Sandlin v. Citibank, N.A. et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

W.D. Tenn.January 26, 2017

28918728 v1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE, MEMPHIS DIVISION JESSE SANDLIN, ) ) PLAINTIFF, ) ) v. ) CASE NO. 2:15-cv-02768 ) CITIBANK, N.A., ) CITIMORTGAGE, INC., ) Removed from the Circuit ) Court for Shelby County, TN DEFENDANTS. ) Case No. CT-004672-15 ) DEFENDANTS CITIBANK, N.A., AND CITIMORTGAGE, INC.’S PARTIAL MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT Defendants CitiMortgage, Inc. (“CitiMortgage”) and Citibank, N.A. (“Citibank”) (collectively, “Defendants”), by and through their undersigned counsel, and pursuant to FED. R. CIV. P. 12(b)(6), hereby file their Partial Motion to Dismiss Plaintiff’s Amended Complaint. As set out more fully in Defendants’ supporting memorandum of law, filed contemporaneously herewith, Plaintiff’s claims for violation of the Fair Credit Reporting Act, violation of the Fair Debt Collection Practices Act, and defamation are due to be dismissed. WHEREFORE, PREMISES CONSIDERED, Defendants CitiMortgage, Inc. and Citibank, N.A. move this Court to dismiss the Plaintiff’s claims of (i) violation of the Fair Credit Reporting Act, (ii) violation of the Fair Debt Collection Practices Act, and (iii) defamation in the Amended Complaint with prejudice. Case 2:15-cv-02768-JTF-dkv Document 41 Filed 01/26/17 Page 1 of 2 PageID 372 28918728 v1 2 January 26, 2017. Respectfully submitted, /s/ Charles N. Alden Richard C. Keller, Esq. (BPR# 024894) J. Matthew Kroplin (BPR #27363) Charles N. Alden (BPR #33186) BURR & FORMAN LLP 511 Union Street, Suite 2300 Nashville, TN 37219 Main: (615) 724-3200 Fax: (615) 724-3300 Email: rkeller@burr.com mkroplin@burr.com nalden@burr.com ATTORNEYS FOR DEFENDANTS CITIMORTGAGE, INC. AND CITIBANK, N.A. CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served on the following by directing the same to the following address through first-class, United States mail, postage prepaid, on this the 26th day of January, 2017. Jesse Sandlin 4743 Kassel Cove Memphis, TN 38116 /s/ Charles N. Alden Charles N. Alden Case 2:15-cv-02768-JTF-dkv Document 41 Filed 01/26/17 Page 2 of 2 PageID 373 28921256 v1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE, MEMPHIS DIVISION JESSE SANDLIN, ) ) PLAINTIFF, ) ) v. ) CASE NO. 2:15-cv-02768 ) CITIBANK, N.A., ) CITIMORTGAGE, INC., ) Removed from the Circuit ) Court for Shelby County, TN DEFENDANTS. ) Case No. CT-004672-15 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT Defendants CitiMortgage, Inc. (“CitiMortgage”) and Citibank, N.A. (“Citibank”) (collectively, “Defendants”), by and through their undersigned counsel, and pursuant to FED. R. CIV. P. 12(b)(6), hereby file this Memorandum of Law in Support of the Partial Motion to Dismiss Plaintiff’s Amended Complaint. For the following reasons, Defendants’ motion is due to be granted. I. Introduction Plaintiff’s Amended Complaint supplements his original Complaint with additional factual allegations, as well as claims for violations of the Fair Debt Collection Practices Act (“FDCPA”) the Fair Credit Reporting Act (“FCRA”), breach of contract, breach of settlement agreement, declaratory relief, defamation, and fraudulent misrepresentation. As set out more fully below, all of the claims in the Amended Complaint other than Plaintiff’s claims for breach of contract, fraudulent misrepresentation, breach of settlement agreement, and declaratory relief against the Defendants are due to be dismissed. Case 2:15-cv-02768-JTF-dkv Document 41-1 Filed 01/26/17 Page 1 of 12 PageID 374 28921256 v1 2 II. Factual Allegations In his Amended Complaint, Plaintiff alleges he executed a promissory note and deed of trust and that the loan was guaranteed by the Department of Veterans Affairs. (Am. Compl. ¶ 9.) Plaintiff contends the deed of trust was subsequently assigned several times, ultimately to CitiMorgage (Am. Compl. ¶ 10), and that “Citi” engaged in communications with Plaintiff indicating there was a past due amount owing on the mortgage account. (See generally, Am. Compl.) Plaintiff extensively sets forth his alleged dispute of the stated past due amount owing with several “Citi” representatives. (Am. Compl. ¶¶ 12-27, 46, 51, 56.) Plaintiff also alleges that “Citi sent inadequate information concerning whether the [P]laintiff had defaulted….” (Am. Compl. ¶ 25.) Throughout his Amended Complaint, Plaintiff contends that “Citi” misapplied his mortgage payments, (Am. Compl. ¶¶ 8, 27, 32, 35, 37, 53), and that “Citi” failed to comply with the payment application requirements in the Deed of Trust. (Am. Compl. ¶ 34). Plaintiff also alleges that “Citi” reported defaults related to his account to credit bureaus. (Am. Compl. ¶ 31, 62-63). Finally, Plaintiff also adds a section detailing “Citi’s” alleged violation of a court- approved settlement agreement. (Am. Compl. ¶¶ 65-80). Based upon these allegations, Plaintiff asserts causes of action for breach of contract (Am. Compl. ¶¶ 81-95), breach of settlement agreement (Am. Compl. ¶¶ 96-97(G)), fraudulent misrepresentation (Am. Compl. ¶¶ 98-106), Slander/Defamation (Am. Compl. ¶¶ 107-111), declaratory relief (Am. Compl. ¶¶ 112- 115), violation of the FDCPA (Am. Compl. ¶¶ 116-123), and violation of the FCRA (Cm. Compl. ¶¶ 124-133). As Defendants will demonstrate below, to support his causes of action, he relies on bald, conclusory allegations which are wholly unsupported by any factual allegation. Case 2:15-cv-02768-JTF-dkv Document 41-1 Filed 01/26/17 Page 2 of 12 PageID 375 28921256 v1 3 III. Standard of Review Courts sitting in diversity “apply state substantive law and federal procedural law.” Saab Auto. AB v. Gen. Motors Co., 770 F.3d 436, 440 (6th Cir. 2014) (citing Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 417, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010). Tennessee law therefore governs the substantive issues in this case. A court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). The sole purpose of a Rule 12(b)(6) motion is to determine “whether a cognizable claim has been pleaded in the complaint.” Scheid v. Fanny Farmer Candy Shops, 859 F.2d 434, 436 (6th Cir. 1988). A properly pleaded complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). While Rule 8 does not require detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). “Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949 (internal citation omitted). In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the Court must accept as true all well-pleaded factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 1950; see also Favors v. CitiMortgage, Inc., 2011 WL 4860045 (E.D. Tenn. October 13, 2011). Mere recitals of the elements of a cause of action, supported only by conclusory Case 2:15-cv-02768-JTF-dkv Document 41-1 Filed 01/26/17 Page 3 of 12 PageID 376 28921256 v1 4 statements, do not suffice. Iqbal, 556 U.S. at 678. Second, the Court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id.; Favors, 2011 WL 4860045 at *2 (“To survive a motion to dismiss, a plaintiff must plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged”). Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has “alleged-but it has not shown-that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679. (internal quotation marks omitted). When the claims in a complaint have not crossed the line from conceivable to plausible, plaintiff’s complaint must be dismissed. Twombly, 550 U.S. at 570. IV. Argument Plaintiff’s state law claim for defamation is preempted by the FCRA claim, and that claim is therefore due to be dismissed. Further, Plaintiff’s federal statutory claims against Defendants fail to sufficiently allege causes of action under either the FCRA or the FDCPA. Therefore, in addition to the preempted claim for defamation, both the FCRA and FDCPA claims are also due to be dismissed. A. Plaintiff’s Claim for Defamation is Preempted the FCRA. The FCRA was enacted to regulate the reporting of information regarding consumer credit reports. See generally 15 U.S.C. 1681. In 1996, the FCRA was amended to impose duties upon furnishers of information, such as Defendants here. See 15 U.S.C. § 1681s-2. These duties are set forth in 15 U.S.C. § 1681s-2 of the FCRA, which is subdivided into two subsections -- Sections 1681s-2(a), and 1681s-2(b). Section 1681s-2(a) establishes that furnishers have a duty Case 2:15-cv-02768-JTF-dkv Document 41-1 Filed 01/26/17 Page 4 of 12 PageID 377 28921256 v1 5 to provide accurate information regarding a consumer’s credit. See Dajani v. New S. Fed. Sav. Bank, 2008 WL 5206275, at *3 (Tenn. Ct. App. Dec. 12, 2008). Under Section 1681s-2(b), “[f]urnishers also have a duty to investigate the accuracy of information they provide upon notice of a dispute received from a consumer reporting agency.” Id., at *3, n. 5. As explained by the United States District Court for the Eastern District of Tennessee in Birdsall v. Peoples Bank of the S.: The [FCRA] contains two preemption provisions, each of which limit a plaintiff’s ability to assert state law claims based on a defendant’s furnishing of information to a credit reporting agency. The first, contained in § 1681(h)(e) provides: Except as provided in sections 1681n and 1681o of this title, no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against any consumer reporting agency, any user of information, or any person who furnishes information to a consumer reporting agency, based on information disclosed pursuant to section 1681g, 1681h, or 1681m of this title, or based on information disclosed by a user of a consumer report to or for a consumer against whom the user has taken adverse action, based in whole or in part on the report except as to false information furnished with malice or willful intent to injure such consumer. 15 U.S.C. § 1681h(e). The second preemption provision of the FCRA was subsequently enacted by Congress in connection with the Consumer Credit Reporting Reform Act of 1996. Section 1681t(b)(1)(F) provides that “no requirement or prohibition may be imposed under the laws of any state ... with respect to the subject matter regulated under § 1681s-2 of this title, relating to the responsibilities of persons who furnish information to consumer reporting agencies.” The majority of courts have found that § 1681t(b)(1)(F) applies to preempt both statutory and common law claims under state law that are based on allegations involving a subject matter regulated under the FCRA. In Westbrooks [v. Fifth Third Bank], the District Court for the Middle District of Tennessee found that “all state claims that do not allege willfulness are preempted by § 1681h(e), and any surviving claims alleging willfulness are preempted under § 1681t(b)((1)(F) if they involve a subject matter regulated under § 1681s-2. Id., 2005 WL 3240614 (M.D. Tenn. 2000). . . . Although some courts have adopted a different approach, finding that preemption of state common law tort claims relating to the furnishing of credit information should be analyzed under § 1681h(e) and state statutory claims relating to the furnishing of credit information should be analyzed under § Case 2:15-cv-02768-JTF-dkv Document 41-1 Filed 01/26/17 Page 5 of 12 PageID 378 28921256 v1 6 1681t(b)(1)(F), the Court finds that the better approach is the majority approach expressed in Westbrooks and the cases cited above. Birdsall v. Peoples Bank of the S., 2014 WL 640704, at *4 (E.D. Tenn. Feb. 19, 2014) (internal citations omitted) (dismissing plaintiff’s negligence and defamation claim as they were based on conduct regulated under Section 1681s-2 and, therefore, preempted by the FCRA). See also Lufkin v. Capital One Bank (USA), N.A., No. 3:10-CV-18, 2010 WL 2813437, at *3-4 (E.D. Tenn. July 16, 2010) (dismissing plaintiff’s state law claims for fraud, defamation, breach of contract, violation of the Tennessee Consumer Protection Act, and violation of the Tennessee Credit Services Business Act as they were preempted under the FCRA); Westbrooks, 2005 WL 3240614, at *7 (FCRA preempts a defamation claim based on failure to report complete and accurate information to consumer reporting agency). Plaintiff’s claim for defamation is based on allegations of negligent reporting of information to credit bureaus. (Am. Compl. ¶ 109). This is the exact type of conduct that is regulated under Section 1681s-2 of the FCRA. As such, to the extent Plaintiff’s Amended Complaint asserts a cause of action for information Defendants furnished to credit bureaus, that claim is preempted by the FCRA. Accordingly, the defamation claim of Plaintiff’s Amended Complaint is due to be dismissed. B. Because Plaintiff Does Not Sufficiently Allege That Defendants Received Notice of His Dispute from a CRA, The FCRA Claim Fails as a Matter of Law. Plaintiff alleges that he “filed a dispute with several credit reporting agencies” and that “Citi was notified by the credit agencies that Plaintiff disputed the accuracy of the information it was providing….” (Am. Compl. ¶ 60). Plaintiff then concludes that Defendants violated the FCRA by continuing “to furnish information it knew or should have known was incomplete or inaccurate to reporting agencies….” (Am. Compl. ¶ 61). Though originally the FCRA regulated Case 2:15-cv-02768-JTF-dkv Document 41-1 Filed 01/26/17 Page 6 of 12 PageID 379 28921256 v1 7 only the acts of consumer reporting agencies (“CRAs”), the FCRA was later amended to impose duties upon furnishers of information, such as Defendants. See 15 U.S.C. § 1681s-2. These duties are set forth in 15 U.S.C. § 1681s-2, and specifically at subsections 1681s-2(a) and 1681s-2(b). “The FCRA imposes a duty upon furnishers of credit information to report accurate information to [CRAs] regarding a consumer’s credit.” Bach v. First Union Nat. Bank, 149 F. App’x 354, 358 (6th Cir. 2005) (citing 15 U.S.C. § 1681s-2(a)(1)(A)). Yet, it is well-settled that there is no private right of action under 15 U.S.C. § 1681s-2(a) for furnishing allegedly inaccurate information. Burgess v. Capital One Bank (USA), N.A., No. 3:09-0708, 2010 WL 1752028, at *1 (M.D. Tenn. Apr. 30, 2010) (“[T]here is not a private right of action under 15 U.S.C. § 1681s-2(a) for furnishing allegedly inaccurate information”). Thus, to the extent Plaintiff’s FCRA claim is premised on allegations that Defendants failed to report accurate information as required by § 1681s-2(a), it is due to be dismissed. See Burgess, 2010 WL 1752028, at *1 (“Plaintiff’s claim that Defendant violated 15 U.S.C. § 1681s-2(a) fails to state a claim for relief”); see also Harris v. Ally Fin., Inc., No. 215CV02501JPMDKV, 2015 WL 7588263, at *5 (W.D. Tenn. Nov. 25, 2015) (“[R]egardless of whether Plaintiff’s credit information was inaccurate and whether Defendant had notice or knowledge of possible inaccuracy, Plaintiff, as a consumer, is unable to assert a claim under § 1681-s(2)(a) of the FCRA”). As for § 1681s-2(b), that Section of the FCRA does provide a private right of action to consumers. Boggio v. USAA Fed. Sav. Bank, 696 F.3d 611, 616 (6th Cir. 2012). Nonetheless, courts still require a plaintiff seeking relief under this Section of the FCRA to show that a CRA provided notice to the furnisher of the allegedly inaccurate information before duties under § Case 2:15-cv-02768-JTF-dkv Document 41-1 Filed 01/26/17 Page 7 of 12 PageID 380 28921256 v1 8 1681 s-2(b) will apply. See Downs v. Clayton Homes, Inc., 88 F. App’x 851, 853-54 (6th Cir. 2004) (“If it is assumed that a private right of action exists under § 1681s-2(b), the plaintiff must show that the furnisher received notice from a consumer reporting agency, not the plaintiff, that the credit information is disputed”); see also Harris v. Ally Fin., Inc., 2015 WL 7588263, at *5 (W.D. Tenn. Nov. 25, 2015) (“the private right of action applies only when a consumer reporting agency, rather than the consumer herself, is the party who has provided notice to the furnisher of information of potential incompleteness or inaccuracy of the information provided to it by the furnisher”); see also Zager v. Deaton, No. 1-03-1153, 2005 WL 2008432, at *5 (W.D. Tenn. Aug. 16, 2005) (“the fact that Defendant had actual notice of the dispute is irrelevant. A furnisher of incorrect credit information must have received notice from the credit reporting agency in order for subsection (b) duties to be triggered”). Thus, to state a claim under § 1681s- 2(b), Plaintiff must allege that Defendants received notice from a CRA, and not simply from the Plaintiff, that the credit information is disputed. See Burgess v. Capital One Bank (USA), N.A., 2010 WL 1752028, at *2 (M.D. Tenn. Apr. 30, 2010). Plaintiff’s conclusory allegations regarding notice he claims Defendants received from the CRAs are insufficient to allow his FCRA claim to proceed. In support of some of his other causes of action, Plaintiff has provided specific allegations with regard to certain calls which took place between himself and various “Citi” representatives, including times, dates, the names and I.D. numbers of various “Citi” representatives, the specific content of conversations, etc. (See Am. Compl. ¶¶ 12, 14, 15, 17-21, 26). With respect to his FCRA claim, however, Plaintiff has failed to provide any facts at all specifying when he purportedly disputed the Defendants’ credit reporting, to which CRA(s) he submitted the dispute, which Defendant he contends Case 2:15-cv-02768-JTF-dkv Document 41-1 Filed 01/26/17 Page 8 of 12 PageID 381 28921256 v1 9 reported the disputed information, to which Defendant the unidentified CRA(s) purportedly sent notification of the dispute, or which Defendant(s) actually received a dispute from a CRA. It is well established that legal conclusions, mere recitations of the elements of a cause of action, and mere “‘naked assertion[s]’ devoid of ‘further factual enhancement’” -- which is all that Plaintiff has proffered here -- are insufficient to overcome a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” In re Allstate Ins. Co. Underwriting & Rating Practices Litig., 917 F. Supp. 2d 740, 744 (M.D. Tenn. 2008) (quoting Twombly, 127 S.Ct. at 1964-65). Further, although the Court must take all of the factual allegations in the Amended Complaint as true, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice,” and a plaintiff’s legal conclusions couched as factual allegations need not be accepted as true. Iqbal, 556 U.S. at 678. Accordingly, to survive a motion to dismiss or a motion for judgment on the pleadings, “[f]actual allegations must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. The Court “need not accept as true legal conclusions or unwarranted factual inferences, and [c]onclusory allegations or legal conclusions masquerading as factual allegations will not suffice.” In re Travel Agent Comm’n Antitrust Litig., 583 F.3d 896, 903 (6th Cir.2009). Thus, because Plaintiff’s legal conclusions, unsupported by factual allegations, are “a formulaic recitation of the elements of a [FCRA] cause of action” which are not “enough to raise a right to relief above the speculative level,” this claim should be dismissed. Plaintiff’s Amended Complaint contains legal conclusions couched as factual allegations. (Am. Compl. ¶¶ Case 2:15-cv-02768-JTF-dkv Document 41-1 Filed 01/26/17 Page 9 of 12 PageID 382 28921256 v1 10 60-61). For that reason, Plaintiff’s FCRA claim against Defendants pursuant to § 1681s-2(b) is insufficient as a matter of law and is due to be dismissed. C. Plaintiff’s FDCPA Claim Fails as a Matter of Law Because He Has Not Established That Defendants are “Debt Collectors” Subject to the Act. The Plaintiff’s claim that the Defendants violated the FDCPA must also be dismissed. The FDCPA distinguishes between “creditors,” which are not subject to the FDCPA, and “debt collectors,” which are subject to the FDCPA. The Sixth Circuit has observed that “the legislative history of § 1692(a)(6) indicates conclusively that a debt collector does not include the consumer’s creditors ....” Lufkin v. Capital One Bank (USA), N.A., No. 3:10-CV-18, 2010 WL 2813437, at *5 (E.D. Tenn. July 16, 2010) (quoting Montgomery v. Huntington Bank, 346 F.3d 693, 698 (6th Cir.2003)). An entity qualifies as a “debt collector” under the FDCPA only if it satisfies one of two requirements, either it: (1) “[U]ses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts”; or (2) “[R]egularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” See 15 U.S.C. § 1692a(6). If a plaintiff establishes one of these two prongs, a defendant is considered a “debt collector” unless it falls into one of several exceptions, such as where the debt at issue “was not in default at the time it was obtained by [the defendant].” See 15 U.S.C. § 1692a(6)(F)(iii). As noted by the Sixth Circuit Court of Appeals, “[t]he term ‘debt collector’ has a particular meaning, however: it refers only to persons attempting to collect debts due ‘another.’ MacDermid v. Discover Financial Services, 488 F.3d 721, 734 (6th Cir. 2007). Stated simply, “a creditor is not a debt collector for purposes of the FDCPA and creditors are not subject to the FDCPA when collecting their accounts.” Stafford v. Cross Country Bank, 262 F.Supp.2d 776, 794 (W.D. KY 2003). Case 2:15-cv-02768-JTF-dkv Document 41-1 Filed 01/26/17 Page 10 of 12 PageID 383 28921256 v1 11 Plaintiff at no point alleges that Defendants “use an ‘instrumentality of interstate commerce or the mails’ in operating a business that has the principal purpose of collecting debts,” or that Defendants “regularly attempt[s] to collect debts,” let alone assert facts to support such conclusions. More importantly in this case, Plaintiff also fails to allege that the account was delinquent when obtained. The only allegations Plaintiff asserts in his Amended Complaint regarding either Defendants’ alleged status as a “debt collector” is a single, conclusory statement that “Citi is a debt collector under 15 U.S.C. 1692 a (6).” (Am. Compl. ¶ 49.) And importantly, “[s]uch a conclusory allegation is simply not sufficient to satisfy the plaintiff’s burden of showing that [Defendants] are debt collectors under the FDCPA.” Morris v. Equi First Corp., 2011 WL 1337404, at *4 (M.D. Tenn. Apr. 7, 2011), report and recommendation adopted, 2011 WL 1884602 (M.D. Tenn. May 18, 2011). As with his FCRA claim, Plaintiff’s FDCPA claim is insufficient under the Rule 8 analysis provided above. Accordingly, because Plaintiff has failed to sufficiently allege that the Defendants are “debt collectors” under the FDCPA, his FDCPA claim should be dismissed, with prejudice. See id; Stamper v. Wilson & Assocs., P.L.L.C., 2010 WL 1408585, at *8 (E.D. Tenn. Mar. 31, 2010) (“All plaintiffs have done is make conclusory statements that Wilson & Associates are ‘debt collectors.’ This is not enough to survive defendant’s motion to dismiss.”) V. Conclusion For the foregoing reasons, the Court should dismiss with prejudice the FCRA and FDCPA claims, as well as the state law defamation claim in Plaintiff’s Amended Complaint. Case 2:15-cv-02768-JTF-dkv Document 41-1 Filed 01/26/17 Page 11 of 12 PageID 384 28921256 v1 12 January 26, 2017. Respectfully submitted, /s/ Charles N. Alden Richard C. Keller, Esq. (BPR# 024894) J. Matthew Kroplin (BPR #27363) Charles N. Alden (BPR #33186) BURR & FORMAN LLP 511 Union Street, Suite 2300 Nashville, TN 37219 Main: (615) 724-3200 Fax: (615) 724-3300 Email: rkeller@burr.com; mkroplin@burr.com nalden@burr.com ATTORNEYS FOR DEFENDANTS CITIMORTGAGE, INC. AND CITIBANK, N.A. CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served on the following by directing the same to the following address through first-class, United States mail, postage prepaid, on this the 26th day of January, 2017. Jesse Sandlin 4743 Kassel Cove Memphis, TN 38116 /s/ Charles N. Alden Charles N. Alden Case 2:15-cv-02768-JTF-dkv Document 41-1 Filed 01/26/17 Page 12 of 12 PageID 385