Opinion
1:22-CV-00338-SPB-RAL
05-16-2023
MICHAEL F. ALEXANDER, Plaintiff v. ACCEPTANCE NOW, AMERICAN EXPRESS, BRIDGECREST FORMERLY DRIVETIME, CAPITAL ONE, CAPITAL ONE AUTO FINANCE, CREDENCE RESOURCE MANAGEMENT, ENHANCED RECOVERY COMPANY, FIRST PREMIER BANK, MIDLAND CREDIT MANAGEMENT, INC., PORTFOLIO RECOVERY, TBOM/OLLD CARD SERVICES, CHEX SYSTEM, INC., U.S. BANK CORPORATION, Defendants
ECF NOS. 31, 37
SUSAN BAXTER PARADISE, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
RICHARD A. LANZILLO, CHIEF UNITED STATES MAGISTRATE JUDGE.
I. Recommendation
Defendant U.S. Bank Corporation's motion for judgment on the pleadings (ECF No. 311) and Defendant Midland Credit Management, Inc.'s motion to dismiss for failure to state a claim (ECF No. 77) are presently pending. It is respectfully recommended that both motions be GRANTED.
II. Report
A. Introduction and Procedural History
On September 11, 2022, Plaintiff Michael F. Alexander ("Alexander") filed his pro se Complaint in the Court of Common Pleas of Erie County, Pennsylvania, against thirteen Defendants, including U.S. Bank Corporation ("U.S. Bank") and Midland Credit Management, Inc. ECF No. 1-1. The Complaint alleges violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq, and the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691, et seq., based on allegedly fraudulent accounts listed on Alexander's credit reports. For relief, Alexander seeks compensatory and punitive damages as well as the removal of the contested debt from his credit reports. The action was removed to this Court pursuant to 28 U.S.C. § 1441 based on federal question subject matter jurisdiction conferred by 28 U.S.C. § 1331. ECF No. 1.
Alexander attached to his complaint a credit report generated by TransUnion, ECF No. 1-1, pp. 30-33, and a credit report generated by ChexSystems, id., pp. 34-35.
Thereafter, U.S. Bank moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). ECF No. 31. Midland then moved to dismiss the claims pursuant to Fed.R.Civ.P. 12(b)(6). ECF No. 37. Alexander responded to each of these motions with an opposition brief. ECF No. 45, 46.
The briefs are identical except for each's identification of the moving Defendant. ECF Nos. 45, 46.
B. Material Facts
The relevant factual allegations of Alexander's Complaint are sparce and, for purposes of the pending motion, accepted as true. Alexander's claims are based on his allegations that the Defendants reported false information concerning his credit history to consumer reporting agencies (“CRAs”), including ChexSystems and TransUnion. With respect to U.S. Bank, Alexander alleges that it fraudulently reported to ChexSystems that he owes $838.94 on U.S. Bank account 5022 and $218.93 on U.S. Bank account 1440. Alexander alleges that these charge-off amounts are not his because he has “never d[one] business nor had an account with” U.S. Bank. ECF No. 1-1, ¶ 81. Alexander asserts that he contacted U.S. Bank and ChexSystems, Inc. “in an attempt to have the false information removed from [his] credit report,” but “[e]ach contact and dispute was returned as verified and accurate in regards to # 5022 and # 1440.” Id., ¶ 82. Additionally, he “filed an Identity Theft Report with the appropriate officials.” Id., ¶ 83. Yet, “the three major Credit Reporting Agencies all still verify the information as accurate.” Id
Alexander appears to be referring to CRAs TransUnion, Experian, and Equifax. The Court notes, however, that while the attached ChexSystems credit report contains the disputed U.S. Bank accounts, the attached TransUnion credit report does not. See ECF No. 1-1, pp. 30-35.
According to the Complaint, Midland has also allegedly falsely reported to CRAs that Alexander owes $1,183 on Credit One Bank account 30432 and $449 on Bank of Missouri account 30454. Midland “is a collection agency acting on behalf of the original creditors,” Capital One Bank and Bank of Missouri. Id., ¶ 59. Midland has purchased these companies' debts and is “using unfair debt collections practices to obtain money from [Alexander].” Id., ¶ 60. But, according to Alexander, “[he] does not legally owe” money to Midland “due to him first never doing business with Defendant nor having an account with them. ” Id.
Alexander similarly states that he has “contacted all three of the Credit Reporting Agencies in order to have the false information removed from [his] credit report,” and that “each contact and dispute was returned as verified and accurate in regards to both accounts # 30432 and # 30454.” Id., ¶ 61. He also “filed an Identity Theft Report with the appropriate officials.” Id., ¶ 62. Nevertheless, “the three major Credit Reporting Agencies all still verify the information as accurate.” Id. Alexander asserts that Midland's “false and fraudulent, derogatory, inaccurate reporting practices have led to [him] having his credibility, reliability, and trustworthiness tarnished and placed under scrutiny.” Id., ¶ 63.B. Standard of Review
“A motion for judgment on the pleadings under Rule 12(c) ‘is analyzed under the same standards that apply to a Rule 12(b)(6) motion.'” Wolfington v. Reconstructive Orthopaedic Assocs. IIPC, 935 F.3d 187, 195 (3d Cir. 2019) (quoting Revell v. Port Auth. of N Y.&N.J, 598 F.3d 128, 134 (3d Cir. 2010)). A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a Rule 12(b)(6) motion to dismiss, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The “court[] generally consider[s] only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim” when considering the motion to dismiss. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997)).
In making its determination under Rule 12(b)(6), the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Iqbal, 556 U.S. 662. Furthermore, a complaint should only be dismissed pursuant to Rule 12(b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 (1957)).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. See Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as explained in the complaint. See California Pub. Emp. Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions disguised as factual allegations. See Twombly, 550 U.S. at 555; McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).
Expounding on the Twombly!Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.' Second, the court should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth.' Finally, ‘where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.'Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Finally, because Plaintiff is proceeding pro se, the allegations in the complaint must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read a pro se litigant's pleadings to state a valid claim upon which relief could be granted, it should do so despite the litigant's failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read “with a measure of tolerance”).
C. Discussion
Alexander avers that Defendants' “continued reporting of inaccurate information on [his] report” constitutes a violation of his rights under “the Fair Credit Reporting Act 15 U.S.C. 1681 h(c).” ECF No. 1-1, ¶ 85. He also asserts that Midland has violated “the Fair Credit Reporting Act” and “Consumer Protection Act.” AZ,¶64. See ECF No. 46, ¶ 6. U.S. Bank and Midland Credit both argue that the FCRA claim should be dismissed because the cited provision does not apply to them, and the Complaint fails to allege facts to support liability under the provision of the statute upon which Alexander relies. Midland Credit additionally argues that the complaint also fails to state a cognizable FDCPA claim.
Although the Complaint asserts only an FCRA claim against U.S. Bank, ECF No. 1-1, ¶ 85, Alexander argues in his opposition brief that he has alleged both an FDCPA claim and “Consumer Protection Act” claim against U.S. Bank. See ECF No. 45, ¶ 6. But Alexander cannot amend his pleading to bring new claims in his opposition brief. To add related claims, Alexander must seek leave to file an amended complaint pursuant to Fed.R.Civ.P. 15. Accordingly, an FDCPA claim against U.S. Bank is not properly before the Court.
Alexander's Complaint asserts only an FCRA claim and FDCPA claim against Midland, but his opposition brief argues a “Consumer Protection Act” claim against Midland as well. ECF No. 1-1, ¶ 64; ECF No. 46, ¶ 6. Ordinarily, new claims cannot be asserted in a responsive brief. However, Midland's Rule 12(b)(6) motion construed the Complaint as also raising a “Consumer Protection Act” claim against it. ECF No. 38, p. 7. Given Midland's expansive interpretation of the claims against it, the undersigned will assess the viability of each.
i. The FCRA
Alexander argues that Defendants' alleged conduct violates the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. Congress passed the FCRA “to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007). See 15 U.S. Code § 1681(b). “[T]o satisfy the ‘consumer oriented objectives'” of the FCRA, the Third Circuit construes the Act liberally. Lewis v. Cap. One Bank, 2022 WL 17364641, at *4 (E.D. Pa. Dec. 1,2022) (quoting Harris v. Pa. Higher Educ. Assistance Agency/Am. Educ. Servs., 2016 WL 3473347, at *4 (E.D. Pa. June 24, 2016), affd by Harris v. Pa. Higher Educ. Assistance Agency/Am. Educ. Servs., 696 Fed.Appx. 87, 90 (3d Cir. 2017) (citing S.Rep. No. 91-517, at 3 (1969))). The FCRA places varying obligations on three types of entities: “(1) consumer reporting agencies, (2) users of consumer reports, and (3) furnishers of information to consumer reporting agencies.” Id. (citing 15 U.S.C. § 1681, et seq.). Alexander's claims against U.S. Bank and Midland concern their alleged inaccurate or fraudulent reporting of information to a consumer reporting agency. Alexander is therefore alleging that U.S. Bank and Midland each acted as a “furnisher.” See id. (citing Donohue v. C. Blosenski Disposal Co., 2006 WL 3423888, at *3 (E.D. Pa. Nov. 28, 2006)) (“A ‘furnisher' is an entity which transmits information about a particular debt owed by a particular consumer to a consumer reporting agency.”).
“Among other things, the FCRA requires consumer reporting agencies to 'follow reasonable procedures to assure maximum possible accuracy of consumer reports, § 1681 e(b); to notify providers and users of consumer information of their responsibilities under the FCRA, § 168 le(d); and to limit the circumstances in which such agencies provide consumer reports 'for employment purposes, § 1681 b(b)(1).”' Ebrahimzadeh v. Sharestates Invs., LLC, No. CV 181659,2018 WL 6065419, at *8 (E.D. Pa. Nov. 20, 2018).
Section 1681 s-2(b) of the FCRA “imposes certain duties on a fumisher/creditor who has been notified by a consumer credit reporting agency that a consumer has disputed information furnished by that fumisher/creditor.” See Harris v. Pa. Higher Educ. Assistance Agency/Am. Educ. Servs., 696 Fed.Appx. 87, 90 (3d Cir. 2017).
Section 1681 s-2 of the FCRA imposes two categories of legal obligations on furnishers: (1) liability under § 1681s-2(a) arises following a consumer's notice directly to the furnisher of inaccurate information, and (2) liability under § 1681 s-2(b) arising upon a consumer's notice to the CRA of inaccurate information, and the CRA's subsequent notice to the furnisher of the inaccurate information. See 15 U.S.C. §§ 1681 s-2(a)(1),(b)(1). But a private individual cannot “assert a claim for a violation of § 1681s-2(a), as such claims are available only to the Government.” SimmsParris v. Countrywide Fin. Corp., 652 F.3d 355, 358 (3d Cir. 2011) (citing 15 U.S.C. § 1681s-2(c) (“[S]ections 168 In and 1681o of this title do not apply to any violation of-(1) subsection (a) of this section....”); id. § 1681 s-2(d) (“The provisions of law described in paragraphs (1) through (3) of subsection (c) of this section ... shall be enforced exclusively ... by the Federal agencies and officials and the State officials identified in section 1681s of this title.”)). Accordingly, 15 U.S.C. § 1681 s-2(b) is “the only section that can be enforced by a private citizen seeking to recover damages caused by a furnisher of information.” Id. (citing Chiang v. Verizon New England Inc., 595 F.3d 26, 35 (1st Cir. 2010); Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1154 (9th Cir. 2009); Saunders v. Branch Banking & Trust Co. of Va., 526 F.3d 142, 149 (4th Cir. 2008)).
Here, Alexander asserts that the Defendants' actions violated Section 1681 (h)(c). Yet, as Defendants correctly explain, the cited FCRA provision only applies to CRAs and, therefore, does not support a cognizable claim against furnishers of information like Defendants. See ECF No. 32, pp. 4-5; ECF No. 38, pp. 5-6. Nevertheless, the Court, drawing all inferences in favor of the pro se litigant and liberally construing his Complaint, will look beyond his erroneous citation and assess whether Alexander has pled facts sufficient to state a claim under, 15 U.S.C. § 1681s- 2(b), the only FCRA provision potentially available to him. See Haines, 404 U.S. 519, 520; Lewis, 2022 WL 17364641, at *5.
A viable § 1681 s-2(b)(1) claim requires a consumer to allege facts to support plausible inferences that he: “[1] filed a notice of dispute with a consumer reporting agency; [2] the consumer reporting agency notified the furnisher of information of the dispute; and [3] the furnisher of information failed to investigate and modify the inaccurate information.” Lewis, 2022 WL 17364641, at *5 (alteration in original) (quoting Harris, 2016 WL 3473347, at *6) (citing 15 U.S.C. §§ 1681 s-2(b), 1681n & § 1681 o).
Alexander asserts that U.S. Bank violated the FCRA when it reported that he owed a balance of $838.94 on account 5022 and a balance of $218.93 on account 1440 to CRA ChexSystems despite his attempts to dispute the accuracy of these accounts. Specifically, he avers that he has never done business with U.S. Bank and “filed an Identity Theft Report with the appropriate officials.” ECF No. 1-1, ¶ 83. He further avers that U.S. Bank and ChexSystems “have both been contacted by [him] in an attempt to have the false information removed from [his] credit report,” but “[e]ach contact and dispute was returned as verified and accurate in regards to # 5022 and # 1440.” Id., ¶ 82; ECF No. 1-1, ¶ 82. Additionally, Alexander asserts that “the three major Credit Reporting Agencies all still verify the information as accurate.” Id., ¶ 83.
Alexander's allegations relate only to the first element of the claim - whether he filed notices of dispute with a Credit Reporting Agency. The Complaint alleges no facts to support either the second or third element of the claim: that ChexSystems (or the others) notified U.S. Bank of Alexander's dispute, and that U.S. Bank subsequently “failed to investigate and modify the inaccurate information.” Harris, 2016 WL 3473347, at *6. See Franchino v. J.P. Morgan Chase Bank, N.A., 2020 WL 3046318, at *4 (D.N.J. June 8, 2020) (citing Henderson v. Equable Ascent Fin., 2011 WL 5429631, at *3 (E.N.J. Nov. 4, 2011) (“even if Plaintiff properly alleged that he provided notice, he has not pled sufficient facts to meet the remaining two pleading requirements . . . that a consumer reporting agency notified Defendant of his dispute, or that Defendant did not in fact investigate it.”). Because Alexander has not alleged that a CRA notified U.S. Bank of his dispute or that, upon receipt of such notice, U.S. Bank failed to investigate the dispute, his Complaint fails to state a FCRA claim against U.S. Bank.
The allegations against Midland fair no better. Alexander similarly states that he has never done business with Midland and fded an Identity Theft Report. He also avers that he “contacted all three of the Credit Reporting Agencies in order to have the false information removed from [his] credit report.” and that “each contact and dispute was returned as verified and accurate in regards to both accounts # 30432 and # 30454.” Id., ¶ 61. Accordingly, these allegations only satisfy the first element of a FCRA claim and thus fail to state a cognizable FCRA claim against Midland.
ii. The FDCPA
Alexander also claims that Midland's actions violated his rights under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692e. The FDCPA was established to target abusive practices used by debt collectors and, consistent with that purpose, imposes liability on “any debt collector who fails to comply with” the FDCPA. 15 U.S.C. §§ 1692(e),(k). To state a cause of action under the FDCPA, a plaintiff must plausibly demonstrate “that (1) [he] is a consumer, (2) the defendant is a debt collector, (3) the defendant's challenged practice involves an attempt to collect a ‘debt' as the Act defines it, and (4) the defendant has violated a provision of the FDCPA in attempting to collect the debt.” Douglass v. Convergent Outsourcing, 765 F.3d 299, 303 (3d Cir. 2014) (citing Piper v. Portnoff Law Assocs., Ltd., 396 F.3d 227, 232 (3d Cir.2005)). Midland argues that Plaintiffs FDCPA claim against it must be dismissed because his “complaint is devoid of any facts supporting a claim of a violation of the FDCPA against Midland.” ECF No. 38, p. 4.
Alexander describes his claim as one under the “Fair Debt Collection Act.” No such statute exists, and it is clear from his citations that he intended to rely on the FDCPA.
The Act defines a “consumer” as “any natural person obligated or allegedly obligated to pay any debt.” 15 U.S.C. § 1692a(3). A “debt collector” means, inter alia, “any person ... in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). And a “debt” is defined as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance or services which are the subject of the transaction are primarily for personal, family, or household purposes.” 15 U.S.C. § 1692a(5). The FDCPA also places constraints on when and where a debt collector may “communicate with a consumer in connection with the collection of any debt.” 15 U.S.C. § 1692(c). Further, the Act prohibits a debt collector from “engaging] in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt”; “us[ing] any false, deceptive, or misleading representation or means in connection with the collection of any debt.”; and “us[ing] unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. §§ 1692(d),(e),(f).
Midland first challenges the sufficiency of Alexander's allegations to support an inference that the disputed financial obligations constitute a “debt” within the meaning of the statute. Midland correctly asserts that Alexander “fails to allege that the due and owing financial obligation was incurred ‘primarily for personal, family or household purposes.'” ECF No. 38, p.4 (quoting 15 U.S.C. § 1692a(5)). Indeed, because Alexander alleges that he did not incur the account obligations Midland reported against him, he is unable to allege the purpose of the debt.The Court need not determine whether the FDCPA potentially applies to a debt the plaintiff denies incurring because Alexander's FDCPA claim fails for an independent reason. Alexander's Complaint alleges no facts to support that Midland violated his rights under the FDCPA. The Complaint's allegation that Midland utilized "unfair Debt Collections Practices to obtain” the outstanding balances is a pure conclusion of law and insufficient to support a claim. See Twombly, 550 U.S. at 555. The Complaint includes no factual allegations regarding what practices Midland utilized to collect the debt. Absent such allegations, no basis exists to infer that Midland's methods violated any provision of the FDCPA. Thus, Alexander's FDCPA claim against Midland must be dismissed.
The Complaint does allege facts minimally sufficient to support an inference that Alexander is a “consumer” within the meaning of the statute. And his allegation that Midland is a collection agency that collects outstanding debt owed to companies including Credit One Bank and the Bank of Missouri is also sufficient at this stage of the proceeding to infer that Midland is a “debt collector” within the meaning of the statute.
iii. Equal Credit Opportunity Act
Lastly, Alexander claims that Midland's conduct constitutes a violation of the “Consumer Protection Act.” Midland correctly notes that “no such act exists.” However, in his opposition brief, Alexander cites to the Equal Credit Opportunity Act, 15 U.S.C. § 1691, et seq. (“ECOA”) when discussing the “Consumer Protection Act” claim. ECF No. 46, ¶ 1 (“15 U.S.C. . . .1691 Consumer Protection Act.”). ECF No. 46, ¶ 1. Giving Alexander every benefit of the doubt based on his pro se status, the undersigned will overlook Alexander's statutory misnomer and treat his pleading as asserting a violation of the Equal Credit Opportunity Act.
The ECOA makes it
unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction - (1) on the basis of race, color, religion, national origin, sex or marital status, or age; (2) because all or part of the applicant's income derives from any public assistance program; or (3) because the applicant has in good faith exercised any right under this chapter.15 U.S.C. § 1691(a).
To state a prima facie case under the ECOA, a plaintiff must allege facts to show that he (1) “is a member of a protected class;” (2) “applied for credit from defendants;” (3) “was qualified for the credit; and (4) despite qualification, plaintiff was denied credit.” Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 268 n.5 (3d Cir. 2010) (quoting Chiang v. Veneman, 385 F.3d 256, 259 (3d Cir.2004)).
Alexander's Complaint does not allege facts to support any of the elements of an ECOA claim against Midland. In fact, Alexander alleges that he has never done any business with the Midland. Thus, his Complaint fails to state an ECOA claim against Midland as a matter of law.
IV. Leave to Amend
The Court of Appeals for the Third Circuit has instructed that if a civil rights or consumer protection rights complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a curative amendment unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). This instruction is equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). Given his existing allegations, any attempt by Alexander to amend to state an ECOA claim against Midland would be futile. Accordingly, this claim should be dismissed with prejudice. However, Alexander may be able to amend his Complaint to allege facts sufficient to cure deficiencies in his other claims. It is therefore recommended that the Court dismiss Alexander's FCRA claim against U.S. Bank and Midland and FDCPA claim against Midland without prejudice and with leave to file an amended complaint within twenty days. If Alexander fails to file an amended complaint within this time, the Court should enter an order dismissing his claims against U.S. Bank and Midland with prejudice.
V. Conclusion
For the foregoing reasons, it is respectfully recommended that U.S. Bank's motion for judgment on the pleadings (ECF No. 31) and Midland's motion to dismiss for failure to state a claim (ECF No. 37) be GRANTED. It is also respectfully recommended that Alexander's ECOA claim against Midland be dismissed with prejudice and that the other claims against the Defendants be dismissed without prejudice to Alexander's opportunity to file an amended complaint.
V. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may waive appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).