Opinion
Civil Action 22-cv-87
07-26-2022
ANDRE DAKAR BAKER-GRANT v. BANK OF AMERICA, N.A.
MEMORANDUM
Juan R. Sanchez, C.J.
Plaintiff Andre Dakar Baker-Grant (“Grant”) brings this Fair Debt Collection Practices Act action against Defendant Bank of America, N.A. (“BANA”). Grant asserts claims against BANA pursuant to: (1) the Fair Debt Collection Practices Act (“FDCPA”), codified in 15 U.S.C. §1692; and (2) 18 U.S.C. § 1341 of the Federal Criminal Code. BANA now moves to dismiss Grant's Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Grant also filed a pro se Motion to Dismiss in Favor of Default Judgment. Because BANA is not a debt collector as defined under the FDCPA, and there is no private right of action under 18 U.S.C. § 1341, BANA's Motion to Dismiss must be granted. Accordingly, Grant's Motion to Dismiss must be denied.
BACKGROUND
Grant alleges BANA defrauded him regarding the purported amount of debt owed. See ECF Doc. No. 6 & 7. Grant also alleges BANA used obscene and profane language to harass and abuse Grant and “fraud. . . [him] about [his] alleged debt.” See ECF Doc. No. 6 & 7. Grant further avers that BANA used criminal means to harm his reputation by sending false debt reports to Equifax, Experian, and TransUnion. Id. Grant contends that BANA “devise[d] a scheme for trying to obtain money from [him] pursuant to 18 U.S.C. § 1341.” Id. Grant is seeking the removal of “inaccurate” credit reporting and $1,610,000 in damages. Id.
On January 7th, 2022, Grant filed his initial Complaint and Affidavit of Truth. See ECF Doc. No. 1. On February 28, 2022, Grant filed his Amended Complaint, and on March 8, 2022 Grant filed his Affidavit of Truth. A summons was issued to BANA on May 3, 2022. On May 31, 2022, BANA filed its Motion to Dismiss Plaintiff's Amended Complaint. Grant opposed the Motion, and filed his own Motion to Dismiss in Favor of Default Judgment and to Dismiss Defendant's Counsel. See ECF Docs. Nos. 12, 13, 14.
ANALYSIS
Under FRCP 12(b)(6), a complaint must “state a claim for relief that is plausible on its face,” not merely conceivable, to survive a motion to dismiss. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Courts must give a complaint's factual allegations the presumption of truth and draw reasonable inferences in favor of the non-moving party. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bohus v. Restaurant.com, Inc., 784 F.3d 918, 921, n.1 (3d Cir. 2015). However, Courts do not have to accept “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. A claim is facially plausible when the facts alleged in the complaint allow a court to draw a reasonable inference that the defendant is liable. See Pearson v. Sec'y Dep't of Corr., 775 F.3d 598, 604 (3d Cir. 2015). Even though the Court must construe a pro se complaint liberally, such a complaint “must still contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Wallace v. Fegan, 455 Fed.Appx. 137, 139 (3d Cir. 2011).
To prevail under a FDCPA claim, “a plaintiff must prove that (1) []he is a consumer, (2) the defendant is a debt collector, (3) the defendant's challenged practice involves an attempt to collect a ‘debt' as the act defines it, and (4) the defendant has violated a provision of the FDCPA in attempting to collect the debt.” Jensen v. Pressler & Pressler, 791 F.3d 413, 417 (3d Cir. 2015). The FDCPA defines a “debt” as “any obligation or alleged obligation of a consumer to pay money arising out of a [monetary, property, insurance, or services] transaction.” 15 U.S.C. § 1692a (5). The FDCPA defines “debt collector” as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which 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. . . The term does not include (A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor, . . . and (F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity. . . (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor.” Id. at (6) (emphasis added). “Creditor” is defined as “any person who offers or extends credit creating a debt or to whom a debt is owed.” Id. at (4). “Creditors-as opposed to ‘debt collectors'- generally are not subject to the [FDCPA]” Tepper v. Amos Fin., LLC, 898 F.3d 364, 366 (3d Cir. 2018). Organizations collecting on debt that they themselves own are not viewed as “debt collectors” under the FDCPA. Henson v. Santander Consumer USA Inc., 137 S.Ct. 1718, 1721-24 (2017) (holding that “[a]ll that matters is whether the target of the lawsuit regularly seeks to collect debts for its own account. . . and given that, it would seem a debt purchaser like Santander may indeed collect debts for its own account without triggering the statutory definition in dispute.”).
Grant's Amended Complaint does not plead any facts sufficient to support a finding either that BANA is a debt collector or that BANA is performing any duties that a debt collector, as defined by the FDCPA, would perform. See generally ECF Doc. No. 6 & 7. Alleging that BANA used obscene and profane language to defraud him and harm his reputation with Equifax, Experian, and TransUnion is insufficient to satisfy the second and third elements required to prevail under a FDCPA claim. See Jensen, 791 F.3d at 417 (explaining that a plaintiff must allege “(2) the defendant is a debt collector, [and] (3) the defendant's challenged practice involves an attempt to collect a ‘debt' as the act defines it,”). In fact, Grant only alleges the existence of an account with BANA, not any other entity, which BANA is attempting to collect. See generally ECF Doc. No. 6 & 7. There is only one reasonable conclusion from Grant's Complaint: BANA was collecting money on its own behalf-activity which is not covered by the FDCPA. Henson, 137 S.Ct. at 1721-22. Allowing Grant to further amend the complaint will not change the fact that BANA is a creditor in this case. As a result, Grant's FDCPA claim is dismissed with prejudice.
Grant's claim under 18 U.S.C. § 1341 also fails because the statute does not provide a private right of action. 18 U.S.C. § 1341; see Thompson v. Michels, 574 Fed.Appx. 196, 197 (3d Cir. 2014) (holding that this is a “criminal statute that does not give rise to a private right of action.”); see also Jones v. TD Bank, 468 Fed.Appx. 93, 94 (3d Cir. 2012) (holding that 18 U.S.C. § 1341 lacks a private right of action). Grant's claim under 18 U.S.C § 1341 is therefore dismissed with prejudice.
CONCLUSION
In sum, BANA is a creditor, not a debt collector, whose behavior does not fall within the FDCPA. There is also no private right of action under 18 U.S.C. § 1341. Accordingly, the Court will grant BANA's Motion to Dismiss. Grant's Motion to Dismiss in Favor of Default Judgment is denied.
An appropriate order is attached.