1 In his Complaint, Plaintiff incorrectly designates this

Defendant as National City Card Services. (Doc. 1 at 1).

2 On October 21, 2009, the undersigned entered a Report and

Recommendation in this action related to the Motion to Dismiss

filed by Defendant Unifund CCR Partners (“Unifund”). (Doc. 22). 

The Court incorporates the factual and procedural background

contained in that Report and Recommendation as it applies

generally to Defendant National City Bank’s Motion to Dismiss as

well. 

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DAN J. QUALE, :

Plaintiff, :

v. : CIVIL ACTION 09-0519-CG-M

UNIFUND CCR PARTNERS, et al., :

Defendants. :

REPORT AND RECOMMENDATION

This federal question action was referred to the undersigned

for a Report and Recommendation pursuant to 28 U.S.C. §

636(b)(1)(B), and is before the Court on the Motion to Dismiss

filed by Defendant, National City Bank, NA (“National City Bank”)

on October 22, 2009.1

 (Doc. 24). After consideration of the

pleadings, and for the reasons set out below, it is recommended

that Defendant National City Bank’s Motion to Dismiss be granted

as to all claims asserted against it in Plaintiff’s Complaint. 

(Docs. 1, 24).

I. FACTUAL AND PROCEDURAL BACKGROUND2

On August 11, 2009, Plaintiff filed a pro se Complaint

Case 1:09-cv-00519-CG-M Document 36 Filed 01/28/10 Page 1 of 10
against Unifund, a “third party debt collector,” and National

City Bank, a “credit lender,” alleging that these Defendants: (1)

violated the Fair Debt Collection Practices Act (“FDCPA”) by

failing to provide Plaintiff validation of his debt and reporting

derogatory information about the debt to Experian and Innovis

credit reporting agencies (Count One); (2) violated the Fair

Credit Reporting Act (“FCRA”) by failing to verify Plaintiff’s

debt and reporting erroneous information about the debt to

Experian and Innovis (Count Two); and (3) violated the FCRA by

failing to notify Experian and Innovis that the alleged debt was

in dispute (Count Three). (Doc. 1 at 2-3). 

On October 22, 2009, National City Bank filed a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing

that: (1) Plaintiff’s FDCPA claim is due to be dismissed because

the FDCPA only applies to “debt collectors,” and National City is

not a debt collector and, further, that Plaintiff’s FDCPA claim

is barred by the applicable statute of limitations; and (2)

Plaintiff’s FCRA claims are due to be dismissed because the FCRA

provides no private cause of action against a “furnisher of

information,” such as National City Bank, for its reporting

activities, nor has Plaintiff alleged that National City Bank

failed to investigate a dispute of which it received notice from

a consumer reporting agency. (Doc. 24 at 1-2). National City

Bank’s Motion to Dismiss is now before the Court. 

Case 1:09-cv-00519-CG-M Document 36 Filed 01/28/10 Page 2 of 10
II. STANDARD OF REVIEW

“[W]hen considering a Rule 12(b)(6) motion to dismiss for

failure to state a claim, the court construes the complaint in

the light most favorable to the plaintiff and accepts all

well-pled facts alleged by [the plaintiff] in the complaint as

true.” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th

Cir. 2009). “Although it must accept well-pled facts as true,

the court is not required to accept a plaintiff’s legal

conclusions.” Id. (citing Ashcroft v. Iqbal, 556 U.S. __, 129 S.

Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009)). 

In evaluating the sufficiency of a

plaintiff’s pleadings, we make reasonable

inferences in Plaintiff’s favor, “but we are

not required to draw plaintiff’s inference.” 

Aldana v. Del Monte Fresh Produce, N.A.,

Inc., 416 F.3d 1242, 1248 (11th Cir. 2005).

Similarly, “unwarranted deductions of fact”

in a complaint are not admitted as true for

the purpose of testing the sufficiency of

plaintiff’s allegations. Id.; see also

Iqbal, 129 S. Ct. at 1951 (stating conclusory

allegations are “not entitled to be assumed

true”).

A complaint may be dismissed if the

facts as pled do not state a claim for relief

that is plausible on its face. See Iqbal,

129 S. Ct. at 1950 (explaining “only a

complaint that states a plausible claim for

relief survives a motion to dismiss”); Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 561-62,

570, 127 S. Ct. 1955, 1968-69, 1974, 167 L.

Ed. 2d 929 (2007) (retiring the prior

“unless it appears beyond doubt that the

plaintiff can prove no set of facts”

standard). In Twombly, the Supreme Court

emphasized a complaint “requires more than

labels and conclusions, and a formulaic

recitation of the elements of a cause of

action will not do.” Twombly, 550 U.S. at

Case 1:09-cv-00519-CG-M Document 36 Filed 01/28/10 Page 3 of 10
555, 127 S. Ct. at 1965. Factual allegations

in a complaint need not be detailed but “must

be enough to raise a right to relief above

the speculative level on the assumption that

all the allegations in the complaint are true

(even if doubtful in fact).” Id. at 555, 127

S. Ct. at 1964-65 (internal citations and

emphasis omitted).

. . . A complaint must state a plausible

claim for relief, and “[a] claim has facial

plausibility when the plaintiff pleads

factual content that allows the court to draw

the reasonable inference that the defendant

is liable for the misconduct alleged.” Id.

The mere possibility the defendant acted

unlawfully is insufficient to survive a

motion to dismiss. Id. The well-pled

allegations must nudge the claim “across the

line from conceivable to plausible.” 

Twombly, 550 U.S. at 570, 127 S. Ct. at 1974.

Sinaltrainal, 578 F.3d at 1260-61. 

Because Plaintiff is proceeding pro se, the Court will

liberally construe his pleadings. See Harris v. United Auto.

Ins. Group, Inc., 579 F.3d 1227, 1231 n.2 (11th Cir. 2009)

(citing Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th

Cir. 1998) (“Pro se pleadings are held to a less stringent

standard than pleadings drafted by attorneys and will, therefore,

be liberally construed.”). However, the Court will not serve as

“de facto counsel” for Plaintiff nor “rewrite an otherwise

deficient pleading in order to sustain an action.” GJR Invs.,

Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.

1998).

III. DISCUSSION

Case 1:09-cv-00519-CG-M Document 36 Filed 01/28/10 Page 4 of 10
3 The Court incorporates by reference its discussion of the

validation and reporting requirements of §§ 1692g(b) and 1692e of

the FDCPA in the Report and Recommendation entered on October 21,

2009. (Doc. 22).

In this action, Plaintiff sues Defendant National City Bank

for violations of the FDCPA and the FCRA. The Court will

consider this Defendant’s Motion to Dismiss as it relates to each

of Plaintiff’s claims.

A. Plaintiff’s FDCPA Claims (Count One).

In Count One of his Complaint, Plaintiff states that

Defendant National City Bank failed to validate his alleged debt

and “entered derogatory information into the Plaintiff’s Experian

and Innovis Credit Reports,” thereby violating the validation and

reporting requirements of the Fair Debt Collection Practices Act

(“FDCPA”), 15 U.S.C. § 1692, et seq.3

 (Doc. 1 at 2). According

to Plaintiff, “[d]erogatory data remains within Plaintiff’s

Credit Report to this date.” (Id.).

“The FDCPA applies only to ‘debt collectors,’” Frazier v.

HSBC Mortgage Servs., Inc., 2009 WL 4015574, *6 (M.D. Fla. 2009),

which the FDCPA defines as:

... any person who uses any

instrumentality of interstate

commerce or the mails 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....

Case 1:09-cv-00519-CG-M Document 36 Filed 01/28/10 Page 5 of 10
15 U.S.C. § 1692a(6).

The statute expressly excludes from the term “debt

collector”:

any person collecting or attempting

to collect any debt owed or due or

asserted to be owed or due another

to the extent such activity ...

(ii) concerns a debt which was

originated by such person. . . .

15 U.S.C. § 1692a(6)(F). See also Monroe v. Citimortgage, Inc.,

2007 WL 1560194 *2 (M.D. Fla. 2007) (unpublished) (“[D]ebt

collector” does not include ‘the consumer’s creditors . . . .’”);

Bates v. Novastar/Nationstar Mortgage LLC, 2008 WL 2622810, *5-6 

(N.D. Ga. 2008) (unpublished)(“‘The legislative history of

section 1692a(6) indicates conclusively that a debt collector

does not include the consumer’s creditors. . . .’”) (citations

omitted).

 Further, the FDCPA defines a “creditor” as:

[A]ny person who offers or extends credit

creating a debt or to whom a debt is owed,

but such term does not include any person to

the extent that he receives an assignment or

transfer of a debt in default solely for the

purpose of facilitating collection of such

debt for another.

15 U.S.C.A. § 1692a(4).

In this action, Plaintiff alleges that Defendant National

City Bank is a “credit lender.” (Doc. 1 at 1). Plaintiff does

not allege in any respect that Defendant National City Bank is a

Case 1:09-cv-00519-CG-M Document 36 Filed 01/28/10 Page 6 of 10
4 Defendant National City Bank argues in its Motion to

Dismiss that Plaintiff’s FDCPA claim also is barred by the

applicable one-year statute of limitations. (Doc. 24 at 1-2). 

Because the Court has determined that Plaintiff’s Complaint fails

to state a claim against this Defendant under the FDCPA,

consideration of that issue is pretermitted.

debt collector as contemplated by the FDCPA. Therefore, National

City Bank is not subject to the verification and reporting

requirements of the FDCPA, and Plaintiff’s FDCPA claim against

this Defendant is due to be dismissed.4

B. Plaintiff’s FCRA Claims (Counts Two and Three).

In Count Two of his Complaint, Plaintiff alleges that

Defendant National City Bank violated the Fair Credit Reporting

Act (“FCRA”), 15 U.S.C. §§ 1681, et seq., by failing to validate

or verify his debt and by reporting erroneous information about

the debt to Experian and Innovis. (Doc. 1 at 3). In Count

Three, Plaintiff alleges that Defendant violated the FCRA by

failing to notify Experian and Innovis that the debt was in

dispute. (Id.). Defendant argues in its Motion to Dismiss that

Counts Two and Three of Plaintiff’s Complaint are due to be

dismissed because Plaintiff has no private right of action

against it under the FCRA for furnishing inaccurate information

to a credit reporting agency and because Plaintiff has not

alleged that National City Bank failed to investigate a dispute

of which it received notice from a consumer reporting agency. 

(Doc. 24 at 2). Defendant is correct. 

For the same reasons discussed in the undersigned’s Report

Case 1:09-cv-00519-CG-M Document 36 Filed 01/28/10 Page 7 of 10
5 The Court incorporates herein by reference the full

discussion of the FCRA, specifically §§ 1681s-2(a) and

1681s-2(b), contained in that Report and Recommendation. (Doc.

22). 

6 “Pursuant to Eleventh Circuit Rule 36-2, unpublished

opinions are not considered binding precedent, but may be cited

as persuasive authority.” Lanier Constr., Inc. v. Carbone Props.

of Mobile, LLC, 253 Fed. Appx. 861, 865, 2007 WL 3307384, *3 n.5

(11th Cir. 2007) (unpublished).

and Recommendation entered on October 21, 2009 (Doc. 22), related

to the Motion to Dismiss filed by Defendant Unifund, Plaintiff’s

FCRA claims against Defendant National City Bank fail as a matter

of law.5 Section 1681s-2(a) of the FCRA prohibits furnishers of

credit information from providing false information; “[h]owever,

the statute explicitly bars private suits for violations of this

provision.” Peart v. Shippie, 2009 WL 2435211, *1 (11th Cir.

2009) (unpublished)6 (citing 15 U.S.C. § 1681s-2(c); 15 U.S.C. §

1681s(c)(1)(B) (allowing states to bring an action for

violations)).

Furthermore, although § 1681s-2(b)of the FCRA requires

furnishers of credit information to investigate the accuracy of

reported information upon receiving notice of a dispute, this

provision can be enforced through a private right of action “only

if the furnisher received notice of the consumer’s dispute from a

consumer reporting agency.” Peart, 2009 WL 2435211 at *1 (citing

15 U.S.C. § 1681s-2(b)(emphasis added). As with Defendant

Unifund, Plaintiff does not allege that Defendant National City

Bank received notice of the dispute from a consumer reporting

Case 1:09-cv-00519-CG-M Document 36 Filed 01/28/10 Page 8 of 10
7 It has been recommended by the undersigned that this action

proceed on Plaintiff’s claims asserted in Count One of the

Complaint against Defendant Unifund for violations of §§ 1692g(b)

and 1692e of the FDCPA. (See Doc. 22).

agency, as required by § 1681s-2(b). Thus, Plaintiff’s Complaint

fails to state a claim against National City Bank under the FCRA,

and, therefore, Defendant City National Bank’s Motion to Dismiss

all claims made against it in Plaintiff’s Complaint is due to be

granted. 

CONCLUSION

Based on the foregoing, it is recommended that Defendant

National City Bank’s Motion to Dismiss be granted and that all

counts in Plaintiff’s Complaint asserted against Defendant

National City Bank be dismissed without prejudice.7

 MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or

anything in it must, within fourteen (14) days of the date of

service of this document, file specific written objections with

the Clerk of this court. Failure to do so will bar a de novo

determination by the district judge of anything in the

recommendation and will bar an attack, on appeal, of the factual

findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C);

Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v.

Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). The

procedure for challenging the findings and recommendations of the

Magistrate Judge is set out in more detail in SD ALA LR 72.4

(June 1, 1997), which provides that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

Case 1:09-cv-00519-CG-M Document 36 Filed 01/28/10 Page 9 of 10
8 Effective December 1, 2009, the time for filing written

objections was extended to “14 days after being served with a

copy of the recommended disposition[.]” Fed. R. Civ. P.

72(b)(2).

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a ‘Statement of Objection to Magistrate Judge’s

Recommendation’ within ten days8 after being served

with a copy of the recommendation, unless a different

time is established by order. The statement of

objection shall specify those portions of the

recommendation to which objection is made and the basis

for the objection. The objecting party shall submit to

the district judge, at the time of filing the

objection, a brief setting forth the party’s arguments

that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It

is insufficient to submit only a copy of the original

brief submitted to the magistrate judge, although a

copy of the original brief may be submitted or referred

to and incorporated into the brief in support of the

objection. Failure to submit a brief in support of the

objection may be deemed an abandonment of the

objection. 

A magistrate judge's recommendation cannot be appealed to a

Court of Appeals; only the district judge's order or judgment can

be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). 

Pursuant to 28 U.S.C. § 1915 and FED. R. CIV. P. 72(b), the

Magistrate Judge finds that the tapes and original records in

this case are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay the

fee for a transcript, is advised that a judicial determination

that transcription is necessary is required before the United

States will pay the cost of the transcript.

DONE this 26th day of January, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00519-CG-M Document 36 Filed 01/28/10 Page 10 of 10