Church-El v. Bank of N.Y.

KHYON ERNEST CHURCH-EL, Plaintiff, v. BANK OF NEW YORK, as Trustee for the holders of asset-backed certificate series 2001-1F, Defendant.

Civil No. 11-877 (NLH/KMW)

UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE

December 15, 2015

NOT FOR PUBLICATION

OPINION

APPEARANCES:

Khyon Ernest Church-El

1725 West 2nd Street

Wilmington, Delaware 19805

Plaintiff Pro Se

David A. Dorey, Esquire

Blank Rome LLP

1201 North Market Street

Suite 800

Wilmington, Delaware 19801-4226

Counsel for Defendant

HILLMAN, District Judge:

This matter comes before the Court by way of motion [Doc. No. 62] of Defendant, Bank of New York, as Trustee for the Holders of Asset-Backed Certificate Series 2001-1F (hereafter, "BONY"), seeking to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) based upon Plaintiff's failure to state a claim upon which relief may be granted. Plaintiff, Khyon Ernest Church-El, opposes the motion [Doc. No. 72].¹

Also before the Court is Plaintiff's motion [Doc. No. 74] to amend his complaint pursuant to Fed. R. Civ. P. 15(d).² Defendant opposes this motion [Doc. No. 75].

The Court has considered the submissions of the parties and decides this matter pursuant to Fed. R. Civ. P. 78. For the reasons expressed below, Defendant's motion to dismiss will be granted, and Plaintiff's motion to amend will be denied.

I. BACKGROUND

On September 28, 2011, Plaintiff filed a complaint against Defendant BONY pursuant to the "Fair Credit Reporting Act (FCRA), the Fair Debt Collection Practices Act (FDCPA), Title 12 of the Delaware Code, and the 1968 Charter Act (Fannie Mae and Ginnie Mae)." Compl. [Doc. No. 1]. Plaintiff was a borrower on a foreclosed mortgage, the judgment of which was affirmed on appeal on October 3, 2008 by the Delaware Supreme Court. Id. ¶ 10.

Plaintiff did not timely serve the complaint, and the Court granted Plaintiff multiple extensions of time to effect service pursuant to Fed. R. Civ. P. 4(m).³ Before serving the complaint on Defendant BONY, Plaintiff filed an untitled document [Doc. No. 24], which the Clerk of the Court construed as a "Proposed Amended Complaint." The document purported to add three new defendants: Bank of America Corporation (hereafter, "Bank of America"), EquiCredit Corporation (hereafter, "EquiCredit") and Select Portfolio Servicing, Inc. (hereafter, "Select"). Shortly thereafter, Plaintiff filed an "Amended Complaint," also naming Bank of America, EquiCredit and Select as defendants [Doc No. 31]. In a Memorandum Opinion dated December 31, 2013, the Court found that the "Proposed Amended Complaint" and the "Amended Complaint" were not properly filed and had no legal effect. Dec. 31. 2013 Mem. Op. ¶ 14 [Doc. No. 45].

BONY, Bank of America, EquiCredit, and Select sought dismissal of Plaintiff's complaint for failure to effect service [Doc. No. 50]. Plaintiff opposed the motion and also seemed to move for summary judgment [Doc. No. 54]. In a MemorandumOpinion dated February 19, 2015, the Court dismissed the motion to the extent that it was filed by non-parties, Bank of America, EquiCredit and Select. Feb. 19, 2015 Mem. Op. ¶ 9 [Doc. No. 61]. The Court also denied the motion by the sole Defendant, BONY, because the operative pleading in the matter was the original complaint, which was properly served, and BONY's motion sought to dismiss allegations in the amended complaint, which were stricken. Id. ¶¶ 12, 14. The Court further denied Plaintiff's motion for summary judgment. Id. ¶¶ 18, 20.

II. JURISDICTION

Plaintiff asserts claims pursuant to the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. The Court exercises jurisdiction over Plaintiff's federal law claims under FCRA and FDCPA pursuant to 28 U.S.C. § 1331. See also 15 U.S.C. §§ 1681p, 1692k(d) (allowing FCRA and FDCPA claims to "be brought in any appropriate United States district court without regard to the amount in controversy...."). The Court exercises supplemental jurisdiction over Plaintiff's state law claims under 28 U.S.C. § 1367.

III. STANDARD FOR MOTION TO DISMISS

When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. Pro. 12(b)(6), a court must accept allwell-pleaded allegations in the claim as true and view them in the light most favorable to the claimant. Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005); MCI Telecommunications Corp. v. Graphnet, Inc., 881 F. Supp. 126, 128 (D.N.J. 1995). It is well settled that a pleading is sufficient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). However, "[a]lthough the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984)

(quotation and citation omitted).

A district court, in weighing a motion to dismiss, asks "'not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) ("Our decision in Twombly expounded the pleading standard for 'all civil actions' ...."); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) ("Iqbal ... provides the final nail-in-the-coffin for the 'no set of facts' standard that applied tofederal complaints before Twombly.").

Following the Twombly/Iqbal standard, the Third Circuit has outlined a three-part analysis in reviewing a complaint under Rule 12(b)(6). First, the Court must take note of the elements needed for plaintiff to state a claim. Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010). Second, the factual and legal elements of a claim should be separated; a district court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Id.; Fowler, 578 F.3d at 210 (citing Iqbal, 129 S. Ct. at 1950). Third, a district court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief. Santiago, 629 F.3d at 130. A complaint must do more than allege the plaintiff's entitlement to relief. Fowler, 578 F.3d at 210; see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (stating that the "Supreme Court's Twombly formulation of the pleading standard can be summed up thus: stating ... a claim requires a complaint with enough factual matter (taken as true) to suggest the required element. This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element") (internal quotations and citations omitted). A court need not credit either "baldassertions" or "legal conclusions" in a complaint when deciding a motion to dismiss. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997).

Finally, a court in reviewing a Rule 12(b)(6) motion must only consider the facts alleged in the pleadings, the documents attached thereto as exhibits, and matters of judicial notice. S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999). A court may consider, however, "an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

IV. DISCUSSION

1. Fair Credit Reporting Act

Defendant argues that Plaintiff fails to state a claim under the FCRA and Plaintiff's FCRA claims are barred by the Act's two year statute of limitations. The crux of Defendant's argument is that there is no private right of action under the relevant section of the FCRA.

"'Congress enacted the FCRA in 1970 to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.'... In doing so, Congress sought to preserve the consumer's privacy in the informationmaintained by consumer reporting agencies." Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 191 (3d Cir. 2009) (citing Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007); Cole v. U.S. Capital, Inc., 389 F.3d 719, 725 (7th Cir. 2004)). Under the Act, "consumer reporting agencies" ("CRAs") are entities which "regularly engage[ ] ... in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties[.]" 15 U.S.C. § 1681a(f).

Plaintiff alleges that Defendant "refus[ed] to remove or correct inaccuracies regarding [the foreclosure], despite written correspondence specifying the inaccuracies and providing information that would facilitate a reasonable reinvestigation of the matter." Compl. ¶ 4. Plaintiff appears to allege a violation of Section 1681s-2 of the FCRA, which establishes the "responsibilities of furnishers of information to consumer reporting agencies." Section 1681s-2(a) further establishes the "duty of furnishers of information to provide accurate information."

As Defendant correctly argues, there is no private cause of action under Section 1681s-2(a). The express language of the Sections 1681s-2(c) and (d) limit the enforcement of Section 1681s-2(a) to federal agencies and officials and state officials. 15 U.S.C. §§ 1681s-2(c),(d); see also Seamans v.Temple Univ., 744 F.3d 853, 864 (3d Cir. 2014) ("FCRA explicitly precludes private suits for failure to comply with [Section 1681s-2(a)] ....").

Section 1681o authorizes a private...