Nguyen v. Ridgewood Sav. Bank

• Decision Date: 17 December 2014
• Docket Number: No. 14–CV–1058 MKB.,14–CV–1058 MKB.
• Citation: 66 F.Supp.3d 299
• Parties: Thomas NGUYEN, Plaintiff, v. RIDGEWOOD SAVINGS BANK and Peter Boger, Defendants.
• Court: U.S. District Court — Eastern District of New York

66 F.Supp.3d 299

Thomas NGUYEN, Plaintiff

v.RIDGEWOOD SAVINGS BANK and Peter Boger, Defendants.

No. 14–CV–1058 MKB.

United States District Court, E.D. New York.

Signed Dec. 17, 2014.

Thomas Nguyen, Brooklyn, NY, pro se.

Adam Matthew Marshall, Marianne McCarthy, Cullen and Dykman Bleakley Platt, LLP, Garden City, NY, for Defendants.

MEMORANDUM & ORDER

MARGO K. BRODIE, District Judge:

Plaintiff Thomas Nguyen, proceeding pro se, commenced this action on February 18, 2014, against Defendants Ridgewood Savings Bank (“Ridgewood”) and Peter Boger, the President, Chairman and Chief Executive Officer of Ridgewood. Plaintiff asserts claims under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., and under 42 U.S.C. § 1983, alleging denial of his Fifth Amendment rights and “rights guaranteed by many statutes.”¹ (Compl. 1 ¶ V.)² On March 11, 2014, Defendants moved to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. For the reasons set forth below, the Court grants Defendants' motion. Plaintiff is granted leave to file an amended complaint.

I. Background

According to Plaintiff's Complaint, in or about October 2007, Plaintiff obtained a secured loan of approximately $7,000 from Ridgewood. (Compl. 10.) Between the date of the loan and June 2013, Ridgewood furnished information to credit reporting agencies which indicated Plaintiff had missed payments on his loan on approximately 22 occasions. (Id. at 1 ¶ IV, 11.)

Sometime in 2013, Plaintiff reported to the Federal Deposit Insurance Corporation's (“FDIC”) Consumer Response Center that he had concerns regarding the accuracy of Ridgewood's bank records as they related to the timeliness of his loan payments. (Id. at 4.) The FDIC Consumer Response Center contacted Ridgewood on Plaintiff's behalf. (Id. ) On or about November 19, 2013, Ridgewood, through its Vice President Vito DiBona, issued a response to the FDIC Consumer Response Center's inquiries and sent a copy directly to Plaintiff. (Id. ) This response outlined Ridgewood's analysis which led it to conclude that Plaintiff's payments were delinquent, as reported to the credit reporting agencies. (Id. ) The FDIC Consumer Response Center requested additional information, and on December 9, 2013, Ridgewood issued a second response indicating that it had reconsidered its original analysis, decided to expunge the entire delinquency history from Plaintiff's account and would update the records provided to the credit reporting agencies to reflect the corrected account information. (Id. ) On December 16, 2013, the FDIC Consumer Response Center sent a letter to Plaintiff stating these facts.³ (Id. )

On or about December 29, 2013, Plaintiff sent a letter to Boger stating that Ridgewood's reports of delinquent payments had affected Plaintiff's credit score and financial livelihood. (Id. at 5.) Plaintiff also stated in the letter that the inaccurate reports were a reason that two of his bank accounts, held at another bank, were closed in 2012, and that the situation contributed to his “cardiac problem.”⁴ (Id. at 13.)

II. Discussion

a. Standard of Review

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court “must take all of the factual allegations in the complaint as true.” Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Centers Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717 (2d Cir.2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ); see also Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 113 (2d Cir.2013) (quoting Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir.2009) ); Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.2011) (quoting Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 320 (2d Cir.2009) ). A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Matson, 631 F.3d at 63 (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ); see also Pension Ben. Guar. Corp., 712 F.3d at 717–18. A complaint need not contain “detailed factual allegations,” but a plaintiff must do more than present “an unadorned, the defendant-unlawfully-harmed-me accusation.” Matson, 631 F.3d at 63 (internal quotation marks omitted) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” Pension Ben. Guar. Corp., 712 F.3d at 718 (alteration in original) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 ). Although all allegations contained in the complaint are assumed true, this principle is “inapplicable to legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.”⁵

Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. In reviewing a pro se complaint, the court must be mindful that the plaintiff's pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (internal quotation marks omitted); Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (noting that even after Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”). If a liberal reading of the complaint “gives any indication that a valid claim might be stated,” the court must grant leave to amend the complaint. Shabazz v. Bezio, 511 Fed.Appx. 28, 31 (2d Cir.2013) (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991) ).

b. Fair Credit Reporting Act

The Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., regulates consumer credit reporting agencies to ensure the confidentiality, accuracy, relevancy, and proper utilization of consumer credit information. 15 U.S.C. § 1681(b). “As part of this regulatory scheme, the [FCRA] imposes several duties on those who furnish information to consumer reporting agencies.”⁶ Longman v. Wachovia Bank, N.A., 702 F.3d 148, 150–51 (2d Cir.2012) (citing 15 U.S.C. § 1681s–2 ); Redhead v. Winston & Winston, P.C., No. 01–CV–11475, 2002 WL 31106934, at *3–5 (S.D.N.Y. Sept. 20, 2002) (“The FCRA places distinct obligations on three types of entities: consumer reporting agencies, users of consumer reports, and furnishers of information to consumer reporting agencies.” (citing 15 U.S.C. § 1681 et seq.; Aklagi v. NationsCredit Fin. Servs. Corp., 196 F.Supp.2d 1186, 1192 (D.Kan.2002) ; Thomasson v. Bank One, La., N.A., 137 F.Supp.2d 721, 722 (E.D.La.2001) )). In essence, these obligations involve the duty to provide accurate information and to correct inaccurate information, 15 U.S.C. § 1681s–2(a),⁷ and to conduct an investigation after receiving notice of a credit dispute from a consumer reporting agency, § 1681s–2(b). See Longman, 702 F.3d at 150 (“Among these are duties to refrain from knowingly reporting inaccurate information, see § 1681s–2(a)(1), and to correct any information they later discover to be inaccurate, see § 1681s–2(a)(2).”); Redhead, 2002 WL 31106934, at *4 (“The FCRA imposes two [general] duties on furnishers of information, codified at 15 U.S.C. §§ 1681s–2(a) and (b).”).

Under certain circumstances, an individual may bring a civil cause of action against any entity who “ ‘willfully fails to comply with any requirement imposed under’ the [FCRA] and [may] recover actual or statutory damages, punitive damages, costs, and attorneys' fees.”⁸ Longman, 702 F.3d at 151 (quoting 15 U.S.C. § 1681n(a) ); see also Trikas v. Universal Card Servs. Corp., 351 F.Supp.2d 37, 44 (E.D.N.Y.2005) (same). However, certain requirements are only triggered when a furnisher receives notice of a credit dispute from specified parties. See 15 U.S.C. § 1681s–2(a)(8), (b). “Consumers have the right to dispute any information reported to a credit reporting agency.” Corcia v. Asset Acceptance, LLC, No. 13–CV–6404, 2014 WL 3656049, at *5 (E.D.N.Y. July 22, 2014) (citing 15 U.S.C. §§ 1681g(c)(1)(B)(iii), 1681i(a)(1)(A), 1681s–2(a)(8) ). If a consumer files a dispute directly with the furnisher of the disputed information, the furnisher must investigate the dispute in accordance with the procedures outlined in the statute and regulations. Id. (citing § 15 U.S.C. 1681s–2(a)(8); 16 C.F.R. § 660.4 ; Longman, 702 F.3d at 151 ). If the consumer files a dispute with the consumer reporting agency, both the consumer reporting agency and the furnisher of the disputed information have a duty to investigate the dispute. Id. (citing 15 U.S.C. §§ 1681i(a)(1)(A), 1681s–2(b) ).

i. No private cause of action under Section § 1681s–2(a)

Plaintiff argues that Defendants are liable to him for inaccurately reporting missed payments and non-payments to credit bureaus on 22 occasions. (See Compl. 5.) Plaintiff claims this violation was knowing and willful, (id. 2 ¶ IV), and attaches to his Complaint a December 29, 2013 letter to Boger which raised the issue of the inaccuracy. (Compl. 5–7.) Defendants argue that Plaintiff cannot state a claim to enforce the duty to provide accurate information and to correct inaccurate information provided in Section 1681s–2(a) because only government officials can enforce this section of the statute. (Def. Mem. 4.)

“[T]here is no private cause of action for violations of [Section] 1681s–2(a).” Longman, 702 F.3d at 151 (collecting cases); Barberan v. Nationpoint, 706 F.Supp.2d 408, 427 (S.D.N.Y.2010). The statute expressly provides that Section 1681s–2(a) “shall be enforced exclusively ... by the Federal agencies and officials and the State officials identified in section 1681s of...