United States District Court, D. New Jersey, Camden Vicinage
KIM LAW FIRM, LLC By: Richard H. Kim, Esq. Counsel for
LEVENSON, P.A. By: William S. Donio, Esq. Yolanda N.
Melville, Esq. Counsel for Defendant Diamond Resorts
OPINION Dkt No. 22
RENÉE MARIE BUMB, U.S.D.J.
sisters Betsy Fumelus and Sandy Esperance, bring these Fair
Credit Reporting Act suits against Experian Information
Solutions, Inc., a credit reporting agency, and Diamond
Resorts, a credit information furnisher. Presently before
the Court are Diamond Resorts' motions, pursuant to
Fed.R.Civ.P. 12(b)(6), to dismiss Plaintiffs' claims that
Diamond Resorts willfully and negligently violated 15 U.S.C.
§ 1621s-2(b) (Count Two of the Amended
Complaints). For the reasons stated herein, the motions
will be denied.
underlying debt at issue is a mortgage note for a timeshare
in both Plaintiffs' names. (Amend. Compls ¶ 11 n. 1)
The Amended Complaints assert that Defendants Experian and
Diamond Resorts “repeatedly reported” three
inaccuracies concerning the debt. (Id. ¶ 7)
Diamond Resorts furnished false information stating that: (1)
Plaintiffs' “financing obligations are owed to
[Diamond Resorts] instead of Tempus Palms”; (2)
“the tradeline is ‘open' when [Diamond
Resorts] has already represented that the tradeline was
‘charged off'”; and (3) the outstanding
balance on the debt is greater than it actually is. (Amend.
Compls ¶¶ 9-11) All three of these alleged
inaccuracies allegedly appeared, repeatedly, on
Plaintiffs' Experian credit reports. (Id. ¶
allege that they “disputed the inaccurate information
with both [Experian] and [Diamond Resorts]” (Amend.
Compls ¶ 12), but the “Defendants continue to
report the inaccurate information.” (Id.
Rule 12(b)(6) motion, the Court must decide whether the
complaint “contain[s] 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)). In
evaluating plausibility, the Court “disregard[s] rote
recitals of the elements of a cause of action, legal
conclusions, and mere conclusory statements. A claim has
facial plausibility when the pleaded factual content allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Hassen v.
Gov't of V.I., 861 F.3d 108, 114-15 (3d Cir. 2017)
(internal citations and quotations omitted).
Resorts' various arguments in support of its Motions to
Dismiss may be distilled into two: (A) the claims against it
fail because the Amended Complaints do not plead that Diamond
Resorts received a notice of dispute from Experian, which
Diamond resorts asserts is an “essential element”
of a § 1681s-2(b) claim; and (B) the information that
Diamond Resorts furnished was accurate.
Resorts is correct that it can only be liable under
§ 1681s-2(b) if it received a notice from Experian,
rather than receiving a dispute directly from Plaintiffs.
SimmsParris v. Countrywide Financial Corp., 652 F.3d
355, 358 (3d Cir. 2011) (“Notice under §
1681i(a)(2) must be given by a credit reporting agency, and
cannot come directly from the consumer.”); see also
Harris v. Pennsylvania Higher Educ. Assistance Agency/Am.
Educ. Servs., 696 Fed.Appx. 87');">696 Fed.Appx. 87, 91 (3d Cir. 2017)
(“A consumer may certainly notify a furnisher/creditor
directly about his dispute but there is no private cause of
action under § 1681s-2(b) for a furnisher's failure
to properly investigate such a dispute.”) (citing
SimmsParris). But it does not necessarily follow--
as Diamond Resorts asserts-- that Plaintiffs must explicitly
plead that Experian notified Diamond Resorts of
Plaintiffs' disputes. The FCRA, 15 U.S.C. §
1681i(a)(2), requires all credit reporting agencies, upon
receiving a consumer dispute, to notify the furnisher of the
alleged inaccurate information. Therefore, at the pleadings
stage, the Amended Complaints' allegation that Plaintiffs
disputed the alleged ...