reliance or establish a causal connection between any alleged misconduct by the Defendant and Plaintiff s resulting damages.9 9 To the extent Plaintiff attempts to assert a fraud-based MCPA claim through his conclusory allegation that Defendant has 13 Furthermore, to the extent Plaintiff alleges that Defendant s conduct constituted violations of the MCPA vis-à-vis the MCDCA (see ECF No. 2 ¶ 29), as previously stated, Plaintiff s complaint is devoid of any facts sufficient to make a prima facie showing that Defendant violated the MCDCA. Accordingly, judgment on the pleadings will be entered in favor of Defendant on this final claim as well. IV. Conclusion For granted. the foregoing reasons, Defendant s motion will be A separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge fraudulently obtained Plaintiff s credit report by using an illegal alias (ECF No. 2 ¶ 9), this claim fails to comply with Rule 9(b) s heightened pleading standard, which requires a plaintiff to plead with particularity the circumstances constituting fraud. Fed.R.Civ.P. 9(b); see also Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769, 781 (4th Cir. 2013) (stating that an MCPA claim that sounds in fraud, is subject to the heightened pleading standards of Federal Rule of Civil Procedure 9(b) ). 14

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