Farrish v. Navy Federal Credit Union
Filing
24
MEMORANDUM OPINION (c/m to Plaintiff 10/5/17 sat). Signed by Judge Deborah K. Chasanow on 10/5/2017. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
KUKIA R. FARRISH
:
v.
:
Civil Action No. DKC 16-1429
:
NAVY FEDERAL CREDIT UNION
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this debt
collection case is the motion to dismiss filed by Defendant Navy
Federal Credit Union (“Defendant”).
(ECF No. 21).
The issues
have been briefed, and the court now rules, no hearing being
deemed necessary.
Local Rule 105.6.
For the following reasons,
the motion to dismiss will be granted.
I.
Background1
Plaintiff filed the first complaint in the District Court
of Maryland for Prince George’s County on April 8, 2016.
(ECF
No. 1).
Defendant removed the case to federal court on May 12.
(Id.).
Defendant filed a motion to dismiss on May 19, and
Plaintiff responded.
(ECF Nos. 13; 15).
The court dismissed
that complaint on March 2, 2017 for failure to state a claim but
allowed Plaintiff leave to file an amended complaint.
1
(ECF No.
Unless otherwise noted, the facts outlined here are set
forth in the amended complaint and construed in the light most
favorable to Plaintiff.
18).
Plaintiff filed an amended complaint on March 10, 2017,
alleging
a
statutes.
variety
wrongful
acts
and
violations
of
five
(ECF No. 20).
Plaintiff
home,
of
and
alleges
the
that
account
Defendant
called
joint-owner’s
cell
her
phone
cell
phone,
“with
a[n]
automatic voice [message] stating that I owe a balance with
them” and that Defendant called her over “ten times with a human
collection department[.]”
(ECF No. 20, ¶ 1).
Plaintiff further
alleges that Defendant “restrict[ed] all six of [her] accounts”
and called the “credit bureau reporting errors on [Defendant’s]
part, but never updated the account.”
(Id. ¶ 2).
Plaintiff
also alleges that Defendant did not give her any credit card
statements for over a year and took money from her account to
satisfy a debt that she lacked information about.
(Id. ¶ 3).
Plaintiff alleges that Defendant took money from her accounts
and
then
free.”
charged
her
(Id. ¶ 4).
to
run
an
audit
which
“should’ve
been
Plaintiff alleges that Defendant set-up
“post[-]dated payment arrangement[s] without [her] knowledge for
excessive amounts[.]”
(Id. ¶ 5).
Defendant moved to dismiss Plaintiff’s claims on March 24,
2017.
(ECF
No.
21).
Plaintiff
has
not
responded,
despite
receiving notice of the opportunity and necessity to respond.
See Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) (ECF No.
22).
2
II.
Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.
Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
A complaint
need only satisfy the standard of Rule 8(a)(2), which requires a
“short and plain statement of the claim showing that the pleader
is
entitled
to
relief.”
“Rule
8(a)(2)
still
requires
a
‘showing,’ rather than a blanket assertion, of entitlement to
relief.”
(2007).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3
That showing must consist of more than “a formulaic
recitation
of
the
elements
of
a
cause
of
action”
or
assertion[s] devoid of further factual enhancement.”
v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
stage,
all
considered
well-pleaded
as
true,
allegations
Albright
v.
in
a
Oliver,
complaint
510
U.S.
“naked
Ashcroft
At this
must
266,
be
268
(1994), and all factual allegations must be construed in the
light
most
favorable
to
the
plaintiff.
See
Harrison
v.
Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).
In evaluating the complaint, unsupported legal
allegations
not
need
be
accepted.
Revene
Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
v.
Charles
Cty.
Legal conclusions
couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
3
reference to actual events, United Black Firefighters v. Hirst,
604
F.2d
844,
(4th
847
Cir.
1979);
see
also
Francis
v.
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).
Pro se pleadings are liberally construed and held to a less
stringent standard than pleadings drafted by lawyers.
Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)); Haines v. Kerner, 404 U.S. 519, 520
(1972).
Liberal construction means that the court will read the
pleadings
to
state
a
valid
claim
to
the
extent
that
it
is
possible to do so from the facts available; it does not mean
that the court should rewrite the complaint to include claims
never presented.
Cir. 1999).
Barnett v. Hargett, 174 F.3d 1128, 1132 (10th
That is, even when pro se litigants are involved,
the court cannot ignore a clear failure to allege facts that
support a viable claim.
Weller v. Dep’t of Soc. Servs., 901
F.2d 387, 391 (4th Cir. 1990); Forquer v. Schlee, No. RDB–12–969,
2012 WL 6087491, at *3 (D.Md. Dec. 4, 2012) (“[E]ven a pro se
complaint must be dismissed if it does not allege a plausible
claim
for
relief.”
(citation
and
internal
quotation
marks
omitted)).
“The
determination
whether
to
dismiss
with
or
without
prejudice under Rule 12(b)(6) is within the discretion of the
district court.”
(D.Md.
2013)
Weigel v. Maryland, 950 F.Supp.2d 811, 825
(internal
quotation
4
marks
omitted).
“Where
no
opportunity
is
given
to
amend
the
complaint,
should generally be without prejudice.”
Jail
Authority,
524
F.App’x
899,
the
dismissal
Adams v. Sw. Va. Reg’l
900
(4th
Cir.
2013).
Nevertheless, “dismissal with prejudice is proper if there is no
set of facts the plaintiff could present to support his claim.”
Weigel, 950 F.Supp.2d at 826; see McLean v. United States, 566
F.3d
391,
400-01
(4th
Cir.
2009)
(“While
a
potentially
meritorious claim, particularly by a pro se litigant, should not
be unqualifiedly dismissed for failure to state a claim unless
its
deficiencies
are
truly
incurable,
such
an
unqualified
dismissal is entirely proper when the court has reviewed the
claim and found it to be substantively meritless.”) (internal
citation omitted).
Plaintiff was given an opportunity to amend
her original complaint and she did so.
She has not, however,
responded
dismiss
to
Defendant’s
motion
to
the
amended
Telephone
Consumer
complaint.
III. Analysis
A.
Telephone Consumer Protection Act
Plaintiff
claims
a
violation
of
the
Protection Act (“TCPA”), 47 U.S.C. § 227, et seq.
Plaintiff
alleges that Defendant persisted in calling her about a debt
despite “three cease and desist letters.”
(ECF No. 20, ¶ 1).
Defendant argues that the TCPA does not apply to “calls made by
a party attempting to collect a debt owed to it[.]”
5
(ECF No.
21-1, at 3) (quoting Gray v. Wittstadt Title & Escrow Co., LLC,
No.
4:11CV11,
2011
WL
6139521,
*4
(E.D.Va.
Nov.
28,
2011),
aff’d, 475 F.App’x 461 (4th Cir. 2012)).
The
TCPA
prohibits
solicitation practices.
TCPA,
Congress
(“FCC”)
to
allowed
exempt
protections.
certain
problematic
47 U.S.C. § 227(b).
the
Federal
certain
telephone
In enacting the
Communications
phone
calls
47 U.S.C. § 227(b)(1)(B).
from
Commission
the
TCPA’s
Under this authority,
the FCC has exempted calls “made for a commercial purpose but
do[] not include or introduce an advertisement or constitute
telemarketing.”
includes
“a
47 C.F.R. § 64.1200(a)(3)(iii).
debt
collection
holding the debt[.]”
call
on
behalf
This exemption
of
the
company
In the Matter of Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, 7
FCC Rcd. 8752, 8773, ¶ 39 (July 26, 1995); Rantz-Kennedy v.
Discover
(D.Md.
Fin.
2013)
Servs.,
(“Courts
No.
CCB-12-2853,
interpreting
this
2013
WL
3167912,
regulation
*3
routinely
hold that debt collection calls to residences, even those made
to non-debtors, fit within this exemption.”); Worsham v. Acct.
Receivables Mgmt., Inc., No. JKB-10-3051, 2011 WL 5873107, *5
(D.Md. Nov. 22, 2011) (“[D]ebt collection calls fit within an
exemption to the TCPA’s prohibition on prerecorded messages for
calls that do not adversely affect the privacy rights that [the
6
TCPA] is intended to protect and do not include the transmission
of any unsolicited advertisement.”).
Here,
Plaintiff
has
alleged
that
Defendant
made
calls
“stating that [she] owe[d] a balance with them” on her credit
card.
(ECF No. 20 ¶ 1).
A balance on a credit card is the
amount of money due on a credit card, and, thus, the identified
calls were made to collect a debt.
See 15 U.S.C. § 1692a(5).
Therefore, these calls were exempt from the TCPA’s protections.
No
additional
allegations
could
cure
this
defect.
Thus,
Plaintiff’s TCPA claim will be dismissed with prejudice.
B.
Fair Credit Billing Act
Plaintiff claims a violation of the Fair Credit Billing Act
(“FCBA”), 15 U.S.C. § 1666, et seq.
“cash
rewards
credit
card
was
Plaintiff alleges that her
closed”
and
that
she
and
Defendant’s representative then “transferred funds from [her]
checking account of $800.00 paying a past due amount . . . .
[Defendant]
called
the
credit
bureau
reporting
[Defendant’s] part, but never updated the account.”
20, ¶ 2).
errors
on
(ECF No.
Defendant argues this information is insufficient to
state a claim under the FCBA, and that any claim is time barred.
(ECF No. 21-1, at 5-6).
“To succeed on an FCBA claim, a plaintiff must show (l) the
existence of a billing error, (2) timely notification of the
billing error, and (3) failure of the bank issuing the card to
7
comply with the procedural requirements of § 1666.”
Murr v.
Capital One Bank (USA), N.A., 28 F.Supp.3d 575, 593 (E.D.Va.
2014)
(internal
quotation
marks
omitted);
Rigby
v.
FIA
Card
Servs., N.A., 490 F.App’x 230, 235 (11th Cir. 2012); Beaumont v.
Citibank
(South
Dakota)
N.A.,
No.
DLC-01-cv-3993,
483431, *3 (S.D.N.Y. March 28, 2002).
must
be
filed
within
one
year
2002
WL
Moreover, such a claim
of
the
alleged
Plaintiff has not alleged a billing error.
violation.
Plaintiff admits to
authorizing the transfer of $800.00 and does not allege that the
“cash rewards [card] was closed” in error.
1666(b).
Plaintiff
also
fails
to
allege
See 15 U.S.C. §
that
she
notified
Defendant of any error within sixty days of receiving the error
or
that
Defendant
requirements.
failed
to
follow
the
See 15 U.S.C. § 1666(a).
FCBA’s
procedural
In addition, any such
claim would have arisen in 2012 and the complaint was not filed
until 2016, indicating that the one year statute of limitations
is a bar.
defense,
Although the statute of limitations is an affirmative
and
ordinarily
is
not
considered
on
a
motion
to
dismiss, this is one of those rare circumstances where the facts
relevant
to
Furthermore,
the
defense
Plaintiff’s
are
failure
alleged
to
in
respond
the
to
complaint.
the
motion
indicates an abandonment of the claim and certainly deprives the
court
of
any
reason
to
question
8
the
assertions
made
by
Defendant.
Accordingly,
Plaintiff’s
FCBA
claim
will
be
dismissed with prejudice.
Truth in Lending Act2
C.
Plaintiff claims a violation of the Truth in Lending Act
(“TILA”), 15 U.S.C. § 1601, et seq.
agreed
to
paperless
billing,
She alleges that, after she
Defendant
“froze
[her]
accounts
online due to [her] credit card having a balance, so [she] had
not received ANY statements in ANY form for over a year, because
[she] didn’t have online access, even after [she had] ask[ed]
them to change it back to mail.”
original).
(ECF No. 20, ¶ 3) (emphasis in
Defendant argues that this claim is time-barred by
the TILA’s one-year statute of limitations.
(ECF No. 21-1, at
6-7).
The TILA requires a “creditor” to make certain disclosures
to the obligor “for each billing cycle at the end of which there
is
an
outstanding
1637(b).
balance
in
that
account[.]”
15
U.S.C.
§
Plaintiff appears to allege that she did not receive
those disclosures.
The amended complaint, however, does not say
when she lost access to the statements and when she regained
2
The amended complaint asserts a violation of “the CCA, 15
U.S.C. § 1637(b)[.]”
(ECF No. 20, ¶ 3).
15 U.S.C. § 1637 is
part of the Truth In Lending Act. See PL 93–495 (HR 11221), PL
93–495, Oct. 28, 1974, 88 Stat 1500. The reference to “CCA” may
have been a mistake as the Consumer Credit Protection Act
(“CCPA”) is the full name of the law which is commonly known by
reference to its first title, the Truth in Lending Act (“TILA”).
See Gerasta v. Hibernia Nat’l Bank, 411 F.Supp. 176, 181
(E.D.La. 1975); 12 C.F.R. § 226.1(a).
9
access via mail.
As such, the complaint fails to “give the
defendant fair notice of what the claim is and the grounds upon
which it rests.”
marks
and
without
Erickson, 551 U.S. at 93 (internal quotation
alteration
omitted).
contradiction,
that
Defendant’s
Plaintiff
is
motion
alleging
posits,
that
she
failed to receive statements until April 2013, well more than
one
year
prior
to
the
filing
of
this
action.
Therefore,
Plaintiff’s claim of a TILA violation will be dismissed with
prejudice.
D.
Fair Debt Collection Practices Act
Plaintiff claims a violation of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq.
Plaintiff
alleges that Defendant “continued to seek and steal more than
supposed amounts . . . to resolve this made up debt, from 4 of
my different accounts.”
(ECF No. 20, ¶ 4).
Defendant asserts
that they are not a debt collector for the purposes of the
FDCPA.
(ECF No. 21-1, at 7-8).
The FDCPA only applies to debt collectors and defines a
“debt
collector”
as
an
entity
“who
regularly
collects
or
attempts to collect, directly or indirectly, debts owed or due
or asserted to be owed or due another.”
(emphasis added).
15 U.S.C. § 1692a(6)
In comparison, the FDCPA defines a “creditor”
as an entity “who offers or extends credit creating a debt.”
1692a(4).
§
Even when a creditor collects a debt, it is not
10
collecting a debt due another, and, therefore, the FDCPA does
not apply to creditors.
15 U.S.C. §§ 1692a(4), 1692a(6).
Thus,
“the FDCPA does not apply to any person collecting on a debt
that it ‘originated.’”
Ademiluyi v. PennyMac Morg. Inv. Trust
Holdings I, LLC, 929 F.Supp.2d 502, 525 (D.Md. 2013) (quoting 15
U.S.C. § 1692a(6)(F)(ii)).
Here, Defendant issued the credit
card it was attempting to collect on and therefore it is not
subject to the FDCPA.
Hart v. P. Rehab of Md., P.A., No. ELH-
12-2608, 2013 WL 5212309, at *10 (D.Md. Sept. 13, 2013) (“The
FDCPA does not, however, apply to creditors collecting debts in
their own names”); Ausar-El v. Barclay Bank Delaware, No. PJM12-0082,
2012
WL
3137151,
at
*2
(D.Md.
July
31,
2012)
(“It
follows, as numerous courts have held, that creditors collecting
their own debts are not ‘debt collectors’ for the purposes of
the FDCPA.”).
Thus, the FDCPA claim will be dismissed with
prejudice.
E.
Electronic Funds Transfer Act
Plaintiff
claims
violations
of
two
sections
of
the
Electronic Funds Transfer Act (“EFTA”), 15 U.S.C. § 1693, et
seq.
Plaintiff first alleges that Defendant violated 15 U.S.C.
§ 1693h stating that she had “made 12 month arrangements to
ensure [Defendant] and [herself] that there is no issue with
payment EXCEPT for the balance due.
set
up
the
arrangements
.
.
.
11
[Defendant] never in 4 year
.
[She
would]
get
declined
somewhere, call the bank, and accounts [were] frozen . . . and
funds were available.”
original).
Defendant
(ECF No. 20, ¶ 5) (emphasis in the
argues
that
Plaintiff
has
failed
to
identify a transfer covered by the EFTA and that any claim is
time-barred.
Plaintiff’s complaint does not identify which provision of
15 U.S.C. § 1693h was violated.
Plaintiff may be making a claim
that failing to authorize credit card transactions, when funds
were available, violated the EFTA.
(ECF No. 20, ¶ 5).
The
EFTA, however, only “applies to electronic fund transfers from a
‘consumer
savings
account,’
deposit,
which
or
is
other
defined
asset
as
a
‘demand
account.’”
deposit,
Sanford
v.
MemberWorks, Inc., 625 F.3d 550, 560 (9th Cir. 2010) (quoting 15
U.S.C. § 1693a(2)).
“‘Importantly, because [the] EFTA deals
with electronic funds transferred directly from bank accounts,
it applies to debit cards, but not credit cards.’”
White v.
Chase Bank USA, N.A., No. 5:16-cv-00176-BR, 2017 WL 1131898, *5
(E.D.N.C.
Bank,
March
N.A.,
24,
No.
2017)
(quoting
13:2100-JDT-dkv,
Walker
2013
WL
v.
JPMorgan
2151713,
Chase
at
*5
(W.D.Tenn. May 16, 2013); Sanford, 625 F.3d at 560 (“[The EFTA]
does
not
apply
Defendant’s
to
failure
credit-based
to
transactions.”).
authorize
Plaintiff’s
Therefore,
credit
card
transaction is not a violation of the EFTA, and thus Plaintiff
has failed to state a claim under the EFTA.
12
Plaintiff may also be alleging that Defendant allowed for a
greater
than
due
regular basis.
amount
to
be
taken
(ECF No. 20, ¶ 5).
from
her
account
on
a
Under the EFTA, a financial
institution is liable for its “failure to stop payment of a
preauthorized transfer from a consumer’s account when instructed
to
do
so[.]”
15
U.S.C.
§
1693h(3).
The
second
amended
complaint, however, does not clearly state whether the transfers
were
unauthorized,
what,
if
any,
instructions
Defendant, and when the transfers were made.
this
information,
the
adequate information.
amended
complaint
Plaintiff
gave
Obviously, without
does
not
disclose
As with the other claims, however, the
facts alleged indicate that any claim arose more than a year
prior
to
the
filing
of
the
complaint
and
is
barred.
Therefore, Plaintiff’s claim under 15 U.S.C. § 1693h will be
dismissed with prejudice.
Plaintiff also claims a violation of 15 U.S.C. § 1693f.
Plaintiff
alleges
that
Defendant
“set[]
up
postdated
payment
arrangement[s] without [her] knowledge for excessive amounts,
several times a month, to pay a questionable past due balance[]
. . . . [and] communicat[ed] through mail to [her] joint owner
regarding [her] cash reward credit card.”
Defendant argues that
there are not sufficient facts to determine if there was an
unauthorized transfer and whether Plaintiff properly disputed
13
the transaction.
untimely.
Defendant asserts, regardless, the claim is
(ECF No. 21-1, at 9).
15 U.S.C. § 1693f provides relief for consumers when they
notify a financial institution about an error within sixty days
of receiving documentation of the error.
situation,
the
financial
institution
§ 1693f(a).
“shall
In such a
investigate
the
alleged error” and provide the consumer with a report about the
investigation within ten business days.
Id.; Gale v. Hyde Park
Bank, 384 F.3d 451, 453 (7th Cir. 2004).
In support of her
Section 1693f, Plaintiff fails to allege that she contacted the
Defendant, provided them with the required information, or that
Defendant then failed to investigate.
Indeed, Plaintiff has
failed
and
to
identify
the
specific
error
has
instead
made
accusations potentially unrelated to the statute at issue.
such,
Plaintiff
statement
has
showing
Fed.R.Civ.P. 8(a)(2).
failed
that
to
[she]
provide
is
“a
short
entitled
to
and
As
plain
relief.”
As with the other claims, any violation
would have arisen more than a year prior to the filing of this
complaint.
Therefore, Plaintiff’s claim pursuant to 15 U.S.C. §
1693f will be dismissed with prejudice.
14
IV.
Conclusion
For the foregoing reasons, the motion to dismiss filed by
Defendant
granted.
Navy
Federal
Credit
Union,
(ECF
No.
21),
will
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
15
be
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