Without notifying Mr. Harris, Piedmont Finance reported to a credit reporting agency that it repossessed his truck and, when it learned the report was incorrect, Piedmont Finance did not promptly notify the credit agency nor take steps to remove the information until Mr. Harris threatened a lawsuit. When Mr. Harris did sue for damages under the FCRA, Piedmont sought dismissal arguing that claim was barred by the statute of limitations and, alternatively, that his claim
is subject to an arbitration provision in the contract governing the sale of the truck.
Consulting Mr. Harris' claims liberally, the district court held that he asserted three claims under FCRA, namely:
(1) That Piedmont Finance failed to promptly notify a credit reporting agency that the information it provided was inaccurate in violation of 15 U.S. C. § 1681 s-2( a)(2);
(2) Defendant failed to provide a notice, in writing, to the Plaintiff of furnishing negative information to a credit reporting agency in violation of 15 U.S.C. § 1681s-2(a)(7); and
(3) Defendant, upon notice of a dispute, failed to investigate, report, and delete inaccurate information in violation of 15 U.S.C. § 1681s-2(b)(l)
Only the third possible cause of action allows, pursuant to § 1681s-2(c), a private rights of action and that is subject to a two year Statute of Limitations under 15 U.S.C. § 1681p and "begins to run when a party knows or should know, through the exercise of due diligence, that a cause of action might exist." The Complaint was silent as to the pertinent dates, with Piedmont Finance only providing such in a "Background" section of its motion. While a Statute of limitations affirmative defense can be raised in a Rule 12(b)(6) motion to dismiss, the court held that "it is seldom appropriate to do so." Diop v. BMW of N Am. , LLC, -F. Supp. 3d --, 2021 WL 51757, at *2 (E.D.N.C. Jan. 6, 2021) and denied the motion.
As to arbitration, Mr. Harris argued that despite a valid Retail Sales Installment Agreement with an arbitration provision, Piedmont Finance had "stated they were a credit building company, and that if [he] paid [his] payments on time, it would build [his] credit," but the report of a repossession "did just the opposite of what they promised" breaking in the contract. While an arbitration provision can be rejected for fraud, duress, or unconscionability, Mr. Harris did not assert such. Accordingly, the district court stayed the case pending arbitration.
As a pro se Plaintiff, Mr. Harris did remarkably well.
For a copy of the opinion, please see: