MEMORANDUM AND ORDER

KENNETH M. HOYT, United States District Judge

I. INTRODUCTION

Presently before the Court is a motion to dismiss for failure to state a claim brought pursuant to FED. R. Civ. PRO. 12(b)(6), or, alternatively, a motion for a more definite statement pursuant to FED. R. Civ. PRO. 12(e). The motion to dismiss is granted in part and denied in part. The motion for a more definite statement is denied.

II. FACTUAL HISTORY AND CONTENTIONS OF THE PARTIES

The plaintiff, Marciela Mendoza, is a natural person and a resident of Harris County, Texas. The defendants, Experian Information Solutions, Inc. ("Experian"), Equifax Information Services, L.L.C. ("Equifax"), CSC Credit Services, Inc. ("CSC"), and Trans Union, L.L.C. ("Trans Union") are national consumer credit reporting agencies. The defendant, Verizon Wireless/Air Touch Cellular ("Verizon"), is a cellular telephone service provider.

The plaintiff claims that on or about November 1998, an unknown defrauder used the plaintiff's personal identification and credit information, gained through unknown means, to open a cellular telephone account with Verizon. The billing address for this account was in Colorado. The plaintiff further claims to have first become aware of this fraudulent account in December 1999 when she applied for and was refused a Discover Card, due to a consumer credit report supplied to Discover by Equifax. After learning this fact, plaintiff filed a fraud affidavit with Verizon on March 8, 2000.

On or about March 21, 2000, the plaintiff applied for a car loan with Ford Motor Credit. However, the loan was denied due to the consumer credit report supplied by Equifax to the lender. The plaintiff also applied for a Montgomery Wards charge account on or about March 30, 2000, and was denied an account due to the consumer credit report provided by Experian.

On April 13, 2000, Verizon completed its fraud investigation and demanded payment in full on the account. The plaintiff claims that twice thereafter she contacted Verizon in writing, on May 28 and October 20, 2000, and requested that Verizon substantiate the debt and provide all documentation on the account. According to the plaintiff, Verizon refused to respond to either request. The plaintiff's attorney contacted Verizon to inquire about the account and, additionally, to request a copy of the documentation. He was told that Verizon had concluded that no fraud had occurred because the account showed cellular calls made to and from the plaintiff's home. However, the plaintiff disputes this fact and contends that no calls were made to or from her home or any area code nearby. Instead, the calls mainly originated from or were received in Colorado.

During the months of October and November 2001, the plaintiff applied for an MBNA charge account and a First Bank USA charge account and was denied on both occasions due to a consumer credit report provided by Experian. The plaintiff's application for a Citibank charge account was also denied due to a consumer credit report provided by Equifax.

Finally, the plaintiff claims that she sought a home loan from a mortgage lender and was denied a favorable outcome due to consumer credit reports supplied by Equifax, CSC, Trans Union, and Experian. The plaintiff disputed the Verizon account directly with Equifax, CSC, Trans Union, and Experian, and received from each a post . . . reinvestigation report reaffirming their positions due to Verizon's verification that the account was accurate.

On July 2, 2002, the plaintiff filed suit in this court against Verizon, Experian, CSC, Equifax, and Trans Union, claiming violations of the Fair Credit Reporting Act ("FCRA"), the Texas Debt Collection Act ("TDCA"), the Texas Deceptive Trade Practices Act ("DPTA"), and the Fair Debt Collection Practices Act ("FDCPA") as well as state common law claims of negligence, defamation, invasion of privacy, intentional infliction of emotional distress, and breach of contract. Verizon has filed a motion to dismiss the claims against it pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure because: (1) the plaintiff has no private cause of action under section 1681s-2(b) of the FCRA; (2) the plaintiff has not stated a claim under section 1681b(f) of the FCRA; (3) the plaintiff has not stated a claim under the FDCPA; (4) the plaintiff has not stated a claim under the DPTA; and, (5) the plaintiff's common law claims are barred by the doctrine of preemption, or alternatively, time barred. In the event the claims are not dismissed, Verizon moves for a more definite statement.

III. STANDARD OF REVIEW

A motion to dismiss for failure to state a claim under Federal Rules of Civil Procedure 12(b)(6) "is viewed with disfavor and is rarely granted." Lowrey v. Texas A M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997); see also Henrise v. Horvath, 94 F. Supp.2d 768, 769 (N.D. Tex. 2000). A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995); see also Henrise, 94 F. Supp.2d at 769.

In reviewing a Rule 12(b)(6) motion, the Court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); see also Henrise, 94 F. Supp.2d at 769. In ruling on such a motion, the Court cannot look beyond the pleadings. Baker, 75 F.3d at 196. Further, the ultimate question is whether the complaint states a valid cause of action when it is viewed in the light most favorable to the plaintiff and with every doubt resolved in favor of the plaintiff. Lowrey, 117 F.3d at 247. Yet, a plaintiff must plead specific facts, not mere conclusory allegations, to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992); see also Henrise, 94 F. Supp.2d at 769.

IV. ANAYLSIS

A. Whether the Plaintiff has a Private Cause of Action Under FCRA 1681s-2(b)

The FCRA places various requirements on consumer credit reporting agencies, furnishers of credit information to consumer credit reporting agencies, and users of consumer credit reports. These requirements are enforced by civil liability statutes and, depending on the sections, may be enforced by appropriate government officials or by private individuals and entities. Sections 1681n and 1681o are examples of the latter. Section 1681n provides that "[a]ny person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of any damages sustained by that consumer . . . of not less than $1000" plus reasonable attorney's fees. 15 U.S.C. § 1681n. Section 1681o establishes similar liability for any person who negligently fails to comply.

Section 1681s-2(b) of the act imposes a duty on a furnisher of information to conduct an investigation with respect to any disputes and report the results of that investigation to the consumer reporting agency. 15 U.S.C. § 1681s-2(b). The plaintiff asserts that Verizon has violated this duty and is thus liable under sections 1681n and 1681o. Verizon argues that any duty it has under section 1681s-2(b) is owed to the consumer reporting agency, not the consumer. Thus, no private cause of action arises from a violation of section 1681s-2(b).

In support of its motion, Verizon directs the Court's attention to Carney v. Experian Info. Solutions, 57 F. Supp.2d 496, (W.D. Tenn. 1993). Carney observed that the duties imposed on furnishers of information are triggered only upon notice received from a consumer reporting agency, not the consumer. From this the court extrapolated that the duties imposed on the furnisher exist solely for the benefit of consumer reporting agencies. It is the consumer reporting ageny, not the furnisher, that faces liability under the FCRA to the consumer for erroneous and inaccurate reporting. Id. at 502. Consequently, the court reasoned, "the statutorily created obligation imposed on a furnisher of information is owed only to the consumer reporting agency and an individual, such as the plaintiff, cannot state a claim under 15 U.S.C. § 1681s-2b." Id.

To date, the only circuit court to have addressed the issue of whether section 1681s-2b creates a private cause of action is the Ninth Circuit in Nelson v. Chase Manhattan Mortgage Corp., 282 F.3d 1057 (9th Cir. 2002). In that case, the court determined that Congress did intend such a right, based on the plain language of the statute and the FCRA's legislative history. Id. at 1060. Prior to amendment in 1996, sections 1681n and 1681o permitted suit against a consumer reporting agency or a user of information, but not against a furnisher. After the statute was amended, "any person" could be sued. See Pub.L. 104-208 at § 2414; 110 Stat. 3009 at § 2414 (1996). The court reasoned that because credit reporting agencies and users were already liable to consumers, Congress intended, by the amendment language "any person", to include furnishers. Nelson at 1060.

The Fifth Circuit has expressly declined to agree or disagree with Nelson on this issue, although it did state in dicta that the FCRA appears to impose civil liability on "any person" violating a FCRA duty under 1681s2-(b)." See Young v. Equifax Credit Info. Servs., Inc., 294 F.3d 631, 639 (5th Cir. 2002). It is thus the finding of the Court that this language creates a private right of action, and that Verizon's motion to dismiss this claim should be denied.

B. Whether the Plaintiff has stated a claim under FCRA 1681b(f).

Section 1681b(f) imposes liability, actionable through sections 1681n and 1681o, for obtaining and using a consumer credit report for an unauthorized or uncertified use. The plaintiff claims that Verizon has violated this section but does not elaborate. Verizon moves to dismiss this charge on the grounds that it is too vague to state a cause of action, or alternatively that it is too vague to allow Verizon to adequately respond to the plaintiff's allegations and should be repleaded under Rule 12(e). Because discovery has been concluded, the Court is hesitant to dismiss this claim. Therefore, the Court denies the motion to dismiss or amend without predjudice to this issue being raised at a later date.

C. Whether the Plaintiff has Stated a Claim Under the FDCPA.

The plaintiff asserts that Verizon is also liable under the FDCPA for unfair debt collection practices. Verizon counters that it is not a "debt collector" subject to liability under that statute. The Court agrees and grants the relief requested based on the reasoning that follows.

The FDCPA contains a definition of "debt collectors" and language describing persons and categories excluded from that definition. A debt collector is "any person who uses any instrumentality of interstate commerce or the mails in any business, the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, debts owed or due or asserted to be owed or due another". 15 U.S.C § 1692a(6). A creditor attempting to collect its own debts becomes a "debt collector" under the FDCPA in certain limited circumstances. Id. No such exception applies here, thus, Verizon's motion to dismiss this claim is granted.

D. Whether the Plaintiff's State Law Claims are Preempted by the FCRA

Prior to 1996, the sole preempton provision of the FCRA was section 1681 h(e), which restricts the conditions under which furnishers of information are subject to suit. Specifically, it preempts all actions which are "in the nature of defamation, invasion of privacy, or negligence . . . except as to false information furnished with willful intent [to] injure [the] consumer". 15 U.S.C. § 1681h(e). However, the 1996 amendments added a new section, section 1681t(b)(1)(F).

This section provides that "(n)o requirement or prohibition may be imposed under the laws of any State with respect to any subject matter regulated under section 1681s-2 of this title relating to the responsibilities of persons who furnish information to consumer reporting agencies. . . ." It appears to preempt all state claims, and therefore appears to contradict section 1681h(e). This schism has led to some confusion in the courts. Some have taken the view that the newer section completely preempts all state causes of action. See, e.g., Hasvold v. First USA Bank, N.A., 194 F. Supp.2d 1228, 1235 (D.Wyo 2002); Jaramillo v. Experian Information Solutions, Inc., 155 F. Supp.2d 356 (E.D.Pa 2001). A more convincing interpretation of these seemingly irreconcilable sections was articulated in Aklagi v. Nationscredit Financial, 196 F. Supp.2d 1186 (D.Kan. 2002), and followed in Vasquez-Garcia. There the court observed that the two sections address two discrete time periods. Aklagi, 196 F. Supp.2d at 1194. Section 1681t(b)(1)(F) provides absolute immunity from suit for violations of state law to the furnisher of information that occur after the furnisher receives notice of a dispute from the consumer reporting agency. Id. However, prior to receipt of notice, section 168ls-2 is not implicated for purpose of a consumer suit. Id. at 1195. Thus, prior to receipt of notice, the furnisher is entitled only to qualified immunity under section 1681h(e). Id. If the notice requirement giving the right to sue under section 1681s-2b has been fulfilled, the plaintiff's state law claims are preempted, because they concern subject matter regulated under section 1681s-2. Id. at 1194-1195.

Verizon's motion to dismiss these claims is granted to the extent that it is entitled to absolute immunity from suit arising under state law as a furnisher of information to a consumer credit agency occurring after it received notice of the dispute from that agency. It is further entitled to qualified immunity from claims based on state law subject to the terms of section 1681h(e) for any furnishing of information to a consumer credit agency occurring prior to Verizon's reciept of notice of the dispute from that agency.

E. Whether the Plaintiff's State Law Claims are Time Barred.

The timeliness of the plaintiff's state law claims is once again dependant on the fulfillment of the notice element of the FCRA claims. The plaintiff notified the defendants of the disputed account at some time prior to March 22, 2000 (Equifax and CSC), November 22, 2000 (Trans Union), and November 22, 2000 (Experian), those being the dates that the plaintiff received a reinvestigation report from the various defendants. The lawsuit was filed on July 2, 2002.

Assuming that the defendants compiled with the notice requirement, section 1681t(b)(1)(F) preempts any claim arising from the furnishing of information following those dates. This would mean defamation and invasion of privacy claims would be logically precluded as either occurring within one year and thus preempted, or occurring more than one year ago and thus time barred. The plaintiff's other state law claims with two year statute of limitations could have arisen, in the case of Trans Union and Experian, between July 2, 2000, and the dates the respective notice requirements were fulfilled by those two defendants.

On the other hand, if the notice requirement were not fulfilled by any defendant credit reporting agency, the plaintiff could have state claims against Verizon for any actions arising between July 2, 2000, and July 2, 2002 (or July 2, 2001 and July 2, 2002 in the case of defamation and invasion of privacy) since no federal preemption would have taken place. The plaintiff will most assuredly have to drop some of her claims, but at this stage is is unclear which will remain viable. Accordingly, Verizon's motion to dismiss on this point must be denied at this stage of the proceedings.

F. Whether the Plaintiff has stated a Claim Under the DTPA.

The plaintiff alleges Verizon's conduct is a violation of the Texas Deceptive Trade Practices Act, or DPTA; specifically, a violation of the Texas Debt Collection Act, or TDCA, which is actionable through the DTPA. The act prohibits "misrepresenting the character, extent, or amount of a consumer debt, or misrepresenting the consumer debt's status in a judicial or governmental proceeding." TEX. FIN. CODE ANN. § 392.094(a)(8) (Vernon 2001). The conduct alleged by the plaintiff meets this standard. Although there is a possibility that this claim will be preempted or time barred for the reasons stated above, it is not a foregone conclusion. Verizon's motion to dismiss this claim is DENIED.

V. CONCLUSION

For the reasons set forth, Verizon's motion to dismiss the plaintiff's FDCPA claim is GRANTED. The motion to dismiss all other claims is DENIED, except as the motion concerns state law claims that may be preempted. Verizon's motion for a more definite statement is DENIED.

It is so ORDERED.