# Bueno v. University Of Miami

> District Court, S.D. Florida · April 26, 2023

URL: https://www.frixlaw.com/law-library/cases/10121869

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** April 26, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10121869

## How later opinions describe it (automated extraction)

- 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.”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10121869. Public record. Not legal advice.