Faurote v. Bank of America
OPINION AND ORDER GRANTING 11 Motion to Dismiss for Failure to State a Claim. Case is DISMISSED WITHOUT PREJUDICE. Signed by Chief Judge Theresa L Springmann on 12/5/17. (Copy mailed to pro se party)(mlc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
MICHAEL G. FAUROTE,
BANK OF AMERICA,
CAUSE NO.: 1:17-CV-129-TLS
OPINION AND ORDER
On March 3, 2017, Plaintiff Michael Faurote, proceeding pro se, filed his Complaint
[ECF No. 8] against Defendant Bank of America in Indiana state court. The Defendant removed
this action to federal court on March 31, 2017 [ECF No. 1]. The Defendant filed a Motion to
Dismiss [ECF No. 11] on April 6, 2017. On June 2, 2017, the Court granted a stay of all Rule 26
requirements pending a ruling on the Defendant’s Motion to Dismiss [ECF No. 19]. On May 3,
2017, the Plaintiff filed for bankruptcy. (See ECF No. 20.) On June 5, 2017, the Court held this
case in abeyance until September 5, 2017, at which point the Court would review the status of
the bankruptcy proceedings [ECF No. 21]. On September 27, 2017, the Plaintiff submitted
documentation showing that he had been declared bankrupt and that the bankruptcy proceedings
had been closed on August 30, 2017 [ECF No. 23]. The Court granted the Defendant’s request
that briefing on the Motion to Dismiss move forward and granted the Plaintiff twenty-eight days
in which to file a response [ECF No. 25]. The deadline has passed for the Plaintiff to respond to
the Defendant’s Motion to Dismiss, and this issue is now ripe for review.
The Plaintiff filed suit against the Defendant, alleging defamation, negligent enablement
of identity fraud, and violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et
seq. (“the FDCPA”). (See Compl. 1, ECF No. 8.) Specifically, the Plaintiff alleged that the
Defendant “violated requests for validation, disputed claim [sic]” and failed to “notify all credit
reporting agencies.” (Id.) The Defendant argues that, not only is the Plaintiff’s claim for
negligent enablement of identity fraud not cognizable, but also that he has failed to plead
sufficient facts that plausibly establish that he is entitled to relief on any of his claims.
To state a claim under the federal notice pleading standards, a complaint must set forth a
“short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). Factual allegations are accepted as true and need only give “fair notice of what the . . .
claim is and the grounds upon which it rests.” EEOC v. Concentra Health Serv., Inc., 496 F.3d
773, 776–77 (7th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
However, a plaintiff’s allegations must show that his entitlement to relief is plausible, rather than
merely speculative. Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008).
In Indiana, “[t]o establish defamation, a plaintiff must prove the following elements: (1) a
communication with defamatory imputation; (2) malice; (3) publication; and (4) damages.”
Collins v. Purdue Univ., 703 F. Supp. 2d 862, 875 (N.D. Ind. 2010). However, the Plaintiff has
not alleged any defamatory communications made by the Defendant in his Complaint. Without
identifying a defamatory statement, his claim fails. See Brown v. Salvation Army, 60 F. Supp. 3d
971, 980–81 (N.D. Ind. 2014). Without identifying a defamatory statement, the Court can neither
determine whether the statement was made with malice, whether it was published to a third
party, or whether the Plaintiff sustained damages as a result of the statement. Therefore, the
Court will grant the Defendant’s Motion to Dismiss as to the Plaintiff’s defamation claim.
Negligent Enablement of Identity Fraud
There is no indication that a cause of action for negligent enablement of identify fraud
exists under Indiana law. Moreover, the Plaintiff has not alleged any facts regarding what act by
the Defendant was negligent, what identity fraud occurred, or how the Defendant’s negligent act
was the proximate cause of such identity fraud. Therefore, the Court will grant the Defendant’s
Motion to Dismiss as to the Plaintiff’s claim for negligent enablement of identity fraud.
The FDCPA regulates the conduct only of debt collectors; creditors are specifically
exempt from its provisions. Woods v. Wells Fargo Fin. Bank, 753 F. Supp. 2d 784, 791 (S.D.
Ind. 2010) (“The FDCPA governs debt collectors, not creditors. A bank creditor seeking to
collect on a debt does not become a ‘debt collector’ for purposes of the FDCPA.”); Conner v.
Howe, 344 F. Supp. 2d 1164, 1170 (S.D. Ind. 2004) (“[U]nder the Act, creditors . . . are not
subject to the provisions of the FDCPA.”). The FDCPA defines a “creditor” as “any person who
offers or extends credit creating a debt or to whom debt is owed,” while a “debt collector” is
“any person who . . . regularly collects or attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due to another.” 15 U.S.C. §§ 1692a(4), (6). The Plaintiff has
alleged no facts that plausibly suggest that the Defendant is a debt collector. Rather, his
allegation that the Defendant failed “to notify all credit reporting agencies” indicates that he
believes the Defendant to be a creditor. Therefore, the Plaintiff has not stated a claim under the
FDCPA, and the Court will grant the Defendant’s Motion to Dismiss as to this claim.
For these reasons, the Court GRANTS the Defendant’s Motion to Dismiss [ECF No. 11]
and DISMISSES this case WITHOUT PREJUDICE.
SO ORDERED on December 5, 2017.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
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