Bueno v. University Of Miami

United States District Court

for the

Southern District of Florida

Ray F. Bueno, Plaintiff, )

)

v. )

) Civil Action No. 22-22831-Civ-Scola

University of Miami, and others, )

Defendants. )

Order Granting Motion to Dismiss

This matter is before the Court on the motion to dismiss the Plaintiff’s

amended complaint by Defendant University of Miami (the “University”). (Mot.,

ECF No. 40.) The Plaintiff has responded (ECF No. 56), and the University

timely replied (ECF No. 57.) Having reviewed the briefing, the record, and the

relevant legal authorities, the Court grants the University’s motion to dismiss

and dismisses the Plaintiff’s claims against it. (ECF No. 40.)

1. Background

Plaintiff Ray F. Bueno alleges that the University violated the Fair Credit

Reporting Act (“FCRA,” specifically here 15 U.S.C. § 1681s-2(b)) by failing to

correct the amount of his outstanding debt on a student loan with two credit

bureaus after promising to absolve the balance of that loan. (Am. Compl.

¶¶ 29-34, 74-83, ECF No. 34.) He pleads one count against the University for

violating the FCRA, asserting that the University “willfully and/or negligently

failed to reasonably investigate and ultimately failed to request that Equifax

and Trans Union correct the balance” of his Federal Perkins Loan (a partially

government-subsidized student loan). (Id. ¶¶ 30, 77.)1

The Court previously directed the Plaintiff to file an amended complaint,

observing that the Plaintiff’s allegations regarding the details of the alleged

inaccurately reported debt were “sparse” or “meagre,” and thus fell short of

Federal Rules of Civil Procedure 8 and 10’s requirements for pleadings. (Order

Requiring More Definite Statement at 1-2, ECF No. 29.) The Court specifically

observed that the Plaintiff left unstated details of the allegedly inaccurate

report of his debt, including when the inaccurate report was made, what the

1 The Plaintiff also pleaded four counts for relief under the FCRA against Defendants Equifax

Information Services, LLC (“Equifax”) and Trans Union, LLC (“Trans Union”), but has since filed

notices of settlement with both Defendants (ECF Nos. 32, 33), and has since dismissed his

claims against Equifax by joint stipulation. (ECF No. 38.) The only claim remaining in this

matter is the Plaintiff’s sole count against the University.

reported inaccuracy consisted of, and what role a third party identified only as

“ECSI” played in the debt’s reporting process. (Id.)

The amended complaint provides the following information in response to

the Court’s order. The Plaintiff now alleges that the debt is a “Federal Perkins

Loan,” a type of student loan, that the University provided to Mr. Bueno while

he was a student there. (Am. Compl. ¶¶ 29-30.) Mr. Bueno also asserts that the

University agreed to absolve the balance of his debt on this student loan

sometime in March of 2022, based on his prior service in the United States

Marine Corps, where he served in a “hostile fire and imminent danger pay

area.” (Id. ¶¶ 27, 32, 34.) The Plaintiff alleges that the University informed him

it “absolved” him of his outstanding balance by phone on March 18, 2022, and

by email on March 31, 2022. (Id. ¶¶ 35, 38.)2 Therefore, the Plaintiff states, the

University “reported an illegitimate balance” on his student loan to Equifax and

Trans Union as of March 2022, when he filed this lawsuit. (Id. ¶ 50.) The

amended complaint contains no allegations regarding ECSI’s alleged role in the

debt reporting process, however. (See generally id.)

Now, the University moves to dismiss the amended complaint for failure

to state a claim upon which relief may be granted. The University attaches the

referenced March 31, 2022, email to its motion to dismiss and argues that the

email only states that the University would absolve the Plaintiff’s outstanding

loan balance in the future. (Mot. at 4-6, Ex. 1.) The University also argues that

the Plaintiff was not entitled to cancelation of his student loan debt based on

his military service, fails to identify an inaccuracy in reporting on his student

loan debt, the Plaintiff’s claim is improper under the FCRA because it involves

a collateral legal dispute, and fails to establish that the University qualifies as a

“furnisher of information” under the FCRA. (Mot. at 6-14.) The Plaintiff

responds in opposition to each argument, asserting that he has sufficiently

pleaded his FCRA claim, he was entitled to have his loan balance canceled, and

his claim is not an improper collateral attack on his student loan debt. (Resp.

at 3-19.)

2. Legal Standard

A court considering a motion to dismiss, filed under Federal Rule of Civil

Procedure 12(b)(6), must accept all of the complaint’s allegations as true,

2 Although the Plaintiff attached the referenced March 31, 2022, email to his original

complaint, he omits it as an exhibit in the amended complaint. It is not clear whether this was

done intentionally or in error, however, because the amended complaint references several

specific exhibits, none of which are attached to the amended complaint as filed. (ECF No. 34.)

The Plaintiff has never attempted to correct this deficiency, even though he separately filed a

motion to submit a second amended complaint after the deadline to amend the pleadings

(which the Court denied). (ECF Nos. 46, 54.)

construing them in the light most favorable to the plaintiff. See Pielage v.

McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading need

only contain a short and plain statement of the claim showing that the pleader

is entitled to relief, a plaintiff must nevertheless articulate “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). “But where the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the complaint has

alleged—but it has not shown—that the pleader is entitled to relief.” Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009) (internal punctuation omitted) (quoting Fed. R.

Civ. P. 8(a)(2)). A court must dismiss a plaintiff’s claims if she fails to nudge her

“claims across the line from conceivable to plausible.” Twombly, 550 U.S. at

570. Regardless of a plaintiff’s allegations, “the court may dismiss a complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6) when, on the basis of a

dispositive issue of law, no construction of the factual allegations will support

the cause of action.” Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist.,

992 F.2d 1171, 1174 (11th Cir. 1993).

3. Analysis

The Court finds that the Plaintiff has failed to plead sufficient facts to

support his FCRA claim against the University. First, the Plaintiff fails to

identify an alleged inaccuracy in his credit report, based on the University’s

March 31, 2022, email. Second, in violation of the Court’s order requiring a

more definite statement and as is also required under the FCRA, the Plaintiff

fails to plead sufficient facts supporting his claim that the University qualified

as a furnisher of information.

The Eleventh Circuit has not established a definitive list of the elements

that a plaintiff must plead to support an FCRA claim against a furnisher of

credit information under Section 1681s-2(b). The Plaintiff argues in his

response that the following five elements must be pleaded (and the Defendant

does not dispute this characterization): (1) that the defendant “is a furnisher of

credit information”; (2) that the plaintiff “notified the credit reporting agencies”

(the “CRAs”) that the plaintiff has “disputed inaccurate or misleading credit

reporting”; (3) that the CRAs notified the defendant of the dispute(s); (4) that

“the reporting was in fact inaccurate [or] misleading”; and (5) that the

defendant “failed to conduct a reasonable re-investigation of the dispute(s).”

(Resp. at 5;3 see generally Reply). These five elements accord with the statute’s

3 The Plaintiff cites Pieta v. USAA Group., No. 13-322-CIV, 2013 WL 3810891, at *2 (N.D. Fla.

July 22, 2013)) and Robbins v. CitiMortgage, Inc., No. 16-04732-CIV, 2017 U.S. Dist. LEXIS

209367, at *12-28 (N.D. Cal. Dec. 20, 2017) to support these five elements in the Response.

plain terms and the Eleventh Circuit’s current requirements for FCRA claims

against furnishers of information. 15 U.S.C. § 1681s-2(b); Felts v. Wells Fargo

Bank, N.A., 893 F.3d 1305, 1312 (11th Cir. 2018) (“Upon receipt of a notice

from a CRA that a consumer disputes the completeness or accuracy of any

information provided by a furnisher, the furnisher must (1) conduct an

investigation with respect to the disputed information; (2) review all relevant

information provided by the CRA; and (3) report the results of the investigation

to the CRA.”).

Here, the parties’ dispute deals with the first and fourth elements—that

is, whether the University qualifies as a furnisher of information, and whether

the University’s reporting of the Plaintiff’s outstanding loan balance in March of

2022 was “inaccurate or misleading” following the University’s alleged

absolution of the Plaintiff’s loan balance. The Court first addresses whether the

reporting could be considered inaccurate or misleading and then turns to

whether the University qualifies as a furnisher of information.

A. The Plaintiff Fails to Identify an Inaccuracy in His Credit Report

that Would Support His FCRA Claim

The FCRA requires that credit reports “be both technically accurate and

not misleading.” Erickson v. First Advantage Background Servs. Corp., 981 F.3d

1246, 1252 (11th Cir. 2020). “[W]hether a report is misleading is an objective

measure, one that should be interpreted in an evenhanded manner toward the

interests of both consumers and potential creditors in fair and accurate credit

reporting.” Id. (cleaned up). Further, the “plaintiff must show a factual

inaccuracy rather than the existence of disputed legal questions to bring suit

against a furnisher under § 1681s-2(b).” Hunt v. JPMorgan Chase Bank, Nat’l

Ass’n, 770 F. App’x 452, 458 (11th Cir. 2019).

The Plaintiff fails to identify an actual, objective inaccuracy with his

credit report to support his FCRA claim against the University. The central

issue here is whether the Plaintiff’s allegations can support that his credit

report was inaccurate or misleading in March of 2022. The Plaintiff pleads that,

because his reports with Equifax and Trans Union reflected an outstanding

balance on his student loan, but the University had “absolved” him of that

loan, his reports were inaccurate because the University continued to report

“false information.” (Am. Compl. ¶¶ 35, 52.)

The Plaintiff’s allegations are, however, directly contradicted by the

March 31, 2022, email from the University that the Plaintiff references in his

amended complaint. The email does not state that the Plaintiff’s debt has been

absolved—rather, it states that the University “will personally be facilitating

this issue and absolving you from the remaining balance as well as the

payment you have just made.” (Mot. Ex. 1 at 1, ECF No. 40-1 (emphasis

added).) The Court may appropriately rely on the email in resolving the motion

to dismiss because the Plaintiff expressly references it in his pleadings. Horsley

v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002) (observing that “a document

attached to a motion to dismiss may be considered by the court without

converting the motion into one for summary judgment only if the attached

document is: (1) central to the plaintiff's claim; and (2) undisputed.”). The

Plaintiff does not challenge the authenticity of the email, and the amended

complaint clearly makes the email central to the Plaintiff’s FCRA claim. Id.

(“‘Undisputed’ in this context means that the authenticity of the document is

not challenged.”); (Am. Compl. ¶ 35 (“For example, on March 31, 2022,

University of Miami sent Plaintiff an e-mail notifying him that University of

Miami absolved Plaintiff of the remaining balance on the Account.”).

The circumstances here are remarkably similar to those in Hunt, where

the Eleventh Circuit upheld a district court’s dismissal of a plaintiff’s FCRA

claims against JPMorgan Chase Bank (“JPMC”) because JPMC accurately

reported to CRAs that the plaintiff had an outstanding debt on a mortgage, over

120 days past due. 770 F. App’x at 457-58. The Plaintiff argued that, because

JPMC had accelerated the mortgage loan and initiated a foreclosure action, he

was relieved of his obligations to make monthly payments. While the Eleventh

Circuit did not endorse that argument, it observed that “even assuming [the

plaintiff] ultimately turned out to be correct about his legal obligation to pay,

his FCRA argument fails nonetheless” because it demonstrated a “disputed

legal issue” rather than a “factual inaccuracy.” Id.

Although this decision is not binding, the Court finds it very persuasive

here. The Plaintiff has demonstrated that he has a legal dispute with the

University over the absolution of his student loan debt. But, as of March of

2022, the University had only promised that it would, in the future, absolve

Mr. Bueno’s student loan debt. Therefore, his situation here is remarkably like

the plaintiff in Hunt—whether his dispute with the University about the

eventual absolution of his student loan debt is meritorious or not, the report

itself was not factually inaccurate based on the University’s March 31, 2022,

email. (Am. Compl. ¶¶ 35, 52; Mot. Ex. 1 at 1); Hunt, 770 F. App’x at 457-58.

B. The Plaintiff Fails to Allege Sufficient Facts Demonstrating that the

University Qualifies as a Furnisher of Information under the FCRA

Additionally, the Court finds that the Plaintiff has failed to plead

sufficient facts to establish that the University qualifies as a furnisher of

information under the FCRA. While the FCRA does not expressly define the

term “furnisher of information,” courts have generally been able to establish

what the term must mean: any entity that “reports” or otherwise submits

information to a CRA relating to a consumer’s debt. See 15 U.S.C. § 1681s-2(b);

see also Porter v. Experian Info. Servs., Inc., No. 121CV00453SDGRGV, 2021

WL 5068262, at *7 n.12 (N.D. Ga. Oct. 30, 2021) (“The term ‘furnishers of

information’ is not specifically defined within the FCRA but generally includes

any entity that reports information to a CRA which is relevant to a consumer's

credit rating.”), report and recommendation adopted sub nom. Porter v. Experian

Info. Servs., LLC, No. 121CV00453SDGRGV, 2022 WL 887288 (N.D. Ga. Jan.

27, 2022) (quoting Paredes v. Sallie Mae, No. 11-2470-CIV, 2011 WL 5599605,

at *4 (D.N.J. Nov. 16, 2011)); accord Elias v. Chase Bank USA, N.A., No. CIV.A

209CV250KSMTP, 2010 WL 384527, at *3 (S.D. Miss. Jan. 27, 2010) (“A

‘furnisher’ is an entity ‘which transmits information concerning a particular

debt owed by a particular consumer to consumer reporting agencies.’”) (quoting

Carney v. Experian Info. Sols., Inc., 57 F. Supp. 2d 496, 501 (W.D. Tenn.

1999)). While the requirements to demonstrate that an entity qualifies as a

furnisher are therefore straightforward, the Plaintiff fails to plead them here.

The Plaintiff only alleges that the University must be a “furnisher”

because his credit report lists the “University of Miami” and “University of

Miami Coll” as the account owner and furnisher. (Am. Compl. ¶ 22.) This

pleading is insufficient in light of the Court’s order requiring a more definite

statement, however. In that order, the Court identified that “the role of a third-

party named ‘ECSI’ in the debt’s reporting process” seemed “to be missing from

the [original] complaint.” (Order Requiring More Definite Statement at 2.)

Rather than expound on third-party ECSI’s role, however, the Plaintiff

has completely ignored this entity in his amended complaint. (See, e.g., Am.

Compl. ¶¶ 19-26.) As the incorporated email indicated, ECSI was the entity

with which the Plaintiff communicated regarding the status of his debt. (Mot.

Ex. 1 at 1.) The amended complaint is therefore deficient for two reasons. First,

it ignores the Court’s order—where the Court warned the Plaintiff that “[f]ailure

to abide by this Order will result in dismissal.” (Order Requiring More Definite

Statement at 2.) Second, it creates a factual inconsistency within the amended

complaint itself—is the University the “furnisher of information,” or is ECSI?

The Court still cannot determine this based on the Plaintiff’s failure to plead

sufficient facts supporting its allegation that the University is the correct

furnisher, and the Plaintiff’s failure to include any of the exhibits referenced in

the amended complaint only exacerbates this problem.

Accordingly, the Court finds that the Plaintiff fails to state a claim upon

which relief may be granted under the FCRA and dismisses the Plaintiff’s claim

against the University.4 Because the Court has previously granted the Plaintiff

leave to amend, and the Court’s decision is based on the undisputed terms of

the incorporated March 31, 2022, email, this dismissal is with prejudice. See,

e.g., Tom v. Equal Emp. Opportunity Comm’n, No. 20-22726-CIV, 2021 WL

810563, at *2 (S.D. Fla. Mar. 2, 2021) (Scola, J.) (“A Court may dismiss a cause

of action with prejudice ‘where further amendments would be futile.”)

4. Conclusion

For the reasons stated above, the Court grants the University of Miami’s

motion to dismiss. (ECF No. 40.) The Court dismisses the Plaintiff's claims

against the University of Miami with prejudice. The Clerk is directed to close

this case. All pending motions, if any, are denied as moot.

Done and ordered in Miami, Florida, on April 26, 2023. ?

Robert N. Scola, Jr.

United States District Judge

4 Because the Court finds that the Plaintiff failed to comply with the requirements of the

Court’s order requiring a more definite statement and fails to plead several essential elements

of his FCRA claim, the Court need not and does not address the parties’ arguments regarding

whether the Plaintiffs debt could be canceled based on his prior military service and whether

his claim is an improper collateral legal attack.