Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lowe v. MAC Federal Credit Union

United States District Court, W.D. Texas, San Antonio Division

May 29, 2018

ROBERTA LOWE, Plaintiff,
v.
MAC FEDERAL CREDIT UNION, Defendant.

          ORDER

          XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE

         On this date, the Court considered the Motion to Dismiss Pursuant to Rule 12(b)(2) and 12(b)(3) or to Transfer Venue Pursuant to 28 U.S.C. §§ 1404(a) and/or 1406(a), and Alternative Motion to Dismiss Pursuant to Rule 12(b)(6) (docket no. 7). After careful consideration, the Court GRANTS the motion to dismiss pursuant to Rule 12(b)(2) for lack of personal jurisdiction and dismisses the remainder of the motion as moot.

         Factual and Procedural Background

         Plaintiff Roberta Lowe filed her Original Complaint on December 4, 2017 alleging violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA”). At some unspecified time, Plaintiff entered into an auto loan agreement with Defendant MAC, a not-for-profit credit union headquartered in Alaska. At a later unspecified time, she moved to Texas. Plaintiff's Original Complaint alleges that on or about June 2017, Defendant had been credit reporting on Plaintiff's credit report for the auto loan, on which Plaintiff had fallen behind and owed $8, 603. The Original Complaint alleged that MAC then sold the note or transferred it to a third-party collection agency, R.A. Rogers, for collection. However, despite transferring or selling the note, Defendant continued reporting the debt and the balance owed to each of the three credit reporting agencies, while R.A. Rogers reported the same debt, making it appear that Plaintiff had double her true delinquency.

         Plaintiff's Original Complaint alleges that she disputed the information with each of the three credit reporting agencies, who forwarded the disputes to MAC, yet MAC failed to conduct a reasonable investigation, continued to report the trade line as accurately reflecting a balance, and failed to report the trade line as one in dispute. Plaintiff alleges that she has suffered emotional and financial injury, and asserts a single count under the FCRA, alleging that “Defendant willfully and negligently failed to comply with the requirements imposed on furnishers of information pursuant to 15 U.S.C. § 1681s-2b.” Section 1681s-2(b) of the FCRA details the duties of furnishers of credit information once they have been notified of a dispute with regard to the accuracy of information provided to a consumer reporting agency. Smith v. Nat'l City Mortgage, No. A-09-CV-881-LY, 2010 WL 3338537 (W.D. Tex. Aug. 23, 2010).

         Defendant MAC moved to dismiss the Complaint pursuant to Rules 12(b)(2) and 12(b)(3), or to transfer venue to the United States District Court for the District of Alaska, Fairbanks Division pursuant to 28 U.S.C. § 1404(a) and/or 1406(a). In its motion, MAC contends that it is not subject to personal jurisdiction in this District and that this District is an improper venue. Thus, it contends that the Complaint should be dismissed or, alternatively, the case should be transferred to Alaska. Alternatively, MAC moves to dismiss the complaint for failure to state a claim upon which relief can be granted under Rule 12(b)(6).

         Plaintiff sought an extension of time to respond to the motion to dismiss, and eventually filed an Amended Complaint rather than a response. Under the “Parties” section, the Amended Complaint alleges that Defendant is a credit union doing business in Texas, with its principal place of business in Fairbanks, Alaska. Id. ¶ 5. It further alleges upon information and belief that “Defendant regularly services military members that travel to different states, including Texas, and continues to maintain accounts for these Texas residents and allow these consumers to use their services for financial activity while in Texas, or on military bases of other states.” Id.

         The “Factual Statement” portion of the Amended Complaint no longer alleges that MAC sold or transferred the debt to R.A. Rogers, but instead alleges that MAC hired Rogers to collect on the debt as its agent, and that Rogers attempted to collect the debt from Plaintiff in Texas through the use of collection letters and the placement of a trade line on her credit report. Id. ¶¶ 8-9. Plaintiff alleges upon information and belief that Defendant MAC controlled the details of how, when, and where Rogers was to collect the debt, based on common industry practice, and that MAC “specifically provided rules to R.A. Rogers concerning how, when, and what can and cannot be credit reported concerning Plaintiff's account.” Id. ¶¶ 10-12. Plaintiff alleges that MAC reported the debt and allowed Rogers to report the debt and balance owed to each of the three credit reporting agencies, making it appear that Plaintiff had double her actual delinquency. Id. ¶¶ 13-15.

         The Amended Complaint further alleges that, after reviewing her account, Plaintiff inquired of MAC, from Texas, concerning the debt, and Defendant stated that all further information concerning the account could be obtained from R.A. Rogers. Id. ¶ 17. Plaintiff disputed the information with each of the credit reporting agencies by mail from Texas, and stated that her current residence was Texas. Id. ¶ 18. The credit reporting agencies forwarded the disputes in an automated form, which contained Plaintiff's current address and “put Defendant on notice of Plaintiff's residence.” Id. ¶ 19. However, Plaintiff alleges, “Defendant continued reporting the trade line purposefully directed towards Plaintiff while Defendant knew Plaintiff was in Texas.” Id. ¶ 21.

         MAC then filed a Supplemental Motion (docket no. 11), asserting that Lowe failed to comply with the local rules by filing a response to the original motion and thus dismissal was appropriate, and arguing that the Amended Complaint still fails to establish personal jurisdiction and venue. Lowe responded to the supplemental motion, asserting that no response was required to the motion because an Amended Complaint was filed addressing the bases for the motion, mooting the motion. Lowe asserted that she would treat the supplemental motion to dismiss as a renewed motion incorporating the original arguments for her response. Lowe argued that MAC is subject to personal jurisdiction in this Court and that venue is proper here.

         This Court then issued a text order mooting the original motion to dismiss, noting that Plaintiff timely filed an Amended Complaint as of right pursuant to Rule 15(a)(1)(B), which permits a plaintiff to file an amended complaint within 21 days of a motion to dismiss under Rule 12(b), and that any technical failure to separately respond to the motion pursuant to the local rule would not justify granting the motion. Thus, the Court mooted the original motion and treated the supplemental motion as a renewed motion to dismiss incorporating the original arguments. After receiving several extensions, MAC then filed its Reply to the motion to dismiss on March 9, 2018. The motion is now ripe for disposition.

         Analysis

         Because jurisdiction is a threshold inquiry, the Court first determines whether MAC is subject to personal jurisdiction in Texas. At this stage, Plaintiff is required to make a prima facie showing of personal jurisdiction. Central Freight Lines, Inc. v. APA Transport Corp., 322 F.3d 376, 380 (5th Cir. 2003). Plaintiff alleges that MAC is subject to both specific and general personal jurisdiction in Texas. MAC asserts that it is not subject to either specific or general personal jurisdiction because it is “at home” in Alaska and is not at home in Texas, and all conduct complained of occurred in Alaska. MAC provides the affidavit of Jacqueline Haskins, the Collections Manager for MAC, in support of its motion to dismiss.

         A. General ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.