Atterberry v. Huntington National Bank

Background

Jameelah Atterberry, proceeding without a lawyer, sued The Huntington National Bank and Huntington Bancshares Incorporated in New York state court. The defendants removed the case to the U.S. District Court for the Southern District of New York. Atterberry alleged that she owed and paid a debt to FirstMerit Bank, which she said merged with Huntington. She claimed that a defendant continued seeking payment after she paid the debt in full, charged off the account, sent it to collections, and contacted her about the debt through 2017. She also alleged that her name appeared in the “Chex System” and that it was removed after she complained to the Consumer Financial Protection Bureau.

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal for failure to state a legally sufficient claim. Atterberry filed no opposition. After the court ordered her to explain why the case should not be dismissed for failure to prosecute, she also did not respond. The court therefore treated the motion as unopposed but still reviewed whether the complaint was legally sufficient, accepting well-supported factual allegations as true and interpreting the self-represented complaint liberally.

Fair Credit Reporting Act claim

Atterberry alleged that the defendants furnished negative information to consumer-reporting agencies. The court explained that a furnisher’s liability under 15 U.S.C. § 1681s-2(b)(1) requires allegations that a consumer-reporting agency notified the furnisher of a credit dispute and that the furnisher failed to conduct a reasonable investigation, negligently or willfully.

The complaint did not allege that Atterberry reported a dispute to a consumer-reporting agency or that the defendants received a dispute notice from such an agency. The court therefore dismissed the Fair Credit Reporting Act claim. The court also stated that, to the extent Atterberry intended to proceed under 15 U.S.C. § 1681s-2(a), that provision could not be enforced through a private lawsuit because enforcement is limited to federal and state authorities.

Fair Debt Collection Practices Act claim

The Fair Debt Collection Practices Act applies to statutorily defined debt collectors. The court concluded that Atterberry had not plausibly alleged that either defendant met that definition.

As to The Huntington National Bank, the court reasoned that Atterberry’s allegations treated Huntington as the successor creditor after its merger with FirstMerit. A creditor collecting its own debt generally is not a debt collector under the Act. As to Huntington Bancshares Incorporated, the complaint appeared to name it only because it was Huntington’s corporate parent. Atterberry alleged no facts showing that Bancshares dominated a debt-collecting subsidiary, controlled nearly all of its collection activities, or used a name that was an alias for the subsidiary. The court dismissed the Fair Debt Collection Practices Act claim.

Disposition

Judge Halpern granted the defendants’ motion to dismiss. The court dismissed the claims with prejudice because it concluded that amendment would be futile, directed the clerk to terminate the pending motion and mail the order to Atterberry, and closed the case. The court added that, even without its substantive analysis, it would have dismissed the action with prejudice under Rule 41(b) because Atterberry failed to prosecute it after removal.