Fishback v. HSBC Retail Servs. Inc.
| Decision Date | 21 June 2013 |
| Docket Number | No. CIV 12-0533 JB,CIV 12-0533 JB |
| Parties | ROBERT B. FISHBACK, Plaintiff, v. HSBC RETAIL SERVICES INC. d/b/a HSBC FURNITURE ROW; EQUIFAX INFORMATION SERVICES LLC; EXPERIAN INFORMATION SOLUTIONS INC.; and TRANS UNION LLC, Defendants. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on Defendant Trans Union, LLC's Motion to Dismiss Injunctive Relief and Treble Damages Claims, filed June 11, 2012 (Doc. 16)("Motion to Dismiss"). The Court held a hearing on September 21, 2012. The primary issues are: (i) whether the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x ("FCRA") preempts Plaintiff Robert B. Fishback's claims for declaratory and injunctive relief under the New Mexico Unfair Practices Act, NMSA §§ 57-12-1-57-12-26 ("UPA"); and (ii) whether the FCRA preempts Fishback's claims for treble damages under the UPA. The Court concludes that the FCRA does not preempt Fishback's claims for declaratory and injunctive relief, or for treble damages, under the UPA.
This case arises out of Fishback's allegation that his credit reports falsely indicate that he is jointly liable for a credit account with Defendant HSBC Retail Services Inc. d/b/a HSBC Furniture Row ("Furniture Row") that is being reported by Defendant Credit Reporting Agencies ("CRAs") Equifax Information Services LLC, Experian Information Solutions, Inc., and Trans Union LLC ("Trans Union"). Fishback filed his Complaint for Damages, Declaratory, and Injunctive Relief and Demand for a Jury Trial on May 17, 2012 (Doc. 1)("Complaint").
On January 24, 2006, Fishback accompanied his friend, Cristy Peet, to Furniture Row in Las Cruces, New Mexico where Peet intended to purchase furniture. See Complaint ¶ 9, at 3. Fishback informed Peet and a Furniture Row Employee that he would agree to co-sign on a Furniture Row account with Peet for a purchase of a dining room table and chairs, but that he did not want to be jointly responsible with her on an open charge Furniture Row account. See Complaint ¶ 10, at 3.
On the application for the Furniture Row account, Fishback's name, address, and telephone number are provided in the section labeled "Joint Applicant." Furniture Row Express Money Card Program Application at 1, filed June 25, 2012 (Doc. 22-1)("Application"). Directly below the Joint Applicant section is a section that gives the option of enrolling in a monthly debt cancellation program. Application, at 1. Peet's signature appears in this section on the line above "SIGN HERE TO ENROLL." Application, at 1. Fishback signed the space next to Peet's signature in the optional enrollment section below the statement "NO, I do not wish to enroll at this time" on the line above "SIGN HERE TO DECLINE." Application, at 1. Fishback's signature is crossed out and a line with an arrow is drawn to the signature space designated for"Joint Applicant's Signature." Application, at 1. Fishback alleges that someone, without his authority or approval, crossed out his signature and drew the arrow to the joint applicant signature space. See Complaint ¶ 12, at 3.
Furniture Row then opened a charge Furniture Row account in the names of Peet and Fishback, and began reporting the Furniture Row account to three credit reporting agencies - Defendants Experian Information Solutions, Inc., Equifax Information Services, LLC, and Trans Union -- under both Peet and Fishback's names. See Complaint ¶¶ 13-14, at 3. Peet fell behind in her payments on the Furniture Row account, and Furniture Row began reporting the Furniture Row account under the names of both Peet and Fishback as late, and then as charged-off.2 See Complaint ¶ 16, at 4. In July 2010, Fishback discovered that Furniture Row reported to CRAs that he is liable for the Furniture Row account. See Complaint ¶ 18, at 4.
Fishback wrote several letters to Experian Information, Equifax Information, and Trans Union, with copies sent to Furniture Row, in which he stated that he did not intend to be jointly liable on the Furniture Row account and asked them to investigate the matter. See Complaint ¶¶ 30, 41, 42, 50, 51, 52, at 6-10. Trans Union sent three responses to Fishback's request for an investigation. See Complaint ¶¶ 37, 49, 60 at 7-12. Trans Union first responded to Fishback on May 21, 2011, that it had completed its investigation, and would continue to report the Furniture Row account as belonging to Fishback and charged-off. See Complaint ¶ 37, at 7. Fishback's credit report through Trans Union included notations regarding the Furniture Row Account, which stated: "payment after charge off/collection" and "acct info disputed by consumer." Complaint ¶ 37, at 7. Trans Union's second response dated November 16, 2011, was similar, butTrans Union revised the report notations to read: "Account paid in Full; was a Charge-off and "Dispute Reslvd - Cust Disagrees." Complaint ¶ 49, at 9. In Trans Union's third response to Fishback dated February 24, 2012, Trans Union stated that it verified that the Furniture Row account was accurate and would not reinvestigate, unless Fishback provided it with court papers or an authentic letter from Furniture Row explaining what should be updated. See Complaint ¶ 60, at 12.
Equifax Information responded to Fishback that, after completing its investigation, it would continue to report the Furniture Row account as charged-off and belonging to Fishback. See Complaint ¶ 39, at 7. Equifax Information informed Fishback that it would note in its reporting that "Consumer Disputes this Account Information." Complaint ¶ 39, at 7. After Fishback's second letter, Equifax Information responded similarly, but stated that it would note in its reporting "Consumer Disputes After Resolution." Complaint ¶ 50, at 9. Equifax Information's third response stated that it would note in its reporting "Consumer Disputes This Account Information." Complaint ¶ 63, at 12.
Experian Information responded to Fishback that it was unable to change its information as Fishback requested, and it would be contacting the furnisher of the disputed information. See Complaint ¶ 61, at 12. In Experian Information's second response to Fishback, it informed him that it had completed its investigation and would continue to report the Furniture Row account as Fishback's. See Complaint ¶ 62, at 12.
Fishback alleges that the CRA's reporting of the charged-off Furniture Row account caused him several injuries: (i) credit denial; (ii) damage to his credit score; (iii) damage to his reputation for creditworthiness; (iv) lost time; (v) out-of-pocket expenses; (vi) emotionaldistress; (vii) humiliation and embarrassment; and (viii) aggravation and frustration. See Complaint ¶ 69, at 13. Fishback seeks damages and declaratory and injunctive relief. See Complaint ¶¶ A-F, at 16-17.
Fishback brings this action against Furniture Row, Equifax Information, Experian Information, and Trans Union. See Complaint ¶ 1, at 1. Fishback alleges that the CRAs' reporting of the Furniture Row account on his credit report was improper. See Complaint ¶ 1, at 1. Fishback brings four counts against the Defendants. See Complaint ¶¶ 70-85, at 14-16. Fishback's first count alleges Furniture Row violated the FCRA. See Complaint ¶¶ 70-73, at 14. The second count alleges the CRAs violated the FCRA. See Complaint ¶¶ 74-78, at 14-15. The third count alleges all defendants violated the UPA. See Complaint ¶¶ 79-83, at 16. The fourth count alleges that Furniture Row engaged in tortious debt collection practices. See Complaint ¶¶ 84-85, at 16.
Trans Union moves, pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss Fishback's Complaint for failure to state any viable cause of action against it. See Motion to Dismiss, at 1. Specifically, Trans Union seeks dismissal of Fishback's two counts against it for violations of the FCRA and the UPA. See Motion to Dismiss at 1. Trans Union argues that the FCRA does not allow a private plaintiff to seek equitable, declaratory, or injunctive relief. See Motion to Dismiss at 2. Trans Union argues that Congress intended that only the Federal Trade Commission ("FTC") would be able to seek injunctive relief under the FCRA. See Motion to Dismiss at 2. Trans Union cites Washington v. CSC Credit Servs., Inc., 199 F.3d 263, (5th Cir. 2000); Clark v. Saxon Mortg. Co., No. CV 11-0065, 2011 U.S. Dist.LEXIS 74052 (M.D. La. July 7, 2011); Stich v. BAC Home Loans Serv., LP, No. 10-CV-01106, 2011 U.S. Dist. LEXIS 37408 (D. Col. March 29, 2011); and Birmingham v. Equifax, Inc., No. 2:06-CV-00702, 2009 U.S. Dist. LEXIS 5670 (D. Utah Jan. 26, 2009), to support this argument. See Motion to Dismiss at 2. Trans Union argues that these cases all support the same proposition -- that the FCRA preempts private claims for equitable, declaratory and injunctive relief. See Motion to Dismiss at 2. Trans Union asserts that there is no private cause of action for injunctive relief under 15 U.S.C. § 1681s(a) and, therefore, that the Court should dismiss Fishback's claims based on Trans Union's alleged noncompliance with the FCRA. See Motion to Dismiss at 2. Trans Union contends that, because the FCRA allows only the FTC to seek injunctive relief, any state statutes to the contrary are inconsistent with the FCRA, and the FCRA preempts private claims for injunctive relief. See Motion to Dismiss at 2.
Trans Union also moves for dismissal of the count for violations of the UPA, on the ground that the FCRA preempts claims for declaratory and injunctive relief under the UPA. See Motion to Dismiss at 3. Trans Union cites Consumer Data Indus. Ass'n v. King, 678 F.3d 898 (10th Cir. 2012), and Eller v. Trans Union, LLC, No. 09-CIV-0040, 2012 Dist. LEXIS 31629 (D. Colo. March 9, 2012), to support this argument. See Motion to Dismiss at 3. "The FCRA leaves no room for overlapping state regulations." Motion to Dismiss at 3 (quoting Consumer Data Indus. Ass'n v. King, 678 F.3d at 901)....
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