Henderson v. PNC Bank

32 Mass. L. Rptr. 235
CourtMassachusetts Superior Court
DecidedJune 16, 2014
DocketNo. MICV201301768
StatusPublished

This text of 32 Mass. L. Rptr. 235 (Henderson v. PNC Bank) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henderson v. PNC Bank, 32 Mass. L. Rptr. 235 (Mass. Ct. App. 2014).

Opinion

Gordon, Robert B., J.

This case arises out of a failed lending relationship between Plaintiffs Wayne and Maty Henderson and Defendant PNC Bank, N.A. Plaintiffs have filed a consumer action under state and federal fair debt collection and fair credit reporting statutes, and have additionally asserted companion statutory and common-law causes of action. Briefly stated, Plaintiffs’ First Amended Complaint advances claims against PNC Bank for its purportedly improper suspension of the Hendersons’ home equity line of credit, its allegedly wrongful handling of Plaintiffs’ efforts to refinance this line of credit before their account became delinquent, and PNC’s supposedly inaccurate and defamatory reportage of the Hendersons’ loan delinquency to credit reporting agencies.

Defendant PNC Bank has moved to dismiss seven of the nine counts set forth in the First Amended Complaint, arguing that such causes of action fail to state claims upon which relief can be granted. Applying the now familiar standard for reviewing Rule 12(b)(6) motions articulated in Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), the Court has determined that Defendant’s motion must be ALLOWED IN PART and DENIED IN PART.2

DISCUSSION

1. Federal Fair Debt Collection Practices Act

In Count IV of the First Amended Complaint, the Hendersons allege that, by suspending and then failing to reinstate or approve the refinancing of their line of credit, PNC Bank violated the federal Fair Debt Collection Practices Act (FDCPA), 15U.S.C. Secs. 1692 et seq. The Court agrees that this claim must be dismissed, because PNC Bank does not meet the definition of a covered “debt collector” under the statute. See 15 U.S.C. Sec. 1692a(6) (defining “debt collector” as a business “the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due to another”). [237]*237PNC’s principal business is undeniably consumer and commercial lending, and not third-party debt collection. See, e.g., Thomasson v. Bank One, Louisiana, N.A., 137 F.Sup.2d 721, 724 (E.D.La. 2001) (holding defendant bank not a debt collector under FDCPA because its primary purpose was consumer lending and not debt collection).

Plaintiffs evidently agree that PNC Bank does not qualify as a debt collector so defined, and acknowledge that the First Amended Complaint does not allege otherwise. Plaintiffs, however, suggest that discovery may yet reveal the Bank to fall within alternate definitional coverage under 15 U.S.C. Sec. 1692a(6). The Court expresses no opinion as to the viability of such a contention, but rules that the dismissal of Count IV shall be without prejudice to Plaintiffs’ right to re-plead their claim should discovery reveal this to be warranted.

2. Fair Credit Reporting Act

In Count v. of the First Amended Complaint, Plaintiffs allege that PNC Bank violated the federal Fair Credit Reporting Act, 15 U.S.C. Sec. 168 ls-2(b), when it negligently or willfully failed to investigate and rectify the Hendersons’ disputed loan delinquency prior to taking adverse action in respect to their home equity line of credit. This claim, however, must be dismissed, because Plaintiffs have failed to plead that they notified a consumer reporting agency of their dispute of the underlying credit report and that a thus-informed consumer reporting agency notified the “furnisher of [the] information” (te., the Bank) of the claimed inaccuracy. The Hendersons’ September 10, 2012 letter referenced in the First Amended Complaint plainly does not qualify, as Plaintiffs themselves appear to concede. Because the “information furnisher” is required to have received notice of a claimed inaccuracy from a consumer reporting agency as the predicate to a private cause of action under the statute, see 15 U.S.C. Sec. 1681s-2(b)(l), pleading such an allegation is essential to a viable claim. Several federal courts in Massachusetts have expressly so held. See Catanzoro v. Experian Info. Solutions, Inc., 671 F.Sup.2d 256, 259 (D.Mass. 2009) (“notification by a consumer reporting agency to the information furnisher is a prerequisite for liability under Sec. 1681s-2(b)(l)’j; Leet v. Cellco Partnership, 480 F.Sup.2d 422, 428 (D.Mass. 2007) (“courts have ‘uniformly’ concluded that Sec. 2(b) ‘provides a private cause of action only if the furnisher received notice from a consumer reporting agency, as opposed to the plaintiff alone, that the credit information was disputed’ ”); Islam v. Option One Mortgage Corp., 432 F.Sup.2d 181, 191 (D.Mass. 2001) (“there is no private right of action against a furnisher of information under the FCRA until the consumer notifies a credit reporting agency of an inaccuracy in his credit report and the agency then informs the furnisher”); Gibbs v. SLM Corp., 336 F.Sup.2d 1, 11 (D.Mass. 2004), aff'd, 2005 WL 5493113 (1st Cir. 2005) (same). The First Amended Complaint reflects no allegation to this effect, an omission fatal to the Plaintiffs’ claim in Count V.

In their Opposition, Plaintiffs counter that their non-reportage of the disputed inaccuracy to a consumer reporting agency — and the agency’s non-reportage of same to PNC Bank — are not facts drawn from the First Amended Complaint. True that; but because such factual elements are a sine qua non to FCRA liability on the part of the Bank, that is precisely the reason why dismissal is appropriate. Count v. shall, therefore, be dismissed, but such dismissal shall be without prejudice to Plaintiffs’ right to re-plead the claim and assert the factual allegations essential thereto should facts adduced during discovery enable it to do so.

3. Defamation

In Count IX of the First Amended Complaint, Plaintiffs allege that PNC Bank’s inaccurate reporting of their loan delinquency to credit reporting agencies was defamatory and injured their reputation. The Court concludes that this claim must be dismissed, inasmuch as it is preempted by the federal Fair Credit Reporting Act (FCRA). .

Under Section 1681t(b)(l)(F) of the FCRA, “[n]o requirement or prohibition may be imposed under the laws of any State . . . with respect to any subject matter regulated under . . . section 1681s-2 of this title, relating to the responsibilities of persons who furnish information to consumer reporting agencies.” Regarding subject matter, Section 1681s-2 of the FCRA regulates the reporting of inaccurate information by furnishers of such information to credit agencies. See 15 U.S.C. Sec. 1681s-2(a)(l)(A) (“A person shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or has reason to believe that the information is inaccurate”); 15 U.S.C. Sec. 1681s-2(a)(l)(B) (“A person shall not furnish information relating to a consumer to any consumer reporting agency if the person has been notified by the consumer... that the specific information is inaccurate”).

In the present case, Plaintiffs’ state law defamation claim relates directly to a subject matter regulated under Section 1681s-2 of the FCRA — viz., the alleged reporting of inaccurate credit information about the Hendersons to consumer reporting agencies. As such, the claim falls squarely within the broad preemptive purview of Section 1681t(b)(l)(F). See Islam, supra,

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Bluebook (online)
32 Mass. L. Rptr. 235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henderson-v-pnc-bank-masssuperct-2014.