Byron Bartlett v. Bank of America, NA , 603 F. App'x 209 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1895
BYRON R. BARTLETT; CONNIE J. BEALS-BARTLETT,
Plaintiffs - Appellants,
v.
BANK OF AMERICA, NA,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:13-cv-00975-MJG)
Submitted: February 27, 2015 Decided: May 20, 2015
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Scott C. Borison, LEGG LAW FIRM, LLC, San Mateo, California;
Phillip R. Robinson, CONSUMER LAW CENTER LLC, Silver Spring,
Maryland, for Appellants. Brian R. Matsui, MORRISON & FOERSTER
LLP, Washington, D.C.; Michael J. Agoglia, Angela E. Kleine,
MORRISON & FOERSTER LLP, San Francisco, California, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Byron R. Bartlett and Connie J. Beals-Bartlett appeal the
district court’s order granting Bank of America, NA’s (BOA)
motion to dismiss and dismissing for failure to state a claim
their class action complaint seeking damages for BOA’s alleged
failure to comply with the mandatory disclosure requirements of
the Fair Credit Reporting Act (FCRA) — specifically, 15 U.S.C.
§ 1681g(g) (2012). On appeal, the Bartletts contend that the
district court erred in finding § 1681g(g) inapplicable to their
loan modification request. Finding no error, we affirm.
We review de novo the district court’s dismissal for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). Sec’y of State for Def. v. Trimble Navigation Ltd.,
484 F.3d 700, 705 (4th Cir. 2007). “[W]hen ruling on a
defendant’s motion to dismiss, a judge must accept as true all
of the factual allegations contained in the complaint.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, “[f]actual
allegations must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). The complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Id. at 570.
Section 1681g(g) requires a mortgage lender to make certain
disclosures to a consumer regarding the consumer’s credit score
when that score is used “in connection with an application
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initiated or sought by a consumer for a closed end loan or the
establishment of an open end loan for a consumer purpose that is
secured by 1 to 4 units of residential real property.” 15
U.S.C. § 1681g(g)(1). The FCRA provides a private right of
action against a mortgage lender that willfully or negligently
fails to comply with the disclosure requirements under
§ 1681g(g). 15 U.S.C. §§ 1681n, 1681o (2012).
On appeal, the Bartletts first contend that § 1681g(g) is
not limited to new closed end loan applications but applies to
any credit application, including loan modifications. Thus,
they argue, Connie’s request for a loan modification entitled
her to the disclosures mandated by § 1681g(g), and the district
court therefore improperly dismissed their complaint.
In support of their argument, the Bartletts discuss the
definition of “credit” and cases in which courts have held that
loan modifications constitute credit applications. The term
“credit” does not, however, appear in § 1681g(g). Rather, the
relevant portion of § 1681g(g) applies to “closed end loans.”
The Bartletts point to no authority supporting a conclusion that
a request for modification of an existing loan constitutes an
application for a closed end loan under § 1681g(g). Thus, we
conclude that the district court correctly found that the
Bartletts failed to state a claim that Connie was entitled to
the disclosures required by § 1681g(g).
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Second, the Bartletts contend that, because Byron was not a
borrower on the original mortgage loan, his status as a
coborrower on the loan modification requests necessarily made
him an applicant for a closed end loan entitled to the
disclosures mandated by § 1681g(g). The plain language of
§ 1681g(g), however, requires disclosure by a mortgage lender
only when the lender “uses a consumer credit score . . . in
connection with an application initiated or sought by a
consumer.” 15 U.S.C. § 1681g(g); see Smith v. United States,
508 U.S. 223, 228-29 (1993) (defining “use”).
In their complaint, the Bartletts alleged only that BOA
obtained Connie’s credit score in assessing her eligibility for
loan modification. They made no allegation that BOA actually
obtained or used Byron’s credit scores. Thus, we conclude that
the district court properly dismissed the Bartletts’ claim that
Byron was entitled to the disclosures mandated by § 1681g(g).
Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
conclusions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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