Eisberner v. Discover Products, Inc.

921 F. Supp. 2d 946, 2013 WL 485920, 2013 U.S. Dist. LEXIS 17187
CourtDistrict Court, E.D. Wisconsin
DecidedFebruary 8, 2013
DocketCase No. 12-C-0699
StatusPublished
Cited by2 cases

This text of 921 F. Supp. 2d 946 (Eisberner v. Discover Products, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eisberner v. Discover Products, Inc., 921 F. Supp. 2d 946, 2013 WL 485920, 2013 U.S. Dist. LEXIS 17187 (E.D. Wis. 2013).

Opinion

DECISION AND ORDER

LYNN ADELMAN, District Judge.

Holly J. Eisberner filed a complaint against three of her creditors — Discover Products, Inc., World Financial Bank, Inc., and GE Capital Retail Bank — under the Fair Credit Reporting Act (“FCRA”). When the defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted, Eisberner filed an amended complaint. Before me now are the defendants’ motions to dismiss the amended complaint for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6).

[947]*947According to the allegations of the amended complaint, Eisberner ran into financial trouble in early 2011 and decided to file a petition under Chapter 128 of the Wisconsin Statutes. Under Chapter 128, a debtor who is earning wages or salary but who cannot pay her bills on time may amortize those debts over a period of up to three years. See Wis. Stat. § 128.21. After the debtor files a petition under Chapter 128, the court appoints a trustee to administer a repayment plan. The trustee will add up all of the debts that are subject to the petition, add a percentage for his or her own fees, and then divide the total into either weekly or monthly amounts such that all debts are repaid in full within three years. The debtor makes payments to the trustee, and then the trustee forwards payments to the creditors. While the plan is pending, the creditors are prohibited from using execution, attachment, or garnishment to collect the debts. However, unlike in a federal bankruptcy, the creditors are not prohibited from commencing or continuing any other collection activity against the debtor. In the present case, the state court approved Eisberner’s Chapter 128 plan in July 2011, and she began making payments to the trustee at that time. Eisberner’s debts to the defendants were included in the plan.

In December 2011, Eisberner reviewed the credit reports maintained on her by the three national credit-reporting agencies. In her view, the reports did not accurately reflect the status of the debts that were subject to the Chapter 128 plan, including the debts owed to the defendants. She thus sent dispute letters to the three credit-reporting agencies. Under the Fair Credit Reporting Act, the agencies were required to investigate the dispute. See 15 U.S.C. § 1681i. As part of this investigation, the agencies sent notice of the dispute to the defendants — who are “furnishers” of information within the meaning of the FCRA. See 15 U.S.C. § 1681i(a)(2). Once the defendants received this notice, they were required to conduct a reasonable investigation with respect to the disputed information to determine whether the information was “incomplete or inaccurate” and to report the results of the investigation to the consumer-reporting agencies. See 15 U.S.C. § 1681s-2(b); Westra v. Credit Control of Pinellas, 409 F.3d 825, 827 (7th Cir.2005).

At the conclusion of their investigations, the credit-reporting agencies provided Eisberner with copies of the reports they had received from the defendants. The reports indicated that each of the defendants had described the status of her debts as “charged off.”1 The defendants also updated the “balance” of each account to reflect the payments she had made pursuant to her Chapter 128 plan. However, the defendants did not indicate that the payments were received pursuant to a Chapter 128 plan or otherwise indicate that Eisberner was making “regular” (as opposed to sporadic) payments towards the balance of each past-due account.

Eisberner contends that the defendants’ descriptions of the status of her debts were incomplete or inaccurate. She alleges that her accounts should not have been described as “charged off’ and that the defendants should have indicated that she was making regular payments towards the balance of each account. See Am. Compl. ¶¶ 32, 37, 48, 53, 58, 68, 73, 78.

The question presented by the defendants’ motions to dismiss is whether the allegations of the amended complaint state plausible claims. See Ashcroft v. Iqbal, 556 U.S. 662, 670, 129 S.Ct. 1937, 173 [948]*948L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). More precisely, the question presented is whether the factual allegations of the complaint give rise to a plausible inference that describing plaintiffs accounts as “charged off’ and failing to indicate that Eisberner was making “regular” payments towards the balance of each account violated the FCRA.

I start with Eisberner’s contention that describing her accounts as “charged off’ was inaccurate. Eisberner does not allege what “charged off’ means or allege why it was inaccurate to describe her accounts as such. She merely alleges in conclusory fashion that the defendants should not have described her accounts that way. However, the meaning of “charged off’ is not obvious, and thus the allegations of the complaint provide no factual support for the bare legal conclusion that describing the accounts as “charged off’ was inaccurate. See Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937 (in assessing whether a complaint alleges a plausible claim, the court must disregard legal conclusions couched as factual allegations); Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (same). Of course, it is possible that, after discovery, Eisberner will be able to point to facts revealing that it was inaccurate to describe her accounts as charged off. However, before the defendants may be put to the expense of discovery, the complaint must contain allegations that establish more than a “sheer possibility” that the defendants have acted unlawfully. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. As the Seventh Circuit has explained, “the fact that the allegations undergirding a plaintiffs claim could be true is no longer enough to save it”; instead, “the complaint taken as a whole must establish a nonnegligible probability that the claim is valid.” Atkins v. City of Chicago, 631 F.3d 823, 831-32 (7th Cir.2011). Here, the complaint does not establish a nonnegligible probability that it was inaccurate to describe Eisberner’s accounts as “charged off.” Indeed, the complaint offers no factual support for that assertion whatsoever.

Eisberner’s next claim is that the defendants’ descriptions were “incomplete” because those descriptions did not indicate that Eisberner was making regular payments towards the balance of each account. However, the complaint does not contain any factual allegations supporting the legal conclusion that not mentioning the receipt of regular payments rendered the descriptions “incomplete” within the meaning of the FCRA.

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921 F. Supp. 2d 946, 2013 WL 485920, 2013 U.S. Dist. LEXIS 17187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eisberner-v-discover-products-inc-wied-2013.