Bradley v. Capital One Bank (USA), N.A.

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
STEVEN BRADLEY ,
Plaintiff,
v. 	No. 4:25-cv-1077-P-BP
CAPITAL O NE BANK (USA) N.A.,
Defendants.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
This is a suit for violation of the Fair Credit Reporting Act (“FCRA”) and the
Fair Debt Collection Practices Act (FDCPA) that Plaintiff Steven Bradley brings pro
se. ECF No. 8. The case was referred to the undersigned under Special Order 3. ECF
No. 6. Before the Court are the Motion to Dismiss First Amended Complaint that
Defendant Capital One Bank (USA), N.A. (“Capital One”) filed on October 17, 2025
(ECF No. 13); Response that Bradley filed on November 3, 2025 (ECF No. 25); and
Reply that Capital One filed on November 24, 2025 (ECF No. 29). After reviewing the
pleadings and applicable legal authorities, the undersigned RECOMMENDS that
United States District Judge Mark Pittman GRANT the Motion to Dismiss (ECF No.
13) in part and DISMISS Bradley’s FDCPA claim.
I. 	BACKGROUND
Bradley claims that Capital One “continued to furnish, report, or permit
recording of the disputed tradeline to consumer reporting agencies [“CRA’s”] or
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otherwise treated the disputed tradeline as valid.” ECF No. 8 at 2. Bradley asserts
that Capital One did not conduct a reasonable investigation in response to his dispute
in violation of the FCRA. Id. at 4. He also alleges Capital One violated the FDCPA
because it did not “provide sufficient validation and continued collection/reporting
activity” even after he lodged his dispute. Id. Bradley asserts aggravating factors and
alleges Capital One willfully disregarded its duties. Id. at 5. Bradley seeks statutory,
actual, and punitive damages totaling $250,000.00, costs and expenses, and an order
compelling permanent deletion of the disputed tradeline. Id. at 5-6.
On October 17, 2025, Capital One filed the pending Motion, arguing that
Bradley failed to state an FCRA claim because he did not “meet the threshold
requirement to allege that any [CRA] sent a notice of Plaintiff’s dispute to Capital
One.” ECF No. 13 at 1-2. Capital One asserts that Bradley did not state an FDCPA
claim because “the Act does not apply to Capital One, [as] an original creditor and
not a ‘debt collector’ under the law.” Id. at 2.
II. 	LEGAL STANDARDS
A. 	Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) permits dismissal of complaints that
fail to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To state
a viable claim for relief, a complaint must include sufficient factual allegations “to
raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). In considering a Rule 12(b)(6) motion, courts must “take all well-
pleaded facts as true, viewing them in the light most favorable to the plaintiff ... and
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ask whether the pleadings contain ‘enough facts to state a claim to relief that is
plausible on its face.’” Yumilicious Franchise, LLC v. Barrie, 819 F.3d 170, 174 (5th
Cir. 2016) (citing Twombly, 550 U.S. at 547).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In ruling on a motion
to dismiss, a court may consider documents outside the complaint when they are: (1)
attached to the motion to dismiss; (2) referenced in the complaint; and (3) central to
the plaintiff’s claims. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.
2007).
B. 	Pro se parties
The Court subjects a pro se party's pleadings to less rigid analysis than those
of a party represented by counsel. “[A] pro se complaint, ‘however inartfully pleaded,’
must be held to ‘less stringent standards than formal pleadings drafted by lawyers.’”
Estelle v. Gamble, 429 U.S. 97, 106 (1976). However, “even a liberally-construed pro
se . . . complaint must set forth facts giving rise to a claim on which relief may be
granted.” Levitt v. Univ. of Tex. at El Paso, 847 F.2d 221, 224 (5th Cir. 1988) (citing
Bounds v. Smith, 430 U.S. 817, 825-26 (1977)). Thus, a court inquires “whether within
the universe of theoretically provable facts there exists a set which can support a
cause of action under [the] complaint, indulgently read.” Covington v. Cole, 528 F.2d
1365, 1370 (5th Cir. 1976). However, “conclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to state a claim for relief.”
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Masika Brown Ray v. Anthony Boone et al., No. 24-40169, 2024 WL 4372692, *1 (5th
Cir. 2024) (citing Coleman v. Lincoln Par. Det. Ctr., 858 F.3d 307, 309 (5th Cir. 2017)).
C. 	Dismissal with or without leave to amend
It is a “well-established policy that the plaintiff be given every opportunity to
state a claim.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The
decision to allow amendment of the pleadings is within the sound discretion of the
Court. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994). In determining
whether to allow an amendment of the pleadings, the Court considers: undue delay
in the proceedings, undue prejudice to the opposing parties, timeliness of the
amendment, and futility of the amendment. See Foman v. Davis, 371 U.S. 178, 182
(1962); Chitimacha Tribe of La. v. Harry L. Laws Co., Inc., 690 F.2d 1157, 1163 (5th
Cir. 1982). “At some point, a court must decide that a plaintiff has had fair
opportunity to make her case; if, after that time, a cause of action has not been
established, the court should finally dismiss the suit.” Jacquez v. Procunier, 801 F.2d
789, 792-93 (5th Cir. 1986); Schiller v. Physicians Resource Group Inc., 342 F.3d 563
(5th Cir. 2003).
III. 	ANALYSIS
A. 	The Court should not dismiss Bradley’s FCRA claim.
“To recover against a furnisher for violations of § 1681s-2(b), a plaintiff must
show that: (1) he disputed the accuracy or completeness of information with a [CRA];
(2) the agency notified the furnisher of the consumer's dispute; (3) and the furnisher
failed to conduct an investigation . . . .” Shaunfield v. Experian Info. Sols., Inc., 991
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F. Supp. 2d 786, 805 (N.D. Tex. 2014) (citing Smith v. Nat'l City Mortg., No. A-09-
CV-881 LY, 2010 WL 3338537, at *15 (W.D. Tex. Aug. 23, 2010), rec. adopted, No. A-
09-CV-881-LY, 2010 WL 11652114 (W.D. Tex. Sept. 20, 2010)); see also 15 U.S.C. §§
1681s-2(b); 1681i(a)(2).
“[A] private right of action under section 1681s-2(b) does not arise from
communications between the consumer and furnisher.” Henry v. Capital One Bank
(USA), N.A., No. 3:17-cv-2962-M-BK, 2018 WL 4346727, at *2 (N.D. Tex. Aug. 9,
2018), rec. adopted, No. 3:17-cv-2962-M, 2018 WL 4335834 (N.D. Tex. Sept. 11, 2018).
“[D]irect notification by the consumer does not trigger a furnisher's duties under §
1681s-2(b).” Hunsinger v. Sko Brenner Am., Inc., No. 3:13-cv-0988-D, 2014 WL
1462443, at *7 (N.D. Tex. Apr. 15, 2014). “Instead . . . ‘any liability for a violation of
section 1681s-2(b) would not arise unless [Defendants] had been notified of an
inaccuracy [by a CRA] and failed to correct the error.’” Henry, 2018 WL 4346727 at
*2.
Capital One argues that Bradley did not trigger its duties because Bradley
disputed the tradeline directly to Capital One, and Bradley has not alleged that a
CRA provided it with notice. Id. at 7. In his amended complaint, Bradley only states
that he “mailed a written dispute and request for validation . . . to Defendant.” ECF
No. 8 at 2 (emphasis added). However, in his Response, Bradley asserts for the first
time that his August 10, 2025, TransUnion credit report contained an “Account
previously in dispute” notation that is only generated “after a CRA receives a
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consumer dispute, transmits it to the furnisher through the e-OSCAR system, and
the furnisher responds.” ECF No. 25 at 5.
As a general rule, claims and allegations that are not
raised 	in 	the 	complaint,
but raised for the first time in a response to 	a 	motion 	to
dismiss are not properly before the court . . . Nevertheless,
the Fifth Circuit has held that courts should construe new
allegations and theories in responses to dispositive motions
as motions to amend . . . “This is particularly true where ...
the 	litigant 	is pro 	se and 	has 	not 	yet 	made 	any
amendments to her complaint.”
Roe v. U.S. Dep't of Homeland Sec., No. 3:19-cv-2595-C-BH, 2020 WL 4456528,
at *3 (N.D. Tex. July 13, 2020), rec. adopted, No. 3:19-cv-2595-C-BH, 2020 WL
4437483 (N.D. Tex. Aug. 3, 2020) (citations omitted).
Accordingly, “[Bradley’s] allegations in his response to [Capital One’s]
Motion to Dismiss are construed as a Motion to Amend, the Motion is granted,
and the new allegations are considered.” Id. Capital One asserts in its Reply
that Bradley’s direct dispute, and not notification from a CRA, created this
TransUnion credit report notation. ECF No. 29 at 5.
Viewing Bradley’s new allegations and all well-pleaded facts as true and
construing them in the light most favorable to him, Bradley has stated an
FCRA claim upon which relief can be granted. Yumilicious, 819 F.3d 170 at
174 (citing Twombly, 550 U.S. at 547). Bradley’s allegation of the notation on
his August 10, 2025, TransUnion report provides a plausible factual basis that
Capital One received notice of his dispute from a CRA. While it is possible that
Bradley’s direct dispute created the notation as Capital One claims, at this
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stage the Court must view Bradley’s factual allegations as true and treat them
in the light most favorable to Bradley.
The amended complaint (ECF No. 8), when taken with the Response
(ECF No. 25) that serves as a motion to amend, has sufficiently alleges that
Bradley raised a dispute with a CRA, the CRA notified Capital One, and
Capital One did not investigate as required. Shaunfield, 991 F. Supp. 2d at 805
(internal citations omitted); see also 15 U.S.C. §§ 1681s-2(b); 1681i(a)(2).
Therefore, the Court should deny Capital One’s Motion to Dismiss as to
Bradley’s FCRA claim because at this stage Bradley has stated a plausible
claim for relief under 15 U.S.C. § 1681s-2(b).
B. 	The Court should dismiss Bradley’s FDCPA claim.
Under 	the 	FDCPA, 	a 	“debt 	collector” 	is 	one 	whose
“principal purpose ... is the collection of any 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). 	This 	definition 	describes 	two 	types 	of 	debt
collectors: 	those 	whose 	“principal 	purpose” 	is 	debt
collection and those who “regularly collect” others’ debts.
See Garrett v. Derbes, 110 F.3d 317, 318 (5th Cir. 1997). A
“creditor,” by contrast, is “any person who offers or extends
credit creating a debt or to whom a debt is owed.” 15 U.S.C.
§ 1692a(4).
Infante v. Law Office of Joseph Onwuteaka, P.C., 735 F. App’x 839, 842 (5th Cir.
2018). A creditor is still subject to the FDCPA’s requirements if it “uses any name
other than [its] own which would indicate that a third person is collecting or
attempting to collect such debts.” 15 U.S.C. § 1692a(6). Nevertheless, 15 U.S.C. §
1692a(6)(f) makes clear that a creditor attempting to collect “a debt which was
originated by [the creditor itself]” is not a debt collector under the statute. “The
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legislative history of section 1692a(6) indicates conclusively that a debt collector does
not include the consumer's creditors.” Perry v. Stewart Title Co., 756 F.2d 1197, 1208
(5th Cir. 1985).
Here, Bradley sues Capital One for alleged TDCPA violations arising from his
account with Capital One ending in 0186. ECF No. 8 at 22. The correspondence he
provides with his complaint in Exhibit C shows that “the account [ending in 0186]
was opened on 03/20/2015” resulting from “a valid contract” with Capital One and
shows Capital One as the “[c]reditor” on the account. Id. Capital One was “offer[ing]
or extend[ing] credit [to Bradley] creating a debt.” 15 U.S.C. § 1692a(4). As a result,
Capital One was not a “debt collector” under the FDCPA within the context of this
transaction. See Infante, 735 F. App’x 839 at 842.
Bradley contends for the first time in his Response that “[t]he FDCPA covers
any entity that ‘uses any name other than its own’ when collecting debts. ECF No. 25
at 8 (citing 15 U.S.C. § 1692a(6)). He continues that because “Capital One utilized
separate departments and third-party servicing names . . . [d]iscovery is required
before classification can be decided.” Id. Again, “[Bradley’s] 	allegations in his
response to [Capital One’s] motion to dismiss are construed as a motion to amend,
the motion is granted, and the new allegations are considered.” Roe, 2020 WL
4456528, at *3.
However, merely asserting that Capital One utilized separate departments
and third-party servicing names is insufficient to render Capital One a “debt
collector” under the FDCPA. The FDCPA classifies Capital One as a creditor here
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because it extended credit creating the debt. § 1692a(6). And the creditor as debt
collector provision in 15 U.S.C. § 1692a(6) does not apply because Capital One was
attempting to collect a debt that originated from Capital One itself, which falls under
§ 1692a(6)(f). Capital One is not a “debt collector” under the FDCPA. Thus, Bradley
has not stated a plausible claim upon which the Court can grant relief, and dismissal
is appropriate.
C. 	The Court should dismiss Bradley’s FDCPA claim without leave
to amend.
The Court should dismiss Bradley’s claim without leave to amend because he
has pleaded his best case, and amendment of his FDCPA claim would be futile.
Bradley filed his original complaint in state court and his Amended Complaint after
Capital One removed the case to this Court. See ECF Nos. 1, 8. The Court then
granted Bradley leave to amend his complaint again when he made new allegations
for the first time in his Response. ECF No. 25.
Under these circumstances, the Court concludes that Bradley has pleaded his
best, though legally unsupportable, case against Capital One under the FDCPA.
Because he has already had opportunities to cure the deficiencies in his complaints
and Capital One is 	not 	a 	“debt 	collector” 	as 	defined by 	the 	FDCPA, 	further
amendment of these claims would be futile. Judge Pittman should dismiss Bradley’s
FDCPA claim without leave to amend the complaint again.
IV. 	CONCLUSION
Bradley has stated a plausible claim for relief under 15 U.S.C. § 1681s-2(b).
Therefore, the Court should DENY Capital One’s Motion to Dismiss as to his FCRA
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claim. However, Bradley has not pleaded sufficient facts to state a FDCPA claim
against Capital One. Because he has pleaded his best case against Capital One and
any further amendment would be futile, the undersigned RECOMMENDS that
Judge Pittman GRANT in part Capital One’s Motion to Dismiss (ECF No. 13) and
DISMISS Bradley’s FDCPA claim.
It is so ORDERED on November 25, 2025.
______________________________________
Hal R. Ray, Jr.
UNITED STATES MAGISTRATE JUDGE
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