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Brault v. Trans Union, LLC

United States District Court, D. Maryland, Southern Division

May 17, 2019

TRANS UNION, LLC, et al., Defendants.


          GEORGE J. HAZEL United States District Judge.

         Plaintiff Joan Frances Brault, a licensed attorney proceeding pro se, filed this lawsuit against Defendants Trans Union, LLC (“Trans Union”), J.P. Morgan Chase Bank, N.A. (“J.P. Morgan”), and Wells Fargo Bank, N.A. (“Wells Fargo”) alleging violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, the Truth In Lending Act (“TILA”), 15 U.S.C. § 1601, the Federal Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691, and the Maryland Consumer Protection Act (“MCPA”), Md. Code. Ann. Com. Law § 13-301, as well as state law contract and property claims. Wells Fargo and J.P. Morgan have filed Motions to Dismiss. ECF Nos. 18, 21. Nearly four months later, Plaintiff filed a Motion for Leave to Amend, ECF No. 26, which Wells Fargo and J.P. Morgan have opposed. ECF Nos. 27, 28. No. hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). For the following reasons, Plaintiff's Motion for Leave to Amend is denied, and Defendants' Motions to Dismiss are granted.

         I. BACKGROUND [1]

         In 2017, Plaintiff sought to refinance her home with J.P. Morgan and Wells Fargo, but was denied credit by both entities. ECF No. 1-4 ¶¶ 7-9. J.P. Morgan first conditionally approved Plaintiff's application to refinance her home, but later withdrew the offer based on a credit report produced by Defendant Trans Union containing false information, “including a long list of unauthorized inquiries into Plaintiff's credit, credit card debt not attributable to Plaintiff, ” and the address of her ex-husband listed as her own. Id. ¶ 9. Wells Fargo denied the application due to a “debt to income ratio of 163.67%.” Id. ¶ 10.

         Plaintiff's Amended Complaint details the process by which Plaintiff was directed, first by J.P. Morgan and then by Wells Fargo, to apply for credit. ECF No. 26-3 ¶¶ 9-18. Upon conditional approval, J.P. Morgan required Plaintiff to complete various tasks, including signing the application and related agreements, providing copies of financial records, and making a $500 payment. Id. ¶ 9. Plaintiff completed these tasks, but J.P. Morgan denied the application because the parties to the new transaction were not the same as the parties to the original mortgage, and because Plaintiff's debt-to-income ratio was 137.502%. Id. ¶ 12.

         The Amended Complaint also alleges that Plaintiff reapplied for refinancing after securing employment and was denied again due to insufficient income, high balances on revolving accounts, level of delinquency, and number of credit inquiries. Id. ¶ 17. However, Plaintiff alleges that the delinquency information on her credit report was incorrect at the time. Id. J.P. Morgan recommended submitting an application for an assumption of the mortgage, but that mortgage was also denied due to her debt-to-income ratio, which did not include her alimony as income because she could not show six months of alimony payments had been received. Id. ¶ 19. That fall and winter, the parties entered conciliation but both Wells Fargo and J.P. Morgan continued to refuse to offer Plaintiff a refinance or assumption of the mortgage; J.P Morgan stated that this denial was because of late payments made on Plaintiff's accounts during the fall. Id. ¶¶ 22-24.


         Though leave to amend a pleading “shall be freely given when justice so requires, ” Fed.R.Civ.P. 15(a), a motion for leave to amend should be denied when the amendment would be futile. Devil's Advocate, LLC v. Zurich Amer. Ins. Co., 666 Fed.Appx. 256, 267. An amendment to a complaint is futile when the amended complaint could not survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Id.

         On a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), the Court “must accept the factual allegations of the complaint as true and construe them in the light most favorable to the nonmoving party.” Rockville Cars, LLC v. City of Rockville, Md., 891 F.3d 141, 145 (4th Cir. 2018). To overcome a 12(b)(6) motion, 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). Plaintiffs must “provide sufficient detail” to show “a more-than-conceivable chance of success on the merits.” Upstate Forever v. Kinder Morgan Energy Partners, 887 F.3d 637, 645 (4th Cir. 2018) (citing Owens v. Balt. City State's Attorneys' Office, 767 F.3d 379, 396 (4th Cir. 2014)). The mere recitation of “elements of a cause of action, supported only by conclusory statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6).” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012). Nor must the Court accept unsupported legal allegations. Revene v. Charles Cnty. Commis., 882 F.2d 870, 873 (4th Cir. 1989). A plausibility determination is a “context-specific inquiry” that relies on the court's “experience and common sense.” Iqbal, 556 U.S. at 679-80.


         J.P. Morgan and Wells Fargo seek to dismiss Plaintiff's FCRA, TILA, ECOA, MCPA, breach of contract, and lis pendens claims. The FCRA requires “furnishers of credit information to provide accurate information to credit reporting agencies, to correct inaccuracies, and to investigate disputed information upon notice from a credit reporting agency.” Alston v. Wells Fargo Home Mortg., No. TDC-13-3147, 2016 WL 816733, at *8 (D. Md. 2016). To bring a claim under § 1681s-2(b) of the act, a plaintiff must establish “(1) that he or she notified the consumer reporting agency of the disputed information, (2) that the consumer reporting agency notified the defendant furnisher of the dispute, and (3) that the furnisher then failed to investigate and modify the inaccurate information.” Ausar-El v. Barclay Bank Del., No. PJM 12-0082, 2012 WL 3137151, at *3 (D. Md. 2012).

         Assuming that Plaintiff has plausibly pled that she notified Trans Union of the disputed information and that Trans Union notified Wells Fargo and J.P. Morgan, she has not pled that either entity failed to investigate and modify the inaccurate information. Instead, Plaintiff asserts that Defendants' failure to consider her hardship circumstances in their refusals to agree to forbearance, refinance, or assumption of the mortgages raises the inference of a “biased, inadequate and discriminatory FCRA investigation.” ECF Nos. 20-1 at 6, 24-1 at 6.[2] The Court disagrees. It does not logically follow that, because Defendants refused to extend credit to Plaintiff, they also failed to investigate and modify any inaccurate information. Plaintiff does not even allege with any specificity that false information remained on her credit report at the time of Defendants' most recent denials; to the contrary, she admits that Defendants relied upon a recent history of late payments to justify their refusal to extend credit. ECF No. 26-3 ¶ 24. For her part, Plaintiff contends that she would not have made late payments were it not for the original denial of credit. But Plaintiff cites to no authority stating that the FCRA provides relief due to credit improperly denied. Therefore, Plaintiff's FCRA claim must be dismissed.

         TILA was passed to provide consumers with a “meaningful disclosure of credit terms” and to protect them against “inaccurate and unfair credit billing and credit card practices.” 15 U.S.C. § 1601(a). TILA imposes penalties upon lenders who fail to make the required disclosures “before the credit is extended.” Gibson v. LTD, Inc., 434 F.3d 275, 280 (4th Cir. 2006). TILA's regulations clarify this timing requirement: “a creditor must ‘make disclosures before consummation of the transaction.'” Id. (emphasis in original); see also 12 C.F.R. § 226.17(b). Consummation occurs when “a consumer becomes contractually obligated on a credit transaction.” 12 C.F.R. § 226.2. Plaintiff never became contractually obligated on a credit transaction with Wells Fargo, as Wells Fargo denied each of her applications for credit. See, e.g., ECF No. 26-3 ¶ 15. Therefore, Plaintiff has not stated a claim that Wells Fargo violated TILA.

         Even assuming, without deciding, that Plaintiff became contractually obligated on a credit transaction with J.P. Morgan when she responded to the “Mortgage Conditional Approval” between February and March 2017, Plaintiff does not allege that J.P. Morgan failed to include disclosures required by TILA. Even if she did, TILA claims are subject to a one-year statute of limitations. See, e.g., Strickland-Lucas v. Citibank, N.A., 256 F.Supp.3d 616, 626-27 (D. Md. 2017). Plaintiff filed her original Complaint on September 29, 2018, more than one year after she ...

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