TRACEY N. WISE, Bankruptcy Judge.
In this adversary proceeding, pro se Plaintiff/Debtor, Michael W. Tomlin ("Tomlin") asserts causes of action for defamation, violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. ("FCRA" or "Act"), breach of contract, fraud, intentional infliction of emotional distress, and tortious interference with contractual relationships against multiple defendants.
Two defendants, Bank of New York Mellon, as Successor in interest to JPMorgan Chase Bank as Trustee for the registered holders of NovaStar Mortgage Funding Trust 2004-3 NovaStar Home Equity Loan Asset-backed Certificates, Series 2004-3 ("BONY") and Ocwen Loan Servicing, LLC ("Ocwen" and together with BONY, the "BONY Defendants") jointly filed a Motion to Dismiss Adversary Complaint [ECF No. 26] ("Motion to Dismiss") on the bases that:
1. The Complaint fails to state a claim upon which relief can be granted;
2. Tomlin's causes of action for violation of the FCRA are precluded by the statute of limitations set forth therein at § 1681p;
3. Tomlin's state law causes of action are preempted by the FCRA and/or barred by the applicable state statutes of limitation; and
4. The Complaint should be dismissed as "an impermissible shotgun pleading."
A hearing on the Motion to Dismiss was held on October 13, 2015, and the matter was taken under submission.
The other two other defendants, Saxon Mortgage Services, Inc. ("Saxon") and Rosio Duran ("Duran" and together with Saxon, the "Saxon Defendants") filed a joint Motion for Summary Judgment [ECF No. 51] and Memorandum in Support of Motion for Summary Judgment [ECF No. 53] ("Saxon Memorandum") on the bases that:
1. Tomlin's causes of action for violation of the FCRA are precluded by the Act's statute of limitations, 15 U.S.C. § 1681p, and/or he does not have a private right of action to bring those claims; and
2. Tomlin's state law causes of action are preempted by the FCRA, barred by the state statutes of limitation, and/or have been released and are barred by the doctrine of res judicata.
The Motion for Summary Judgment has been fully briefed, and the Court having determined that oral argument is not necessary, is also ripe for decision.
The Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1334(b). The allegations against BONY, Ocwen, Saxon and Duran (collectively, the "Defendants") are related-to, non-core proceedings which this Court is authorized to hear. 28 U.S.C. § 157(c)(1). Tomlin and the Saxon Defendants expressly consent to this Court entering final orders and judgments. 28 U.S.C. § 157(c)(2). The Court will order the BONY Defendants to state whether they consent to entry of final orders and judgments by this Court. FED. R BANKR. P. 7012(b). Venue is proper pursuant to 28 U.S.C. § 1409.
The BONY Defendants asserts that the Complaint fails to state a claim upon which relief can be granted and accordingly should be dismissed as to them pursuant to Federal Rule of Civil Procedure 12(b)(6), made applicable in adversary proceedings pursuant to Federal Rule of Bankruptcy Procedure 7012(b).
Civil Rule 8(a)(2), made applicable in adversary proceedings pursuant to Bankruptcy Rule 7008(a), requires "a short and plain statement of the claim showing that the pleader is entitled to relief." In analyzing the pleading requirements of Civil Rule 8(a)(2) in connection with a Civil Rule 12(b)(6) motion to dismiss, the Supreme Court has stated, "[t]o survive a [Civil Rule 12(b)(6)] motion to dismiss, a 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 555, 557). In defining the "plausibility" standard, the Supreme Court stated,
Id. at 678-79 (citations omitted) (quoting Twombly, 550 U.S. at 556, 557). Thus, as to each count, the Court must determine whether the Complaint contains sufficient factual matter as to each element necessary to state a claim to relief that is plausible on its face.
Haney v. Educ. Credit Mgmt. Corp. (In re Haney), Ch. 13 Case. No. 97-70937, Adv. No. 11-7024, 2011 WL 6000886, at *2 (Bankr. E.D. Ky. Nov. 30, 2011) (citations omitted), appeal dismissed as untimely, 2012 WL 3683533 (E.D. Ky. Aug. 27, 2012).
Northampton Rest. Grp., Inc. v. FirstMerit Bank, N.A., 492 F. App'x 518, 522 n.1 (6th Cir. 2012).
The BONY Defendants assert that certain of Tomlin's claims are preempted by the FCRA or barred by various state statutes of limitation—both of which are affirmative defenses. FED. R. CIV. P. 8(c)(1) (affirmative defenses include statutes of limitations); Byrne v. CSX Transp., Inc., 541 F. App'x 672, 674-75 (6th Cir. 2013) (federal preemption is affirmative defense). Tomlin is not required to negate affirmative defenses in his Complaint. However, a motion filed pursuant to "Rule 12(b)(6) will be granted if . . . the claim shows on its face that relief is barred by an affirmative defense." Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 513 (6th Cir. 2010).
Hudson v. Genesee Intermediate Sch. Dist., No. 14-11939, 2015 WL 128030, at *2 (E.D. Mich. Jan. 8, 2015) (alterations in original) (quoting Banco Santander De Puerto Rico v. Lopez-Stubbe (In re Colonial Mortg. Bankers. Corp.), 324 F.3d 12, 16 (1st Cir. 2003)); see also La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) ("a Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate only if it is apparent from the face of the complaint that the claim is time-barred." (citation omitted) (internal quotation marks omitted)).
The Complaint alleges the roles of the Defendants as follows. Although Tomlin alleges BONY has never established its rights therein, BONY asserts it is the current owner of the Note described below. The date BONY acquired the Note is not alleged in the Complaint or exhibits thereto, but the events giving rise to the allegations against BONY started in October 2007. Saxon serviced the Note for BONY from October 2007 through May 2011. In May 2011, Ocwen began servicing the Note for BONY. Other than naming Duran as a Defendant and resident of Texas, the Complaint is devoid of any mention of Duran.
On June 19, 2004, Tomlin executed a promissory note in favor of NovaStar Mortgage, Inc.
In October 2007, Saxon began servicing the Note. Tomlin received his first loan statement from Saxon in November 2007. That statement reflected Tomlin's monthly payment was $1,552.85, instead of the expected $1,373.34, and "also reflected a large and unsubstantiated shortage in excess of 7K payable immediately." [Compl. ¶ 20.] Tomlin alleges that he contacted Saxon and was advised that Saxon did not have to adhere to the terms of the Loan Modification Agreement. Thereafter through March or April 2008, Saxon's statements continued to reflect payments due of $1,552.85 and Tomlin continued to make monthly payments of $1,373.34. Tomlin, acknowledging that his payments were not always timely, states that he added a fee of $25.29, which was NovaStar's customary late fee, if and when his payments were late. [Compl. ¶ 22.] Tomlin also acknowledges his mortgage payment for February 2008 was returned due to insufficient funds. [Compl. ¶ 27.] He alleges, however, that on March 18, 2008, he resent his February 2008 payment and on March 20, 2008, resent his March 2008 payment to Saxon. [Compl. ¶¶ 28-29.] According to Tomlin, Saxon misapplied these and other payments and the statement dated April 17, 2008, incorrectly reflected that his account was past due $5,061.34.
In May 2008, BONY filed a foreclosure action against Tomlin in the Circuit Court for Volusia County, Florida, No. 2008-118959-CIDL ("BONY 2008 Foreclosure").
Tomlin further alleges that during the period from November 2007 and continuing through January 2009, Saxon and BONY made negative credit reports regarding his payments and the BONY 2008 Foreclosure. He alleges the negative reports were unsubstantiated and unwarranted because he was making payments pursuant to the Loan Modification Agreement.
On June 2, 2009, Tomlin and his wife, Marilyn B. Tomlin, filed a complaint against BONY and Saxon in the Circuit Court for Volusia County, Florida, No. 2009-12564-CIDL ("Tomlin Lawsuit") for their allegedly fraudulent actions. On October 6, 2009, after court-ordered mediation, the parties entered into a settlement agreement which provides:
[Compl. Ex. I (first emphasis added) [hereinafter "2009 Settlement Agreement"].] Tomlin asserts that "[a]s part of the Settlement Agreement Mr. Tomlin would not have an escrow account, and [BONY], by way of its mortgage servicing company would correct errors on Mr. Tomlin's credit report." [Compl. ¶ 50.]
Tomlin asserts that from October 2009 through February 2010, BONY and Saxon breached the 2009 Settlement Agreement by not reporting to the credit agencies that he was making his mortgage payments. Tomlin alleges they further breached the 2009 Settlement Agreement by paying Tomlin's property tax and imposing an escrow agreement. [Compl. ¶¶ 51-52.]
On February 12, 2010, Tomlin filed a motion in the Florida Tomlin Lawsuit to enforce the 2009 Settlement Agreement and requested the appointment of a trustee to oversee its enforcement. He alleges that in April 2010, BONY and/or Saxon provided him with an affidavit ("Duran Affidavit")
On April 26, 2010, an order ("State Enforcement Order") was entered in the Tomlin Lawsuit enforcing the 2009 Settlement Agreement. [Compl. ¶ 55.]
In October 2010, Tomlin alleges that because of BONY's failure to correct his credit reports, he was denied a loan for a real estate project in California. [Compl. ¶ 57.]
Finally, Tomlin alleges that BONY and Saxon interfered with his ability to keep or obtain homeowner's insurance on the Property by communicating to his insurer in January 2008 and February 2009 that the Property was vacant and subject to foreclosure or bankruptcy. [Compl. ¶¶ 128, 130.] In Spring 2011, Tomlin again received notice from his insurer that his homeowner's policy was being cancelled due to a foreclosure when there was no foreclosure. [Compl. ¶ 129.]
In May 2011, Ocwen began servicing the Note. Tomlin's allegations against Ocwen begin in August 2011, when he started receiving payment notifications from Ocwen for amounts in excess of the $878.00 set forth in the 2009 Settlement Agreement. The increase in payment was initially $55.00 for escrow to cover insurance and taxes on the Property which Tomlin asserts were improper because under the 2009 Settlement Agreement, there was no escrow account. Tomlin made the August and September 2011 payments in the amount of $878.00 and then refused to make the October-December 2011 payments as he alleges Ocwen refused to acknowledge the 2009 Settlement Agreement. In December 2011, Tomlin brought the loan current according to Ocwen's accounting to avoid foreclosure. Thereafter, Tomlin alleges that Ocwen again increased his payment by $133.00 per month without explanation.
On May 10, 2012, BONY filed a second foreclosure action against Tomlin in the Circuit Court for Volusia County, Florida ("BONY 2012 Foreclosure"). Tomlin alleges that this case was dismissed on September 11, 2012, due to lack of standing. The order allegedly dismissing the case is not in the record and on November 25, 2014, BONY filed an amended complaint in the BONY 2012 Foreclosure.
On June 23, 2015, Tomlin filed his chapter 13 petition in this Court and on July 17, 2015, he filed this adversary proceeding.
Prior to addressing the specific allegations against them, the BONY Defendants assert that the Complaint should be dismissed as an incomprehensible "shot gun" pleading.
Strategic Income Fund v. Spear, Leeds & Kellog, 305 F.3d 1293, 1295 (11th Cir. 2002).
Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir. 1997).
BONY is correct that the Complaint contains several counts and each one incorporates all of the preceding paragraphs rather than just the factual allegations of the Complaint. Further, the Complaint does not always clearly specify the Defendant against whom each count is alleged. However, the specific allegations supporting each claim and the party responsible for the actions asserted are restated in those specific claims. A shotgun pleading "is problematic when it is `virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.'" Degirolamo v. McIntosh Oil Co. (In re Laurel Valley Oil Co.), Ch. 7 Case No. 05-64330, Adv. No. 12-6014, 2012 WL 2603429, at *2 (Bankr. N.D. Ohio July 5, 2012) (quoting Peavey v. Black, No. 11-13925, 2012 WL 986801, at *2 (11th Cir. Mar. 23, 2012)). While not the easiest Complaint to follow, it is not "virtually impossible" to determine Tomlin's claims and the Defendants involved.
Further, the remedy for a shotgun complaint—at least the first time this argument is raised—is generally not dismissal, but to require the plaintiff to replead their claims. Morris v. Zelch (In re Reg'l Diagnostics, LLC, 372 B.R. 3, 21 n.76 (Bankr. N.D. Ohio 2007) (relegating "shotgun complaint" argument to a footnote and stating that defendants cite no Sixth Circuit precedent on the issue, it was far from clear that complaint therein was deficient on that ground, and remedies in case cited by defendant did not include dismissal); Magluta v. Samples, 256 F.3d 1282 (11th Cir. 2001) (remanding to district court to require plaintiff to replead his claims against fourteen public officials where complaint was fifty-eight pages, all defendants were charged in each count, and there was no distinction as to which official engaged in specific conduct); Strategic Income Fund, 305 F.3d 1293 (discussing burden on courts and problems with "shotgun complaint" and affirming dismissal of third amended complaint that was still "shotgun complaint").
The Complaint will not be dismissed as an impermissible "shotgun complaint."
The Defendants assert that Tomlin's claims against them for violation of the FCRA are barred by the Act's statute of limitations or, as to the Saxon Defendants, that Tomlin does not have a private right of action with respect to his FCRA claims. The Defendants further allege that most, if not all, of Tomlin's state law claims are preempted by the FCRA. Thus, resolution of these issues requires a detailed analysis of the FCRA.
Stafford v. Cross Country Bank, 262 F.Supp.2d 776, 781 (W.D. Ky. 2003).
15 U.S.C. § 1681(b). "Thus, the FCRA is aimed at protecting consumers from inaccurate information in consumer reports and at the establishment of credit reporting procedures that utilize correct, relevant, and up-to-date information in a confidential and responsible manner." Jones v. Federated Fin. Reserve Corp., 144 F.3d 961, 965 (6th Cir. 1998). "[T]he FCRA is to be liberally construed in favor of the consumer." Id. at 964.
FCRA § 1681s-2, titled "Responsibilities of furnishers of information to consumer reporting agencies," sets forth the Defendants' obligations as "furnishers"
Tomlin's allegations that the Defendants, as furnishers, provided inaccurate information to credit reporting agencies in violation of § 1681s-2(a) must be dismissed. Courts have consistently held that the remedies for violations of § 1681s-2(a) are limited by subsections (c) and (d) thereof, which provide for enforcement only by government officials. Morgan v. HSBC Mortg. Servs., Inc., 930 F.Supp.2d 833, 837 (E.D. Ky. 2013) (no private cause of action exists under § 1681s-2(a)).
Stafford, 262 F. Supp. 2d at 782-83 (footnotes omitted); see e.g., Purcell v. Bank of Am., 659 F.3d 622, 623 (7th Cir. 2011). Tomlin's asserted § 1681s-2(a) private causes of action based on allegations that inaccurate credit reports were provided by the Defendants fail to state a claim upon which relief can be granted and will be dismissed.
Tomlin's § 1681s-2(b) claims based on allegations that the Defendants failed to correct inaccurate information, must be dismissed.
Section 1681s-2(b) provides:
15 U.S.C. § 1681s-2(b) (emphasis added). Contrary to violations of subsection (a), consumers have a private right of action for violations of subsection (b) of § 1681s-2. "Virtually all courts considering this issue are in agreement." Stafford, 262 F. Supp. 2d at 783 & n.4 (collecting cases). However, a furnisher's responsibility to investigate and then correct any inaccurate information, does not arise unless and until the furnisher has received notice as required by § 1681i(a)(2)
There is no allegation in the Complaint that Tomlin disputed his credit report with any credit reporting agencies or that any agency, in turn, notified the Defendants of the dispute, thereby giving rise to their responsibilities under the FCRA. See Downs v. Clayton Homes, Inc., 88 F. App'x 851, 853-54 (6th Cir. 2004) (finding that plaintiffs did not have a claim under § 1681s-2(b) when they did not allege that they had filed a dispute with a credit reporting agency). Absent proper notification, the Defendants had no obligation under the FCRA to investigate or correct any inaccurate information.
Based on the above, Tomlin has failed to state a claim under § 1681s-2 for which relief can be granted, and his FCRA claims will be dismissed.
The Defendants assert that Tomlin's state law claims of defamation, certain breach of contract claims, certain fraud claims, and as to the BONY Defendants, the intentional infliction of emotion distress ("IIED") claim, are preempted by the FCRA.
Congress' ability to preempt state laws stems from the Supremacy Clause which states "[t]he Constitution, and the Laws of the United States which shall be made in Pursuance thereof. . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. CONST. art. VI, cl. 2. Thus, since the Supreme Court's decision in M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), "it has been settled that state law that conflicts with federal law is `without effect.'" Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992) (quoting Maryland v. Louisiana, 451 U.S. 725, 746 (1981)). The phrase "state law" includes common law as well as statutes and regulations. Id. at 522.
However, there is an assumption that federal law is not preemptive. Richardson v. Schafer (In re Schafer), 689 F.3d 601, 614 (6th Cir. 2012); see also Cipollone, 505 U.S. at 516 ("Consideration of issues arising under the Supremacy Clause `start[s] with the assumption that the historic police powers of the States [are] not to be superseded by . . . Federal Act unless that [is] the clear and manifest purpose of Congress.'" (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947))).
The Sixth Circuit has stated that deciding a preemption question is a two-step process: first ascertaining the construction of the two statutes and then determining whether they are in conflict. Schafer, 689 F.3d at 613.
Schafer, 689 F.3d at 613-14.
As discussed below, the FRCA contains two provisions with potential preemption implications.
When originally enacted in 1970, "the FCRA generally permitted state regulation of the consumer reporting industry. With but few exceptions, the original preemption provision, 15 U.S.C. § 1681t(a), preempted state laws only `to the extent that those laws are inconsistent with any provision of the [FCRA].'" Ross v. Fed. Deposit Ins. Corp., 625 F.3d 808, 813 (4th Cir. 2010) (quoting 15 U.S.C. § 1681t(a)). 15 U.S.C. § 1681t(a) currently provides:
An exception to state regulation, § 1681h(e), provides:
15 U.S.C. § 1681h(e) [hereinafter "the Limited Liability Provision"]. Analyzing whether a consumer's state law claim for defamation, invasion of privacy or negligence is precluded by the Limited Liability Provision is a two-step process: First the court determines whether the claim falls within the scope of the provision which is limited to claims based on information disclosed by (i) credit reporting agencies pursuant to §§ 1681g or 1681h, (ii) users of credit reports pursuant to 1681m, or (iii) users of credit reports regarding a consumer against whom the user has taken adverse action based on the report. Ross, 625 F.3d at 814. If so, unless the malice or willful intent to injure exception applies, the cause of action will be barred. This is the second inquiry. Id.
In 1996, the FCRA was amended adding § 1681s-2 regarding furnishers' responsibilities. See discussion supra pp. 13-15. At that time, without repealing the general preemption provision (only calling for preemption where state laws were inconsistent with the FCRA) or the Limited Liability Provision, Congress added an additional preemption provision specifically focused on "furnishers" as follows:
15 U.S.C. § 1681t(b)(1)(F) [hereinafter "the Furnisher Preemption Provision"]. To determine whether a state law cause of action is preempted under this provision, courts must first consider whether the action is based on allegations that a furnisher provided inaccurate or incomplete information to a credit reporting agency or that a furnisher failed to correct inaccurate information. If so, the action is barred.
How do these two preemption provisions interrelate? Courts disagree regarding the interplay between these provisions. The application of the FCRA preemption provisions is "significantly complicated in several respects." Stafford, 262 F. Supp. 2d at 784. "First, the FCRA contains two overlapping and potentially contradictory preemption provisions, [the Furnisher Preemption Provision] and [the Limited Liability Provision], which limit the circumstances under which [Tomlin] may bring his state common law claims." Id. With respect to these two preemption provisions, the Sixth Circuit has stated:
Brown, 507 F. App'x at 548.
Second, as one commentator has noted, "[j]udicial bafflement over preemption language in the federal Fair Credit Reporting Act has produced a morass of muddled statutory construction. The circuit courts of appeal have largely dodged the issue, while federal district courts have scattered in at least four directions." Randall D. Quarles, Splintered District Courts Continue to Struggle with Federal Preemption of Credit-Reporting Claims, 27 BANKING & FIN. SERVS. POL'Y REP. 8, 8 (2008).
Recent decisions have concluded that the two provisions, read and applied strictly pursuant to their terms, are not in conflict. The Court agrees.
"In construing a statute, the Court's `starting point must be the language of the statutes.'" Johnson v. JP Morgan Chase Bank, 536 F.Supp.2d 1207, 1215 (E.D. Cal. 2008) (quoting Albernaz v. United States, 450 U.S. 333, 336 (1981)). Here, it is helpful to repeat the two statutory provisions:
The Limited Liability Provision provides:
15 U.S.C. § 1681h(e) (emphasis added).
The Furnisher Preemption Provision provides:
15 U.S.C. § 1681t(b)(1)(F). In finding the two provisions "compatible," the Seventh Circuit reasoned:
Purcell, 659 F.3d at 625.
In Islam v. Option One Mortgage Corp., 432 F.Supp.2d 181, 190 (D. Mass. 2006), the court, after acknowledging that a "no conflict" position is contrary to numerous federal court decisions, stated:
Accordingly, the Court analyzes whether Tomlin's state law claims are precluded by either FCRA preemption provision.
As reviewed above, to determine the applicability of the Limited Liability Provision, the Court must determine whether the asserted state law claims are within the provision's scope which is limited to claims based on information disclosed by:
Ross, 625 F.3d at 814. If so, unless the malice or willful intent to injure element is present, the cause of action will be barred.
Tomlin doesn't allege facts that bring any of his state law claims within the scope of the Limited Liability Provision. Specifically, he does not allege that any of the Defendants are a consumer reporting agency
Because the Complaint's allegations are outside the Limited Liability Provision's scope, the Limited Liability Provision neither authorizes nor precludes any of Tomlin's state law claims, regardless of whether the Defendants acted maliciously or willfully.
Defendants assert that the FCRA preempts Tomlin's state law claims of defamation, certain breach of contract claims and certain fraud claims. The BONY Defendants also assert Tomlin's intentional infliction of emotional distress claim is preempted.
In deciding whether Tomlin's state law causes of action are preempted,
Cipollone, 505 U.S. at 523-24. Tomlin's state law causes of action are preempted to the extent they are predicated on the "responsibilities of persons who furnish information to consumer reporting agencies" with respect to any subject matter regulated under § 1681s-2. 15 U.S.C. § 1681t(b)(1)(F). Specifically, the Court considers whether Tomlin's state law claims are based on allegations that the Defendants furnished inaccurate reports to credit agencies or failed to correct such inaccuracies. If so, the claims are preempted by FCRA.
These claims fall squarely within the Furnisher Preemption Provision and are preempted. Morgan, 930 F. Supp. 2d at 839.
This action is not related to the Defendants' responsibilities regulated under the Furnisher Preemption Provision and is not preempted.
This allegation relates to providing information to the consumer reporting agencies, and standing alone, is preempted by the Furnisher Preemption Provision. However, notwithstanding inclusion in Tomlin's "defamation claim," the allegations go on to state that BONY and Saxon were required to take these actions per the 2009 Settlement Agreement. [Compl. ¶ 103, 106.] If this is accurate, federal law does not preempt state law where a party has contractually obligated itself to take such action. Leet, 480 F. Supp. 2d at 432 ("Plaintiff's breach of contract claim is not preempted, as [defendant's] alleged contractual obligations to remove the negative information from plaintiff's credit report was not imposed by state law, but rather was imposed by [defendant] when it entered into the . . . agreement.").
As noted earlier, the 2009 Settlement Agreement is attached to the Complaint. That agreement does not place any obligation or requirement on Defendants to report Tomlin's mortgage payments to the credit reporting agencies — or to correct any credit reporting errors. The agreement is unambiguous and makes no mention of credit reports, credit reporting, or credit agencies. Further, the agreement provides in conspicuous type immediately above Tomlin's signature that the parties acknowledge that "EVERY PART OF EVERY AGREEMENT REACHED BY THEM IS STATED HEREINABOVE." Thus, Tomlin's breach of contract claims based on these allegations fail because the 2009 Settlement Agreement did not require the Defendants to report to the credit reporting agencies that Tomlin's payments were being made or that they were current. [Compl. ¶¶ 103, 106.]
This alleged conduct is not regulated under the Furnisher Preemption Provision and these claims are not preempted.
The remaining fraud claims [Compl. ¶¶ 114-16, 122-23] are based on conduct not regulated by the Furnisher Preemption Provision and are not preempted.
This claim, based on inaccurate credit reports, is preempted by the FCRA.
Such conduct is not regulated by the § 1681s-2; thus is not preempted.
Based on the foregoing, Tomlin's remaining claims are for defamation, breach of contract, fraud, IIED and tortious interference with contractual relations. These claims are based on allegations that one or more of the Defendants (i) attempted to impose unauthorized charges on his Note, including an escrow for taxes and/or insurance; (ii) intentionally misapplied his payments so that his account would be past due and his debt accelerated; (iii) filed foreclosure actions against him falsely asserting he had missed payments; and (iv) falsely advised his insurer that the Property was "foreclosed" and vacant. Tomlin claims he was injured because his credit was negatively affected, he was unable to obtain financing or secure employment relative to his career in accounting, and his homeowner's insurance policy was cancelled. Tomlin further alleges he lost wages and suffered emotional duress.
Defendants assert Tomlin's state law claims are barred by applicable state statutes of limitation because the mortgage executed in conjunction with the Note provides: "This Security Instrument shall be governed by federal law and the law of the jurisdiction in which the Property is located." [Compl. Ex. J at 19 ¶ 16.] Thus, the Defendants assert that the parties' rights are governed by Florida law, where the Property is located, rather than Kentucky. Tomlin does not expressly object to the application of Florida law but "relinquishes the decision" to this Court. [Obj. to Defs.' Mot. to Dismiss 3, ECF No. 33.]
"Under Kentucky law, the burden of proof when asserting an affirmative defense, like the statute of limitations, is on the party who raises it." Hines v. Hiland, No. 5:09-CV-00075-R, 2011 WL 1131521, at *2 (W.D. Ky. Mar. 25, 2011). As such, the burden is on the Defendants to show that the limitations period has run. Although Tomlin is not required to negate affirmative defenses in his Complaint, the BONY Defendants' "Rule 12(b)(6) [motion] will be granted if . . . the claim shows on its face that relief is barred by an affirmative defense." Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 513 (6th Cir. 2010).
Similarly the Saxon Defendants, as the parties moving for summary judgment, "bear[] the initial burden of showing the absence of a genuine issue of material fact." Johnson v. U.S. Postal Serv., 64 F.3d 233, 236 (6th Cir. 1995). "Where a defendant seeks summary judgment on an affirmative defense on which it will bear the ultimate burden of proof at trial, summary judgment is proper `only if the record shows that [the defendant] established the defense so clearly that no rational [fact finder] could have found to the contrary.'" Snyder v. Kohl's Dept. Stores, Inc., 580 F. App'x 458, 461 (6th Cir. 2014) (first alteration in original) (quoting Beck-Wilson v. Principi, 441 F.3d 353, 365 (2006)). "Only after, and not before, the initial burden of proof is discharged does the burden shift to the plaintiff to show that summary judgment on an affirmative defense should be denied." Byrne v. CSX Transp., Inc., 541 F. App'x 672, 675 (2013).
The Court agrees that to the extent the causes of action arise from the loan transaction involving the mortgage, Florida's substantive law applies to Tomlin's remaining state law claims. However, "contractual choice-of-law clauses incorporate only substantive law, not procedural provisions such as statutes of limitations." Cole v. Mileti, 133 F.3d 433, 437 (6th Cir. 1998) (emphasis added), quoted in Conway v. Portfolio Recovery Assocs., LLC, 13 F.Supp.3d 711, 715 (E.D. Ky. 2014).
Conway, 13 F. Supp. 3d at 715 (citation omitted).
There is a significant difference between Florida's and Kentucky's statutes of limitation as to some of the causes of action; thus the Court turns to application of Kentucky's borrowing statute which provides:
KY. REV. STAT. § 413.320.
Swanson v. Wilson, 423 F. App'x 587, 593 (6th Cir. 2011).
"Where the cause of action accrued, . . . is the `key factor' in any analysis of how to apply the borrowing statute." Conway, 13 F. Supp. 3d at 716 (quoting White v. Hartford Life Ins. Co., No. 3:06-CV-288-H, 2008 WL 4104487, at *6 (W.D. Ky. Sept. 3, 2008)); see also Combs v. Int'l Ins. Co., 354 F.3d 568, 597 (6th Cir. 2004) ("conclud[ing] that the Kentucky Supreme Court would apply [its] borrowing statute by focusing only on where the cause of action accrued, not on which state has the greatest interest in the dispute"). "To determine where a cause of action accrued, the Court must apply Kentucky Law." Conway, 13 F. Supp. 3d at 716 (citing Cope v. Anderson, 331 U.S. 461, 466-67 (1947) (applying state law to determine where the cause of action accrued for purposes of that state's borrowing statute). The Kentucky Supreme Court recently addressed application of Kentucky's borrowing statute, stating:
Abel v. Austin, 411 S.W.3d 728, 736 (Ky. 2013) (citation omitted), quoted in Conway, 13 F. Supp. 3d. at 717-18.
None of the parties addressed application of Kentucky's borrowing statute. The parties shall have twenty-one days to file briefs on this issue and decision on the statutes of limitation defense is reserved.
Tomlin's remaining causes of action arise from the loan transaction involving the mortgage—they arise from disputes between the parties as to payments due on the Note, secured by the mortgage, as modified by the Loan Modification Agreement or the 2009 Settlement Agreement. Thus, pursuant to the parties' choice of law provision reviewed above, the Court will apply Florida substantive law.
The BONY Defendants assert, as to certain of the remaining state law claims, that the Complaint fails to allege facts to satisfy the elements necessary to establish such causes of action and such claims should be dismissed for failure to state a claim under Civil Rule 12(b)(6).
Tomlin alleges that in May 2008, BONY defamed Tomlin by filing the BONY 2008 Foreclosure. Their state statute of limitations defense is reserved and the BONY Defendants do not posit an alternate Rule 12(b)(6) argument with respect to this remaining defamation claim. Thus, their Motion to Dismiss is reserved as to the claim described in paragraph 77 of the Complaint.
The elements for breach of contract claim under Florida law are: (1) the existence of a contract between the parties; (2) a breach of that contract; and (3) damages. Beck v. Lazard Freres & Co., LLC, 175 F.3d 913, 914 (11th Cir. 1999).
Tomlin alleges that between October 2009 and February 2010 [Compl. ¶¶ 104-05], and again during 2011 [Compl. ¶¶ 107-09], the BONY Defendants breached the 2009 Settlement Agreement by attempting to increase Tomlin's payments by including unauthorized escrow charges for taxes and property insurance and assessing other unexplained charges.
The BONY Defendants correctly assert that the terms of the 2009 Settlement Agreement permitted them to impose an escrow if Tomlin failed to maintain property insurance or pay the taxes associated with the Property. [See 2009 Settlement Agreement ¶ 1.(4) ("Defendant [BONY] shall henceforth not require escrow payments for property tax and insurance so long as those are paid directly by Plaintiff.").] The BONY Defendants contend the Complaint fails to allege that Tomlin made the required payments and thus, the breach of contract claims must be dismissed for failure to state a claim for which relief can be granted.
The Complaint alleges that the escrow charges were unauthorized per the 2009 Settlement Agreement. As the only basis on which BONY was authorized to assess the escrow, was Tomlin's nonpayment of taxes and insurance, it is reasonable to infer that the escrow charges were "unauthorized" because Tomlin had paid the taxes and insurance directly. Accepting the assertion as true as required by the standard set forth in Iqbal, the allegation is sufficient to state a claim for relief that is plausible on its face.
The essential elements of common law fraud or fraudulent misrepresentation are: (i) a false statement of material fact; (ii) defendant's knowledge that the statement was false; (iii) defendant's intent that the statement induce plaintiff to act; (iv) plaintiff's reliance upon the truth of the statement; and (v) plaintiff's damages resulting from reliance on the statement. Mukamal v. Gen. Elec. Capital Corp. (In re Palm Beach Fin. Partners, L.P.), 517 B.R. 310, 336 (Bankr. S.D. Fla. 2013).
Pursuant to Civil Rule 9(b), incorporated into adversary proceedings by Bankruptcy Rule 7009, fraud must be pled with particularity. "At a minimum, the Plaintiff must allege `the time, place and content of the alleged misrepresentation on which he or she relied; the fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the fraud.'" Cline v. Kondaur Capital Corp. (In re Cline), Ch. 13 No. 12-30490, Adv. No. 13-3002, 2013 WL 4525727, at *3 (Bankr. E.D. Ky. Aug. 27, 2013) (quoting Chesbrough v. VPA, P.C., 655 F.3d 461, 467 (6th Cir. 2011)).
Tomlin has two remaining fraud claims against the BONY Defendants: The first based on actions taken in 2008 and the second based on actions taken in 2011.
Tomlin alleges that in April 2008, BONY and Saxon intentionally misapplied Tomlin's payments on the Note as part of a scheme so BONY would have a reason to accelerate the Note and begin foreclosure proceedings. In May 2008, BONY and Saxon filed the BONY 2008 Foreclosure in which Tomlin asserts they falsely claimed he had not made a mortgage payment since February 2008 and that other payments were past due under the Note.
Relying solely on their arguments that the claims are preempted by the FCRA (denied, supra p. 29) or barred by the state statute of limitations (reserved), the BONY Defendants do not posit any other Rule 12(b)(6) arguments with respect to these fraud claims. Therefore, their Motion to Dismiss based on a statute of limitation defense is reserved as to the claims described in paragraphs 114-16 of the Complaint.
Tomlin also bases a claim for fraud on the same allegations on which he asserts his breach of contract claim; i.e., during 2011, the BONY Defendants attempted to increase Tomlin's payments by sending him mortgage statements including unauthorized escrow charges for taxes and property insurance and assessing other unexplained charges. Tomlin theorizes that the BONY Defendants were engaged in a scheme to create a basis for a foreclosure action. Tomlin alleges that BONY knew the mortgage statements were inaccurate, the "falsification was made in order to accelerate the note again, begin a foreclosure process and profit from the gain of the property," and "Plaintiff has been relying on the settlement agreement." [Compl. ¶¶ 122.2) to.4).] Between October and December 2011, Tomlin refused to make payments because, in his opinion, the BONY Defendants were not complying with the 2009 Settlement Agreement. [Compl. ¶ 64.] However, Tomlin alleges that to stop the foreclosure process, he was forced to make payments in the amounts demanded by the BONY Defendants, after which the payments were increased again. [Compl. ¶¶ 65-67.]
The BONY Defendants assert that Tomlin's claim for fraud in paragraphs 122-23 fails to meet the heightened pleading standard for fraud. However, they do not explain how the Complaint fails to meet the standard other than asserting the mortgage statements were not false because the BONY Defendants were expressly allowed to include escrow charges if taxes and insurance were not directly paid by Tomlin. As discussed above, whether or not Tomlin paid those amounts is a matter that requires discovery and briefing. Accepting Tomlin's allegations as true and while his allegations of fraud are thin, they are sufficient to survive a motion to dismiss. The BONY Defendants have not provided any other basis supporting their contention that this claim should be dismissed. Therefore, the BONY Defendants' Motion to Dismiss is denied with respect to Tomlin's fraud claim set forth in paragraphs 122-23 of the Complaint.
"To prove intentional infliction of emotional distress under Florida law, the plaintiff must prove: (1) deliberate or reckless infliction of mental suffering; (2) by outrageous conduct; (3) which conduct must have caused the suffering; and (4) the suffering must have been severe." Hart v. United States, 894 F.2d 1539, 1548 (11th Cir. 1990). "Conduct is intentional `[w]here the actor knows that [severe] distress is certain, or substantially certain to result from his conduct.'" Id. (alterations in original) (quoting Ford Motor Credit Co. v. Sheehan, 373 So.2d 956, 958 (Fla. Dist. Ct. App. 1979). "Outrageous conduct is conduct which `is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Id. (quoting Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla. 1985)).
"Whether the conduct complained of is sufficiently outrageous and extreme to withstand a motion to dismiss is purely a question of law for the Court to decide." Orta v. City of Orlando, No. 6:14-cv-1835-Orl-41GJK, 2015 WL 2365834, at *5 (M.D. Fla. May 18, 2015) (quoting Decius v. Nat'l Serv. Indus., Inc., No. 01-8320-CIV, 2001 WL 1621924, at *2 (S.D. Fla. Nov. 1, 2001)).
Tomlin asserts an IIED claim against BONY based on its allegedly fraudulent attempts to foreclose on the Property. He states that as a result, he has "suffered severe emotional distress and depression which has negatively impacted his quality of life." [Compl. ¶ 125.] The BONY Defendants cite several cases supporting their argument that their alleged actions, even if taken as true, do not rise to the outrageous and extreme level required by Florida law to support Tomlin's claim for relief. However, those cases are distinguishable based on the facts alleged here.
Accepting Tomlin's allegations as true, the BONY Defendants breached two agreements within the first month after entering into such agreements, then continued to breach those agreements, assessed unauthorized charges against him causing his account to appear to be continually in default, and filed foreclosure actions attempting to collect a debt that was not past due. In Chungag v. Wells Fargo Bank, N.A., 489 F. App'x 820 (6th Cir. 2012), the Sixth Circuit affirmed dismissal of plaintiff's intentional infliction of emotional distress claim against the mortgagee under Michigan law, which is substantially the same as Florida law. In so doing however, the Sixth Circuit stated:
Chungag, 489 F. App'x at 825 (emphasis added) (citing Margita v. Diamond Mortg. Corp., 406 N.W.2d 268, 272 (Mich. Ct. App. 1987) (summary disposition was inappropriate as to IIED claim where defendant mortgagee repeatedly harassed plaintiffs through phone calls and letters assessing late charges and threatening foreclosure in attempting to collect a debt that was not overdue). But see Jenkins v. JP Morgan Chase Bank, N.A. (In re Jenkins), 488 B.R. 601, 617 (Bankr. E.D. Tenn. 2013) (Under Tennessee law, "`[a] breach of contract, even if clear, is not by itself actionable under the tort of outrageous conduct, nor will a negligent or inadvertent act give rise to such a claim.'" (quoting Chandler v. Prudential Ins. Co., 715 S.W.2d 615, 623 (Tenn. Ct. App. 1986))).
Accepting Tomlin's allegations as true as required by the standard set forth in Iqbal, they are sufficient to state a claim for relief that is plausible on its face and that will require discovery and briefing. For these reasons, the BONY Defendants' Motion to Dismiss the IIED claim [Compl. ¶ 125] is denied.
Tomlin asserts a claim for tortious interference with contractual relations based on Saxon and/or other Defendants allegedly informing his insurer on three separate occasions (January 28, 2008, February 2009 and Spring 2011) that the Property was vacant and/or subject to foreclosure or foreclosed upon. [Compl. ¶¶ 128-30.] Such actions were allegedly unfounded and resulted in Tomlin's property insurance being cancelled and his inability to renew the insurance.
The BONY Defendants' argument that these claims are barred by the applicable statute of limitations is reserved. They do not provide an alternate basis for dismissal.
Duran is entitled to judgment as matter of law as to the only claims asserted against him, see supra p. 28 & n.17, and no further discussion is necessary as to Duran.
The claims remaining against Saxon are discussed below.
The claims against Saxon are analyzed under the summary judgment standard. Pursuant to Bankruptcy Rule 7056, Civil Rule 56 applies in adversary proceedings.
Buckeye Ret. Co., LLC, Ltd., v. Swegan (In re Swegan), 383 B.R. 646, 652-53 (B.A.P. 6th Cir. 2008) (quoting Gibson v. Gibson (In re Gibson), 219 B.R. 195, 198 (B.A.P. 6th Cir. 1998)). The Supreme Court instructs that a court must look beyond the pleadings and assess the proof needed to determine whether there is a genuine need for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (emphasis added). After making an assessment of the proof, the determinative issue is "whether the evidence presents a sufficient disagreement to require submission to [the trier of fact] or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52. In this regard, the moving party carries the burden of showing there is an absence of evidence to support a claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986). After the moving party meets this burden, the nonmoving party must go beyond the pleadings to identify more than a mere scintilla of evidence showing that there is a genuine issue of material fact for trial. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989); FED. R. CIV. P. 56(c). "The respondent cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must `present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Street, 886 F.2d at 1479 (quoting Anderson, 477 U.S. at 257).
Saxon asserts that claims against it based on events prior to November 13, 2009, were released pursuant to the 2009 Settlement Agreement and a release executed in conjunction therewith by Tomlin and his wife on November 13, 2009 [ECF No. 53-3] ("Release" and together with the 2009 Settlement Agreement, the "Settlement Documents"). Tomlin agrees that some of the claims herein were included in the Tomlin Lawsuit which was dismissed with prejudice as part of the 2009 Settlement Agreement. [See Mem. in Supp. of Pl.'s Opp'n 2, ECF No. 68.] However, he asserts that the 2009 Settlement Agreement "was entered into under `false pretenses', thus FRAUD, frees the claims/counts from being bound by that litigation (res judicata and release) and allows them to be re-examined in a court of law." [Id. at 9.] The "false pretenses" or representations alleged is a statement contained in the Duran Affidavit, dated April 14, 2010, in which Duran states that "all errors on the Tomlins' account with Saxon have now been corrected" [ECF No. 53-4] ("Duran Affidavit").
The 2009 Settlement Agreement provides:
[2009 Settlement Agreement 1-2.] The Release, executed pursuant to paragraph 2 of the 2009 Settlement Agreement, releases Tomlin's claims against Saxon
[Release 1-2.]
The timeline with respect to Tomlin's allegations that the Settlement Documents are unenforceable due to fraudulent inducement is:
"In Florida, settlement agreements are governed by the law of contracts." Nichols v. Hartford Ins. Co. of the Midwest, 834 So.2d 217, 219 (Fla. Dist. Ct. App. 2003). "Thus, there must be an offer, acceptance, and consideration, as well as a meeting of the minds on all essential terms." PNC Bank, N.A. v. Rolsafe Int'l, LLC (In re Rolsafe Int'l, LLC), 477 B.R. 884, 902 (Bankr. M.D. Fla. 2012).
Rose v. ADT Sec. Servs., Inc., 989 So.2d 1244, 1247 (Fla. Dist. Ct. App. 2008) (quoting Peninsula Yacht Cay Dev. Inc. v. S. Floridabanc Sav. Ass'n, 552 So.2d 1139, 1140 (Fla. Dist. Ct. App. 1989)).
As the moving party, Saxon bears the burden of demonstrating that there are no genuine issues of material fact. MERV Props., L.L.C. v. Forcht Bancorp, Inc. (In re MERV Props., L.L.C.), 539 B.R. 516, 526 (B.A.P. 6th Cir. 2015). On their face, the Settlement Documents appear to be a valid contract between the parties, supported by consideration: Tomlin benefitted from the loan modification reducing his interest rate and BONY and Saxon agreed to dismiss the BONY 2008 Foreclosure and forego escrow payments if Tomlin met certain conditions. The 2009 Settlement Agreement was signed by Tomlin, Saxon and BONY and the Release was signed by Tomlin and his wife. Saxon met its initial burden as the movant and the burden shifts to Tomlin to show that the Settlement Documents are not valid. Id. at 527. "[Tomlin] must offer `more than a mere scintilla of evidence it [his] favor, . . . and cannot simply reassert factually unsupported allegations contained in [his] pleadings[.]'" Id.
There are several flaws in Tomlin's argument that the 2009 Settlement Agreement and/or Release are unenforceable because of fraud.
First, the validity of the 2009 Settlement Agreement was determined when the state court entered the State Enforcement Order at Tomlin's request. At that time, Tomlin considered the agreement enforceable. [See Compl. ¶ 56 ("Now that a settlement agreement is in place and the judge has enforced it, Mr. Tomlin filed his notice of voluntary dismissal which ended the case.").] Tomlin offers no authority that permits this Court to reconsider the state court's ruling regarding the enforceability of the 2009 Settlement Agreement.
Second, as a factual matter Tomlin has not established the existence of a false statement on which he justifiably relied. The April 2010 Duran Affidavit, which he alleges constitutes the false statement, did not exist at the time he entered into the 2009 Settlement Agreement (October 2009) and the Release (November 2009).
Moreover, even had the Duran Affidavit been provided prior to Tomlin entering into the 2009 Settlement Agreement and Release, Florida law establishes that under the circumstances of this case, Tomlin was not entitled to rely on those statements. The Tomlin Lawsuit arose from a clearly antagonistic relationship between Tomlin and the Defendants. The Florida courts have held that
Pieter Bakker Mgmt., Inc. v. First Fed. Sav. & Loan Ass'n, 541 So.2d 1334, 1335-36 (Fla. Dist. Ct. App. 1989) (affirming grant of summary judgment to bank that borrowers' counterclaims, including fraud, breach of contract, defamation, and negligence, were barred by settlement agreement and borrowers failed to make prima facie case that settlement was fraudulently induced) (quoting Pettinelli v. Danzig, 722 F.2d 706 (11th Cir. 1984)), accord Moriber v. Dreiling, ___ So. 3d ___, 2016 WL 145968, at *3, n.3 (Fla. Dist. Ct. App. Jan. 13, 2016) (compiling cases in which Florida state and federal courts consistently hold that, as a matter of law, a plaintiff may not rely on statements made by litigation adversaries to establish fraud claims). Here, similar to the borrowers in Pieter, Tomlin was "not entitled to rely blindly on the opposing party's representations where, . . . the relationship between the parties has been plagued with distrust." Id. at 1335. Tomlin has failed to show that there exists a dispute of material fact as to the validity of the Settlement Documents.
Based on the foregoing, the 2009 Settlement Agreement and Release are enforceable. Saxon is entitled to judgment as a matter of law with respect to the claims filed against it for (i) defamation contained in paragraph 77 of the Complaint; (ii) breach of contract contained in paragraphs 99-102 of the Complaint; (iii) breach of contract, to the extent the conduct on which the claim is based occurred after November 13, 2009, contained in paragraphs 104-05 of the Complaint; (iii) fraud contained in paragraphs 114-16 of the Complaint; and (iv) tortious interference with contractual relations contained in paragraphs 128 and 130 of the Complaint.
The following claims are based on conduct alleged to have occurred after November 13, 2009, and Saxon's defenses based on the statutes of limitations are reserved:
A. Tomlin failed to state a claim under 15 U.S.C. § 1681s-2 for which relief can be granted and his claims for violation of the FCRA set forth in paragraphs 83-97 of the Complaint are dismissed with prejudice.
B. Tomlin's causes of action stated in paragraphs 75, 76, 78-80 (defamation), 103, 106 (breach of contract), 113, 117-21,132 (fraud), and 124 (IIED) of his Complaint are preempted by the FCRA and are hereby dismissed with prejudice.
C. The Defendants' Motions are reserved as to the state statutes of limitation defenses and the parties shall have twenty-one days from the date of entry of this Memorandum Opinion and Order in which to brief the applicability of K.R.S. § 413.320 to the asserted defenses.
D. The BONY Defendants' Motion to Dismiss based on the affirmative defenses of statutes of limitation is reserved with respect to the following claims pending the briefing required by the preceding paragraph:
E. The BONY Defendants' Motion to Dismiss is denied with respect to the following claims:
F. The Saxon Defendants' Motion for Summary Judgment is granted, in part, and the following claims are dismissed with prejudice as to them:
G. The Saxon Defendants' Motion for Summary Judgment based on the statutes of limitation defenses is reserved as to the following state law claims pending the briefing required by paragraph C above:
15 U.S.C. § 1681i (emphasis added).
Fair Credit Reporting Act, title VI, § 610, 84 Stat. 1114, 1131-32 (1970).
(a)
(b)
Quarles, supra, at 10-11. The temporal approach has been highly criticized as "strained at best," "circular and flawed." Id. at 10. But see Stafford, 262 F.Supp. 776 (wherein the United States District Court for the Western District of Kentucky adopted temporal approach); Eddins v. Cenlar FSB, 964 F.Supp.2d 843, 850-51 (W.D. Ky. 2013) (discussing approaches to interpreting FCRA preemption analysis, acknowledging and disagreeing with criticism of Stafford, and reaffirming temporal approach adopted in Stafford).
(c)
15 USCA § 1681a(f).
