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MORRIS v. HOUSEHOLD MORTGAGE SERVICES
September 30, 2004.
PAMELA MORRIS, et al., Plaintiffs,
HOUSEHOLD MORTGAGE SERVICES, INC., et al., Defendants.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
Remaining defendant Household Finance Corporation III
("Household," mistakenly sued in the name of a now-dissolved
predecessor corporation, Household Mortgage Services, Inc.) has
filed a motion to dismiss Counts II and IV of the Complaint
brought against it by Pamela Morris ("Morris") and Lloyd Brooks
("Brooks"). Because the just-filed Morris-Brooks response to that
motion has chosen to dismiss Count II, thus mooting Household's
motion in that respect, this memorandum order will address only
That count asserts a common-law claim that sounds in
defamation. Although Household calls upon Section 624(b)(1)(F) of
the Fair Credit Reporting Act ("Act"),*fn1 for their part
Morris and Brooks respond by pointing to the more particularized provision of Section 610(e), which prohibits any consumer action
"in the nature of defamation" but contains an express exception
"as to false information furnished with malice or wilful intent
to injure such consumer."
As between those competing contentions, this Court finds the
Morris-Brooks position more persuasive, if for no other reason
than the general principle of statutory construction under which
a more particularized statutory provision prevails over a more
general provision in the same statute that looks the other way.
But with that said, the problem for Morris and Brooks here is
that Count IV does not conform to the terms of the just-quoted
exception to the Section 610(e) prohibition. Here is Count IV ¶
37, its only allegation that speaks to the issue:
Household's publication of the false information was
intentional or done with a reckless disregard for the
truth of the matter. Household knew or should have
known that the erroneous information would be used by
the credit bureaus in the calculation of certain
credit scores and that the credit bureaus would
disseminate the erroneous information to prospective
Simply put, an allegation that Household's publication of the
assertedly false information "was intentional or done with a
reckless disregard for the truth," and a further allegation as to
what Household "knew or should have known," simply do not
equate to assertions of Household's having furnished the
information at issue "with malice or wilful intent to injure."
Accordingly Household's motion to dismiss Complaint Count IV is granted. And as is always true with respect to any
Fed.R.Civ. P. ("Rule") 12(b)(6) motion, if Morris and Brooks were to
choose to reshape their allegations to conform to what the law
requires, effectively changing the alleged facts to fit the law,
they and their counsel would have to be ...
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