United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS, District Judge.
Plaintiffs Francisco and Mercy Hernandez (the "Hernandezes") have sued Defendant Wells Fargo Bank, N.A. ("Wells Fargo") for an alleged violation of the federal Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681s-2(b). This matter is before the Court on Wells Fargo's motion to dismiss the plaintiffs' First Amended Complaint (the "Amended Complaint") for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). [Dkt. 23.] Wells Fargo contends that the sole count in the Amended Complaint is barred by the FCRA's two-year statute of limitations. After a hearing conducted on May 12, 2015, the Court notified the parties that it was converting the motion to dismiss to a motion for summary judgment pursuant to Fed.R.Civ.P. 12(d) and gave the parties an opportunity to submit supplemental briefs, which they both did. For the reasons explained in this opinion, and after careful review of the procedural history of this case, the allegations in the Amended Complaint, and the arguments presented in the parties' briefs and at the hearing, the Court concludes that the plaintiffs' FCRA claim is time-barred. Therefore, Wells Fargo's motion to dismiss, as converted by the Court to a motion for summary judgment, is GRANTED.
II. Procedural and Factual Background
A. The Original Complaint
On November 27, 2013, the plaintiffs filed a three-count Complaint (the "Original Complaint") against Wells Fargo in this Court. [Dkt. 1.] In Counts I and II, the plaintiffs alleged willful and negligent violations of the FRCA (15 U.S.C. §§ 1681n, 1681o). In Count III, they alleged intentional infliction of emotional distress.
The Original Complaint included the following factual allegations: In June 2009, the plaintiffs purchased a property located at 22 Sherman Street in Peabody, Massachusetts. [Dkt. 1, ¶¶ 2, 6.] They financed the purchase with a mortgage loan from Wells Fargo. [Id. ¶ 5.] On or about November 29, 2011, they discovered that Wells Fargo had falsely reported to various consumer reporting agencies ("CRAs") that their mortgage account status was "180 days late." [Id. ¶ 7.] This mistaken information purported to show that the plaintiffs were already behind on their mortgage payments before they had even purchased the property. [Id. ¶ 8.] On or about November 29, 2011, the plaintiffs submitted a written dispute directly to Wells Fargo. [Id.] In their Original Complaint, the plaintiffs did not allege that they ever submitted a dispute to any CRA, but only directly to Wells Fargo.
Wells Fargo moved to dismiss the Original Complaint [Dkt. 10], and the Court granted that motion,  holding, as to the FCRA counts, that "[15 U.S.C.] § 1681s-2(b) only triggers a duty once a CRA has been notified [of a dispute], and does not provide any remedy for a consumer who notifies a furnisher directly." See Report and Recommendation (Aug. 19, 2014) (Collings, M.J.) [Dkt. 17, at 8], adopted by Order (Sept. 30, 2014) (Gorton, D.J.) [Dkt. 19]. In other words, the plaintiffs' claims for willful and negligent violations of the FCRA were dismissed because the Original Complaint contained "no allegation... that the plaintiffs notified a CRA of a discrepancy in information concerning their mortgage payment history with Wells Fargo." [Dkt. 17, at 9.] See 15 U.S.C. §§ 1681s-2(b)(1), 1681s-2(c)(1); Chiang v. Verizon New England, Inc., 595 F.3d 26, 35-36 & n.8 (1st Cir. 2010). The Court also dismissed the claim for intentional infliction of emotional distress, holding that the FCRA preempted that claim. [Dkt. 17, at 10-11.] Thus, on September 30, 2014, the Original Complaint was dismissed in its entirety, but because it appeared from the briefs that the plaintiffs might be able to plead a viable cause of action under the FCRA, the Court granted leave to amend the complaint solely with respect to the FCRA claim. [Dkt. 17, at 10-11; Dkt. 19.]
B. The Amended Complaint
On October 22, 2014, the plaintiffs filed a one-count Amended Complaint, alleging that Wells Fargo had violated the FCRA, 15 U.S.C. § 1681s-2(b), which sets forth certain obligations on a furnisher that are triggered when a CRA has informed the furnisher of a dispute regarding information provided to the CRA, as discussed in greater detail below (Part III-B). Compared to the Original Complaint, the Amended Complaint added, inter alia, the following new factual allegations:
9. [S]ometime in the fall of 2009, the Plaintiffs went to Bank of America to inquire about a loan for funds to make improvements to the property.
10. Bank of America ("Bank") informed the Plaintiffs that the loan with the Defendant was showing dates of entries which were not consistent with the commencement date of the loan and, further that "late" entries for the loan were on the Plaintiffs' credit report.
12. The Plaintiffs thereafter requested that Trans Union (CRA) obtain a correction of the inaccurate information from the Defendant and, further, understood thereafter that the CRA ...