Plaintiff's claims are not "based on information disclosed pursuant to [ยง] 1681g, 1681h, or 1681m because these apply only to CRAs and users of consumer reports," and Plaintiff neither alleges that Defendants are CRAs nor that they are "user[s] of consumer reports vis-ร -vis" Plaintiff. Davidson v. Capital One, N.A., No. 14-20478-CIV, 2014 WL 3767677, at *4 (S.D. Fla. July 31, 2014) (internal quotations omitted) (citing Ross, 625 F.3d at 814). Furthermore, Plaintiff neither alleges that Defendants "used [Plaintiff's] consumer report nor took adverse action based on information in [his] report or information disclosed by a user."
The privilege applies in FCCPA cases. See, e.g., Davidson v. Capital One, N.A., No. 14-20478-CIV, 2014 WL 3767677, at *5 (S.D. Fla. July 31, 2014); Bloch v. Wells Fargo Home Mortg., No. 11-80434-CIV, 2012 WL 12862806, *5 (S.D. Fla. June 13, 2012). Courts may consider the litigation privilege at the motion to dismiss stage when "the complaint affirmatively and clearly shows [its] conclusive applicability."
As part of the ongoing process of fine-tuning this statutory scheme, Congress. . . added a strong preemption provision." Davidson v. Capital One, N.A., No. 14-20478, 2014 WL 3767677, at *3 (S.D. Fla. July 31, 2014) (Altonaga, J.) (citations and quotations omitted). Under the FCRA, "[n]o requirement or prohibition may be imposed under the laws of any State. . . (1) with respect to any subject matter regulated under . . . section 1681s-2 of this title, relating to the responsibilities of persons who furnish information to consumer reporting agencies...." 15 U.S.C. ยง 1681t(b).
Section 1681s-2 lists the "responsibilities of furnishers of information to consumer reporting agencies" and obligates "furnishers of information" to provide accurate information to "consumer reporting agencies." See Green v. Chase Bankcard Servs., Inc., No. 8:16-CV-3252-T-33AAS, 2017 WL 1135314, at *5 (M.D. Fla. Mar. 25, 2017) (Covington, J.); Bank of Am., N.A. v. Zaskey, No. 9:15-CV-81325, 2016 WL 4991223, at *10 (S.D. Fla. Sept. 19, 2016) (Rosenberg, J.); Frye v. Capital One Auto Fin., No. 1:15-cv-20530, 2015 WL 3540445, at *1-2 (S.D. Fla. June 3, 2015) (King, J.); Arianas v. LVNV Funding LLC, No. 8:14-cv-01531-T-27EAJ, 2015 WL 404238, at *5 (M.D. Fla. Jan. 8, 2015) (Whittemore, J.); Davidson v. Capital One, N.A., No. 14-20478-CIV, 2014 WL 3767677, at *2 (S.D. Fla. July 31, 2014) (Altonaga, J.); Osborne v. Vericrest Fin., Inc., No. 8:11-CV-716-T-30TBM, 2011 WL 1878227, at *3 (M.D. Fla. May 17, 2011) (Moody, J.). Jimenez argues that she "complains not merely of the form of misrepresenting information to the" consumer reporting agencies, "but also to the implicit affirmative statement made by [Trident] that it had the right to make false reports and instruct the" consumer reporting agencies "to violate the FCRA by reporting the information for longer than permitted by the FCRA itself."
The filing and maintenance of a legal action, such as an action in foreclosure, is precisely the kind of activity protected by Florida's litigation privilege. See Davidson v. Capital One, N.A., No. 14-20478-CIV, 2014 WL 3767677, at *5 (S.D. Fla. July 31, 2014); Mikesell v. FIA Card Servs., N.A., No. 2:12-cv-606-FTM-29DNF, 2013 WL 5781241, at *2 (M.D. Fla. Oct. 25, 2013). Whether or not the action is legitimate or premised upon misrepresentations, as alleged by Plaintiff, does not affect the application of the litigation privilege.
Capital One does not cite controlling authority in support of its preemption argument, yet some courts within the Eleventh Circuit have recognized that the FCRA's preemption provision "preempt[s] claims based on furnishing of information to reporting agencies . . . ." Arianas v. LVNV Funding LLC, No. 8:14-cv-01531-T-27EAJ, 2015 WL 404238, at *5 (M.D. Fla. Jan. 8, 2015); see also Davidson v. Capital One, N.A., No. 14-20478, 2014 WL 3767677, at *2 (S.D. Fla. July 31, 2014) (concluding that the FCRA preempts FCCPA claims based on reports to credit-reporting agencies); Osborne v. Vericrest Fin., Inc., No. 8:11-cv-716-T-30TBM, 2011 WL 1878227, at *2-3 (M.D. Fla. May 17, 2011) (dismissing a FCCPA claim "to the extent that" it "is premised on credit reporting activity"). Courts within the Eleventh Circuit have also highlighted the limited nature of the preemption provision. It does not, for example, preempt unfair debt collection practices claims based on debt collection that is separate from credit reporting.
Bluegreen cites 15 U.S.C. ยง 1681t(b)(1)(F) for the proposition that no state law may regulate conduct covered by Section 1681s-2 of the FCRA. [DE 29 at 4.] Section 1681s-2 sets forth a creditor's duty to report accurate information to the consumer reporting agencies, and steps it must take upon notification of a dispute. Relying on two cases, Davidson v. Capital One, N.A., 2014 WL 3767677 (S.D. Fla. July 31, 2014) and Osborne v. Vericrest Financial, Inc., 2011 WL 1878227 (M.D. Fla. May 17, 2011), Bluegreen argues that "Plaintiff's FCCPA claims are entirely premised upon credit reporting activity" and are thus "preempted by the FCRA." [DE 29 at 5.]