Mortimer v. Bank of Am., N.A.
| Decision Date | 13 December 2012 |
| Docket Number | Case No.: C-12-01959 JCS |
| Parties | MARK MORTIMER, Plaintiff, v. BANK OF AMERICA, N.A., Defendant. |
| Court | U.S. District Court — Northern District of California |
Plaintiff Mark Mortimer ("Plaintiff") brings this action against Defendant Bank of America, N.A., ("Defendant")1 seeking redress for Defendant's alleged inaccurate reporting of his discharged debt. Presently before the Court is Defendant's Motion for Judgment on the Pleadings ("Motion"). The parties have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c). The Court finds that the Motion is appropriate for decision without oral argument. The hearing on the Motion scheduled for December 21, 2012 at 9:30 am is vacated. For the reasons stated below, the Court grants Defendant's Motion. Plaintiff's first, third, and fourth causes of action are dismissed with leave to amend. Plaintiff's remaining causes of action are dismissed with prejudice.
On November 3, 2009 Plaintiff filed a voluntary Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Northern District of California. Complaint at ¶ 12. On February 8, 2010, the court granted a discharge of all dischargeable debts pursuant to 11 U.S.C. Section 727. Id. at ¶ 15 and Ex. B. The bankruptcy discharged Plaintiff's debt to Defendant. Id.
On April 21, 2011, Plaintiff sent a letter to Experian, a credit reporting agency, claiming that several accounts discharged through Plaintiff's bankruptcy were being inaccurately reported, and requesting an investigation of those reports. Id. at ¶ 16 and Ex. A. As to Plaintiff's account with Defendant, Plaintiff stated, Id. at Ex. A.
On June 4, 2011, Plaintiff received a new copy of his Experian credit report ("Experian Report") to verify that the alleged inaccuracies were corrected. Id. at ¶ 17 and Ex. C. This report states that the account in question was "Discharged through Bankruptcy Chapter 7," had a current account balance of $0, and was "closed" in the months of December 2009 and January 2010. Id. at Ex. C.
On March 15, 2012, Plaintiff obtained a copy of his Service 1st credit report ("Service 1st Report"). Id. at ¶ 17 and Ex. D. The Service 1st credit report is a compilation of credit reports from the three major credit reporting agencies, Experian, TransUnion, and Equifax. Id. The Service 1st Report indicates that its data from Experian show that the account in question was "Closed at Consumer's Request; Bankruptcy Chapter 7," had a current account balance and a past due balance of $0, and that the account was 30 days past due in December 2009 and 60 days past due in January 2010. Id. at Ex. D. The Service 1st data from TransUnion and Equifax are the same except that they do not show any indication that the account was ever past due. Id.
Based on the above, Plaintiff alleges that Defendant re-reported disputed information, that Plaintiff's account was open and delinquent in December 2009 and January 2010, to Experian even though Plaintiff had filed for bankruptcy. Id. at ¶ 18. Plaintiff further alleges that Defendant failed toreport that this information was disputed. Id. In support of this allegation, Plaintiff states that he was not required to make any payments to Defendant after filing a bankruptcy petition. Id. at ¶ 31.
Based on these facts, Plaintiff enumerates nine causes of action:
1) Violation of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681s-2(b): Plaintiff claims that Defendant violated Section 1681-2(b)(1)(A) by failing to reasonably investigate Plaintiffs dispute after receiving notice from Experian. Id. at ¶ 30. Plaintiff claims that Defendant violated Section 1681-s(b)(1)(E) by failing to discover and remove the alleged inaccuracies and by failing to report that the account was in dispute. Id. at ¶¶ 33, 35. Plaintiff alleges that Defendant's failures were "intentional and in reckless disregard of its duty to refrain from reporting inaccurate information." Id. at 36. Consequently, Plaintiff argues, Defendant "willfully and negligently failed to comply with its duty to investigate Plaintiff's dispute under 15 U.S.C. [§§] 1681[n] & [1681o]." Id. Plaintiff alleges damages including the costs of reviewing credit reports from all three consumer reporting agencies, traveling to and from counsel's office, sending demand letters, humiliation, anxiety, loss of sleep, embarrassment, emotional distress, and defamation of character. Id at ¶¶ 37-38.2
2) Violation of the California Song-Beverly Credit Card Act of 1971 ("Song-Beverly Act"), Cal. Civ. Code § 1747, et seq.: Plaintiff claims that Defendant violated the Song-Beverly Act by knowingly making untrue communications relating to Plaintiff's credit worthiness to Experian, TransUnion, and Equifax. Id. at ¶¶ 41-44. To support this claim, Plaintiff alleges that Defendant mischaracterized debt on the account as delinquent after Plaintiff filed for bankruptcy. Id. at ¶¶ 41-42 Plaintiff alleges damages including the costs of reviewing credit reports from all three consumer reporting agencies, traveling to and from counsel's office, sending demand letters, difficulty obtaining credit, humiliation, anxiety, loss of sleep, embarrassment, emotional distress, and defamation of character. Id. at ¶¶ 45-46.
3) Violation of the California Consumer Credit Reporting Agencies Act ("CCRAA"), Cal. Civ. Code § 1785.25(a): Plaintiff makes the same allegations concerning the reporting of, and failure to correct, inaccuracies in connection with his CCRAA claim as he does with his FCRA claim, discussed above. Id. at ¶¶ 50-54. Plaintiff alleges damages including the costs of reviewing creditreports from all three consumer reporting agencies, traveling to and from counsel's office, sending demand letters, difficulty seeking necessary products and services from vendors, difficulty obtaining credit, humiliation, anxiety, loss of sleep, embarrassment, emotional distress, and defamation of character. Id. at ¶¶ 55-56.
4) Violation of the Unfair Business Practices Act ("UCL"), Cal. Bus. & Prof Code § 17200: Plaintiff claims that Defendant's CCRAA violation was an unlawful business practice constituting a violation of the UCL. Id. at ¶ 62. Plaintiff also appears to rely on the alleged violations of the FCRA and the Song-Beverly Act as predicate offenses. Id. at ¶ 64.
5) Libel, Cal. Civ. Code § 45: Plaintiff alleges that Defendant, without legal cause, allows credit reporting agencies to report that Plaintiff currently owes money to Defendant and is delinquent in not paying this alleged debt. Id. at ¶ 67. Plaintiff further alleges that all who see the reports will understand that he is not creditworthy. Id. at ¶ 68. As a result, Plaintiff alleges damage to his good name, reputation, and credit rating. Id. at ¶ 69. Plaintiff alleges that the reports were widely disseminated in the financial community. Id. at ¶ 71. Plaintiff seeks punitive damages because Defendants published the report with knowledge of its falsity. Id. at ¶ 72. Plaintiff also alleges that the malicious publication was made in retaliation for filing a Chapter 7 petition. Id. at ¶ 73.
6) Intentional Infliction of Emotional Distress: Plaintiff alleges that Defendant's conduct, described above, was so severe, outrageous, and intentional that Plaintiff suffered humiliation, embarrassment, anxiety, loss of sleep, emotional distress, pain and suffering, and defamation of character. Id. at ¶ 77.
7) Negligent Infliction of Emotional Distress: Plaintiff alleges that Defendant's conduct, described above, amounted to negligence and as a result Plaintiff suffered humiliation, embarrassment, anxiety, loss of sleep, emotional distress, pain and suffering, and defamation of character. Id. at ¶ 81.
8) Deceit, Cal. Civ. Code § 1710: Plaintiff alleges that Defendant is attempting to collect on a debt against the Plaintiff when it has no reasonable grounds for doing so. Id. at ¶ 86. 9) Constructive Fraud, Cal. Civ. Code § 1573: Plaintiff alleges that Defendant's conduct, described above, breached its fiduciary duty to Plaintiff and gained an advantage against plaintiff. Id. at ¶ 91.
Defendant moves for judgment on the pleadings on the grounds that Plaintiff's Complaint fails to state a claim on which relief can be granted. Defendant notes that the only difference between the Experian Report and the Service 1st Report is that the latter shows delinquencies in December 2009 and January 2010, the period during which Plaintiff's bankruptcy was pending but not discharged. Defendant's Motion for Judgment on the Pleadings ("Motion") at 6. Both reflect the Chapter 7 bankruptcy and a zero balance on Plaintiff's accounts with Defendant. Id. Defendant argues that, as a matter of law, it did not make any inaccurate reports because a debt remains valid prior to discharge and can be reported during bankruptcy. Id. (citing Mortimer v. JP Morgan Chase Bank, N.A., 2012 WL 3155563 (N.D. Cal. Aug. 2, 2012); Evans v. Mercedes Benz Fin. Servs., LLC, 2011 U.S. Dist. LEXIS 79404, at *7 (E.D. Mich. 2011)). Because Defendant argues that there was no inaccurate or incomplete reporting, it argues that Plaintiff had no grounds to dispute Defendant's reporting. Id. at 8-9 (citing Mortimer, 2012 WL 3155563, at *3). For this reason, Defendant contends that Plaintiff's FCRA and CCRAA claims fail. Id. at 4-10.
As to Plaintiff's remaining claims, Defendant argues that each is preempted by FCRA. Id. at 10-15. As to Plaintiff's UCL claim, Defendant argues that even if that claim is not preempted...
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