In Carrasco v. M & T Bank, No. SAG-21-0532, 2021 U.S. Dist. LEXIS 80487, at *8 (D. Md. Apr. 27, 2021), Judge Gallagher allowed an FCRA claim past the pleadings stage where the Plaintiff argued that the creditor had not reported the Account as disputed.
Count One of Plaintiff’s Complaint fairly alleges that M&T violated the FCRA by failing to inform the CRAs that he was disputing the unpaid debt it had reported. “Furnishers of information,” like issuers of credit cards, have several affirmative obligations under the FCRA that are aimed at ensuring CRAs are provided complete and accurate information. See 15 U.S.C. § 1681s-2(b) (outlining duties of “a furnisher of information,” upon notice that the accuracy of reported information is disputed); Saunders v. Branch Banking & Trust Co., 526 F.3d 142, 147-49 (4th Cir. 2008) (explaining furnishers of information’s duty “to determine whether the information that they previously reported to a CRA is ‘incomplete or inaccurate'”). To state a claim under section 1681s-2(b) of the FCRA a claimant must allege “(1) that he or she notified the consumer reporting agency of the disputed information, (2) that the consumer reporting agency notified the defendant furnisher of the dispute, and (3) that the furnisher then failed to investigate and modify the inaccurate information.” Ausar-El v. Barclay Bank Del., No. PJM 12-0082, 2012 WL 3137151, at *3 (D. Md. July 31, 2012). However, “a furnisher does not report ‘incomplete or inaccurate’ information within the meaning of § 1681s-2(b) simply by failing to report a meritless dispute, because reporting an actual debt without noting that it is disputed is unlikely to be materially misleading.” Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1163 (9th Cir. 2009) (citing Saunders, 526 F.3d at 150); Wood v. Credit One Bank, 277 F. Supp. 3d 821, 853 (E.D. Va. 2017); cf. Saunders, 526 F.3d at 151 (assuming without deciding “that a furnisher incurs liability . . . only if it fails to report a meritorious dispute” (emphasis added)). M&T disputes whether Plaintiff gave M&T proper notice of his specific dispute. ECF 22-1 at 7. Additionally, M&T argues Plaintiff’s FCRA claim should be dismissed because he has not alleged a bona fide or meritorious dispute with M&T that would trigger its obligations to report the dispute to the CRAs. M&T points out that Plaintiff does not dispute that he had not made any minimum payments prior to December 17, 2020. He also does not dispute that the plain terms of the credit agreement state that he was required to make such payments. ECF 1 ¶ 44 (stating the “minimum monthly payments” are “the greater of (a) $15 or (b) 2.5% of the Outstanding Balance, plus the greater of (x) any amounts over limit and (y) any past due amounts”). He does dispute, however, that he was properly notified of the terms and that he is actually bound by the credit agreement. In the complaint, Plaintiff acknowledges he was sent a “generic-looking” pamphlet that M&T “has represented as being the Credit Agreement.” ECF 1 ¶ 8. He openly questions, however, “[w]hether this Agreement qualifies as a legally binding and enforceable contract.” Id. He also alleges that M&T made the Agreement in “bad faith,” and that its conduct in doing so is “predatory” and amounts to “obfuscation and ambiguity,” id. ¶ 20, and argues his failure to pay the required payments “were the result of the inadequate representations” by M&T, ECF 30 ¶ 32. If Plaintiff was not actually bound by the agreement his “failure to pay the debt [would] not reflect financial irresponsibility,” and M&T’s failure to disclose the dispute would be misleading. Saunders, 526 F.3d at 150. Both parties cite to a number of exhibits that have been filed on the Court’s docket but were attached neither to the Complaint nor to the motion to dismiss. As referenced above, a factual inquiry into the merits of the parties’ positions is premature at the motion to dismiss stage particularly where, as here, the parties appear to dispute many facts. Courts generally do not “resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses” through a Rule 12(b)(6) motion. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999) (quoting Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)). Thus, with respect to the FCRA count, the parties’ opposing views as to whether Plaintiff’s dispute paperwork attached all the information required by statute or did or did not meet the standard of being a “bona fide dispute” await a later stage of this litigation when the underlying facts are clear. For the purpose of the relatively low threshold of “plausibility” required at the motion to dismiss stage, particularly under the liberal construction afforded pleadings drafted by a pro se litigant, Plaintiff’s allegations, assumed to be true, suffice to state a FCRA claim that M&T failed to report the dispute about the debt to the CRAs.