Campbell v. Capital One Auto

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.December 5, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA STEVE CAMPBELL, Plaintiff, v. CAPITAL ONE AUTO, Defendant. : : : : : : : : : : : No. 2:16-cv-06216-PSD DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT Defendant, Capital One Auto Finance, a division of Capital One, N.A. (“COAF”) (misidentified in Plaintiff’s Complaint as “Capital One Auto”), by and through its undersigned counsel, and pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, hereby moves to dismiss Plaintiff’s Complaint because it fails to state a claim against COAF for which relief may be granted. In support of this motion, COAF incorporates by reference the accompanying Memorandum of Law. A proposed form of Order is attached. Respectfully submitted, STRADLEY RONON STEVENS & YOUNG, LLP \s\ Christine M. Debevec Christine M. Debevec, Esq. (No. 88107) Mark I. Raschess, Esq. (No. 319340) 2005 Market Street, Suite 2600 Philadelphia, PA 19103 Case 2:16-cv-06216-PD Document 10 Filed 12/05/16 Page 1 of 2 - 2 - T: (215) 564-8000 F: (215) 564-8120 E: cdebevec@stradley.com Attorneys for Defendant, Capital One Auto Finance, a division of Capital One, N.A. (misidentified as “Capital One Auto”) Case 2:16-cv-06216-PD Document 10 Filed 12/05/16 Page 2 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA STEVE CAMPBELL, Plaintiff, v. CAPITAL ONE AUTO, Defendant. : : : : : : : : : : : : No. 2:16-cv-06216-PSD MEMORANDUM OF LAW IN SUPPORT OF MOTION OF DEFENDANT, CAPITAL ONE AUTO FINANCE, A DIVISION OF CAPITAL ONE, N.A., TO DISMISS PLAINTIFF’S COMPLAINT STRADLEY RONON STEVENS & YOUNG, LLP \s\ Christine M. Debevec Christine M. Debevec, Esq. (No. 88107) Mark I. Raschess, Esq. (No. 319340) 2005 Market Street, Suite 2600 Philadelphia, PA 19103 T: (215) 564-8000 F: (215) 564-8120 E: cdebevec@stradley.com Attorneys for Defendant, Capital One Auto Finance, a division of Capital One, N.A. (misidentified as “Capital One Auto”) Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 1 of 22 i TABLE OF CONTENTS I. INTRODUCTION ........................................................................................... 1 II. FACTUAL BACKGROUND......................................................................... 3 III. ARGUMENT ................................................................................................... 5 A. Legal Standard Under Fed. R. Civ. 12(b)(6) ......................................... 5 B. Plaintiff Fails to State Any Cognizable Claim For Relief Against COAF. ................................................................................................... 6 C. Plaintiff Fails to State A Viable Claim For Relief Under The FCRA. .................................................................................................... 7 1. Plaintiff has no standing to assert a claim under § 1681s– 2(a) of the FCRA based on any direct dispute with COAF. ....... 8 2. Plaintiff otherwise fails to state a claim against COAF for violation of § 1681s-2(b) of the FCRA. .................................... 10 D. Plaintiff’s Claim Under The FDCPA Fails, Because COAF is Not a Debt Collector. .................................................................................. 14 E. Plaintiff Fails to State a Claim Under the FTCA. ............................... 16 IV. CONCLUSION .............................................................................................. 17 Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 2 of 22 ii TABLE OF AUTHORITIES CASES Alves v. Verizon, No. 08-3196, 2010 WL 2989988 (D.N.J. July 27, 2010) ................................... 11 Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) ........................................................................... 5-7, 12, 13 Bartley v. LVNV Funding, LLC, No. 09-3884 (KSH), 2010 WL 2629072 (D.N.J. June 28, 2010) ....................... 11 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................... 5, 7, 12 Burrell v. DFS Servs., LLC, 753 F. Supp. 2d 438 (D.N.J. 2010) ................................................................. 8-10 Carpenter v. Kloptoski, No. 08–2233, 2010 WL 891825 (M.D. Pa. Mar. 10, 2010) ............................... 16 Chiang v. Verizon New England Inc., 595 F.3d 26 (1st Cir. 2010) ................................................................................... 9 Cowell v. Palmer Twp., 263 F.3d 286 (3d Cir. 2001) ............................................................................... 16 Eller v. Experian Info. Solutions, Inc., No. 09-cv-00040-MSKKMT, 2009 WL 2601370 (D. Colo. Aug. 20, 2009) ............................................................................................................. 12-13 Forte v. WorldFinancial Network Bank, No. 12-704 (FLW), 2012 WL 3239696 (D.N.J. Aug. 7, 2012) .......................... 11 Fowler v. UPMC Shadyside, 578 F.3d 203 (3d. Cir. 2009) ................................................................................ 6 Gilliam v. Nat’l Comm’n for Certification of Physician Assistants, Inc., 727 F. Supp. 1512 (E.D. Pa. 1989) ..................................................................... 16 Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147 (9th Cir. 2009) .............................................................................. 9 Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 3 of 22 iii Henderson v. Chase/Bank One Serv., No. 11-3956, 2012 WL 136894 (D.N.J. Jan. 17, 2012) ..................................... 13 In re Donald Trump Casino Securities Litigation, 7 F.3d 357 (3d. Cir. 1993) .................................................................................... 4 Jobe v. Bank of America, N.A., No. 10-cv-1710, 2011 WL 4738225 (M.D. Pa. Oct. 6, 2011) ............................ 10 Levy-Tatum v. Navient, No. CV 15-3794, 2016 WL 75231 (E.D.Pa. January 7, 2016) ........................... 15 Martino v. Everhome Mortg., 639 F. Supp. 2d 484 (D.N.J. 2009) ..................................................................... 16 Messett v. Home Consultants, Inc., No. 07-2208, 2010 WL 1643606 (M.D. Pa. April 22, 2010) ............................. 14 Morse v. Lower Merion Sch. Dist., 132 F.3d 902 (3d Cir. 1997) ................................................................................. 5 Pollice v. National Tax Funding, L.P., 225 F.3d 379 (3d Cir. 2000) ............................................................................... 14 Shaw v. Digital Equip. Corp., 82 F.3d 1194 (1st Cir.1996) .................................................................................. 4 SimmsParris v. Countrywide Fin. Corp., 652 F.3d 355 (3d Cir. 2011) ............................................................................. 8-9 Taggart v. GMAC Mortg., LLC, No. 12–415, 2012 WL 5929000 (E.D. Pa. Nov. 26, 2012) ................................ 16 Taggart v. Norwest Mortgage, Inc., No. 09-1281, 2010 WL 114946 (E.D. Pa. Jan. 11, 2010) ............................ 10-12 Vino 100, LLC v. Smoke on the Water, LLC, 864 F.Supp.2d 269 (E.D. Pa. 2012) .................................................................... 16 Young v. Equifax Credit Info. Servs., Inc., 294 F.3d 631 (5th Cir. 2002) ................................................................................ 9 Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 4 of 22 iv RULES Federal Rule of Civil Procedure 12(b)(6) ........................................................ 1, 3, 17 Codes 15 U.S.C. § 1681s–2, et seq. ............................................................................passim 15 U.S.C. § 1692, et seq. ............................................................................... 2, 14-15 15 U.S.C. § 41, et seq. ......................................................................................... 2, 16 Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 5 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA STEVE CAMPBELL, Plaintiff, v. CAPITAL ONE AUTO, Defendant. : : : : : : : : : : : : No. 2:16-cv-06216-PSD MEMORANDUM OF LAW IN SUPPORT OF MOTION OF DEFENDANT, CAPITAL ONE AUTO FINANCE, A DIVISION OF CAPITAL ONE, N.A., TO DISMISS PLAINTIFF’S COMPLAINT Defendant, Capital One Auto Finance, a division of Capital One, N.A. (“COAF”) (misidentified in Plaintiff’s Complaint as “Capital One Auto”), by and through its attorneys Stradley, Ronon, Stevens & Young, LLP, submits this Memorandum of Law in support of its Motion to Dismiss Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). I. INTRODUCTION Plaintiff’s two-paragraph Complaint fails to state any cause of action against COAF upon which relief could be granted, and the Court should dismiss it in its entirety with prejudice. Plaintiff appears to be asserting claims against COAF for alleged violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 6 of 22 2 § 1681, et seq., the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., and the Fair Trade Commission Act (“FTCA”), 15 U.S.C. § 41, et seq. Plaintiff’s Complaint, however, is completely devoid of any factual allegations – including even identifying his relationship with COAF – and merely cites to various sections of the FCRA, the FDCPA, and the FTCA, while accusing COAF with noncompliance therewith. The Complaint fails to identify what COAF allegedly did wrong and fails to set forth any facts that purportedly support Plaintiff’s legal claims. Beyond this over-arching pleading defect, Plaintiff’s apparent claims under the referenced statutes fail for additional reasons as well. First, to the extent the Complaint attempts to assert a claim for violation of the FCRA, Plaintiff is not entitled to maintain a claim against COAF for any alleged credit reporting dispute allegedly sent directly to COAF. Plaintiff otherwise fails to allege facts supporting a claim that he ever filed a dispute with a CRA concerning any credit information allegedly furnished by COAF, that any CRA gave notice of such a dispute to COAF, and that COAF failed to investigate or correct any allegedly inaccurate reporting. Second, as to Plaintiff’s reference to the FDCPA, not only does Plaintiff fail to plead any facts to support an FDCPA claim, including any wrongful conduct attributable to COAF, but also Plaintiff fails to demonstrate how COAF is even a “debt collector” subject to liability under the FDCPA. Indeed, COAF, as the Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 7 of 22 3 creditor of Plaintiff’s motor vehicle loan, is not a “debt collector” subject to liability under the FDCPA. Third, to the extent Plaintiff is attempting to assert a claim against COAF for violation of the FTCA, the Complaint equally fails to state a claim upon which relief could be granted, because there is no private right of action under the FTCA. In sum, all of Plaintiff’s allegations against COAF are conclusory, generic and completely lacking any factual support. For the reasons set forth in more detail below, Plaintiff fails to state a claim upon which relief can be granted against COAF under the FCRA, the FDCPA, and the FTCA. Consequently, the Court should dismiss Plaintiff’s Complaint in its entirety with prejudice pursuant to Fed. R. Civ. P. 12(b)(6). II. FACTUAL BACKGROUND On or about October 24, 2016, Plaintiff commenced the underlying state court action, captioned Steve Campbell v. Capital One Auto, Case No. MJ- 07110-cv-0000278-2016, by filing a two-paragraph Complaint in the Magisterial District Court in and for Bucks County, Pennsylvania. A copy of the Complaint is attached hereto as Exhibit A. Plaintiff’s Complaint contains only three incomplete sentences, which are copied in full below: Negligent and willful failure to reinvestigate the disputed entries and provide copy of any viable evidence bearing my signature in violation of: Section 611(a), 616, and 617 of the FCRA, 15 U.S.C. 1681i (a) 1681n, 1681o. Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 8 of 22 4 Non compliant with the Federal Trade Commission Act 15 U.S.C. 41, et seq. FCRA section 623 (a)(3), 15 U.S.C. 1681s-2, FCRA Section 807(8) 15. U.S.C. 1962e, SECTION 603 (p) FDCPA 15 U.S.C. 1692f, SECTION 808 (1) SECTION 809 (a)(1) (2) (3) 809(b) SECTION 808 (5) (b) 1692j 812(a)(b) 605(c) 805(a)(1) 806, 811(a)(2) (See Ex. A.) Although not specified in the Complaint, COAF presumes Plaintiff’s claims relate to a motor vehicle loan obtained by Plaintiff in or around July 5, 2007. (See Certification of Christine M. Debevec, ¶2, and Exhibit B thereto.) 1 While Plaintiff provides no detail concerning his claims, COAF presumes that Plaintiff’s statement about “disputed entries” refers to certain credit reporting “entries” relating to his loan with COAF. Nonetheless, even with this presumption, Plaintiff does not identify which “entries” are allegedly inaccurate. 1 A “document integral to or explicitly relied upon in the complaint” may be considered “without converting the motion [to dismiss] into one for summary judgment.” Id. (quoting Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1220 (1st Cir. 1996) and citing In re Donald Trump Casino Securities Litigation, 7 F.3d 357, 368 n. 9 (3d. Cir. 1993)) (“a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based on the document.”)). The rationale underlying this exception is that the primary problem raised by considering documents outside the complaint—lack of notice to the plaintiff—is dissipated where plaintiff has actual notice and has relied upon the documents in framing the complaint. Id. (quotations and citations omitted). In this case, Plaintiff makes reference to the loan agreement through his allegation that COAF failed to “provide copy of any viable evidence bearing [his] signature”. Therefore, the Court may consider the loan agreement attached hereto without converting this motion to dismiss into one for summary judgment. Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 9 of 22 5 Other than making a statement concerning “evidence bearing [his] signature,” Plaintiff provides no explanation of the nature of his “dispute” of those “entries,” the alleged inaccuracy, or any failure by COAF to “reinvestigate.” Plaintiff also does not identify any specific conduct by COAF that allegedly violated any of the listed statutes – the FCRA, the FDCPA, or the FTCA. III. ARGUMENT A. Legal Standard Under Fed. R. Civ. 12(b)(6) To state a claim upon which relief can be granted, a complaint must “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). In other words, a complaint must “state a claim to relief that is plausible on its face.” Id. at 570. When assessing whether the complaint satisfies this standard, courts must treat a complaint's allegations as true. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Courts, however, need not accept “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 1949; see also Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (noting that courts “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss”) (citations and internal quotations omitted). The Third Circuit instructs that: When presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 10 of 22 6 analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to “show” such an entitlement with its facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d. Cir. 2009). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 129 S.Ct. at 1950. Plaintiff must plead more than the mere possibility of relief. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). If the complaint permits only an inference of the mere possibility of misconduct, it must be dismissed. Id. at 210–11. B. Plaintiff Fails to State Any Cognizable Claim For Relief Against COAF. Plaintiff’s Complaint should be dismissed for the simple reason that Plaintiff has failed to support any of his claims against COAF with any factual allegations. There is not a single fact pleaded in the Complaint to support an inference that COAF engaged in any misconduct with respect to Plaintiff. Rather, without providing any factual basis for his claims, Plaintiff baldly accuses COAF of noncompliance with a variety of sections of the FCRA, FDCPA, and FTCA. Plaintiff not only fails to support these accusations with any facts, but also fails to Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 11 of 22 7 plead the required elements of any cognizable cause of action under these statutes. COAF is left to simply guess at both the factual and legal basis for Plaintiff’s claims. Because the Complaint consists of nothing more than conclusory legal statements, it falls woefully short of the required pleading standards. See Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 555. The Court should dismiss the Complaint for this reason alone. Plaintiff’s purported claims under the FCRA, FDCPA, and FTCA fail for additional reasons, as discussed below. C. Plaintiff Fails to State A Viable Claim For Relief Under The FCRA. Plaintiff’s purported FCRA claims should be dismissed for failure to state a claim. These claims appear to be premised upon COAF’s alleged “negligent and willful failure to reinvestigate the disputed entries and provide copy of any viable evidence bearing [Plaintiff’s] signature.” (Ex. A.) Plaintiff, however, fails to demonstrate any basis for relief under this statute. As discussed below, Plaintiff cannot maintain a claim under FCRA § c based on disputes filed directly with his creditor, COAF. To the extent Plaintiff is attempting to proceed under § 1681s–2(b) of FCRA, Plaintiff has not pleaded the requisite elements of such a claim. Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 12 of 22 8 1. Plaintiff has no standing to assert a claim under § 1681s– 2(a) of the FCRA based on any direct dispute with COAF. A furnisher of credit information such as COAF cannot be held liable under the FCRA where the violation is predicated on a consumer’s direct notice of dispute to the furnisher.2 SimmsParris v. Countrywide Fin. Corp., 652 F.3d 355, 358 (3d Cir. 2011). The aim of FCRA is “to protect consumers from the transmission of inaccurate information about them, and to establish credit reporting practices that utilize accurate, relevant, and current information in a confidential and responsible manner.” Id. at 357. To that end, the FCRA places duties on those who furnish information to credit reporting agencies. Under § 1681s-2(a), a furnisher has a duty in the first instance to transmit accurate information to a CRA, whereas under § 1681s-2(b), a furnisher is required to take certain steps to investigate and correct inaccurate information they have already relayed to the CRA. See id.; Burrell v. DFS Servs., LLC, 753 F. Supp. 2d 438, 447-48 (D.N.J. 2010). A consumer, however, cannot maintain a claim under § 1681s-2(b) based on disputes filed directly with his or her credit card company. See Burrell, 753 F. Supp. 2d at 447-48 (collecting cases). The duties that are placed on furnishers of information by this subsection are implicated only “[a]fter receiving notice … of a 2 COAF is not a credit bureau but is merely the furnisher of credit information. As such, COAF, does not have any ability to alter any information from a consumer’s credit history; it can only make a request for a CRA to do so. Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 13 of 22 9 dispute with regard to the completeness or accuracy of any information provided by a person to a consumer reporting agency.” SimmsParris 652 F.3d at 358 (quoting § 1681s–2(b)(1)) (emphasis added). Thus, in order for a consumer to bring a private action against a furnisher, notice must be given by a credit reporting agency, and cannot come directly from the consumer. Id.; Burrell, 753 F. Supp. 2d at 448; see also Chiang v. Verizon New England Inc., 595 F.3d 26, 35 (1st Cir. 2010); Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1154 (9th Cir. 2009); Young v. Equifax Credit Info. Servs., Inc., 294 F.3d 631, 639 (5th Cir. 2002) (Notice to a credit rating agency “is necessary to trigger the furnisher's duties under Section 1681s–2(b). Thus, any private right of action [a consumer] may have under § 1681s–2(b) would require proof that a consumer reporting agency ... had notified the [furnishing entity] pursuant to § 1681i(a)(2).”). Here, Plaintiff merely alleges that COAF failed to “reinvestigate the disputed entries;” however, Plaintiff fails to state whether he disputed those claims relating to COAF to a CRA and whether that CRA provided notice of the dispute to COAF. Without additional facts to support his claims it is impossible to decipher what claims Plaintiff purports to assert. Nonetheless, if Plaintiff is seeking to allege a claim against COAF based on a direct dispute by Plaintiff to COAF, such a claim is improper. Because Plaintiff has no standing to bring such a Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 14 of 22 10 claim, the Complaint must be dismissed. See Burrell, 753 F. Supp. 2d at 447-48 (granting motion to dismiss plaintiff’s claims under 15 U.S.C. § 1681s-2(a)). 2. Plaintiff otherwise fails to state a claim against COAF for violation of § 1681s-2(b) of the FCRA. Plaintiff also fails to state a cognizable claim against COAF for violation of § 1681s-2(b). To state a claim under § 1681s-2(b), a plaintiff must plead that: (1) he first filed a notice of dispute with a CRA, (2) the CRA then notified the furnisher that supplied the challenged information of the dispute, and (3) the furnisher failed to investigate and correct the disputed information. See Taggart v. Norwest Mortgage, Inc., No. 09-1281, 2010 WL 114946, at *9 (E.D. Pa. Jan. 11, 2010). In this case, Plaintiff’s Complaint fails to plead any of the requisite elements against COAF. First, nowhere in the Complaint does Plaintiff aver that he filed a notice of dispute with a CRA involving COAF’s credit reporting. As such, the Complaint wholly fails to plead that Plaintiff contacted a CRA to notify it of a dispute as to COAF. See Taggart, 2010 WL 114946, at *9-10 (dismissing FCRA claim against furnisher where plaintiff “did not specifically plead that he contacted a [CRA] to notify it of the dispute”); Jobe v. Bank of America, N.A., No. 10-cv- 1710, 2011 WL 4738225, at *5 (M.D. Pa. Oct. 6, 2011) (dismissing FCRA claim against furnisher where plaintiffs alleged “absolutely no contact with any consumer reporting agency regarding this dispute”). Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 15 of 22 11 Second, Plaintiff does not allege any facts supporting the second element of his FCRA claim—i.e., that any CRA notified COAF of a dispute filed by Plaintiff. See Taggart, 2010 WL 114946, at *9. Plaintiff merely alleges that COAF allegedly failed to properly “reinvestigate” certain unidentified and unknown “disputed entries.” (Compl., Ex. “A”) These vague conclusory allegations, however, do not allow the Court to draw a plausible conclusion that a CRA contacted COAF with respect to any alleged dispute by Plaintiff. Thus, even if Plaintiff’s Complaint sufficiently alleges a dispute by Plaintiff to a CRA concerning COAF (which it clearly does not), the Complaint is still deficient for failing to plead facts demonstrating that a CRA notified COAF of the dispute. See Alves v. Verizon, No. 08-3196, 2010 WL 2989988, at *9 (D.N.J. July 27, 2010) (dismissing FCRA claim against furnishers where plaintiff had directly disputed debt with furnishers but failed to allege that a CRA gave notice to defendants that she was disputing her debt); see also Forte v. WorldFinancial Network Bank, No. 12-704 (FLW), 2012 WL 3239696, at *3-*4 (D.N.J. Aug. 7, 2012) (dismissing FCRA claim against furnisher where plaintiff failed to allege that she filed a dispute with a CRA or that the furnisher received notice of any such dispute from a CRA); Bartley v. LVNV Funding, LLC, No. 09-3884 (KSH), 2010 WL 2629072, at *3 (D.N.J. June 28, 2010) (same). Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 16 of 22 12 Third, and finally, Plaintiff fails to allege facts showing that COAF failed to properly investigate and correct any inaccurate information that had been furnished to a CRA. See Taggart, 2010 WL 114946, at *9; Eller v. Experian Info. Solutions, Inc., No. 09-cv-00040-MSKKMT, 2009 WL 2601370, at *3 (D. Colo. Aug. 20, 2009). In Eller, the defendant CRA moved to dismiss the plaintiff’s Complaint, in which the plaintiff had alleged that the defendant CRA “fail[ed] to follow reasonable procedures” regarding the accuracy of its information and otherwise “comply with the requirements of [FCRA].” 2009 WL 2601370, at *3. Recognizing Twombly’s and Iqbal’s requirement that a complaint contain sufficient factual assertions to “raise a right to relief above the speculative level,” the court determined that the complaint before it was “comprised entirely of bald conclusions of law” and was “almost entirely free of any actual averments of fact.” Id. at *3. The court explained that, at a minimum, the plaintiff should have identified facts that show the information supplied by Trans Union and facts that show such information was actually incorrect. Id. The plaintiff's failure to allege any facts supporting his claim made it impossible for the court to determine whether his claim for relief was anything more than speculative, and thus the complaint was subject to dismissal. See id. Similarly, in this case, Plaintiff’s contentions that COAF’s “negligent and willful failure to reinvestigate the disputed entries” (see Compl.) are merely Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 17 of 22 13 conclusions of law, which this Court need not accept as true. See Iqbal, 556 U.S. at 678-79. There is nothing in the Complaint to provide any factual support for the conclusion that COAF failed to conduct any investigation or failed to correct anything that was inaccurate or incomplete. Plaintiff does not even identify what was allegedly inaccurate or incomplete about the “disputed entries.” The Complaint is completely silent as to what “information” is being disputed and wholly fails to demonstrate the basis for any dispute. Plaintiff’s omission of any alleged facts supporting a conclusion that COAF failed to conduct an investigation of any dispute or that COAF failed to correct any inaccurate or incomplete information necessitates dismissal of the action. See Eller, 2009 WL 2601370, at *3. In summary, Plaintiff has failed to allege (1) that he sent a notice of the disputed information to a CRA, (2) that the CRA notified the furnisher of the dispute, and (3) that the furnisher failed to investigate and modify any inaccurate information. Because Plaintiff has failed to allege the required elements of a claim under § 1681s-2(b), his FCRA claim should be dismissed with prejudice. See Henderson v. Chase/Bank One Serv., No. 11-3956, 2012 WL 136894, at *3 (D.N.J. Jan. 17, 2012) (granting motion to dismiss where plaintiff’s allegations were inconsistent with required elements of FCRA claim). Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 18 of 22 14 D. Plaintiff’s Claim Under The FDCPA Fails, Because COAF is Not a Debt Collector. While Plaintiff’s Complaint references various provisions of the FDCPA, Plaintiff has provided absolutely no factual detail surrounding any alleged debt collection activity by COAF, or how any such activity possibly could have violated this statute. Regardless of any further specificity that Plaintiff may offer in the future, however, any claim under the FDCPA must necessarily fail, because COAF is not a “debt collector” subject to liability under the FDCPA. It is well-settled that the FDCPA applies only to “debt collectors,” meaning those who engage in the collection of debts on behalf of others (i.e., third- party debt collectors) and not creditors, like COAF, seeking to collect their own debts. Messett v. Home Consultants, Inc., No. 07-2208, 2010 WL 1643606, at *4 (M.D. Pa. April 22, 2010). The FDCPA defines a “debt collector” as “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.” 15 U.S.C. § 1692a(6) (emphasis). The FDCPA expressly excludes creditors from its reach, providing that it does not apply to “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 originated by such person.” 15 U.S.C. § 1692a(6)(f)(ii); see also Pollice v. National Tax Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 19 of 22 15 Funding, L.P., 225 F.3d 379, 403 (3d Cir. 2000) (“Creditors – as opposed to ‘debt collectors’ – generally are not subject to the FDCPA.”); Levy-Tatum v. Navient, No. CV 15-3794, 2016 WL 75231, *7 (E.D.Pa. January 7, 2016) (dismissing plaintiff’s complaint which failed to include any factual assertions to establish that Navient is a debt collector within the meaning of the FDCPA). Pursuant to §1692(6)(F), the term “debt collector” does not include: “any person collecting or attempting to collect any debt owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; [or] (iii) concerns a debt which was not in default at the time it was obtained by such person ....” The FDCPA does not apply to COAF as a matter of law. Plaintiff fails to include any factual assertions to establish that COAF was collecting a debt on behalf of another. Nor has Plaintiff pleaded any facts whatsoever to demonstrate that COAF is a debt collector by trade (which it is not). In fact, Plaintiff owed a debt directly to COAF, and so any activity by COAF seeking to collect a debt from Plaintiff simply is not subject to the FDCPA. Because COAF is a not a debt collector within the meaning of the FDCPA with respect to Plaintiff’s account with COAF, Plaintiff’s FDCPA claim fails as a matter of law and should be dismissed with prejudice. Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 20 of 22 16 E. Plaintiff Fails to State a Claim Under the FTCA. Finally, while Plaintiff apparently is attempting to bring a claim against COAF under the FTCA, any such claim is futile, because it is well- established that there is no private right of action under the FTCA. See Taggart v. GMAC Mortg., LLC, No. 12–415, 2012 WL 5929000, at *6 (E.D. Pa. Nov. 26, 2012) (citing Vino 100, LLC v. Smoke on the Water, LLC, 864 F.Supp.2d 269, 281 (E.D. Pa. 2012) (“private parties are not authorized to file enforcement actions, only the FTC has that authority”)); see also Carpenter v. Kloptoski, No. 08–2233, 2010 WL 891825, at * 11 (M.D. Pa. Mar. 10, 2010) (“There is no private right of action under Federal Trade Commission Act.”); Martino v. Everhome Mortg., 639 F. Supp. 2d 484, 491 n. 16 (D.N.J. 2009) (citing several circuit cases holding that no private right of action exists under FTCA); Gilliam v. Nat’l Comm’n for Certification of Physician Assistants, Inc., 727 F. Supp. 1512, 1514 (E.D. Pa. 1989) (“Although it is unclear just what provisions of the Federal Trade Commission Act, 15 U.S.C. §§ 41 et seq. plaintiff is invoking, and it seems that no violation has been validly alleged, the matter need not be pursued, since there is no private right of action under that statute.”) Thus, this cause of action must also be dismissed with prejudice. See Cowell v. Palmer Twp., 263 F.3d 286, 296 (3d Cir. 2001) (“[L]eave to amend need not be granted when amending the complaint would clearly be futile.”). Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 21 of 22 17 IV. CONCLUSION For all the foregoing reasons, COAF respectfully requests that the Court grant its Motion to Dismiss Plaintiff’s Complaint in its entirety with prejudice pursuant to Fed. R. Civ. P. 12(b)(6). Respectfully submitted, STRADLEY RONON STEVENS & YOUNG, LLP \s\ Christine M. Debevec Christine M. Debevec, Esq. (No. 88107) Mark I. Raschess, Esq. (No. 319340) 2005 Market Street, Suite 2600 Philadelphia, PA 19103 T: (215) 564-8000 F: (215) 564-8120 E: cdebevec@stradley.com Attorneys for Defendant, Capital One Auto Finance, a division of Capital One, N.A. (misidentified as “Capital One Auto”) Dated: December 5, 2016 Case 2:16-cv-06216-PD Document 10-1 Filed 12/05/16 Page 22 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA STEVE CAMPBELL, Plaintiff, v. CAPITAL ONE AUTO, Defendant. : : : : : : : : : : : No. 2:16-cv-06216-PSD CERTIFICATION OF CHRISTINE M. DEBEVEC IN SUPPORT OF MOTION OF DEFENDANT CAPITAL ONE AUTO FINANCE TO DISMISS COMPLAINT PURSUANT TO FED. R. CIV. P. 12(B)(6) Filed Electronically Christine M. Debevec, pursuant to 18 U.S.C. § 1746, declares as follows: 1. I am a partner with the law firm of Stradley Ronon Stevens & Young, LLP, counsel to Defendant, Capital One Auto Finance, a division of Capital One, N.A. (“COAF”) (misidentified in Plaintiff’s Complaint as “Capital One Auto”), in this matter. As such, I am familiar with the facts and circumstances set forth in this certification. 2. Attached hereto as Exhibit “B” is a true and correct electronic copy of the July 5, 2007 loan agreement obtained by Plaintiff from COAF, as well as the blank check issued by COAF to Plaintiff for the purchase of his vehicle. I declare under penalty of perjury that the foregoing is true and correct. Executed on December 5, 2016 \s\ Christine M. Debevec Christine M. Debevec Case 2:16-cv-06216-PD Document 10-2 Filed 12/05/16 Page 1 of 1 CERTIFICATE OF SERVICE I, Christine M. Debevec, hereby certify that on December 5, 2016, a copy of the foregoing Motion to Dismiss was filed electronically via the Court’s ECF system and is available for viewing and downloading from the Court’s ECF system. I also caused a true and correct copy of the foregoing to be served via first class mail, postage prepaid, upon the following: Steve Campbell P.O. Box 134 Yardley, PA 19067 Pro Se Plaintiff \s\ Christine M. Debevec Christine M. Debevec # 3034057 v. 2 Case 2:16-cv-06216-PD Document 10-3 Filed 12/05/16 Page 1 of 1 # 2141447 v. 1 EXHIBIT A Case 2:16-cv-06216-PD Document 10-4 Filed 12/05/16 Page 1 of 2 Case 2:16-cv-06216-PD Document 10-4 Filed 12/05/16 Page 2 of 2 # 2141447 v. 1 EXHIBIT B Case 2:16-cv-06216-PD Document 10-5 Filed 12/05/16 Page 1 of 12 Case 2:16-cv-06216-PD Document 10-5 Filed 12/05/16 Page 2 of 12 Case 2:16-cv-06216-PD Document 10-5 Filed 12/05/16 Page 3 of 12 Case 2:16-cv-06216-PD Document 10-5 Filed 12/05/16 Page 4 of 12 Case 2:16-cv-06216-PD Document 10-5 Filed 12/05/16 Page 5 of 12 Case 2:16-cv-06216-PD Document 10-5 Filed 12/05/16 Page 6 of 12 Case 2:16-cv-06216-PD Document 10-5 Filed 12/05/16 Page 7 of 12 Case 2:16-cv-06216-PD Document 10-5 Filed 12/05/16 Page 8 of 12 Case 2:16-cv-06216-PD Document 10-5 Filed 12/05/16 Page 9 of 12 Case 2:16-cv-06216-PD Document 10-5 Filed 12/05/16 Page 10 of 12 Case 2:16-cv-06216-PD Document 10-5 Filed 12/05/16 Page 11 of 12 Case 2:16-cv-06216-PD Document 10-5 Filed 12/05/16 Page 12 of 12