United States District Court, D. Maryland, Southern Division
YVONNE R. ALSTON, Plaintiff,
BRANCH BANKING & TRUST COMPANY, et al., Defendants.
J HAZEL, United States District Judge
action, which was removed to this Court from the Circuit
Court for Prince George's County. Maryland. Plaintiff
Yvonne R. Alston, who is ostensibly proceeding pro
se, alleges violations of the Fair Credit
Reporting Act ("FCRA"), 15 U.S.C. § 1681
et seq., the Maryland Consumer Debt Collection Act
("MCDCA"). Md. Code Ann.. Com. Law § 14-201
et seq.. and the Maryland Consumer Protection Act
("MCPA"). Md. Code Ann.. Com. Law § 1 3-101
et seq. against Defendants Branch Banking and Trust
Company ("BB&T"). Equifax Information Services.
LLC ("Equifax"). Experian Information Solutions.
Inc. ("Experian"). Trans Union, LLC ("Trans
Union"), and Midland Credit Management. Inc.
("Midland") (collectively. "Defendants").
ECF No. 27. Multiple dispositive motions are currently
pending before the Court, including two motions to dismiss
Plaintiff's Amended Complaint tiled by Experian and
BB&T. ECF Nos. 31 & 31. and a motion for judgment on
the pleadings filed by TransUnion. ECF No. 44. No hearing is
necessary to resolve these motions. See foe. R.
105.6 (D. Md.). For the reasons that follow. BB&Ts Motion
to Dismiss. ECF No. 32. is granted, in part, and denied, in
part: Experian's Motion to Dismiss. ECF No. 31. is
granted: and Trans Union's Motion for Judgment on the
Pleadings. ECF No. 49. is granted, in part, and denied, in
to the Amended Complaint. Plaintiff obtained a mortgage
refinance loan on her primary residence in June 2013 from
Virginia Heritage Bank. ECF No. 27 ¶¶ 8-9. The
promissory note (the "'Note'") executed by
Plaintiff in exchange for the loan indicated that Plaintiff
would make her monthly payments on the loan on the first day
of each month, and that if she failed to pay by that date.
Plaintiff would be deemed to be in default. ECF No. 32-2 at
2-3. The Note nevertheless further provided that late charges
would not be assessed so long as the holder of the Note
received any monthly payment by the fifteenth day of each
month, Id. at 3.
point. BB&T acquired the loan from Virginia Heritage
Bank. ECF No. 27 "110. On May 31. 2014. Plaintiff sent a
letter to BB&T requesting a payoff statement and
certified copy of the Note. Id. ¶ 11. On June
4. 2014. BB&T sent Plaintiff a payoff statement, a notice
of transfer of servicing, and a copy of the Note.
Id. ¶ 12. According to Plaintiff, the Note sent
in that correspondence "was not certified as a true and
accurate copy." Id. ¶ 13.
15. 2014. Plaintiff advised BB&T that the Note was not
certified as a direct copy of the original Note, but
Plaintiff did not receive any response to that
correspondence, id. ¶¶ 14-15. On August
21. 2014, Plaintiff again complained that BB&T had not
sent a certified copy of the Note, and she again requested a
payoff statement, but this time asked that such statement not
assess interest for the months of July through September
2014. Id. ¶ 16. On September 2.2014. BB&T
sent Plaintiff a payoff statement, a certified copy of the
Note, and a copy of a letter dated July 24, 2014. which,
according to BB&T. was sent in response to Plaintiffs
July 15. 2014 letter. Id. ¶ 17. The July 24,
2014 letter from BB&T enclosed a copy of the certified
Note, which. unlike the previous copy she had received, was
payable to Virginia Heritage Bank and did not include an
allonge indorsed in blank or indorsed to
BB&T. Id. ¶¶ 19-20. Plaintiff
alleges. therefore, that BB&T was not a holder of the
certified Note. Id. ¶ 20.
December 26, 2014, Plaintiff advised BB&T that she had
received two different versions of the Note and requested an
opportunity to inspect the original copy. She further argued
that BB&T should have ceased assessing interest on her
loan after July 2014 due to BB&T's failure to verify
that it was the holder of the Note, and that the payments she
submitted for the months of July through December 2014 should
have been applied to her principal balance only. Id.
¶ 22. Plaintiff also requested a payoff statement that
would reflect these demands. Id. BB&T responded
to Plaintiffs request on January 2. 2015. but the payoff
statement sent included interest assessed for the months of
July through December 2014. Id. ¶ 23.
December 29. 2014. Plaintiff sent a dispute letter to three
consumer reporting agencies ("CRAs"). Equifax.
Experian, and Trans Union in which she stated that the
balance on her mortgage account was incorrect. According to
Plaintiff, rather than a balance of $ 131.809. her report
should show a balance of $129, 463.40. Id. ¶
24. Plaintiff explained in the letter that the "cause of
the error stems from BB&T's assessment of interest
for the months [of] July | through] December 2014" and
that "[n]o interest should have been assessed during
that period because [Plaintiff] attempted to pay off the debt
but BB&T failed to provide documentation required for
[her] to complete the [payoff]." Id. ¶ 25.
Plaintiff asked that the CRAs "investigate whether
[Plaintiff] attempted to pay the debt in full and whether
BB&T provided the necessary documentation" for her
to complete the payoff. Id. Plaintiff alleges that
"[u]pon information and belief, " Experian and
Trans Union forwarded notice of Plaintiffs dispute to
BB&T. but Equifax did not. Id. ¶¶ 26.
receiving notice of her dispute from Experian and TransUnion.
Plaintiff alleges that BB&T did not conduct an
independent investigation, but rather verified that the
information being reported to the CRAs was consistent with
the information that BB&T had previously reported, and
did not notate that Plaintiffs account was disputed.
Id. ¶¶ 32-33. Experian responded to
Plaintiff with the results of its investigation of Plaintiff
s dispute, but not with a copy of Plaintiff s full consumer
tile, on or about January 15. 2015. indicating that its
reporting of Plaintiff s account was not changed as a result
of Plaintiff s dispute. Id. ¶¶ 27. 67.
Plaintiff alleges that Experian did not independently
investigate her dispute, and rather "relied on
BB&T's conclusions and parroted the results of
BB&T"s purported investigation." Id.
January 9. 2015. Trans Union responded to Plaintiff with the
result of its investigation of Plaintiff s dispute, and. like
Experian. continued to report Plaintiffs mortgage balance as
$131, 809. Id. ¶ 29. Plaintiff alleges that
TransUnion, like Experian. did not independently investigate
her dispute and relied on BB&T's purported
investigation. Id. Additionally, included along with
TransUnion's investigation results was a copy of
Plaintiffs credit file, which revealed that Midland, a debt
collection and information management company, id,
¶ 4. had obtained a copy of Plaintiff s consumer report
from Trans Union on August 22. 2014. id. 30.
Plaintiff alleges that she contacted Midland and spoke with
an employee who "'acknowledge[d] that Midland did
not have a reason to obtain her report." Id.,
Plaintiff contends that this action on the part of Midland
was part of a broader scheme by Midland to pull
individuals' consumer reports in order to identify
potential creditors to solicit and offer its debt collection
services, Id. According to Plaintiff. Trans Union is
aware that Midland improperly pulls consumer reports for
these purposes and yet has not established any procedures to
verify that Midland is obtaining credit reports for
permissible purposes. Id.
August 17. 2015. Plaintiff mailed a letter to BB&T
offering to settle the dispute. Plaintiff offered to waive
any legal claims she had against BB&T in exchange for
BB&T agreeing to accept $10, 000 in full payment of the
debt. Id. ¶ 34. Plaintiff indicated in her
letter that the remaining outstanding debt was approximately
$129, 000. but that if she were to retain an attorney and
pursue her FCRA claim, her damages would exceed the
outstanding balance on the Note. ECF No. 32-3 at 2. Plaintiff
included with her letter a copy of a draft complaint setting
forth her claims, as well as a check for $10, 000 to be drawn
from the account of "Metropolitan Legal Team LLC."
Id. at 3-8.
over one week later, on August 30. 2015. Plaintiff submitted
a dispute with Equifax indicating that her account balance
was incorrect. ECF No. 27 ¶ 36. Plaintiff included with
her dispute a copy of her August 1 7 letter to BB&T and
asserted that, because BB&T had retained her check, it
had accepted her payment. Id. But on or about
September 4. 2015. Plaintiff received a letter from BB&T
which was dated August 27, 2015. declining Plaintiffs
settlement offer and returning Plaintiffs check. Id.
¶ 35. Equifax never responded to Plaintiffs August 30
dispute. Id. ¶ 37.
October 2, 2015. BB&T mailed Plaintiff a billing
statement for a total amount of $1, 910.24. ECF No. 32-5 at
2. The statement indicated that Plaintiff owed a "past
due" amount of $1, 005.12. but that $100 of partial
payment were being held in suspense,  and that no late charges had
been assessed. The statement further indicated that
Plaintiffs regular monthly payment due was $1, 005.12. and
noted that the "billing due date" was November 1.
2015. but that the "current due date" was October
1. 2015. Id. The total amount due was $1.910.24. and
indicated that "[i]f payment is received after 11/16/15.
$30.76 late fee will be charged." Id.
interpreted the October 2 billing statement as indicating
that she had missed a mortgage payment, which Plaintiff
alleges was false. ECF No. 27 *■ 39. Billing records
indicate that Plaintiff submitted a payment of $1, 005.12 on
October 14. 2015. and that another regular payment in the
same amount was made on November 13. 2015. ECF No. 32-4 at 2.
Plaintiff alleges that she "was incensed" to learn
that "she was being accused of missing a payment. And
she feared BB&T was reporting her late to the [consumer)
reporting agenc[ies]." ECF No. 27 * 40. Plaintiff then
"went [through] all her records to see if she could make
sense of why BB&T was claiming there was a past due
payment." but she found nothing. Id. Plaintiff
then sent a letter to BB&T requesting that it cease
attempting to collect $1, 910.24 from her and that it correct
its records. Id. Plaintiff further alleges that she
"decided to verify whether BB&T was illegally
attempting to collect any other undue payments or
balances" and "[i]n researching her records she
discovered that the outstanding principal balance [on her
loan) was not $128, 558.15 as BB&T claimed" but
rather that it was $121.643.91. Id. ¶ 41.
sent dispute letters to the CRAs on November 4. 2015. in
which she indicated that the correct balance on her loan was
$121, 643.91 and asked that the bureaus investigate the
balance and correctly report it. Id. ¶
42. Plaintiff further requested that if the CRAs were not
going to report the balance as $121, 643.91. that they
include a "statement of dispute'" that would
read: "The correct balance of this account is
$121.643.91."' Id. Plaintiff alleges that
TransUnion. Experian, and Equifax received her dispute on
November 7. 9. and 10, 2015. respectively, but that none of
them added Plaintiffs requested statement of dispute.
Plaintiff further alleges that "[u]pon information and
belief" each of the CRAs have furnished Plaintiffs
credit report since receiving Plaintiffs November 4. 2015
dispute letter without including Plaintiffs statement of
dispute. Id. ¶¶ 43-45.
initiated this action in state court on September 8. 2015
alleging various claims against BB&T. Equifax. Experian.
and TransUnion. ECF No. 2. Trans Union removed the case to
this Court on October 13. 2015. ECF No. 1. After Trans Union
and BB&T filed motions to dismiss. ECF Nos. 18 & 22,
Plaintiff Hied an Amended Complaint on November 19. 2015.
adding Midland as a defendant. ECF No. 27. In the Amended
Complaint. Plaintiff alleges violations of the FCRA against
all Defendants (Counts 1, II. III. IV & V). and
violations of the MCDCA and MCPA against BB&T (Counts VI
& VII). On December 14. 201 5. the Court directed
Plaintiff to submit a completed summons to serve Midland. ECF
No. 34. but Plaintiff has not complied with that Order.
Experian and BB&T have moved to dismiss Plaintiffs
Amended Complaint ECF Nos. 31 & 32. Trans Union and
Equifax filed Answers to the Amended Complaint. ECF Nos. 29
& 30, and Trans Union has filed the presently pending
Motion for Judgment on the Pleadings, ECF No. 44. All of
Defendants" motions are now ripe for
STANDARD OF REVIEW
and BB&T have moved to dismiss Plaintiffs 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. Trans Union, having already filed an Answer to
the Amended Complaint, ECF No. 29. has filed a Motion for
Judgment on the Pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. Pursuant to Rule
12(h)(2)(B). a defendant may assert that a complaint
"fail[s] to state a claim upon which relief can be
granted" in a Rule 12(c) motion. Rule 12(c) allows a
party to move for judgment on the pleadings "[a]fter the
pleadings are closed" so long as the motion is brought
"early enough not to delay trial." Fed.R.Civ.P.
12(c). In considering a Rule 12(c) motion for failure to
state a claim, courts apply "the same standard ... as
for motions made pursuant to Rule 12(b)(6)." Burbach
Broad. Co. of Delaware v. Elkins Radio Corp., 278 F.3d
401. 406 (4th Cir. 2002); see also Goldstein v.
F.D.I.C. No. CIV.A. ELI 1-11 -1604. 2014 WL 69882, at *9
(D. Md. Jan. 8. 2014) ("[T]he standard of review with
regard to a Rule 12(e) motion is the same as that for a
motion under Rule 12(b)(6)."').
deciding a motion for failure to state a claim under Rule
12(b)(6) or 12(c). a court "must accept as true all of
the factual allegations contained in the complaint." and
"draw all reasonable inferences [from those facts] in
favor of the plaintiff." E.I. du Pont de Nemows
& Co. v. Kolon Indus., Inc., 637 F.3d 435. 440 (4th
Cir. 2011) (citations and internal quotation marks omitted).
Pursuant to Rule 8(a)(2) of the Federal Rules of Civil
Procedure, a complaint must contain a "short and plain
statement of the claim showing that the pleader is entitled
to relief" Fed.R.Civ.P. 8(a)(2). But to survive a motion
to dismiss invoking Rule 12(b)(6) or a motion for judgment on
the pleadings under Rule 12(c). "a complaint must
contain sufficient factual matter, accepted as true, "to
slate a claim to relief that is plausible on its
face."" Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544. 570 (2007)). The factual allegations must be more
than "labels and conclusions .... Factual allegations
must be enough to raise a right to relief above the
speculative level...."' Twombly, 550 U.S.
at 555: see also 5 C. Wright & A. Miller.
Federal Practice and Procedure § 1216. 235-36 (3d ed.
2004) ("[T]he pleading must contain something more . . .
than ... a statement of facts that merely creates a suspicion
[of] a legally cognizable right of action'"). A
complaint will not survive Rule 12(b)(6) or Rule 12(c) review
where it contains "naked assertion[s]"' devoid
of "further factual enhancement." Twombly.
550 U.S. at ¶ 557. "A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Iqbal, 556
U.S. at 663. "But where 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.'" See Id. at 679 (citing
Fed.R.Civ.P. 8(a)(2)). Additionally, although pleadings of
self-represented litigants must be liberally construed,
see Gordon v. Leeke, 574 F.2d 1147. 1151 (4th Cir.
1978). liberal construction does not give the court license
to ignore a clear failure to allege facts that set forth a
cognizable claim. See Wetter v. Dep't of Soc.
Sen's. Jar City of Bait., 901 F.2d 387. 391 (4th