United States District Court, D. Connecticut
ROBERT C. SPRAGUE AND C. ROBIN ZIEGLER, Plaintiffs,
SALISBURY BANK AND TRUST COMPANY, Defendant.
MEMORANDUM OF DECISION GRANTING DEFENDANT'S
MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT [ECF No.
Vanessa L. Bryant United States District Judge.
Robert C. Sprague and C. Robin Ziegler bring the instant
action alleging claims arising out of Defendant Salisbury
Bank and Trust Company's reports to credit agencies,
which concerned Plaintiffs' mortgage with Defendant. In
their Amended Complaint, Plaintiffs bring four (4) claims
against Defendant for its conduct, including violation of the
Fair Credit Reporting Act (15 U.S.C. § 1681, et seq.)
(“FCRA”), violation of the Connecticut Unfair
Trade Practices Act, Conn. Gen. Stat. §§ 42-110a
et seq. (“CUTPA”), defamation, and
infliction of emotional distress. [ECF No. 22]. Defendant now
moves to dismiss all claims against it under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon
which relief can be granted. [ECF No. 28]. For the following
reasons, the motion is GRANTED.
purposes of the motion to dismiss, the Court assumes the
following facts set forth in the Amended Complaint, filed
October 22, 2018, [ECF No. 22], to be true. In the Amended
Complaint, Plaintiffs allege that they borrowed $109, 600
from Defendant to purchase a multi-family home. Id.
¶ 6. In 2004, Plaintiffs refinanced their mortgage by
borrowing $250, 000 from Defendant. Id. ¶ 7.
After Defendant initiated foreclosure proceedings against
Plaintiffs in August 2011, “the [state court] ordered a
Judgment In Strict Foreclosure in favor of Defendant. . .
” on May 14, 2012. Id. ¶¶ 8-10.
Plaintiffs and Defendant stipulated to a $40, 000 deficiency
judgment, which the state court granted on April 28, 2014.
Id. ¶¶ 11-14.
or about February 15, 2016, Plaintiff Sprague ordered a
credit report (‘2016 Report').” Id.
¶ 15. Plaintiffs learned from the 2016 Report that
Defendant was “reporting inaccurate information to the
credit reporting agencies [“CRAs”] . . . that the
mortgage on the foreclosed house was still open and payments
had not been made in more than two years.” Id.
¶ 16. “Plaintiffs notified Defendant of the error,
” and “[o]n March 7, 2016, Defendant sent
Plaintiffs a letter[, ]” which was attached to the
Amended Complaint, noting the error in their report to the
CRAs and stating that in their future reports they would
report Plaintiffs mortgage as “closed.”
Id. ¶¶ 17-18. Defendants did not promise
to report the mortgage paid in full or not to report the
deficiency judgment. “Plaintiffs subsequently learned
that Defendant did not correct the erroneous information
until November 30, 2016.” Id. ¶ 19.
the factual record above, Plaintiffs allege, in “Count
One: Violation of the [FCRA], ” that Defendant, as a
“furnisher” of information to CRAs,
“negligently and willfully failed to perform a
reasonable reinvestigation and correction of inaccurate
information [and] engaged in behavior prohibited by [the]
FCRA by failing to correct errors in the information that it
provided to credit reporting agencies after Plaintiffs
notified Defendant of the error.” Id.
¶¶ 20-21, 23. Plaintiffs allege that because of
Defendant's failure to correct Plaintiff's credit
information following Plaintiff's notification they
“have refrained from applying for new credit or more
favorable terms on existing credit lines and have suffered
psychological, emotional, and financial harm, as well as
expenses in challenging Defendant's false
information.” Id. ¶ 28.
Count Two, Plaintiffs allege from these actions that
Defendant violated CUTPA, “in that its actions were
unfair and deceptive, immoral, unethical, oppressive and
unscrupulous, caused substantial injury to a consumer and
constitute[d] a violation of the policy of this state,
” causing Plaintiffs to have “suffered an
ascertainable loss.” Id. ¶¶ 29-30.
Count Three, Plaintiffs allege that “Defendant's
reporting of information that it knew to be incorrect defamed
Plaintiffs. . . [and a]s a result of Defendant's
defamation, Plaintiffs have suffered an ascertainable
loss.” Id. ¶¶ 29-30.
in Count Four, Plaintiffs allege that “Defendant's
reporting of information that it knew to be incorrect caused
Plaintiffs emotional distress. . . [and a]s a result of
Defendant's infliction of emotional distress, Plaintiffs
have suffered an ascertainable loss.” Id.
seek compensatory damages, punitive damages for violation of
15 U.S.C. § 1681n, reasonable attorneys' fees
pursuant to 15 U.S.C. § 1681o, punitive damages and
reasonable attorneys' fees pursuant to CUTPA, the costs
of suit, and “[s]uch other and further relief as at law
or equity the Court may ascertain.” Id.
Plaintiffs' “claim and demand” for Relief
November 19, 2018, Salisbury filed a Motion to Dismiss
Plaintiff's Amended Complaint, [ECF No. 28], which
Plaintiffs responded to on July 18, 2019, [ECF No. 43] after
delay associated with Plaintiffs' three motions for
extension of time to respond, [ECF Nos. 29, 31, 33], and
Plaintiffs' two motions to amend the complaint, which the
Court denied. [ECF No. 35, 38]. Defendant filed its Reply
Brief on July 31, 2019. On August 5, 2019, Plaintiffs filed a
motion for leave to file a sur-reply, [ECF No. 47], which
Defendant opposed on August 19, 2019. [ECF No. 48].
survive a motion to dismiss, a plaintiff must plead
“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). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In
considering a motion to dismiss for failure to state a claim,
the Court should follow a “two-pronged approach”
to evaluate the sufficiency of the complaint. Hayden v.
Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A
court ‘can choose to begin by identifying pleadings
that, because they are no more than conclusions, are not
entitled to the assumption of truth.'” Id.
(quoting Iqbal, 556 U.S. at 679). “At the
second step, a court should determine whether the
‘wellpleaded factual allegations,' assumed to be
true, ‘plausibly give rise to an entitlement to
relief.'” Id. (quoting Iqbal, 556
U.S. at 679). “The plausibility standard is not akin to
a probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678 (internal quotations
general, the Court's review on a motion to dismiss
pursuant to Rule 12(b)(6) “is limited to the facts as
asserted within the four corners of the complaint, the
documents attached to the complaint as exhibits, and any
documents incorporated by reference.” McCarthy v.
Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007). The Court may also consider “matters of which
judicial notice may be taken” and “documents
either in plaintiffs' possession or of which plaintiffs
had knowledge and relied on in bringing suit.”
Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150
(2d Cir. 1993); Patrowicz v. Transamerica HomeFirst,
Inc., 359 F.Supp.2d 140, 144 (D. Conn. 2005).
Fair Credit Reporting Act (15 U.S.C. § 1681, et
seq.) (Count 1)
Fair Credit Reporting Act. . . regulates credit reporting
procedures to ensure the confidentiality, accuracy,
relevancy, and proper utilization of consumers'
information.” Longman v. Wachovia, 702 F.3d
148, 150 (2d Cir. 2012) (citing 15 U.S.C. § 1681(b)).
Under Section 1681s-2, “several duties [are imposed] on
those who furnish information to consumer reporting agencies
[(hereinafter ‘furnishers')].” Id.
at 150-51. “Among these are duties to refrain from
knowingly reporting inaccurate information, see
§ 1681s-2(a)(1), to correct any information they later
discover to be inaccurate, see § 1681s-2(a)(2),
and to investigate a dispute filed directly with [them],
see § 1681s-2(a)(8).” Moorer v. U.S.
Bank N.A., No. 3:17-cv-56 (VAB), 2018 WL 587319, at *22
(D. Conn. Jan. 29, 2018) (internal citation omitted);
Longman, 702 F.3d at 151. Further, after a credit
reporting agency notifies a furnisher of a consumer's
dispute, the furnisher has a duty to investigate the disputed
consumer information. See 15 U.S.C. §
1681s-2(b); Reid v. Fifth Third Bank, No.
6:15-CV-191, 2015 WL 13158511, at *3 (N.D.N.Y. April 7,
first argues that Plaintiffs' claims under the FCRA
should be dismissed because they fail “to identify a
proper subsection under which to assert a claim.” [Dkt.
28 at 6]. Second, Defendant argues that to the extent that
Plaintiffs “allege a violation of § 1681s-2(a) of
the FCRA, [the claim] must be dismissed with prejudice
because there is no private right of action under that
subsection of the FCRA.” Id. at 7. Further,
Defendant argues that Plaintiffs fail to state a claim under
§ 1681s-2(b), because “Plaintiffs have not alleged
that a consumer reporting agency informed Defendant of their
alleged dispute.” Id. at 9. The Court agrees
with Defendant's second and third arguments and DISMISSES
Count 1 of the amended complaint for the following reasons.
Inadequate Identification of the Correct Subsection
cites cases dismissing complaints that fail to identify which
subsection of the FCRA the plaintiff is proceeding under.
These cases are no help to Defendant, however, because each
was a dismissal without prejudice to amend the complaint.
Here, dismissing in this fashion is unnecessary because
Plaintiffs make clear in their opposition to Defendant's
Motion to Dismiss the section under which they are