Farrish v. Navy Federal Credit Union
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
Civil Action No. DKC 16-1429
NAVY FEDERAL CREDIT UNION
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).
have been briefed, and the court now rules, no hearing being
Local Rule 105.6.
For the following reasons,
the motion to dismiss will be granted.
Plaintiff filed the first complaint in the District Court
of Maryland for Prince George’s County on April 8, 2016.
Defendant removed the case to federal court on May 12.
Defendant filed a motion to dismiss on May 19, and
(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.
Unless otherwise noted, the facts outlined here are set
forth in the amended complaint and construed in the light most
favorable to Plaintiff.
Plaintiff filed an amended complaint on March 10, 2017,
(ECF No. 20).
automatic voice [message] stating that I owe a balance with
them” and that Defendant called her over “ten times with a human
(ECF No. 20, ¶ 1).
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).
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
(Id. ¶ 4).
Plaintiff alleges that Defendant set-up
“post[-]dated payment arrangement[s] without [her] knowledge for
(Id. ¶ 5).
Defendant moved to dismiss Plaintiff’s claims on March 24,
receiving notice of the opportunity and necessity to respond.
See Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) (ECF No.
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).
need only satisfy the standard of Rule 8(a)(2), which requires a
“short and plain statement of the claim showing that the pleader
‘showing,’ rather than a blanket assertion, of entitlement to
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3
That showing must consist of more than “a formulaic
assertion[s] devoid of further factual enhancement.”
v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
(1994), and all factual allegations must be construed in the
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
Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
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.
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
Liberal construction means that the court will read the
possible to do so from the facts available; it does not mean
that the court should rewrite the complaint to include claims
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
prejudice under Rule 12(b)(6) is within the discretion of the
Weigel v. Maryland, 950 F.Supp.2d 811, 825
should generally be without prejudice.”
Adams v. Sw. Va. Reg’l
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
meritorious claim, particularly by a pro se litigant, should not
be unqualifiedly dismissed for failure to state a claim unless
dismissal is entirely proper when the court has reviewed the
claim and found it to be substantively meritless.”) (internal
Plaintiff was given an opportunity to amend
her original complaint and she did so.
She has not, however,
Telephone Consumer Protection Act
Protection Act (“TCPA”), 47 U.S.C. § 227, et seq.
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[.]”
21-1, at 3) (quoting Gray v. Wittstadt Title & Escrow Co., LLC,
aff’d, 475 F.App’x 461 (4th Cir. 2012)).
47 U.S.C. § 227(b).
In enacting the
47 U.S.C. § 227(b)(1)(B).
Under this authority,
the FCC has exempted calls “made for a commercial purpose but
do not include or introduce an advertisement or constitute
47 C.F.R. § 64.1200(a)(3)(iii).
holding the debt[.]”
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.
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
TCPA] is intended to protect and do not include the transmission
of any unsolicited advertisement.”).
“stating that [she] owe[d] a balance with them” on her credit
(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.
Plaintiff’s TCPA claim will be dismissed with prejudice.
Fair Credit Billing Act
Plaintiff claims a violation of the Fair Credit Billing Act
(“FCBA”), 15 U.S.C. § 1666, et seq.
Plaintiff alleges that her
Defendant’s representative then “transferred funds from [her]
checking account of $800.00 paying a past due amount . . . .
[Defendant’s] part, but never updated the account.”
20, ¶ 2).
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
comply with the procedural requirements of § 1666.”
Capital One Bank (USA), N.A., 28 F.Supp.3d 575, 593 (E.D.Va.
Servs., N.A., 490 F.App’x 230, 235 (11th Cir. 2012); Beaumont v.
483431, *3 (S.D.N.Y. March 28, 2002).
Moreover, such a claim
Plaintiff has not alleged a billing error.
Plaintiff admits to
authorizing the transfer of $800.00 and does not allege that the
“cash rewards [card] was closed” in error.
See 15 U.S.C. §
Defendant of any error within sixty days of receiving the error
See 15 U.S.C. § 1666(a).
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.
Although the statute of limitations is an affirmative
dismiss, this is one of those rare circumstances where the facts
indicates an abandonment of the claim and certainly deprives the
dismissed with prejudice.
Truth in Lending Act2
Plaintiff claims a violation of the Truth in Lending Act
(“TILA”), 15 U.S.C. § 1601, et seq.
She alleges that, after she
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.”
(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
The TILA requires a “creditor” to make certain disclosures
to the obligor “for each billing cycle at the end of which there
Plaintiff appears to allege that she did not receive
The amended complaint, however, does not say
when she lost access to the statements and when she regained
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).
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.”
Erickson, 551 U.S. at 93 (internal quotation
failed to receive statements until April 2013, well more than
Plaintiff’s claim of a TILA violation will be dismissed with
Fair Debt Collection Practices Act
Plaintiff claims a violation of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq.
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).
that they are not a debt collector for the purposes of the
(ECF No. 21-1, at 7-8).
The FDCPA only applies to debt collectors and defines a
attempts to collect, directly or indirectly, debts owed or due
or asserted to be owed or due another.”
15 U.S.C. § 1692a(6)
In comparison, the FDCPA defines a “creditor”
as an entity “who offers or extends credit creating a debt.”
Even when a creditor collects a debt, it is not
collecting a debt due another, and, therefore, the FDCPA does
not apply to creditors.
15 U.S.C. §§ 1692a(4), 1692a(6).
“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,
follows, as numerous courts have held, that creditors collecting
their own debts are not ‘debt collectors’ for the purposes of
Thus, the FDCPA claim will be dismissed with
Electronic Funds Transfer Act
Electronic Funds Transfer Act (“EFTA”), 15 U.S.C. § 1693, et
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.
[Defendant] never in 4 year
somewhere, call the bank, and accounts [were] frozen . . . and
funds were available.”
(ECF No. 20, ¶ 5) (emphasis in the
identify a transfer covered by the EFTA and that any claim is
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).
EFTA, however, only “applies to electronic fund transfers from a
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.’”
Chase Bank USA, N.A., No. 5:16-cv-00176-BR, 2017 WL 1131898, *5
(W.D.Tenn. May 16, 2013); Sanford, 625 F.3d at 560 (“[The EFTA]
transaction is not a violation of the EFTA, and thus Plaintiff
has failed to state a claim under the EFTA.
Plaintiff may also be alleging that Defendant allowed for a
(ECF No. 20, ¶ 5).
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
complaint, however, does not clearly state whether the transfers
Defendant, and when the transfers were made.
As with the other claims, however, the
facts alleged indicate that any claim arose more than a year
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.
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
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.
In such a
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
accusations potentially unrelated to the statute at issue.
As with the other claims, any violation
would have arisen more than a year prior to the filing of this
Therefore, Plaintiff’s claim pursuant to 15 U.S.C. §
1693f will be dismissed with prejudice.
For the foregoing reasons, the motion to dismiss filed by
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
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