Navarrete v. Experian Info. Solutions, Inc., Case No: 2:16-cv-225-FtM-99MRM

Decision Date19 September 2016
Docket NumberCase No: 2:16-cv-225-FtM-99MRM
PartiesLUCY M. NAVARRETE, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, INC. and IBERIABANK, Defendants.
CourtU.S. District Court — Middle District of Florida

LUCY M. NAVARRETE, Plaintiff,
v.
EXPERIAN INFORMATION SOLUTIONS, INC. and IBERIABANK, Defendants.

Case No: 2:16-cv-225-FtM-99MRM

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

September 19, 2016


OPINION AND ORDER

This matter comes before the Court on review of defendant IberiaBank's Motion to Dismiss (Doc. #17) filed on April 21, 2016. Plaintiff filed a Response (Doc. #27) on May 19, 2016, to which IberiaBank filed a Reply (Doc. #35) on June 7, 2016, and plaintiff filed a sur-reply (Doc. #36) on June 14, 2016. Also before the Court is defendant IberiaBank's Request for Judicial Notice (Docs. ##18, 29), originally filed on April 21, 2016 and corrected on May 23, 2016, to which plaintiff filed a Response (Doc. #28) on May 19, 2016.

I.

Plaintiff's Complaint (Doc. #1) contains the following allegations:

In September of 2015, plaintiff obtained a copy of her credit report and noticed an inaccurate report for her IberiaBank account

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#170270XXXXX. (Id. ¶ 24.) On September 15, 2015, plaintiff sent a letter disputing the inaccurate report to Equifax, Experian, and TransUnion pursuant to 15 U.S.C. § 1681i. (Id. ¶ 25.) The letter listed the entry that plaintiff disputed and explained that the account was a mortgage loan and, based upon plaintiff's payment default in February, 2009, was foreclosed on in 2009. (Id. ¶ 26.) Judgment was entered in the foreclosure proceeding on June 4, 2010 and the property was sold at foreclosure auction on July 9, 2010. (Id.) In the letter, plaintiff explained that the lender did not pursue a deficiency on the mortgage debt, therefore pursuant to section 95.11, Florida Statutes, the lender's right to pursue a deficiency action expired on July 1, 2014. (Id.) Plaintiff demanded the reference to the account be removed as inaccurate because the lender no longer had the right to collect. (Id.)

TransUnion, Experian, and Equifax sent Automated Credit Dispute Verification (ACDV) forms to IberiaBank regarding plaintiff's IberiaBank tradeline. (Id. ¶¶ 27, 30, 33.) On September 28, 2015, TransUnion returned the results of its investigation and reported account #170270XXXXX as "deleted." (Id. ¶¶ 28-29.) On October 21, 2015, Experian returned the results of its investigation and reported account #170270XXXXX as "remains." (Id. ¶¶ 31-32.) On October 23, 2015, Equifax returned the results of its investigation and reported account #170270XXXXX as "deleted." (Id. ¶¶ 34-35.)

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Plaintiff brought this action on March 22, 2016 against IberiaBank and Experian Information Solutions, Inc. alleging violations of the Fair Credit Reporting Act (FCRA). (Doc. #1.) Plaintiff alleges that "IberiaBank violated 15 U.S.C. § 1681s-2(b) by failing to conduct a reasonable investigation with respect to the disputed information, failing to review all relevant information available to it, and failing to update and/or remove the inaccurate tradeline or . . . report the account as 'disputed.'" (Id. ¶¶ 36, 56.) Experian Information Solutions, Inc. filed an Answer and Affirmative Defenses (Doc. #13) on April 18, 2016 and IberiaBank filed a Motion to Dismiss (Doc. #17) on April 21, 2016. Defendant also filed a Request for Judicial Notice (Docs. ##18, 29), seeking judicial notice of documents filed in the state court foreclosure proceeding, the Assignment of Mortgage, and the Purchase and Assumption Agreement between the FDIC for Orion Bank and IberiaBank.

II.

The Court will first review IberiaBank's Request for Judicial Notice1 (Docs. ##18, 29) to determine whether the documents

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IberiaBank seeks judicial notice of can be properly considered when ruling on IberiaBank's Motion to Dismiss.

"The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201. "A district court may take judicial notice of certain facts without converting a motion to dismiss into a motion for summary judgment." Horne v. Potter, 392 F. App'x 800, 802 (11th Cir. 2010) (citing Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999)); Halmos v. Bomardier Aerospace Corp., 404 F. App'x 376, 377 (11th Cir. 2010) ("[A] district court may take judicial notice of matters of public record without converting a Rule 12(b)(6) motion unto a Rule 56 motion." (citation omitted)). Additionally, a "court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings." United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (citation omitted).

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Plaintiff does not oppose the Court taking judicial notice of the loan documents filed in the state court proceeding. (Doc. #36, p. 1.) Accordingly, the Court will take judicial notice of these documents.

Plaintiff does oppose, however, the Court taking judicial notice of the Purchase and Assumption Agreement and the Assignment of Mortgage....

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