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Foote v. Continental Service Group

United States District Court, M.D. Florida, Orlando Division

June 18, 2018

TIM FOOTE, Plaintiff,



         This cause comes before the Court without oral argument on Defendant Continental Service Group, Inc.'s Motion to Dismiss (Doc. 18), filed March 19, 2018. Plaintiff responded in opposition on March 29, 2018 (Doc. 22), and Defendant filed a Reply on April 16, 2018 (Doc. 25). With briefing complete, the matter is ripe. Upon consideration, Defendant's motion is due to be denied.

         I. BACKGROUND [1]

         This action springs from Defendant Continental Service Group's (“ConServe”) inquiries into Plaintiff Tim Foote's credit report. After receiving his credit report from Trans Union LLC (“Trans Union”)-a credit reporting agency-on August 14, 2017, Plaintiff discovered an “Account Review Inquiry” on his credit report by Defendant ConServe. (Doc. 1, ¶ 17). At the time, Plaintiff knew nothing about, and had no prior communications with, ConServe. (Id. ¶¶ 17-19).

         On August 25, 2017, Plaintiff sent ConServe an “initial notice of formal dispute letter.” (Id. ¶ 24). On September 1, 2017, Plaintiff received ConServe's reply letter, which identified (i) “Deutsche Bank/Peaks LN” as the original creditor, and (ii) “ConServe-Dept of Education” as the requesting party. (Id. ¶ 26). Plaintiff exchanged several additional communications with ConServe and Trans Union, culminating with letters from Plaintiff entitled “NOTICE OF PENDING LAWSUIT, NOTICE OF OPPORTUNITY TO CURE, ” sent to both entities on November 20, 2017. (Id. ¶¶ 27-35). Plaintiff received a reply letter dated December 7, 2017, from ConServe identifying itself as a debt collection agency and identifying two of Plaintiff's alleged creditors (U.S. Department of Education (ED) and Deutsche Bank/Peaks LN). (Id. ¶ 36, Doc. 18-1, p. 3).[2]

         Thereafter, Plaintiff initiated this action against Trans Union and ConServe on January 16, 2018. (Doc. 1). Plaintiff and Trans Union settled their dispute and Plaintiff's claims against Trans Union were dismissed on April 20, 2018. (Doc. 28). Plaintiff's claims against ConServe-for violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq.-remain. ConServe moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).


         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” set forth in “numbered paragraphs each limited as far as practicable to a single set of circumstances.” Fed.R.Civ.P. 8(a), 10(b). Thus, to survive a Rule 12(b)(6) motion to dismiss, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         Though a complaint need not contain detailed factual allegations, mere legal conclusions or recitation of the elements of a claim are not enough. Twombly, 550 U.S. at 555. Moreover, courts are “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679. Courts must also view the complaint in the light most favorable to the plaintiff and resolve any doubts as to the sufficiency of the complaint in the plaintiff's favor. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994) (per curiam). In sum, courts must (1) ignore conclusory allegations, bald legal assertions, and formulaic recitations of the elements of a claim; (2) accept well-pled factual allegations as true; and (3) view well-pled allegations in the light most favorable to the plaintiff. Iqbal, 556 U.S. at 679.


         The FCRA prohibits third parties from using or obtaining a consumer credit report unless: “(1) the consumer report is obtained for a purpose for which the consumer report is authorized to be furnished under this section; and (2) the purpose is certified in accordance with section 1681e of this title by a prospective user of the report through a general or specific certification.” 15 U.S.C. § 1681b(f). Plaintiff alleges that Defendant violated both subsections of § 1681b(f) when it accessed Plaintiff's consumer credit report. (Doc. 1).

         A. Violation of 15 U.S.C. § 1681b(f)(1)

         Plaintiff brings a cause of action[3] against ConServe accessing his consumer credit information without consent and without a § 1681b permissible purpose, in violation of the FCRA. (Id. ¶¶ 43-46). Defendant moves to dismiss this claim, asserting that it had a permissible purpose-as a debt collector-to access Plaintiff's credit information. (Doc. 18). Because Defendant fails to establish it acted with a permissible purpose, its motion to dismiss Plaintiff's § 1681b(f)(1) claims is due to be denied.

         To state a claim for violation of the FCRA in connection with the misuse or acquisition of a consumer report, a plaintiff must adequately allege: “(i) that there was a consumer report, (ii) that defendants used or obtained it, (iii) that they did so without a permissible statutory purpose, and (iv) that they acted with the specified culpable mental state.” ...

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