Campbell et al v. Wells Fargo Bank, NA et al

Filing 53

ORDER granting 26 Motion to Dismiss for Failure to State a Claim; granting 26 Motion to Dismiss for Lack of Jurisdiction; granting in part and denying in part 28 Motion to Strike. The parties are reminded to read the order in its entirety. Signed by Chief Judge James C. Dever III on 10/22/2014. Copy sent to the plaintiffs via US mail to 8836 Campfire Trail, Raleigh, NC 27615. (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-785-D

JERRY CAMPBELL, SR.,
and KAREN CAMPBELL,
Plaintiffs,

v.

)
)
)
)
)

)

WELLS FARGO BANK, N.A., et al.,
Defendants.

ORDER

)
)
)
)

On November 7, 2013, Jerry Campbell, Sr., and Karen Campbell ("Campbells" or
"plaintiffs") sought leave to proceed in forma pauperis and to file a pro se complaint against Wells
Fargo Bank, N.A. ("Wells Fargo"), Wells Fargo Personal Credit Management ("Wells Fargo PCM''),
and Kathleen King (a Wells Fargo vice president) (collectively "defendants"). See [D.E. 1]; Compl.
[D.E. 12]. On April4, 2014, plaintiffs filed the complaint [D.E. 12]. In the complaint, plaintiffs
seek damages for alleged violations of the Fair Debt Collection Practice Act ("FDCPA"), 15 U.S.C.
§§ 1692-1692p, theNorthCarolinaDebtCollectionAct(''NCDCA"), N.C. Gen. Stat.§§ 75-50-7556, and the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681-1681x. On April24, 2014,
plaintiffs filed their first amended complaint ("FAC") seeking damages under the same statutes, but
adding Jack 0. Clayton, regional presidentofWells Fargo, as a defendant. See PAC [D.E. 19]. On
April25, 2014, without obtaining defendants' written consent or the court's leave under Federal
Rule of Civil Procedure 15(a)(2), plaintiffs filed a second amended complaint ("SAC") seeking
damages from the same four defendants under the FDCPA, the NCDCA, and the FCRA. See SAC
[D.E. 20].

On May 26, 2014, defendants filed a motion to dismiss the FAC under Federal Rules of Civil
Procedure 12(b)(4 ), 12(b)(5), and 12(b)(6). See [D .E. 26]. Defendants also filed a motion to strike
the SAC under Rules 12(t) and 15(a)(2).

See [D.E. 28]; Fed. R. Civ. P. 12(t), 15(a)(2).

Alternatively, defendants asked the court to construe the SAC as a motion for leave to file the SAC
and to deny as futile leave to plaintiffs to file the SAC. See [D.E. 28] 1. Plaintiffs responded [D.E.
39], and defendants replied [D.E. 41]. As explained below, the court grants defendants' motion to
dismiss the FAC and denies as futile leave to plaintiffs to file the SAC.

I.
The Campbells are upset that, during the postmerger, corporate transition from Wachovia
Bank to Wells Fargo, the bank's online payment system did not work properly and they could not
make timely online payments on their Wachovia Bank line of credit. See

PAC~

9. As a result,

Wells Fargo's records initially showed their account to be in arrears. In addition, Wells Fargo
initially charged late fees, pursued collection efforts, and closed the line of credit. See id. ~~ 9-12.
Ultimately, after numerous communications between the Campbells and Wells Fargo, Wells Fargo
reversed the late fees and ceased collection efforts. Wells Fargo, however, did not allow the
Campbells to reopen their line of credit. See id.

In moving to dismiss plaintiffs' FAC, defendants King and Clayton contend that plaintiffs
never properly served them under Rule 4 of the Federal Rules of Civil Procedure and seek dismissal
under Rule 12(b)(4) for "insufficient process" and Rule 12(b)(5) for "insufficient service ofprocess."
See Defs' Mem. [D.E. 27] 3-4; Fed. R. Civ. P. 12(b)(4), (5). Plaintiffs concede that they have no
personal knowledge concerning whether and how King and Clayton were served. See Pls.' Resp.
[D.E. 39] 6. Moreover, the record does not reflect proper service on these individuals. Cf. Fed. R.
Civ. P. 4(e). Accordingly, plaintiffs have failed to establish the validity of service under Rule 4 of

2

the Federal Rules of Civil Procedure. See,~. Pitts v. O'Geary. No. 5:13-CV-116-D, 2014 WL
229350, at *4-5 (E.D.N.C. Jan. 21, 2014) (unpublished), Pitts v. O'Geary, 914 F. Supp. 2d 729,
733-34 (E.D.N.C. 2012); Thomas v. Green Point Mortg. Funding, No. 5:11-CV-365-D, 2011 WL
2457835, at *1 (E.D.N.C. June 16, 2011) (unpublished); Cherryv. Spence, 249 F.R.D. 226,228-29
(E.D.N.C. 2008). Thus, the court dismisses the FAC against King and Clayton without prejudice
pursuant to Rule 12(b)(4) and 12(b)(5).
The two remaining corporate defendants, Wells Fargo and Wells Fargo PCM, seek dismissal
under Rule 12(b)(6) for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P.
12(b)(6). A Rule 12(b)(6) motion tests whether the complaint is legally and factually sufficient. See
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atl. Com. v. Twombly, 550 U.S. 544, 562--63,
570 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 132 S. Ct.
1327 (2012); Giarratano v. Johnson, 521 F.3d 298,302 (4th Cir. 2008); accord Erickson v. Pardus,
551 U.S. 89, 93-94 (2007) (per curiam). In considering a motion to dismiss, a court need not accept
a complaint's legal conclusions drawn from the facts.

See,~.

Iqbal, 556 U.S. at 678. Similarly,

a court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments."
Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 677-79.
The legal sufficiency of a complaint depends, in part, on whether it meets the standards for
a pleading stated in Federal Rule of Civil Procedure 8. See Francis v. Giacomelli, 588 F .3d 186, 192
(4th Cir. 2009). Under Rule 8(a)(2), a complaint must contain "a short and plain statement of the
claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 8(a)(2) aims to
ensure that the defendant has adequate notice of the nature of the claims against it. See, ~. Francis,
588 F.3d at 192.

3

As for a complaint's factual sufficiency, a party must plead "enough facts to state a claim to
relief that is plausible on its face." Twombly, 550 U.S. at 570. "[N]aked assertions of wrongdoing,"
devoid of "factual enhancement," cannot "cross the line between possibility and plausibility of
entitlement to relief." Francis, 588 F .3d at 193 (quotations omitted). A plaintiff armed with nothing
more than "labels and conclusions," or "a formulaic recitation of the elements of a cause of action,"
cannot proceed into the litigation process. Twombly, 550 U.S. at 555; see Francis, 588 F.3d at 193.
Although a court must liberally construe a pro se plaintiff's allegations, it "cannot ignore a
clear failure to allege facts" that set forth a cognizable claim. Johnson v. BAC Home Loans
Servicing. LP, 867 F. Supp. 2d 766,776 (E.D.N.C. 2011); see Giarratano, 521 F.3d at 304 n.S. "The
'special judicial solicitude' with which a district court should view ... pro se complaints does not
transform the court into an advocate. Only those questions which are squarely presented to a court
may properly be addressed." Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Every party-pro se or otherwise-must comply with the Federal Ru1es of Civil Procedure. See
Iqbal, 556 U.S. at 678; Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (per
curiam).
In count one, plaintiffs allege that defendants violated the FDCPA. See FAC ~~ 13-16. To

state a claim under the FDCPA, plaintiffs must plausibly allege that (1) they were the object of
collection activity arising from consumer debt as defined in the FDCPA; (2) defendants are debt
collectors as defined in the FCDPA; and (3) defendants engaged in an act or omission prohibited by
the FDCPA. See,~. Boosahda v. Providence Dane LLC, 462 F. App'x 331, 333 n.3 (4th Cir.
2012) (per curiam) (unpublished); Salley v. Bank of Am .. N.A., No. 5:13-CV-753-D, 2014 WL
2768660, at *4 (E.D.N.C. June 18, 2014) (unpublished); Johnson, 867 F. Supp. at 776.

4

Plaintiffs' FDCPA claim in count one fails because defendants, as the originator of the debt
at issue, are not "debt collectors" under the FDCPA.

See,~.

15 U.S.C. § 1692a(6)("The term

'debt collector' means any person ... who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due another."); id. § 1692a(6)(F) ("The term
['debt collector'] does not include ... 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 concerns a debt which was
originated by such person ...."); Wilson v. Draper & Golding. P.L.L.C., 443 F.3d 373,379 n.2 (4th
Cir. 2006); Montgomery v. Huntington Bank, 346 F .3d 693, 698-99 (6th Cir. 2003 ); Perry v. Stewart
Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985); Salley, 2014 WL 2768660, at *4; Scott v. Wells
Fargo Home Mortg. Inc., 326 F. Supp. 2d 709, 717 (E.D. Va. 2003). Accordingly, the court
dismisses count one for failure to state a claim upon which relief can be granted.
In count two, plaintiffs confuse two different statutes: the Collection Agencies Act, N.C.
Gen. Stat. §§ 58-70-58-70-155, and the North Carolina Debt Collection Act, N.C. Gen. Stat. §§ 7550-75-56. See FAC ~~ 17-20. Under the Collection Agencies Act, neither Wells Fargo nor Wells
Fargo PCMisa "collection agency" asdefmedinN.C. Gen. Stat.§ 58-70-15(c). See N.C. Gen. Stat.
§ 58-70-15(c)(2) ('Collection agency' does not mean Banks, trust companies, or bank-owned,
controlled or related firms, corporations or associations engaged in accounting, bookkeeping or data
processing services where a primary component of such service is the rendering of statements of
accounts and bookkeeping services for creditors."); id. § 5 8-70-15(c)( 11) ('Collection agency' does
not mean any person attempting to collect or collecting claims, in that person's name, of a business
or businesses owned wholly or substantially by that person."). Accordingly, in count two, plaintiffs
have failed to state a claim upon which relief can be granted under the Collection Agencies Act
against any defendant.

5

As for plaintiffs' claim in count two under the NCDCA, to state a claim a plaintiff must
plausibly allege that (1) the alleged obligation is a "debt"; (2) the claimant owing the obligation is
a "consumer"; and (3) the party attempting to collect the obligation is a "debt collector." Fritz v.
Duke Energy Carolinas. LLC, No. 5:13-CV-724-D, 2014 WL 3721373, at *3 (E.D.N.C. July 24,
2014) (unpublished); DIRECTV. Inc. v. Cephas, 294 F. Supp. 2d 760,763 (M.D.N.C. 2003); Davis
Lake Cmty. Ass'n v. Feldm~ 138 N.C. App. 292,295,530 S.E.2d 865, 868 (2000); Reid v. Ayers,
138 N.C. App. 261, 263, 531 S.E.2d 231, 233 (2000); see N.C. Gen. Stat. § 75-50 (defining
"consumer," "debt," and "debt collector''). After satisfying these threshold requirements, a plaintiff
also must plausibly allege the general elements ofan unfair and deceptive trade practices claim under
North Carolina law: an unfair act, in or affecting commerce, proximately causing injury. See, ~.
Ross v. FDIC, 625 F.3d 808, 817 (4th Cir. 2010); Fritz, 2014 WL 3721373, at *3;

Feldm~

138

N.C. App. at 296, 530 S.E.2d at 868; Reid, 138 N.C. App. at 265-66, 531 S.E.2d 234-35.
The court assumes without deciding that plaintiffs have plausibly alleged in count two the
NCDCA 's three threshold requirements. Thus, the court examines whether plaintiffs have plausibly
alleged in count two the three elements of an unfair and deceptive trade practices claim.
First, in count two, plaintiffs allege that defendants violated N.C. Gen. Stat. § 75-53 "by
disclosing information concerning the existence of a debt known to be reasonably disputed by the
debtor without reasonably disclosing that fact." FAC ~ 20(a). 1 Plaintiffs also allege without
elaboration that defendants reported false information to ''the credit reporting agencies." Id.

~

10.

However, section 75-53(1)(b) exempts communications "[t]o persons employed by the debt
collector, to a credit reporting agency, to a person or business employed to collect the debt on behalf
1

Plaintiffs cite section 75-50 in paragraph 20(a) of the FAC; however, the citation appears
to be a typographical error. The only possible section that applies in paragraph 20(a) of the FAC is
section 75-53.

6

of the creditor, or to a person who makes a legitimate request for the information." N.C. Gen. Stat.
§ 75-53(b)(1 ). Accordingly, section 75-53(1 )(b) defeats plaintiffs' claim in count two under section
75-53.
Next, in count two, plaintiffs allege that defendants violated the Collection Agencies Act,
N.C. Gen. Stat.§ 58-70. See FAC ~ 20(b). As explained, however, defendants are not collection
agencies under that Act. See N.C. Gen. Stat. § 58-70-15(c)(2). Thus, the claim fails. Alternatively,
under the NCDCA, defendants were permitted to communicate with credit reporting agencies. See
N.C. Gen. Stat. § 75-53(1 )(b). Moreover, and in any event, the correspondence from the defendants
to plaintiffs attached to the FAC does not include any threats or anything deceptive. See FAC Exs.
3, 11; cf. Fritz, 2014 WL 3721373, at *4.
Finally, in count two, plaintiffs allege that defendants violated the NCDCA by
unconscionably collecting fees associated with the debt. See FAC ~ 20(c); N.C. Gen. Stat. § 7555(2). The FAC, however, states that defendants reversed all fees once defendants completed their
account investigation. See FAC ~ 9. Thus, plaintiffs have failed to plausibly allege that defendants
used unconscionable means under section 75-55(2) to collect a debt. Cf. Costin v. Ally Bank Cor_p.,
No. 7:13-CV-113-80,2014 WL 130527,at*2(E.D.N.C.Jan.13,2014)(unpublished). Accordingly,
plaintiffs have failed to state a claim upon which relief can be granted in count two.
In theirthirdandfourthclaims,plaintiffsallegethatdefendants violated 15 U.S.C. §§ 1681s2(a) and 1681s-2(b)(1) of the FCRA. See FAC

~~

21-28. Specifically, plaintiffs allege that

defendants are furnishers of information under 15 U.S.C. § 1681s-2. See FAC ~ 23. Plaintiffs then
allege that defendants violated section 1681s-2(a)(3) and section 1681s-2(b)(1)(A)-(C), and they
seek damages. See FAC ~~ 24(a)-(d), 28(a)-(d). Count three alleges a willful violation. See id.
~~

21-24. Count four alleges a negligent violation. See id.
7

~~

25-28.

In order to analyze the claims in counts three and four, the court begins with the statutory
language. Section 1681s-2(a) states, in part:
(a) Duty of furnishers of information to provide accurate information
(1) Prohibition
(A) Reporting information with actual knowledge of errors
A person shall not furnish any information relating to a consumer to any consumer
reporting agency if the person knows or has reasonable cause to believe that the
information is inaccurate.
(B) Reporting information after notice and confirmation of errors
A person shall not furnish information relating to a consumer to any consumer
reporting agency if-(i) the person has been notified by the consumer, at the address specified by the
person for such notices, that specific information is inaccurate; and
(ii) the information is, in fact, inaccurate.
(C) No address requirement
A person who clearly and conspicuously specifies to the consumer an address for
notices referred to in subparagraph (B) shall not be subject to subparagraph (A);
however, nothing in subparagraph (B) shall require a person to specify such an
address.
(D) Definition
For purposes of subparagraph (A), the term "reasonable cause to believe that the
information is inaccurate" means having specific knowledge, other than solely
allegations by the consumer, that would cause a reasonable person to have
substantial doubts about the accuracy of the information....
(3) Duty to provide notice of dispute
If the completeness or accuracy of any information furnished by any person to any
consumer reporting agency is disputed to such person by a consumer, the person
may not furnish the information to any consumer reporting agency without notice
that such information is disputed by the consumer.
15 U.S.C. § 1681s-2(a)(1), (3).
Section 1681s-2(b)(1) states:
After receiving notice pursuant to section 1681 i(a)(2) of this title of a dispute with
regard to the completeness or accuracy of any information provided by a person to
a consumer reporting agency, the person shall (A) conduct an investigation with respect to the disputed information;
(B) review all relevant information provided by the consumer reporting agency
pursuant to section 1681i(a)(2) of this title;
8

(C) report the results of the investigation to the consumer reporting agency;
(D) if the investigation finds that the information is incomplete or inaccurate, report
those results to all other consumer reporting agencies to which the person
furnished the information and that compile and maintain files on consumers on
a nationwide basis; and
(E) if an item of information disputed by a consumer is found to be inaccurate or
incomplete or cannot be verified after any reinvestigation under paragraph (1 ),
for purposes of reporting to a consumer reporting agency only, as appropriate,
based on the results of the reinvestigation promptly (i) modify that item of information;
(ii) delete that item of information; or
(iii) permanently block the reporting of that item of information.
15 u.s.c. § 1681s-2(b)(1).
The FCRA does not define "furnishers of information." Ross v. Wash. Mut. Bank, 566 F.
Supp. 2d 468, 475 n.l (E.D.N.C. 2008), affd, 625 F.3d 808 (4th Cir. 2010). The court assumes
without deciding that defendants are "furnishers of information."
As for plaintiffs' claims in counts three and four under section 1681 s-2(a), there is no private
right of action for violating 15 U.S.C. § 1681s-2(a). See,

~'

15 U.S.C. § 1681s-2(c)(1), (d);

Saunders v. Branch Banking & Trust Co. ofVa., 526 F.3d 142, 149 (4th Cir. 2008); Craighead v.
Nissan Motor Acceptance Cor.p., No. 1:10CV981 (JCC/JFA), 2010 WL 5178831, at *4 (E.D.Va.
Dec. 14, 2010) (unpublished), affd, 425 Fed. App'x 197 (4th Cir. 2011) (per curiam) (unpublished);
accord Longman v. Wachovia Bank. N.A., 702 F.3d 148, 151 (2d Cir. 2012) (per curiam); Boggio
v. USAA Fed. Sav. Bank, 696 F.3d 611,615-16 (6th Cir. 2012); Sanders v. Mountain Am. Fed.
Credit Union, 689 F.3d 1138, 1147 (10thCir. 2012); Purcell v. Bank of Am., 659 F.3d622, 623 (7th
Cir. 2011); SimmParris v. Counttywide Fin. Cor.p., 652 F.3d 355, 358 (3d Cir. 2011); Gorman v.
Wolpoff & Abramson. LLP, 584 F.3d 1147, 1154 (9th Cir. 2009). Thus, the court dismisses
plaintiffs' claims in counts three and four under section 1681s-2(a).

9

As for plaintiffs' claims in counts three and four under 1681s-2(b)(1), in order to state a
claim, a plaintiff must plausibly allege
[T]hat after he or she notified a consumer reporting agency of a dispute, the agency notified
the defendant furnisher of the information of the dispute, after which defendant failed to
adequately investigate; notice by a consumer directly to the furnisher ofthe information does
not trigger the furnisher's duties under section 1681s-2(b).
Craighead, 2010 WL 5178831, at *4 (emphasis omitted); see Chiang v. VerizonNewEng. Inc., 595
F.3d 26, 32 (1st Cir. 2010); Gorman, 584 F.3d at 1154; Saunders, 526 F.3d at 148; Johnson v.
MBNA Am. Bank. NA, 357 F.3d 426,431 (4th Cir. 2004).
In counts three and four, plaintiffs have failed to plausibly allege a violation of section 1682s2(b)(1). Although plaintiffs are upset about defendants' customer service, plaintiffs have not
plausibly alleged in the FAC that they notified a consumer reporting agency of a dispute about their
line of credit account with Wachovia or Wells Fargo, that the consumer reporting agency notified
defendants of the dispute, and that defendant thereafter failed to adequately investigate the dispute.
Accordingly, plaintiffs have failed to state a claim upon which relief can be granted under section
1682s-2(b)(1).

See,~.

Merritt v. Experian, 560 F. App'x 525,529 (6th Cir. 2014) (unpublished);

Nawab v. Unifund CCR Partners, 553 F. App'x 856, 860-61 (11th Cir. 2013) (per curiam)
(unpublished); Longman, 702 F.3d at 150--51; Boggio, 696 F.3d at 614-15; SimmsParris, 652 F.3d
at 358-59; Ross, 625 F.3d at 813; Chiang v. MBNA, 620 F.3d 30, 30--33 (1st Cir. 2010); Gorman,
584 F.3d at 1154; Youngv. Equifax Credit Info. Servs.• Inc., 294 F.3d 631,639-40 (5th Cir. 2002);
Nelson v. Chase Manhattan Mortg. Cor,p., 282 F .3d 1057, 1060 (9th Cir. 2002); Craighead, 2010 WL
5178831, at *4.
In opposing defendants' motion to dismiss their claims under section 1691 s-2(b)(1 ), plaintiffs
attached correspondence to their brief in opposition to the motion to dismiss. See Pis.' Resp. 8 &

10

Attachs. According to plaintiffs, the correspondence reflects that they did correspond with consumer
reporting agencies about the line of credit and thereby complied with the prerequisite of section
1681s-2(b)(l). See id.
Plaintiffs may not use their brief in opposition to defendants' motion to dismiss to amend
their FAC.

See,~'

Car Carriers. Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984);

Bratcher v. Pharm. Prod. Dev.. Inc., 545 F. Supp. 2d 533, 542 (E.D.N.C. 2008); accord Wahl v.
Charleston Area Med. Ctr.. Inc., 562 F.3d 599, 617 (4th Cir. 2009); Tucker v. Union of
Needletrades. Indus .. & Textile Emps., 407 F.3d 784, 788 (6th Cir. 2005); Gilmour v. Gates.
McDonald& Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (per curiam); Shanahan v. City of Chicago,
82 F.3d 776, 781 (7th Cir. 1996); Swann v. Source One Staffing Solutions, No. 5:09-CV-271-D,
2011 WL 761479, at *10 (E.D.N.C. Feb. 24, 2011)(unpublished). Accordingly, the court need not
address defendants' reply in which defendants argue that plaintiffs' alleged correspondence with the
consumer reporting agencies does not satisfy section 1681s-2(b)'s requirement because the nature
of the reported dispute differs from the dispute in the instant action. See Defs.' Reply [D.E. 41] 5-6.
Finally, the court addresses defendants' motion to strike plaintiffs' SAC. [D.E. 28]. In
support of their motion, defendants cite Rule 12(f) and Rule 15(a)(2) and note that plaintiffs never
obtained leave of the court or defendants' consent before filing the SAC. See [D.E. 29] 2-3.
The court need not address defendants' motion to strike. Rather, the court construes the SAC
as a motion for leave to file the SAC, and considers whether permitting plaintiffs to file the SAC is

futile.

See,~.

United States ex rel. Ahumada v. NISH, 756 F.3d 268, 282 (4th Cir. 2014) (court

need not permit filing of amended complaint where the amended complaint would fail to state a
claim).

11

In the SAC, plaintiffs restate the claims in their FAC and purport to add a new count three,
which alleges a violation of N.C. Gen. Stat. § 58-70-11 0(2). See SAC ~ 24. The claim fails,
however, because defendants are not "collection agencies" under N.C. Gen. Stat. § 58-70-15(c)(2).
In the SAC, plaintiffs also add a new allegation in count four that defendant "Wells Fargo
Bank, N .A. willfully violated 15 U.S. C. § 1681 b(f) by obtaining Plaintiff's consumer report without
a permissible purpose" under 15 U.S.C. § 1681b. See SAC~ 28(e). Specifically, plaintiffs allege
that Wells Fargo obtained Karen Campbell's credit report on or about January 31, 2013, and thereby
violated section 1681b(f). See SAC~ 10.
Section 1681 b(f) states: "A person shall not use or obtain a consumer report for any purpose
unless ( 1) the consumer report is obtained for a purpose for which the consumer report is authorized
to be furnished under this section; and (2) the purpose is certified in accordance with section 1681 e
of this title by a prospective user of the report through a general or specific certification." 15 U.S.C.
§ 1681 b(f). Section 1681 b(a) permits a consumer reporting agency to provide a consumer report to

another for certain legitimate business purposes, including "in connection with a credit transaction
involving the consumer" or "in connection with a business transaction that is initiated by the
consumer." See 15 U.S.C. § 1681b(a)(3)(A), (F)(i). In light of plaintiffs' other allegations in the
SAC, defendants permissibly obtained Karen Campbell's credit report, and plaintiffs' claim under
section 1681b(f) fails.

See,~, Merritt, 560 F. App'xat528; Norman v.

RJMAcguisitions. L.L.C.,

518 F. App'x 288,289 (5th Cir. 2013) (per curiam) (unpublished); Norman v. Northland Grp .. Inc.,
495 F. App'x 425, 426-27 (5th Cir. 2012) (per curiam) (unpublished); Huertas v. Galaxy Asset
Mgmt., 641 F.3d28, 34 (3dCir. 2011); Thomas v. U.S. Bank. N.A., 325 F. App'x 592,593 (9th Cir.
2009) (unpublished); Hollomon v. Smith Debnam Narron Drake Saintsing & Myers. LLP, No. 1: 14CV31, 2014 WL 1225330, at *2-3 (M.D.N.C. Mar. 25, 2014) (unpublished) (collecting cases);
12

Boston v. Client Servs. ofMo .. Inc., No. 3:13CV184, 2013 WL 5925902, at *2 (W.D.N.C. Nov. 1,
2013) (unpublished); Gibbons v. GC Servs .. LLC, No. 5:13-CV-84-BO, 2013 WL 5371620, at *2
(E.D.N.C. Sept. 24, 2013) (unpublished); Bentleyv. Alan Vester Auto Grp .. Inc., No. 5:07-CV-434F, 2009 WL 3125539, at *2 (E.D.N.C. Sept. 29, 2009) (unpublished). 2
II.

In sum, the court GRANTS defendants' motion to dismiss [D.E. 26] and DISMISSES
plaintiffs' first amended complaint without prejudice. The court DENIES defendants' motion to
strike plaintiffs' second amended complaint [D.E. 28], but GRANTS defendants' motion to treat
plaintiffs' second amended complaint as a motion for leave to file the second amended complaint
[D.E. 28], and DENIES as futile leave to file the second amended complaint.
SO ORDERED. This JJ..day of October 2014.

~ . . . . .] \ ...... lA

2

Even if plaintiffs properly served King and Clayton, their claims against King and Clayton
would fails under Rule 12(b)(6) for same reasons that those claims fails against Wells Fargo and
Wells Fargo PCM.
13