• Plaintiff Allowed To Replead FCRA Claim against Furnisher after Failing to Allege What Actions Breached the FCRA
  • March 10, 2010 | Author: Paul W. Sheldon
  • Law Firm: Strasburger & Price, LLP - Frisco Office
  • Restrepo v. Wells Fargo Bank, N.A.  2010 U.S. Dist. LEXIS 8924 (S. D. Fla. Feb. 3, 2010)

    Facts: Plaintiff brought suit against Defendant Wells Fargo Bank, N.A. (“Wells Fargo”), claiming multiple causes of action for fraud, breach of contract, breach of fiduciary duty, and violations under the Fair Credit Reporting Act arising out of a mortgage and note Plaintiff executed with Countrywide Home Loans, Inc. Wells Fargo brought a Rule 12(b) motion to dismiss, claiming in part that Plaintiff failed to plead negligent or willful noncompliance with the FCRA nor did he allege what actions Wells Fargo took that breached the statute. The Court agreed and dismissed Plaintiff’s FCRA claim with leave to amend.  

    • Failure to State a Claim.  In testing the sufficiency of Plaintiff’s Complaint, it is well established that “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal” under Rule 12(b)(6).  
    • Pleadings. The FCRA requires that a furnisher of credit information, such as Wells Fargo, receive a notice of dispute from a credit reporting agency as a prerequisite to suit by a consumer. Plaintiff failed to allege what actions Wells Fargo took, after it had received such notice, that breached the FCRA.