JAMES C. DEVER III, Chief Judge.
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 April 4, 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, the North Carolina Debt Collection Act ("NCDCA"), N.C. Gen.Stat. §§ 75-50-75-56, and the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681-1681x. On April 24, 2014, plaintiffs filed their first amended complaint ("FAC") seeking damages under the same statutes, but adding Jack O. Clayton, regional president of Wells Fargo, as a defendant. See FAC [D.E. 19]. On April 25, 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(f) and 15(a)(2). See [D.E. 28]; Fed.R.Civ.P. 12(f), 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
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 FAC ¶ 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 of process." 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 the Federal Rules of Civil Procedure. See, e.g., 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. 5:10-CV-365-D, 2011 WL 2457835, at *1 (E.D.N.C. June 16, 2011) (unpublished); Cherry v. 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562-63, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir.2010), aff'd, ___ U.S. ___, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.2008); accord Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). In considering a motion to dismiss, a court need not accept a complaint's legal conclusions drawn from the facts. See, e.g., Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. 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, 129 S.Ct. 1937.
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, e.g., Francis, 588 F.3d at 192.
Although a court must liberally construe a pro se plaintiffs 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. 5. "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 Rules of Civil Procedure. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (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, e.g., Boosahda v. Providence Dane LLC, 462 Fed.Appx. 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.2d at 776.
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, e.g., 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 & Goldberg, 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. §§ 58-70-1-58-70-155, and the North Carolina Debt Collection Act, N.C. Gen.Stat. §§ 75-50-75-56. See FAC ¶¶ 17-20. Under the Collection Agencies Act, neither Wells Fargo nor Wells Fargo PCM is a "collection agency" as defined in N.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
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. Feldmann, 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 of an unfair and deceptive trade practices claim under North Carolina law: an unfair act, in or affecting commerce, proximately causing injury. See, e.g., Ross v. FDIC, 625 F.3d 808, 817 (4th Cir.2010); Fritz, 2014 WL 3721373, at *3; Feldmann, 138 N.C.App. at 296, 530 S.E.2d at 868; Reid, 138 N.C.App. at 265-66, 531 S.E.2d at 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).
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
In their third and fourth claims, plaintiffs allege that defendants violated 15 U.S.C. §§ 1681s-2(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. ¶¶ 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:
15 U.S.C. § 1681s-2(a)(1), (3).
Section 1681s-2(b)(1) states:
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. 1 (E.D.N.C.2008), aff'd, 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 1681s-2(a), there is no private right of action for violating 15 U.S.C. § 1681s-2(a). See, e.g., 15 U.S.C. § 1681s-2(c)(1), (d); Saunders v. Branch Banking & Trust Co. of Va., 526 F.3d 142, 149 (4th Cir.2008); Craighead v. Nissan Motor Acceptance Corp., No. 1:10CV981 (JCC/JFA), 2010 WL 5178831, at *4 (E.D.Va. Dec. 14, 2010) (unpublished), aff'd, 425 Fed.Appx. 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 (10th Cir.2012); Purcell v. Bank of Am., 659 F.3d 622, 623 (7th Cir. 2011); SimmsParris v. Countrywide Fin. Corp., 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).
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
Craighead, 2010 WL 5178831, at *4 (emphasis omitted): see Chiang v. Verizon New Eng. 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 1682s-2(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, e.g., Merritt v. Experian, 560 Fed.Appx. 525, 529 (6th Cir.
In opposing defendants' motion to dismiss their claims under section 1691s-2(b)(1), plaintiffs attached correspondence to their brief in opposition to the motion to dismiss. See Pls.' Resp. 8 & 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)(1). See id.
Plaintiffs may not use their brief in opposition to defendants' motion to dismiss to amend their FAC. See, e.g., 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 Wahi 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, 778 F.Supp.2d 611, 644-23 (E.D.N.C.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, e.g., 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).
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. § 58-70-110(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. § 1681b(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 1681b(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 1681e of this title by a prospective
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.