United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT, UNITED STATES DISTRICT JUDGE
before the Court is Defendant Freedom Mortgage
Corporation's (“Freedom”) Motion to Dismiss
Plaintiff's Amended Complaint for Failure to State a
Claim (Dkt. #48) and Defendant JPMorgan Chase Bank,
N.A.'s (“Chase”) Motion to Dismiss Under Rule
12(b)(6) (Dkt. #58). Having considered the motions and the
relevant pleadings, the Court finds that the motions should
filed her Original Complaint on August 31, 2018 (Dkt. #1).
Plaintiff filed her First Amended Complaint on October 18,
2018 (Dkt. #40). Plaintiff alleges violations of the Fair
Credit Reporting Act (“FCRA”), 15 U.S.C. §
1681, against Defendants Experian Information Solutions Inc.
(“Experian”); Equifax Information Services LLC
(“Equifax”); Trans Union LLC (“Trans
Union”); Chase; and Freedom and violations of the Real
Estate Settlement Procedures Act (“RESPA”), 12
U.S.C. § 2601-2617, against Chase and Freedom.
settled her claims with Equifax, Trans Union, and Chase and
Plaintiff stipulated to the dismissal of these defendants
(Dkt. #74; Dkt. #85; Dkt. #86; Dkt. #88; Dkt. #91). As a
result, the Court dismissed Equifax, Trans Union, and Chase
(Dkt. #89; Dkt. #90; Dkt. #92). Accordingly, Plaintiff's
only remaining claims are her FCRA claim against Experian and
her FCRA and RESPA claims against Freedom.
November 1, 2018, Freedom filed its motion to dismiss (Dkt.
#48). Plaintiff filed a response to the motion on November
15, 2018 (Dkt. #56). Freedom filed a reply in support of the
motion on November 26, 2018 (Dkt. #59).
November 16, 2018, Chase filed its motion to dismiss (Dkt.
#58). Plaintiff filed a response to the motion on November
30, 2018 (Dkt. #62). Chase filed a reply in support of the
motion on December 7, 2018 (Dkt. #63).
Federal Rules of Civil Procedure require that each claim in a
complaint include a “short and plain statement . . .
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Each claim must include enough factual
allegations “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
12(b)(6) motion allows a party to move for dismissal of an
action when the complaint fails to state a claim upon which
relief can be granted. Fed.R.Civ.P. 12(b)(6). When
considering a motion to dismiss under Rule 12(b)(6), the
Court must accept as true all well-pleaded facts in the
plaintiff's complaint and view those facts in the light
most favorable to the plaintiff. Bowlby v. City of
Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court
may consider “the complaint, any documents attached to
the complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the
complaint.” Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).
The Court must then determine whether the complaint states a
claim for relief that is plausible on its face.
“‘A claim has facial plausibility when the
plaintiff pleads factual content that allows the [C]ourt to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Gonzalez v.
Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“But where the well-pleaded facts do not permit the
[C]ourt to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Iqbal, 556 U.S. at 679 (quoting
Iqbal, the Supreme Court established a two-step
approach for assessing the sufficiency of a complaint in the
context of a Rule 12(b)(6) motion. First, the Court should
identify and disregard conclusory allegations, for they are
“not entitled to the assumption of truth.”
Iqbal, 556 U.S. at 664. Second, the Court
“consider[s] the factual allegations in [the complaint]
to determine if they plausibly suggest an entitlement to
relief.” Id. “This standard
‘simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of the
necessary claims or elements.'” Morgan v.
Hubert, 335 Fed.Appx. 466, 470 (5th Cir. 2009) (citation
omitted). This evaluation will “be a context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense.” Iqbal,
556 U.S. at 679.
“[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.”' Id. at 678 (quoting
Twombly, 550 U.S. at 570).
contends the Court should dismiss Plaintiff's FCRA and
RESPA claims against Freedom as Plaintiff fails to state a
claim upon which relief can be granted as the FCRA and RESPA
do not apply to business loans (Dkt. #48 at p.
The “FCRA does not apply to business transactions, even
those involving consumers and their consumer credit
information.” Yeager v. TRW, Inc., 961 F.Supp.
161, 162 (E.D. Tex. 1997); see also Hall v. Phenix
Investigations, Inc., 3:14-CV-0665-D, 2014 WL 5697856,
at *9 (N.D. Tex. Nov. 5, 2014) (citing Matise v. Trans
Union Corp., 1998 WL 872511, *2 (N.D. Tex. Nov. 30,
1998)). The RESPA “does not apply to credit transaction
involving extensions of credit . . . primarily for business,
commercial, or agricultural purposes ...