Bylett et al v. Bank of America, N.A. et al

Filing 6

OPINION and ORDER Granting Defendant's 3 MOTION to Dismiss Plaintiffs' Complaint Signed by District Judge Gershwin A. Drain. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEVIN BYLETT and DIANE
BARANOWSKI,
Case No. 17-cv-12184
Plaintiff,
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
BANK OF AMERICA, N.A.,

UNITED STATES MAGISTRATE JUDGE
DAVID R. GRAND

Defendant.
__________________________/
OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS [3]
I. Factual Background
This case was originally filed on March 3, 2017 in the 47th Judicial District
Court in Michigan, Small Claims Division. Dkt. No. 1, p. 11 (Pg. ID 11). Plaintiffs,
Kevin Bylett and Diane Baranowski sought $5000.00 from Defendant Bank of
America, pursuant to the Fair Debt Collection Practices Act (FDCPA). Id. The stated
reasons for the claim are as follows:
“failure to follow FDCPA Section 807(8)…false or misleading
representations (15 U.S.C [§]1962e)1 failure to communicate that a
disputed debt is disputed to the credit bureaus (within 30 days)…”

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Contrary to the Plaintiffs’ Complaint, the FDCPA is codified at 15 U.S.C. § 1692,
not 15 U.S.C. § 1962.
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Id. On April 10, 2017 the state court entered a default judgment against the
Defendant in the amount of $5,077.00. Id., p. 7 (Pg. ID 7). On April 26, 2017, the
Defendant filed a Motion to Set Aside the Default Judgment due to improper service.
Id. On June 20, 2017, the state court granted Defendant’s motion. Id.
On July 5, 2017, Plaintiff filed a timely Notice of Removal to federal Court.
Dkt. No. 1; see also Campbell v. Johnson, 201 F.3d 440 (6th Cir. 1999) (“The 30day period for removal runs from the service of the summons on each defendant.”);
Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S. Ct. 1322, 1324,
143 L. Ed. 2d 448 (1999) (holding that the a defendant’s time to remove “is triggered
by simultaneous service of the summons and complaint … but not by mere receipt
of the complaint unattended by any formal service.”).
On July 13, 2017, Defendant filed a Motion to Dismiss Plaintiff’s Complaint.
Dkt. No. 3. Pursuant to Eastern District of Michigan Local Rule 7.1(e)(1)(B), “[a]
response to a dispositive motion must be filed within 21 days after service of the
motion.” More than twenty-one days have lapsed since Defendant served the motion
on the Plaintiffs. The Court has not received any response from the Plaintiffs, but
will nevertheless proceed on the merits on the motion to dismiss.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) allows the court to make an
assessment as to whether the plaintiff has stated a claim upon which relief may be

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granted. See FED. R. CIV. P. 12(b)(6). The court must construe the complaint in favor
of the plaintiff, accept the allegations of the complaint as true, and determine whether
plaintiff’s factual allegations present plausible claims. To survive a Rule 12(b)(6)
motion to dismiss, plaintiff’s pleading for relief must provide “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Id. (citations and quotations omitted). “[T]he tenet that a court must accept as
true all of the allegations contained in a complaint is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 668 (2009). “Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Id. “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Id. The plausibility standard requires
“more than a sheer possibility that a defendant has acted unlawfully.” Id. “[W]here
the well-pleaded facts do not permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the
pleader is entitled to relief.’” Id.
“A document filed pro se is to be liberally construed and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197,
2200, 167 L. Ed. 2d 1081 (2007) (internal citations and quotations omitted).

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Neverthtless, pro se plaintiffs must still meet “basic pleading essentials.” Wells v.
Brown, 891 F.2d 591, 594 (6th Cir. 1989).
III. Analysis
Defendant argues that Plaintiffs’ Complaint fails to state a claim and must be
dismissed because Bank of America is not a debt collector as defined by the Fair
Debt Collection Practices Act. Dkt. No. 3, p. 13 (Pg. ID 13). The Court agrees.
Plaintiffs’ Complaint does not meet basic pleading essentials.
As stated previously Plaintiffs’ Complaint alleged violations of 15 U.S.C. §
1692(e), which states “[a] debt collector may not use any false, deceptive, or
misleading representation or means in connection with the collection of any debt.”
15 U.S.C.A. § 1692e.
The term “debt collector” means 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, directly or indirectly, debts
owed or due or asserted to be owed or due another. Notwithstanding the
exclusion provided by clause (F) of the last sentence of this paragraph,
the term includes any creditor who, in the process of collecting his own
debts, uses any name other than his own which would indicate that a
third person is collecting or attempting to collect such debts. For the
purpose of section 1692f(6) of this title, such term also includes any
person who uses any instrumentality of interstate commerce or the
mails in any business the principal purpose of which is the enforcement
of security interests. The term does not include-….
(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 (i) is incidental to a bona fide fiduciary obligation or a
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bona fide escrow arrangement; (ii) concerns a debt which was
originated by such person; (iii) concerns a debt which was not in
default at the time it was obtained by such person; or (iv)
concerns a debt obtained by such person as a secured party in a
commercial credit transaction involving the creditor.
15 U.S.C.A. § 1692a (emphasis added). “A bank that is ‘a creditor is not a debt
collector for the purposes of the FDCPA and creditors are not subject to the FDCPA
when collecting their accounts.’ ” Montgomery v. Huntington Bank, 346 F.3d 693,
699 (6th Cir. 2003).
In this case, the Defendant owns the debt held by the Plaintiffs. See Dkt. No.
3-2, p. 2 (Pg. ID 35) (showing an equity line of credit agreement between Standard
Federal Bank, N.A., Kevin Bylett, and Diane Baranowski); see also Dkt. No. 3-3, p.
2 (Pg. ID 41) (Federal Deposit Insurance Corporation (FDIC) records indicating that
Standard Federal Bank, N.A. no longer does business under that name because it
merged with Bank of America, N.A.). Therefore, pursuant to the definition of a debt
collector as defined by the FDCPA and the Sixth Circuit, Plaintiff have not stated a
valid claim against the Defendant because Bank of America, N.A owns the
underlying debt.

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IV. Conclusion
For the proceeding reasons, Plaintiffs’ claims against the Defendant for
violations of the FDCPA fail as a matter of law and are DISMISSED. Defendant’s
Motion to Dismiss [3] is GRANTED.
SO ORDERED.

Dated: August 11, 2017
Detroit, MI

s/Gershwin A. Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, August 11, 2017, by electronic and/or ordinary mail.

/s/Teresa McGovern
for
Tanya Bankston
Case Manager, [phone]

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