UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
ANTHONY RIVERA, )
Plaintiff, )
)
v. ) Civil Action No. 1:15-cv-01065
)
JPMORGAN CHASE BANK, N.A., )
Defendant. )
)
MEMORANDUM OPINION

In this case, plaintiff, Anthony Rivera, brings an action pro se against JPMorgan Chase
Bank (“Chase”) for damages and injunctive relief, alleging willful failure to reasonably
reinvestigate in violation of 15 U.S.C. § 1681s-2(a), negligent failure to reasonably reinvestigate
in violation of 15 U.S.C § 168ls—Z(b), and defamation under the common law Plaintiff filed this
complaint as a class action, which the defendant has challenged due to the plaintiff s pro 5e
status. This matter is before the Court on defendant’s motion to strike class action allegations and
defendant’s motion to dismiss.

For the following reasons and after consideration of the parties’ brieﬁng and relevant
legal standards, in a separate order to issue this date, the defendant’s motion to dismiss will be
GRANTED, and the defendant’s motion to strike class action allegations will be DENIED as
moot.

I. BACKGROUND

Plaintiff is a natural person who resides in the District of Columbia. Compl. 1i 1. Defendant
Chase is a national banking association that provides financial services, including mortgage-
related services, to individual consumers and ﬁnancial entities Id. 112. Chase furnishes information

to credit reporting agencies (“CRAs”) regarding its mortgagors. Id.

In August 2001, the plaintiff acquired a mortgage loan (the “Loan”) from Washington
Mutual Bank, FA. (“Washington Mutual”), which began servicing the Loan in February 2002. Id.
111] 12—13. Plaintiff ﬁled for Chapter 7 bankruptcy in January 2003, and his loan was discharged
accordingly. Id. 1111 14, 16. Washington Mutual reported to CRAs that the Loan was discharged
with a zero balance. Id. 1111 15, 17.

Chase supposedly acquired the servicing rights to the Loan in September 2009. Id. 11 18.
Plaintiff claims that in March 2013 he discovered that Chase had been erroneously reporting that
plaintiff owed on his discharged loan. Id. 11 19. He argues that these erroneous reports by Chase
adversely affected his credit. Id. 11 20. Plaintiff also alleges that he reported this information to
Equifax, a CRA, which then notiﬁed Chase of the dispute. Id. 1111 21—22; Pl.’s Opp. Def’s Mot.
Dismiss ﬂ 5. At this time, Chase purportedly “responded by instructing Equifax to continue
reporting the account as being currently due and owing.” Compl. 11 22.

As a result of this dispute, the plaintiff ﬁled a complaint against Chase in the Superior
Court for the District of Columbia, alleging violation of two provisions of the Fair Credit Reporting
Act (“FCRA”) and common law defamation. Compl. 1111 31—41. Chase timely removed the action

to this Court.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), courts should dismiss complaints that do
not allege sufﬁcient facts, accepted as true, to “state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 US. 662, 678 (2009). A complaint is considered “plausible on its face” if
it “pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. at 662. Additionally, complaints must include

“more than labels and conclusions” and cannot merely consist of “a formulaic recitation of the

elements of a cause of action.” Bell Atlantic v. Twomb/y, 550 US. 544, 555 (2007). The facts
alleged “must be enough to raise a right to relief above the speculative level.” Id

A plaintiff proceeding pro se is held to a “less stringent” standard than a lawyer, and the
court must construe his claims liberally. Erickson v. Pardus, 551 U S. 89, 94 (2007). A pro se
plaintiff is not, however, exempt from the Rule 12(b)(6) requirements. See Atherton v. DC.
Office of the Mayor,

567 F.3d 672

, 681—82 (DC. Cir. 2009) (“But even a pro se complainant
must plead ‘factual matter’ that permits the court to infer ‘more than the mere possibility of
misconduct.” (quoting Iqbal, 556 US. at 679)).
III. F CRA CLAIMS

A. Legal Standards

Furnishers of information to consumer reporting agencies are subject to certain
responsibilities under the FCRA. 15 U.S.C. § 16815-2. Specifically, they are required to provide
accurate information, refrain from reporting information with knowledge of actual errors, and
refrain from reporting information after notice and confirmation of errors. Id § l6813-2(a)(1). If
a ﬁirnisher of information determines that information it has transferred is incorrect or
incomplete, it must “promptly notify the consumer reporting agency of that determination and
provide to the agency any corrections to that information, or any additional information, that is
necessary to make the information provided by the person to the agency complete and
accurate. . .  Id. § 16813—2(a)(2). “If the completeness or accuracy of any information ﬁirnished
by any person to any consumer reporting agency is disputed to such person by a consumer, the
person may not ﬁirnish the information to any consumer reporting agency without notice that

such information is disputed by the consumer.” Id. § 16815-2(a)(3).

Once a furnisher of information receives notice of a dispute regarding the completeness
or accuracy of information provided, the furnisher then has a duty to: (A) conduct an
investigation with respect to the disputed information; (B) review all relevant information
provided by the consumer reporting agency; (C) report theresults of the investigation to the
consumer reporting agency; (D) if the investigation ﬁnds that the information is incomplete or
inaccurate, report those results to all other consumer reporting agencies to which the person
furnished the information; and (E) if the investigation ﬁnds that the information is incomplete or
inaccurate, modify the information, delete the information, or permanently block the reporting of
the inaccurate information. Id. § 1681s-2(b).

The statute of limitations period for bringing a claim under the FCRA, including causes
of action under § 1681s—2, is two years, See id. § 1681p (stating that “[a]n action to enforce any
liability” must be brought “not later than the earlier of (1) 2 years after the date of discovery by
the plaintiff of the violation that is the basis for such liability; or (2) 5 years after the date on
which the violation that is the basis for such liability occurs”). As clearly stated in the FCRA, the
statute of limitations time period commences in the ﬁrst scenario when the plaintiff discovers the
violation, Id; see also Rogers v. Johnson-Norman,

466 F. Supp. 2d 162

, 176 (D.D.C. 2006)
(“Plaintiff’ s FCRA claim does not relate back to his original complaint, and his amended
complaint was not ﬁled until September 20, 2006. Consequently, if plaintiff discovered the
alleged violation immediately upon its supposed occurrence in April 2004, plaintiff“ s FCRA
complaint would be time barred”).

“A defendant may raise the afﬁrmative defense of statute of limitations via a Rule
12(b)(6) motion when the facts that give rise to the defense are clear from the face of the

complaint.” DePippo v. Chertoﬂ,

453 F. Supp. 2d 30

, 33 (D,D.C. 2006). Dismissal is warranted

when “no reasonable person could disagree on the date on which the cause of action accrued,”
and “the complaint on its face is conclusively time-barred.” Id. (internal quotations omitted).
B. Discussion

Plaintiff in this case has stated two causes of action under the FCRA—one under
§ 16815—2(a) and another under § 168ls-2(b). Comp]. 111] 3 1—41. He speciﬁcally claims that
Chase “failed to use reasonable investigation practices for ascertaining the accuracy of
information relating to the discharged debts” of plaintiff and erroneously reported his debts to the
CRAS as due and owing. Id. 11 32. Plaintiff further claims that Chase continued to erroneously
instruct the CRAs after having been notiﬁed that the information was disputed. Id. 11 33.

In his complaint, plaintiff explicitly notes that he discovered these alleged violations by
Chase in March 2013. See id. {1 19 (“In March 2013 Mr. Rivera obtained his credit reports and
discovered that the Defendant was erroneously reported [sic] the discharged [Washington
Mutual] mortgage account as due and owing on Plaintiff 5 credit reports”). Thus, based on the
FCRA statute of limitations period, the plaintiff had until March 2015 to bring an action against
Chase for its allegedly erroneous reporting 15 U.S.C. § 1681p. Because plaintiff brought the
current action in June 2015, he missed the statute of limitations period by approximately three
months.

The plaintiff argues in opposition to the defendant’s motion to dismiss that his complaint
is not time-barred because the statute of limitations period does not commence until the
consumer disputes the information in question with a CRA. Pl.’s Opp. Def’s Mot. Dismiss 11 1.
In making this argument, however, the plaintiff cites to cases that speak to a different issue
entirely. Id. 1111 1—2. Ausar-El sets forth three requirements for bringing a claim under § 16813-2,

and Aviles stands for the proposition that liability under the FCRA attaches when a ﬁirnisher fails

to conduct a reasonable reinvestigation, not when an error or misrepresented item appears on a
consumer’s credit statement. A mar—El v. Barclay Bank [)e/., No. PJM 12—0082,

2012 WL 3137151

, at *3 (D. Md. July 31, 2012); Aviles v. Equifax,

521 F. Supp. 2d 519

, 525 (ED. Va.
2007). In spite of plaintiff’ s contention, the moment when liability attaches and the moment
when the statute of limitations period accrues are distinct issues.

The F CRA explicitly states that causes of action must be brought not later than the earlier
of either' (1) two years after the date when the plaintiff discovered the violation, or (2) ﬁve years
after the date when the violation occurred. 15 U.S,C. § 1681p. Even when liberally interpreting
the complaint, plaintiff clearly asserts that he discovered the violation giving rise to Chase’s
alleged liability in March 2013. Comp]. 1] 19. Thus, “[T]he complaint on its face is conclusively
time-barred,” and dismissal is consequently warranted.

Consequently, plaintiff’ 5 two claims under the FCRA are barred by the statute of
limitations, and therefore do not survive Chase’s motion to dismiss.

IV. DEFAMATION CLAIM
A. Legal Standards
i. F CRA Preemption Provisions

The FCRA includes two separate preemption subsections, which seemingly contradict
each other under certain circumstances. 15 U.S.C. § 1681h(e); 15 U.S.C. § 1681t(b)(1)(F). The
earlier—enacted preemption portion, § 1681h(e), does not generally preempt most state laws, but
rather speciﬁcally preempts a number of common-law causes of action, including defamation
claims. See 15 U.S.C. § 1681h(e) (“[N]o consumer may bring any action or proceeding in the

nature of defamation, invasion of privacy, or negligence with respect to reporting of information

against _ . . any . i . person who ﬁirnishes information to a [CRA] . . . except as to false

information ﬁJrnished with malice or willful intent to injure such consumer”).

The later-enacted preemption section, however, provides a broader provision: “No
requirement or prohibition may be imposed under the laws of any State . . . with respect to any
subject matter regulated under . . . section 16815-2 of this title, . . . relating to the responsibilities
of persons who furnish information to [CRAs] . . .”)i Id. § 1681t(b)(1)(F). This section does not
include a malice or willfulness requirement and generally preempts “the laws of any State.”

ii. Three Approaches to Reconciliation of the Provisions

Because § 1681h(e) and § 1681t(b)(1)(F) are both present in the most recent version of
the FCRA, “courts have struggled to reconcile an apparent conﬂict between the two preemption
provisions” Haynes v. Navy Fed. Credit Union,

825 F. Supp. 2d 285

, 298 n.14 (D.D.C. 2011).
This remains an uncertain area of FCRA jurisprudence, and the US. Court of Appeals for the
DC. Circuit has not directly addressed the narrow issue. Other courts, however, have taken one
of three main approaches when deciding which preemption section to apply: (1) the “temporal
approach,” (2) the “statutory approach,” or (3) the “total approach.” See Himmelsrein v. Comcasr,
L.L.C.,

931 F. Supp. 2d 48

, 57 (D.D.C. 2013) (evaluating each ofthese three approaches),

Under the temporal approach, courts reconcile the provisions by determining that
§ 1681t(b)(1)(F) preempts state law claims that arise after a furnisher is notified of a dispute,
while § 1681h(e) applies to claims prior to such notice. See, e.g., Vazquez-Garcia v. Trans Union
de P.R., Inc, 222 F. Supp, 2d 150, 161 (D.P.R. 2002) (deciding on this approach in order “to
give effect to both the original § 1681h(e) and the new § 1681t(b)(1)(F) and to avoid any
construction that nulliﬁes one section or causes it to be superﬂuous”); Aklagi v. Nationscredil

Fin. Servs. Corp, 196 F, Supp. 2d 1186, 1 194—96 (D. Kan. 2002) (dividing its preemption

analysis into two separate time periods: (1) the time between the loan’s origination and the
defendant receiving notice of the dispute, and (2) the time after the defendant received notice of
the dispute). But see Johnson v. Citimorlgage, Inc,

351 F. Supp. 2d 1368

, 1375 (N .D. Ga. 2004)
(rejecting this approach because it affords “a furnisher of information more protection from
exposure to liability for acts committed after receiving notice of dispute than for acts committed
before such notice”).

In contrast, courts that follow the statutory approach assert that the newer preemption
provision, 15 U.S.C. § 1681t(b)(1)(F), applies only to state statutes, not to state common law.
See, e. g.,Mann0 v. Am. Gen. Fin. C0,,

439 F. Supp. 2d 418

, 429—30 (ED. Pa. 2006) (“According
to the statutory approach to preemption under t(b)(1)(F), which I adopt, Plaintiffs’ defamation
claim is not preempted by t(b)(1)(F) because it is not statutory in nature”); Barnhill v. Bank of
Am, NA,

378 F. Supp. 2d 696

, 703 (D.S.C. 2005) (“The statutory approach construes § 1681t as
preempting only state statutory causes of action, with § 1681h(e) preempting some state common
law causes of action. There are numerous reasons why the statutory approach is the most
compelling of the three”).

Finally, courts that adhere to the total approach contend that “the new preemption
provision preempts all related state—law causes of action against ﬁirnishers, even willful
violations of state common law.” Himmelstein, 931 F. Supp. 2d at 59. These courts do not assert
that § 1681t(b)(1)(F) repeals § 1681h(e), but that “the first-enacted statute preempts some state

7)

regulation of reports to credit agencies, and the second-enacted statute preempts more. . . .
Purcell v. Bank 0fAm.,

659 F.3d 622

, 625 (7th Cir. 2011).
In Himme/Stein, this Court adopted the total approach used by the Second and Seventh

Circuits after examining each approach in turn. Himmelsfein, 931 F. Supp. 2d at 59ﬁ60 (citing to

Purcell, 659 F.3d at 625 & Macpherson v. JPMorgan Chase Bank, NA .,

665 F.3d 45

 (2d Cir.
2011)); see also lhebereme v. Capital One, N.A.,

933 F. Supp. 2d 86

, 98 (D.D.C. 2013)
(determining that the plaintiff’ s defamation claim was preempted under both § 1681h(e) and §
1681t(b)(1)(F) because it arose “from the contention that defendants provided false information
to credit agencies or failed to correct false information they provided to credit agencies”); Adams
v. Martinsville anont Credit Union,

573 F. Supp. 2d 103

, 118 (D.D.C. 2008) (concluding that
the plaintiff’s defamation claim was preempted, despite his allegations of malice and willful
intent to injure). In reaching this conclusion, the Court noted in Himmelstein that courts using the
other two approaches neither mention nor renounce the Second and Seventh Circuit decisions.
Himmelstein, 931 F. Supp. 2d at 60. It goes on to state that the Second and Seventh Circuit
decisions are “almost the only Circuit decisions to engage in a detailed analysis of the issue, they
are the most recent ones, and their discussion convinces the Court.” Id.

This Court ﬁnds Himmelsrein compelling. 1t sees no reason to hold differently at this
time, as the DC. Circuit has not yet ruled on the issue, Thus, the Court will evaluate plaintiffs
defamation claim under the total approach.

B. Discussion

The plaintiffin this case argues that he pled malice or willfulness in his complaint. See
Pl.’s Opp. Def’s Mot. Dismiss 11 7 (“Despite Defendant’s claims to the contrary, the Plaintiff has
alleged that Chase acted with malice and intent to injure the Plaintiff.” (citing to Compl. 11 46)),
see also Haynes, 825 F. Supp. 2d at 297 (“[U]nder the liberal pleading requirements of the
Federal Rules of Civil Procedure, ‘[m]a1ice . . . may be alleged generally.’” (quoting Fed. R. Civ.
P, 9(b))). Thus, if § l681h(e) applies, plaintiff’s defamation claim is not preempted, and if §

1681t(b)(1)(F) applies, his claim is preempted. See Himmelslein, 931 F. Supp. 2d at 57 (“To

decide the Motion, the Court must ultimately decide which provision applies. Since Plaintiff has
pled willfulness, . . . if the 1970 section governs, no preemption occurs; on the other hand, under
the 1996 section, Plaintiffs claim would be preempted”).

Applying the total approach as adopted in Himme/stein, this Court finds that the
plaintiffs common law defamation claim is preempted because it covers the same subject matter
as the F CRA~—it is “premised solely upon conduct that § 16815-2 directly regulates.” Id. at 60.
The FCRA expressly preempts state causes of action arising from such conduct. Id; 15 U.S.C.
§ 1681t(b)(1)(F). Consequently, the plaintiff’s defamation claim cannot survive Chase’s motion
to dismiss.

V. CONCLUSION

For the foregoing reasons, the defendant’s motion to dismiss will be GRANTED,
defendant’s motion to strike class action allegations will be DENIED as moot, and plaintiff’ s
claims will be DISMISSED in their entirety. A separate order consistent with this Memorandum

Opinion shall issue this date, October 22, 2015.

gram
ROY E C. LAMBERTH

United States District Judge

Rivera v. Jpmorgan Chase Bank, N.A.