Opinion
C. A. 2:21-01980-BHH-MHC
09-09-2021
Juanita D. Wilson, Plaintiff, v. Wells Fargo Bank, N.A., Defendant.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
This is civil action filed by Plaintiff Juanita D. Wilson, a pro se litigant. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. In an order entered July 27, 2021, Plaintiff was warned of pleading deficiencies in her Complaint and given an opportunity to amend. ECF No. 12. She has not filed an amended complaint.
BACKGROUND
This is Plaintiff's third lawsuit brought against Defendant Wells Fargo Bank, N.A. (Wells Fargo) alleging claims concerning negative information on a credit report as to two educational loans Plaintiff co-signed for her daughter. The first case (Wilson I) was dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b) because Plaintiff never got her case into proper form. See Wilson v. Wells Fargo, No. 2:19-02712-BHH-BM (D.S.C.). In her second case (Wilson II), Plaintiff alleged claims pursuant to the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681-1681x. Wells Fargo's motion to dismiss for failure to state a claim was granted, the case was dismissed without prejudice with leave to amend, and Plaintiff did not attempt to amend but instead filed this lawsuit. See Wilson v. Wells Fargo Bank, N.A., No. 2:20-02780-BHH-MHC (D.S.C.).
A federal court may take judicial notice of the contents of its own records, as well as those records of other courts. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (noting that courts may take judicial notice of other courts' records and proceedings).
Plaintiff states that on January 6, 2015, her daughter took out a student educational loan in the amount of $12,000 from Wells Fargo and she co-signed the loan. In August 2015, Plaintiff's daughter took out another $12,0000 student educational loan from Wells Fargo and Plaintiff again was a co-signer on the loan. On March 15, 2019, Plaintiff allegedly made a final payment of $2,303.60 on the first loan and a final payment of $4,403.30 on the second loan.
Plaintiff attached a letter from Wells Fargo Education Financial Services dated February 25, 2109, in which Plaintiff was offered a settlement as to a loan, with a balance of $11,008.26, for the reduced amount of $4,403.30. The letter specifically provides:
Upon receipt of valid funds, we will update our records to indicate the account is settled, which includes in most circumstances reporting to the consumer reporting agencies that this account has been settled and charged off for less than the full balance.ECF No. 1-1 at 4 (emphasis added).
In September 2019, Plaintiff applied for a new loan from an unnamed provider and her loan request was allegedly denied because of negative credit on her credit report. Plaintiff submitted copies of credit reports from Equifax, Experian, and TransUnion dated September 2, 2019, indicating that two Wells Fargo accounts were “charged off,” “written off,” and/or “paid in full for less than full balance.” ECF No. 1-1 at 69-76, 92-95, 155-157. Plaintiff contends that she waited for Wells Fargo to correct the alleged wrong information that was reported to a consumer reporting agency and subsequently reported on her credit report, but no correction was made. She claims she experienced tremendous stress and anxiety because of the alleged false reporting and denial of credit. ECF No. 1 at 2-3.
Although Plaintiff refers to Exhibit C as her credit report from Experian (ECF No. 1 at 2), Exhibit C contains credit reports from Equifax, Experian, and TransUnion (ECF No. 1-1 at 30-187).
STANDARD OF REVIEW
This case is before the Court for pre-service review. See 28 U.S.C. § 1915(e)(2)(B); In re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997) (pleadings by non-prisoners should also be screened). Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint herein pursuant to the procedural provisions of § 1915, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Corr., 64 F.3d 951 (4th Cir.1995) (en banc); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
Section 1915 permits an indigent litigant to commence an action in federal court without paying the administrative costs of proceeding with the lawsuit. However, to protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action “is frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A finding of frivolousness can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. at 327.
This Court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
DISCUSSION
In the current action, Plaintiff again attempts to allege claims under the FCRA. She also appears to bring claims pursuant to the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p; the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227; and the Truth in Lending Act (TILA), 15 U.S.C. §§ 1601-1667f . However, as discussed in further detail below, Plaintiff's pleadings fail to provide any specific factual information to support a claim that Defendant violated her federal constitutional or statutory rights. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (requiring, in order to avoid dismissal, “‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests'” (quoting Fed.R.Civ.P. 8(a)(2))). Although the “liberal pleading requirements” of Rule 8(a) only require a “short and plain” statement of the claim, a plaintiff must “offer more detail ... than the bald statement that he has a valid claim of some type against the defendant.” Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (internal citations omitted); see also White v. White, 886 F.2d 721, 723 (4th Cir. 1989) (district court did not abuse discretion by dismissing plaintiff's complaint which “failed to contain any factual allegations tending to support his bare assertion”).
A. FCRA
Plaintiff appears to allege that Wells Fargo violated her rights under the FCRA by failing to properly report payment of the two student education loans and by reporting incorrect and obsolete information to a consumer reporting agency (CRA) in violation of 15 U.S.C. §§ 1681c and 1681i. However, as was noted in Wilson II, see Wilson v. Wells Fargo Bank, N.A., No. 2: 20-CV-2780-BHH-MHC, 2021 WL 2003524 (D.S.C. Apr. 30, 2021), report and recommendation adopted, 2021 WL 2003184 (D.S.C. May 19, 2021), these sections of the FCRA apply only to CRAs. See 15 U.S.C. § 1681c (“Except as authorized under subsection (b), no consumer reporting agency may make any consumer report containing the following items of information....” (emphasis added); 15 U.S.C. § 1681i(a)(“[I]f the completeness or accuracy of any item of information contained in a consumer's file at a consumer reporting agency is disputed by the consumer the agency shall...conduct a reasonable investigation to determine whether the disputed information is inaccurate. or delete the item from the file..”) (emphasis added).
In this case, Plaintiff alleges claims concerning Wells Fargo furnishing information to CRAs, including Experian. She again fails to allege any facts to indicate that Wells Fargo is a CRA and instead specifically refers to Wells Fargo as a credit “furnisher” (Complaint, ECF No. 1 at 1 and 3). See Smith v. First Nat'l Bank of Atlanta, 837 F.2d 1575, 1578 (11th Cir. 1988) (holding that a bank reporting information solely on its own experience with one of its customers was not acting as a CRA within the meaning of the FCRA because it had not furnished a “consumer report” as that term is defined in the Act); 15 U.S.C. § 1681a(d)(2)(A)(i) (excluding from the definition of “consumer report” any “report containing information solely as to transactions or experiences between the consumer and the person making the report”). Thus, Plaintiff's claims under §§ 1681c and 1681i should be summarily dismissed. See, e.g., Rich v. Stern & Assocs., P.A., No. 3:15CV451, 2016 WL 4480695, at *1 (W.D. N.C. Aug. 24, 2016) (“As [defendant furnisher's] duties pursuant to the FCRA are limited to § 1681s-2, Plaintiff's claims pursuant to §§ 1681b, 1681c, and 1681i must be dismissed.”); Craighead v. Nissan Motor Acceptance Corp., No. 1:10CV981 JCC JFA, 2010 WL 5178831, at *5 (E.D. Va. Dec. 14, 2010), aff'd, 425 Fed.Appx. 197 (4th Cir. 2011) (“As to Plaintiff's claim pursuant to section 1681i(a)(1), that section applies to credit reporting agencies, not furnishers of information, such as Defendant.”).
The Complaint, liberally construed, may be attempting to assert a claim under § 1681s-2(b) of the FCRA, which relates to furnishers of information. The FCRA provides no “private right of action for a credit furnisher's alleged failure to report accurate information.” Harrell v. Caliber Home Loans, Inc., 995 F.Supp.2d 548, 554 n.4 (E.D. Va. 2014) (citation omitted). However, there is a private cause of action under § 1681s-2(b), which imposes duties on furnishers, upon receiving a dispute of accuracy from a CRA, to conduct a reasonable investigation of the dispute, report its results to the consumer reporting agency, and modify or delete incorrect information. See Akalwadi v. Risk Mgmt. Alternatives, Inc., 336 F.Supp.2d 492, 509 (D. Md. 2004); see also 15 U.S.C. § 1681s-2 (b); White v. Fannie Mae, No. 1:13-29923, 2014 WL 5442970, at *6 n.4 (S.D. W.Va. Oct. 24, 2014).
To prevail on a claim under § 1681s-2(b), a plaintiff must demonstrate that (1) she notified a CRA of the disputed information, (2) the CRA notified the furnisher of the dispute, and (3) the furnisher failed to investigate and modify the inaccurate information. See Alston v. Branch Banking & Tr. Co., No. GJH-15-3100, 2016 WL 4521651, at *6 (D. Md. Aug. 26, 2016). Plaintiff claims she advised Experian on numerous occasions that a mistake was made and she requested correction of her consumer file. ECF No. 1 at 5. However, as was noted in Wilson II, Plaintiff has not stated a plausible claim because she fails to allege any facts indicating that Wells Fargo received notice of a dispute from Experian or any other CRA, as necessary to state the second prong of a § 1681s-2(b) claim. See Mavilla v. Absolute Collection Serv., Inc., 539 Fed.Appx. 202, 208 (4th Cir. 2013) (noting that furnisher's duty to investigate is not triggered until it receives notification of a dispute from a CRA).
With her Complaint, Plaintiff provided what she claims is evidence that Wells Fargo has been sued on multiple occasions for refusing to correct its alleged false reporting despite being on notice that the information was inaccurate. See ECF No. 1-1 at 6-28. However, this information does not provide anything specific to Plaintiff's case or to indicate that Experian (or any other CRA) informed Wells Fargo about Plaintiff's alleged incorrect information.
Finally, Plaintiff may be attempting to assert claims on behalf of others who allegedly were wronged by Wells Fargo (she claims that Wells Fargo has exhibited a pattern of refusing to correct consumer credit files). However, the pro se Plaintiff may not assert claims on behalf of others. See Myers v. Loudon Co. Pub. Sch., 418 F.3d 395, 401 (4th Cir. 2005) (finding that a pro se person's right to litigate for oneself does not create a similar right to litigate on behalf of others); Asad v. Arab Bank, PLC, 117 Fed.Appx. 466, 467 (7th Cir. Nov. 12, 2004) (Plaintiff who is not a lawyer may not represent the interests of any other litigant).
B. FDCPA
Plaintiff's claim under the FDCPA is also subject to summary dismissal for failure to state a claim. Plaintiff alleges that she started receiving calls from Wells Fargo in January 2020 during which Wells Fargo attempted to collect the alleged debt, Wells Fargo did not inform Plaintiff that making a payment “would re[-]age the debt which would make the contract invalid,” and Plaintiff was unfairly mislead by Wells Fargo's action. ECF No. 1 at 2.
To state a claim for a FDCPA violation, a plaintiff must allege that: (1) the plaintiff has been the object of collection activity arising from consumer debt; (2) the defendant is a debt collector as defined by the FDCPA; and (3) the defendant has engaged in an act or omission prohibited by the FDCPA. See Dikun v. Streich, 369 F.Supp.2d 781, 784-85 (E.D. Va. 2005). The FDCPA defines a debt collector as “any person who uses an 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, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). However, the FDCPA only applies to “debt collectors,” 15 U.S.C. § 1692a(6), and Plaintiff fails to allege any facts to indicate that Wells Fargo, which appears to have been attempting to collect its own debt, is a debt collector. See Carrington v. Indy Mac Mort. Servs., No. 5:12-1060-JMC, 2013 WL 530050, at *3 (finding that mortgage servicers and lenders, acting in collection of their own debts, are not debt collectors within the definition of the FDCPA); Craig v. Park Fin. of Broward Cnty., Inc., 390 F.Supp.2d 1150, 1154 (M.D. Fla. 2005) (plaintiff failed to state a violation of the FDCPA against a lender that financed a car loan because the lender was a creditor, not a debt collector).
C. TCPA
Plaintiff also states that she brings her action for damages based on the TCPA, 47 U.S.C. § 227. She alleges that, beginning in January 2020, she received over 250 calls to her phone from Defendant in which Defendant attempted to collect the alleged debt. She claims that these calls affected her ability to use her phone and work and caused her emotional and physical distress. ECF No. 1 at 4. However, Plaintiff has not specified what provision of the TCPA was allegedly violated, has not stated to what telephone line (such as personal or business, cell phone or landline) the calls were allegedly made, has not provided any specific dates of the alleged calls, has provided no details of the calls, and has not specified who made the alleged calls.
“The TCPA is a remedial statute that was passed to protect consumers from unwanted automated telephone calls.” Stewart v. T-Mobile USA, Inc., 124 F.Supp.3d 729, 732 (D.S.C. Aug. 28, 2015) (citing Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 271 (3d Cir. 2013)). Stating a claim under the TCPA for a call made to a cellphone requires a plaintiff to allege that the call was placed to a cellphone by the use of any automatic dialing system or leaving an artificial or prerecorded message. See Self v. Nationstar Mortgage LLC, 2019 WL 4734412, at *7 (E.D. N.C. Sept. 26, 2019); 47 U.S.C. § 227(b)(1)(A). The TCPA also restricts the use of automated telephone equipment “to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party....” 47 U.S.C. § 227(b)(1)(B); see also Reo v. Caribbean Cruise Line, Inc., 2016 WL 1109042, at *4 (N.D. Ohio Mar. 18, 2016) (discussing elements of TCPA claim).
An automatic telephone dialing system (ATDS) is statutorily defined as “equipment which has the capacity--(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). As recently clarified by the Supreme Court in Facebook, Inc. v. Duguid, 141 S.Ct. 1163 (2021), “a necessary feature of an autodialer under § 227(a)(1)(A) is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” Duguid, 141 S.Ct. at 1173.
The Fourth Circuit has not yet addressed the issue of whether a plaintiff must also allege express prior consent to state a claim under § 227(b)((1)(A)(iii) and other courts are split on this issue. See id at *7.
Here, Plaintiff has failed to identify what provision of the TCPA was allegedly violated. To the extent that she is attempting to assert that §227b(1)(A) or (B) were violated, she has not alleged that calls were initiated to her cellphone using an ATDS or to her cellphone or residential telephone line using an artificial or prerecorded voice to deliver a message. Thus, Plaintiff's claims under the TCPA should be summarily dismissed.
D. TILA
Finally, Plaintiff's claims that Wells Fargo violated TILA by misleading Plaintiff about the loan terms and as to the status of the account after allegedly paying the entire loan amount should be summarily dismissed. Private education loans are governed by 15 U.S.C. § 1638(e) (“Terms and disclosure with respect to private education loans”). TILA “has the broad purpose of promoting ‘the informed use of credit' by assuring ‘meaningful disclosure of credit terms' to consumers.” Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 559 (1980). Accordingly, creditors are required “to provide borrowers with clear and accurate disclosures of terms dealing with things like finance charges, annual percentage rates of interest, and the borrower's rights.” Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412 (1998).
Plaintiff fails to state a plausible TILA claim as she does not identify in what manner the TILA disclosure requirements were violated. See McCleary-Evans v. Maryland Dep't of Transp., 780 F.3d 582, 585 (4th Cir. 2015) (noting that a plaintiff must plead enough to raise a right to relief above the speculative level); Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact). Additionally, the Fourth Circuit, in an unpublished opinion, has interpreted TILA's actual damages provision to require a showing of detrimental reliance, which Plaintiff has not plead. See Jaldin v. ReconTrust Co., 539 Fed.Appx. 97, 103 (4th Cir. 2013) (affirming that the plaintiffs failed to state a claim for actual damages under TILA because the pleadings did not include an explanation of how the alleged violation caused detrimental reliance); see also United States v. Petroff-Kline, 557 F.3d 285, 296-97 (6th Cir. 2009) (holding that “actual damages [under TILA] require a showing of detrimental reliance,” and stating that “the debtor must demonstrate that he or she would either have received a better interest rate for the loans elsewhere or would have elected not to take the loan had the required information [interest rate disclosure] been available”). Thus, Plaintiff's TILA claims should be dismissed.
RECOMMENDATION
Accordingly, it is recommended that the Court dismiss the Complaint without leave to amend and without issuance and service of process.
The Fourth Circuit Court of Appeals has noted that, where the district court has already afforded a litigant with an opportunity to amend, the district court has the discretion to either afford another opportunity to amend or can “dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order.” Workman v. Morrison Healthcare, 724 Fed.Appx. 280, 281 (4th Cir. 2018); see also Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020); Domino Sugar Corp. v. Sugar Workers Local Union 392 of United Food and Commercial Workers Int'l Union, 10 F.3d 1064 (4th Cir. 1993). As noted above, Plaintiff was advised of material defects in her Complaint, see ECF No. 12, but she failed to file an amended complaint or otherwise cure the defects in her Complaint.
Plaintiff's attention is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).