Turner v. Wells Fargo Dealer Services, Inc.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In Support

N.D. Ga.June 26, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION EDWARD KENT TURNER II, ) ) CIVIL ACTION FILE Plaintiff, ) ) NO. 1:17-CV-01257-TCB-CMS v. ) ) WELLS FARGO DEALER ) SERVICES, INC., ) ) Defendant. ) ) DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT COMES NOW, Defendant, WELLS FARGO DEALER SERVICES, INC., (hereinafter "Wells Fargo" or "Defendant"), by and through its undersigned counsel and moves this honorable Court to dismiss Plaintiff's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. This motion is based upon the allegations contained in Plaintiff's Complaint, the supporting Brief of Wells Fargo filed with this Motion, and all other pleadings of record. WHEREFORE, Wells Fargo respectfully requests that the Court grant this Motion, dismiss Plaintiff's Complaint with prejudice, and tax Plaintiff with all costs of this action. Case 1:17-cv-01257-TCB-CMS Document 7 Filed 06/26/17 Page 1 of 3 2 Respectfully submitted this 26th day of June, 2017. Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Suite 1600, Monarch Plaza 3414 Peachtree Rd. NE Atlanta, Georgia 30326 Ph. 404-577-6000; Fax 404-221-6501 Email: dhoward@bakerdonelson.com Email: akoskey@bakerdonelson.com /s/ Alexander F. Koskey, III Dylan W. Howard Georgia Bar No. 370267 Alexander F. Koskey, III Georgia Bar No. 694546 Attorneys for Wells Fargo Dealer Services, Inc. Case 1:17-cv-01257-TCB-CMS Document 7 Filed 06/26/17 Page 2 of 3 3 CERTIFICATE OF SERVICE I hereby certify that I have this 26th day of June, 2017, served the unrepresented parties and all counsel of record the within and foregoing DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT by electronically filing it with the Clerk of Court using the CM/ECF system which will automatically send e-mail notification of such filing or by First Class U.S. Mail upon the following: Edward Kent Turner, II, pro se 2970 Abbotts Pointe Dr. Duluth, GA 30097 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Suite 1600, Monarch Plaza 3414 Peachtree Rd. NE Atlanta, Georgia 30326 Ph: 404-577-6000; Fax: 404-221-6501 Email: akoskey@bakerdonelson.com /s/Alexander F. Koskey, III Alexander F. Koskey, III Georgia Bar No. 694546 Attorney for Wells Fargo Dealer Services, Inc. Case 1:17-cv-01257-TCB-CMS Document 7 Filed 06/26/17 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION EDWARD KENT TURNER II, ) ) CIVIL ACTION FILE Plaintiff, ) ) NO. 1:17-CV-01257-TCB-CMS v. ) ) WELLS FARGO DEALER ) SERVICES, INC., ) ) Defendant. ) ) DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT COMES NOW, Defendant, WELLS FARGO DEALER SERVICES, INC., (hereinafter "Wells Fargo" or "Defendant"), by and through its undersigned counsel and pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, hereby files this its Brief in Support of Motion to Dismiss Plaintiff's Complaint showing this Honorable Court as follows: INTRODUCTION On April 10, 2017, Plaintiff filed his Complaint against Wells Fargo alleging violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. ("FCRA"), Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), and various federal and state statutes claiming that he did not owe a debt to Wells Case 1:17-cv-01257-TCB-CMS Document 7-1 Filed 06/26/17 Page 1 of 20 2 Fargo. See generally Complaint.1 Plaintiff further alleges that his "property was unlawfully enjoined from him" but fails to identify the "property" allegedly taken or who took the "property" which fails to afford Wells Fargo fair notice to adequately respond to the Complaint. Plaintiff's Complaint must be dismissed for four equally distinct and compelling reasons: (1) the Complaint fails to satisfy the pleading requirements of Fed. R. Civ. P. 8; (2) Plaintiff's FCRA claim fails as a matter of law as Plaintiff does not allege that Wells Fargo received notice of an alleged dispute from a credit reporting agency; (3) Wells Fargo is not a "debt collector" under the FDCPA; and (4) Plaintiff's state law claims fail as a matter of law. Plaintiff's Complaint appears to relate to a motor vehicle loan by Wells Fargo to Plaintiff in March 2014. Plaintiff defaulted on the terms of that loan and the vehicle was repossessed. Plaintiff has now filed this Complaint alleging that he never had a relationship with Wells Fargo and owed no debt to Wells Fargo. These allegations are frivolous and are merely an attempt by Plaintiff to avoid his financial obligations to Wells Fargo. For the reasons set forth below, the Complaint fails as a matter of law and must be dismissed with prejudice. 1 Although Plaintiff initially says that he did not owe a debt to Wells Fargo, he later contradicts this statement by alleging that "Plaintiffs on multiple occasions offered to pay the alleged debt …" Compl., ¶ 32. Case 1:17-cv-01257-TCB-CMS Document 7-1 Filed 06/26/17 Page 2 of 20 3 STATEMENT OF FACTS Plaintiff's Complaint contains no detailed factual allegations whatsoever. Plaintiff attaches a letter to his Complaint which purports to be from Wells Fargo and references a particular account number with Wells Fargo. See generally Compl, Ex. A. As Plaintiff does not provide any additional detail as to the "property" that is the subject of this Complaint, Wells Fargo is at a complete disadvantage to understand Plaintiff's allegations and is forced to engage in guesswork as to the basis of Plaintiff's Complaint. To the extent possible, Wells Fargo attempts to discern the potential facts surrounding Plaintiff's Complaint below. This matter appears to relate to Plaintiff's purchase of a 2008 Infinity G37 (Vehicle ID Number JNKCV64EX8M120964) (the "Vehicle") from Infinity of Gwinnett ("Infinity"). On March 15, 2014, Plaintiff entered into a Retail Installment Sale Contract (the "Contract") with Infinity to purchase the Vehicle. A true and correct copy of the Contract is attached hereto as Exhibit A.2 Plaintiff financed a total amount of $18,505.50 at 15.25% interest to purchase the Vehicle 2 A document attached to a motion to dismiss may be considered by the court without converting the motion into one for summary judgment if the attached document is: 1) central to the plaintiff's claim, and 2) undisputed. See, e.g. Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002) (explaining that "undisputed" in this context means the authenticity of the document is not challenged). Case 1:17-cv-01257-TCB-CMS Document 7-1 Filed 06/26/17 Page 3 of 20 4 (the "Loan"). See Ex. A. Contemporaneous with execution, Infinity assigned its interest in the Contract to Wells Fargo. See Ex. A, p. 4. Therefore, under the Contract, Wells Fargo retained a security interest in the Vehicle and Plaintiff was obligated to make all payments to Wells Fargo. In the event that Plaintiff defaulted on the Loan payments, Wells Fargo had the right to repossess the Vehicle. Plaintiff ultimately defaulted on the Loan and the Vehicle was repossessed. See generally Complaint. Plaintiff's Complaint is entirely without merit. Although Plaintiff alleges violations of the FCRA, FDCPA, and state statutes, the Complaint provides no factual basis to support these allegations and utterly fails to comport with the pleading requirements under federal law. Plaintiff also fails to allege that any credit reporting agency provided notice of any dispute to Wells Fargo, which is a requirement for a private right of action under the FCRA. Wells Fargo is also not a "debt collector" and is not subject to liability under the FDCPA in this matter. Plaintiff's miscellaneous state law claims also have no basis in law or fact. The Complaint is nothing more than collection of hollow, generalized, and unsubstantiated allegations which possess no merit. Plaintiff should also not be afforded the ability to re-plead as it would be futile. Accordingly, the Complaint must be dismissed with prejudice. Case 1:17-cv-01257-TCB-CMS Document 7-1 Filed 06/26/17 Page 4 of 20 5 STANDARD OF REVIEW Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of an action when the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss, the court must accept the plaintiff's allegations as true and construe the complaint in the plaintiff's favor. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). "Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain a short and plain statement of the claim showing that the pleader is entitled to relief.'" Broner v. Wash. Mut. Bank, FA, 258 Fed. App'x. 254, 256 (11th Cir. 2007) (per curiam) (unpublished) (quoting Fed. R. Civ. P. 8(a)(2)). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of [her] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal marks and citations omitted). To survive a motion to dismiss, a complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Id. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "Factual allegations must be enough to Case 1:17-cv-01257-TCB-CMS Document 7-1 Filed 06/26/17 Page 5 of 20 6 raise a right to relief above the speculative level," Id., as the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 US. at 556). The Supreme Court in Iqbal held: Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not "show[n]"-"that the pleader is entitled to relief." 556 U.S. at 678-79 (internal marks and citations omitted). ARGUMENT AND CITATION OF AUTHORITY I. Plaintiff's Complaint Fails To Meet The Requisite Pleading Standard Of The Federal Rules Of Civil Procedure And Is A Shotgun Pleading. Plaintiff's Complaint must be dismissed because it fails to satisfy the pleading requirements under Fed. R. Civ. P. 8(a)(2) which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." A claim Case 1:17-cv-01257-TCB-CMS Document 7-1 Filed 06/26/17 Page 6 of 20 7 is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Plaintiff's Complaint is also the epitome of an impermissible shotgun pleading wherein the plaintiff asserts rambling, incoherent, and meshed causes of action. See Magulta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001). Shotgun pleadings are not only a hodgepodge of factual allegations and legal conclusion, but are also complaints that "make[s] no distinction among the defendants3 charged, though geographic and temporal realities make plain that all of [the] defendants could not have participated in every act complained of." Id. In Ashcroft v. Iqbal, the United States Supreme Court clearly stated that Rule 8 does not "require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." 556 U.S. 662, 678 (2009) (citing to Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007)). "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Id. Mere conclusory allegations or bare legal conclusions as asserted in the Complaint are generally insufficient to withstand a motion to dismiss for failure to state a claim. See Iqbal, 129 S.Ct. at 1951-52; Twombly, 550 U.S. at 554-56. "Without some factual allegations in the 3 Although Wells Fargo is the only defendant formally named to the lawsuit, Plaintiff's Complaint is confusing as it routinely refers to "defendants," "neither defendants," or "any of the defendants" implying that there are additional defendants in this matter. Case 1:17-cv-01257-TCB-CMS Document 7-1 Filed 06/26/17 Page 7 of 20 8 complaint, it is hard to see how a claimant could satisfy the requirement of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests." Twombly, 550 U.S. at 556 n. 3. The Complaint contains nothing more than threadbare "naked assertions devoid of further factual enhancement," which the Eleventh Circuit has rejected. Iqbal, 129 S. Ct. at 1949. Plaintiff alleges that his "property was unlawfully enjoined from him without notice or consent …" Compl., ¶ 6. Plaintiff does not identify what the "property" is or who "unlawfully enjoined" the "property." Plaintiff further alleges that Wells Fargo engaged in "deceptive and illegal acts in their attempt to collect the alleged debt" but has failed to allege sufficient facts that would allow a reasonable inference or plausible claim in connection with any attempt to collect a debt. See Compl. ¶ 10. Plaintiff appears to attempt to raise issues related to violations of the Fair Credit Reporting Act, Fair Debt Collection Practices Act, and general violations of state statutes. See generally Complaint. Plaintiff provides no discernable facts regarding the facts to support these claims and the Complaint boils down to nothing more than a recitation of legal statutes. Plaintiff's Complaint is vague and the specific nature and basis of his claims is unclear. Case 1:17-cv-01257-TCB-CMS Document 7-1 Filed 06/26/17 Page 8 of 20 9 In sum, Plaintiff makes sweeping conclusory allegations without the necessary, basic factual predicate. Plaintiff has not satisfied the factual content required by Iqbal and Twombly to afford Defendant "fair notice" of the specific claims asserted and, consequently, has failed to state a claim upon which relief may be granted and the Complaint must be dismissed. II. Plaintiff's Claims Under the Fair Credit Reporting Act Fail as a Matter of Law. In his First Cause of Action, Plaintiff alleges that Wells Fargo violated the FCRA. See Compl., ¶¶ 12-20. Specifically, Plaintiff alleges that he discovered that Wells Fargo was "reporting the alleged debt to all three credit reporting agencies." Compl., ¶ 7. Plaintiff further alleges that Wells Fargo "failed to maintain, and failed to follow reasonable procedures to assure maximum possible accuracy of Plaintiff's credit report …" Compl, ¶ 17. As detailed below, any claims under the FCRA fail as a matter of law and must be dismissed. A. Plaintiff Does Not Have A Private Right of Action Under the FCRA. 15 U.S.C. § 1681s-2 describes the responsibilities of those who report credit information (hereinafter described as "furnishers"), such as Wells Fargo, to consumer reporting agencies. Specifically, the FCRA provides an obligation on furnishers of credit information to properly report credit to consumer agencies. 15 Case 1:17-cv-01257-TCB-CMS Document 7-1 Filed 06/26/17 Page 9 of 20 10 U.S.C. § 1681s-2(a). It also provides an obligation on furnishers to investigate a consumer's credit dispute if that furnisher receives notice of the dispute from a consumer reporting agency. 15 U.S.C. § 1681s-2(b). To the extent that Plaintiff is basing his FCRA claim on violations of 15 U.S.C. § 1681s-2(a), such a claim fails as a matter of law as there is no private right of action under that provision. See Chika v. Bank of America, 355 Fed. App'x. 380, 383 (11th Cir. 2009) ("Congress … expressly reserved enforcement of subsection (a) to governmental agencies and officials, thereby limiting a consumer's private cause of action against a furnisher of credit information to violations of § 1681s-2(b)."); see also Horton v. First Premier Bank, 2013 U.S. Dist. LEXIS 79105 (N.D. Ga. 2013). The Fair Credit Reporting Act (FCRA) prohibits furnishers of credit information from providing false information. 15 U.S.C. § 1681s- 2(a). However, the statute explicitly bars private suits for violations of that provision. 15 U.S.C. § 1681s-2(c). The FCRA also requires furnishers of credit information to investigate the accuracy of said information upon receiving notice of a dispute. 15 U.S.C. 1681s-2(b). This provision of the FCRA can be enforced through a private right of action, but only if the furnisher received notice of the consumer's dispute from a consumer reporting agency. Peart v. Shippie, 345 Fed. App'x. 384, 386 (11th Cir. 2009) (emphasis added). Plaintiff's FCRA claim focuses on the allegation that Wells Fargo failed to maintain the "accuracy of Plaintiff's credit report." Compl., ¶ 17. This allegation falls squarely within the purview of 15 U.S.C. § 1681s-2(a), which does not create Case 1:17-cv-01257-TCB-CMS Document 7-1 Filed 06/26/17 Page 10 of 20 11 a private right of action. Green v. RBS Nat'l Bank, 288 Fed. App'x 641, 642 (11th Cir. 2008); Horton v. First Premier Bank, 2013 U.S. Dist. LEXIS 79105 (N.D. Ga. 2013). Therefore, Plaintiff's FCRA claim fails as a matter of law. B. Plaintiff Has Failed to Show That Wells Fargo Received Notice From A Credit Reporting Agency to Satisfy A FCRA Claim Under 15 U.S.C. § 1681s-2(b). To the extent that this Court construes Plaintiff's FCRA claim to fall under 15 U.S.C. § 1681s-2(b), such a claim also fails. "To survive a motion to dismiss on a 15 U.S.C. § 16812-2(b) claim, a plaintiff must allege that the defendant received the proper notice from the consumer reporting agency pursuant to 15 U.S.C 1681i(a)(2) and that the defendant failed to uphold its duties pursuant to 15 U.S.C. § 1681s-2(b)." Horton v. First Premier Bank, 2013 U.S. Dist. LEXIS 79105 (N.D. Ga. 2013) (citing Pickney v. SLM Fin. Corp., 433 F. Supp. 2d 1316, 1319 (N.D. Ga. 2005)). This fact is even acknowledged by the Plaintiff. See Complaint, ¶ 16. Once a consumer reporting agency receives notice of disputed information from a consumer, the agency must provide notice of the dispute "to any person who provided any item of information in the dispute," and the notice must "include all relevant information regarding the dispute that the agency has received from the consumer …" 15 U.S.C. § 1681i(a)(2)(A). Any claim under 15 U.S.C. § 1681s-2(b) fails for two critical reasons: (1) Case 1:17-cv-01257-TCB-CMS Document 7-1 Filed 06/26/17 Page 11 of 20 12 Plaintiff does not allege that he sent a dispute with any credit reporting agencies and (2) Plaintiff does not allege that Wells Fargo received any notice of dispute from a credit reporting agency. The receipt of a notice of dispute from a credit reporting agency is not only a condition precedent to a private cause of action under the FCRA, it actually triggers the obligation for a furnisher to investigate the content of its reports. If a credit reporting agency did not give Wells Fargo notice of Plaintiff's dispute, then Plaintiff has no cause of action. See Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147 (9th Cir. 2008) ("These duties [set forth in § 1681s-2(b)(1)] arise only after the furnisher receives notice of a dispute from a credit reporting agency; notice of a dispute received directly from the consumer does not trigger a furnisher's duties under subsection (b)." Plaintiff has alleged no facts which would have trigged any duties of Wells Fargo under 15 U.S.C. § 1681s-2(b). Accordingly, Plaintiff has failed to satisfy the elements for a claim under the FCRA, and the claim must be dismissed. III. Plaintiff's FDCPA Claim Fails As Wells Fargo Is Not A "Debt Collector." Plaintiff's purported claim under the FDCPA also fails as a matter of law. In order to prevail on a FDCPA claim, a plaintiff must establish that: (1) he has been the object of collection activity arising from a consumer debt; (2) the defendant attempting to collect on the debt qualifies as a "debt collector" under the FDCPA; Case 1:17-cv-01257-TCB-CMS Document 7-1 Filed 06/26/17 Page 12 of 20 13 and (3) the defendant has engaged in a prohibited act or has failed to perform a requirement imposed by the FDCPA. See Gardner v. TBO Capital, LLC, 986 F. Supp. 2d 1324, 1332 (N.D. Ga. 2013). Where a plaintiff fails to state with specificity how the elements of an FDCPA claim are met, the complaint should be dismissed. See Kennedy v. U.S., 478 Fed. Appx. 584, 586 (11th Cir. 2012) (affirming the dismissal of a plaintiff's FDCPA claim where she "failed to state what action or inaction of the defendants allegedly violated these statutes"); see also Dynott v. Nationstar Mortg., LLC, No. 1:13-cv-1474-WSD, 2014 U.S. Dist. LEXIS 34058, at *5-6 (N.D. Ga. Mar. 17, 2014) (dismissing FDCPA claim because the plaintiff did "not allege sufficiently specific actions that Defendants took to violate the statute"); Ferguson v. CitiMortgage, Inc., No. 1:12-CV-2464, 2013 U.S. Dist. LEXIS 185152, at *20-21 (N.D. Ga. Jan. 8, 2013) (finding that plaintiff failed to state a FDCPA claim because his complaint did "not state what specific activities supposedly violated the statute," or "specify how each Defendant supposedly violated the statute"). Plaintiff's Complaint must be dismissed as Wells Fargo is not a "debt collector" as defined under the FDCPA. Under the FDCPA, the term "debt collector" is defined as: The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the Case 1:17-cv-01257-TCB-CMS Document 7-1 Filed 06/26/17 Page 13 of 20 14 principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provide by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. 15 U.S.C. § 1692a; see also Davidson v. Capital One Bank (USA), N.A., 797 F.3d 1309, 1315-16 (11th Cir. 2015) (citing 15 U.S.C. § 1692a(6)). 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 [or] . . . concerns a debt which was not in default at the time it was obtained by such person." 15 U.S.C. § 1692a(6)(F)(ii)-(iii). It is well established that creditors are excluded from the purview of the FDCPA. See Brown v. Fed. Nat'l Mortg. Ass'n, No. 1:10-CV- 03289-TWT-GGB, 2011 WL 1134716, *7 (N.D. Ga. Feb. 28, 2011); Buckley v. Bayrock Mortg. Corp., No. 1:09-CV-1387-TWT, 2010 WL 476673, *6 (N.D. Ga. Feb. 5, 2010) (same). Wells Fargo is a creditor of the Plaintiff. As shown by the Contract, the Loan was not in default at the time it was assigned to Wells Fargo, which was the date the Loan was originated. Therefore, Wells Fargo is not a "debt collector" for the purposes of the FDCPA and the FDCPA does not apply to Wells Fargo's Case 1:17-cv-01257-TCB-CMS Document 7-1 Filed 06/26/17 Page 14 of 20 15 activities in connection with collecting amounts due on the Loan. Plaintiff's allegations in support of his FDCPA claim are devoid of factual support and wholly insufficient to create a well-pleaded fact.4 As a result, Plaintiff's FDCPA claim must be dismissed. IV. Plaintiff's Claims Under The Georgia Fair Business Practices Act Fail. In Count Three, Plaintiff alleges violations of the Georgia Fair Business Practices Act of 1975, O.C.G.A. § 10-3-390, et seq. ("FBPA"). Specifically, Plaintiff alleges that Wells Fargo provided "multiple erroneous, fabricated amounts allegedly due …" Compl., ¶ 31. In general, the "FBPA does not encompass suits based upon allegedly deceptive or unfair acts or practices which occur in an essentially private transaction." Zeeman v. Black, 156 Ga. App. 82, 84 (1980) (holding that real estate agent's misrepresentation regarding property acreage in a singles ale was a private transaction that did not fall under FBPA). A lawsuit brought under the FBPA "must serve the public interest and implement the purpose of the FBPA -- the end to unfair or deceptive acts or practices in the public consumer marketplace." 4 To the extent that Plaintiff is attempting to assert a claim under 15 U.S.C. § 1692g, such a claim also fails. The communication from Wells Fargo to Plaintiff which is attached to the Complaint is dated June 17, 2016. See Compl., p. 9. Plaintiff's purported "Notice of Validation" is dated December 26, 2016, well outside the thirty-day period to dispute any debt pursuant to 15 U.S.C. § 1692g(b). Case 1:17-cv-01257-TCB-CMS Document 7-1 Filed 06/26/17 Page 15 of 20 16 Plaintiff has failed to allege any facts demonstrating any "deceptive" or "misleading" practices by Wells Fargo that would give rise to any plausible claim. According to the documents attached to the Complaint, Wells Fargo notified Plaintiff of the outstanding debt owed on the Loan. See Compl., p. 9. Plaintiff's Complaint contains no additional allegations to support this claim. Moreover, the allegations relate to a private transaction which is not governed by the FBPA. Plaintiff's allegations regarding the amounts owed on the Loan are already governed by the FDCPA and fall outside the intended purview of the FBPA. For these reasons, Plaintiff's FBPA claim fails as a matter of law and must be dismissed. V. Plaintiff's Complaint Fails To State A Claim For Negligent Hiring. In Count Four, Plaintiff asserts a cause of action for "negligent, wanton, and/or intentional hiring" claiming that Wells Fargo "hired, trained, retained, or supervised incompetent debt collectors . . . whom were allowed, or encouraged to violate the law as was done to Plaintiffs." Complaint, ¶ 36. Plaintiff's negligent hiring claim is unsupported by any facts that would support such a claim and his conclusory allegations cannot support a cause of action. Under Georgia law, the elements for a claim for negligence are: (1) a legal duty; (2) breach of that duty; (3) causation; and (4) damages. See Heston v. Lilly, Case 1:17-cv-01257-TCB-CMS Document 7-1 Filed 06/26/17 Page 16 of 20 17 248 Ga. App. 856, 857 (2001). Liability for negligent retention requires evidence that the employer knew or reasonably should have known of the employee's propensity to engage in the type of conduct that caused injury to the plaintiff. See Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1247 (11th Cir. 2001). Here, Plaintiff's Complaint fails to specifically identify any employee of Wells Fargo who was negligently hired or retained. Much like the entirety of his Complaint, Plaintiff has rested his claims on generalized allegations which provide no substance and cannot state a plausible cause of action. For these reasons, Plaintiff's negligent hiring claim must be dismissed. VI. Plaintiff's Alleged "Violations of O.C.G.A. Codes" Fails As A Matter Of Law. In his final cause of action, Plaintiff alleges "violations" of an extensive amount of Georgia state codes. See Compl., ¶¶ 39, 41. However, the three paragraphs comprising this "cause of action" consist mostly of a recitation of legal statutes without incorporating any facts whatsoever. Plaintiff alleges that Wells Fargo violated O.C.G.A. § 10-1-393(a), which was addressed supra, because Wells Fargo is "unable to produce a valid contract to substantiate a connection for defendant to legally garnish plaintiffs wages." Compl., ¶ 39. Aside from the fact that there are no allegations that Wells Fargo is attempting to garnish Plaintiff's wages, Wells Fargo has attached a copy of the Contract with Plaintiff. See Ex. A. Case 1:17-cv-01257-TCB-CMS Document 7-1 Filed 06/26/17 Page 17 of 20 18 The remaining allegations by Plaintiff are nonsensical and fail to allege sufficient facts to state a cause of action. Accordingly, Count Five of the Complaint must be dismissed. CONCLUSION WHEREFORE, Wells Fargo respectfully requests that the Court grant this motion and dismiss Plaintiff's claims as laid out above and tax Plaintiff with all costs of this action. Respectfully submitted this 26th day of June, 2017. Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Suite 1600, Monarch Plaza 3414 Peachtree Rd. NE Atlanta, Georgia 30326 Ph. 404-577-6000; Fax 404-221-6501 Email: dhoward@bakerdonelson.com Email: akoskey@bakerdonelson.com /s/ Alexander F. Koskey, III Dylan W. Howard Georgia Bar No. 370267 Alexander F. Koskey, III Georgia Bar No. 694546 Attorneys for Wells Fargo Dealer Services, Inc. Case 1:17-cv-01257-TCB-CMS Document 7-1 Filed 06/26/17 Page 18 of 20 19 FONT CERTIFICATION The undersigned counsel for Defendants hereby certifies that the within and foregoing BRIEF IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT was prepared using Times New Roman 14-point font in accordance with Local Rule 5.1. This 26th day of June, 2017. /s/ Alexander F. Koskey, III Dylan W. Howard Georgia Bar No. 370267 Alexander F. Koskey, III Georgia Bar No. 694546 Attorneys for Wells Fargo Dealer Services, Inc. Case 1:17-cv-01257-TCB-CMS Document 7-1 Filed 06/26/17 Page 19 of 20 20 CERTIFICATE OF SERVICE I hereby certify that I have this 26th day of June, 2017, served the unrepresented parties and all counsel of record the within and foregoing BRIEF IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT by electronically filing it with the Clerk of Court using the CM/ECF system which will automatically send e-mail notification of such filing or by First Class U.S. Mail upon the following: Edward Kent Turner, II, pro se 2970 Abbotts Pointe Dr. Duluth, GA 30097 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Suite 1600, Monarch Plaza 3414 Peachtree Rd. NE Atlanta, Georgia 30326 Ph: 404-577-6000; Fax: 404-221-6501 Email: akoskey@bakerdonelson.com /s/Alexander F. Koskey, III Alexander F. Koskey, III Georgia Bar No. 694546 Attorney for Wells Fargo Dealer Services, Inc. Case 1:17-cv-01257-TCB-CMS Document 7-1 Filed 06/26/17 Page 20 of 20 LAW' 553-GA-eps 3/13 RETAIL INSTALLMENT SALE CONTRACT SIMPLE FINANCE CHARGE Dealer Number 7592 Contract Number Buyer Name and Address Co-Buyer Name and Address Creditor-Seller (Name and Address) (Including County and Zip Code) (Including County and Zip Code) EDWARD KENT TURNER II BRITTANY JADE TALLEY INFINITI OF GWINNETT 2970 ABBOTTS POINTE DR 2970 ABBOTTS POINTE DR 3090 SATELLITE BLVD DULUTH, GA 30097 DULUTH GA 30097 DULUTH, GA 30096 GWINNETT GWINNETT 678/812 8500 You, the Buyer (and Co-Buyer, If any), may buy the vehicle below for cash or on credit, By signing this contract, you choose to buy the vehicle on credit under the agreements In this contract. You agree to pay the Creditor - Seller (sometimes "we" or "us" In this contract) the Amount Financed and Finance Charge in U.S. funds according to the payment schedule below. We will figure your finance charge on a daily basis. The Truth-In-Lending Disclosures below are part of this contract. New/Used Year Make and Model Vehicle Identification Number Primary Use For Which Purchased USED 2008 INFINITI G37 JNKCV64EX81V1120964 Personal, family, or household unless otherwise indicated below MI business 111 agricultural [ifj PERSONAL FEDERAL TRUTH-IN-LENDING DISCLOSURES ANNUAL PERCENTAGE RATE The cost of your credit as a yearly rate, 15.25 % FINANCE CHARGE The dollar amount the credit will cost you. $ 8054.70 Amount Financed The amount of credit provided to you or on your behalf, $ '18505.50 Total of Payments The amount you will have paid after you have made all payments as scheduled. $ 26560.20 Total Sale Price The total cost of your purchase on credit, including your down payment of $ 1500,00 is $ 28060.20 Your Payment Schedule Will Be: Number of Payments Amount of Payments When Payments Are Clue 60 442.67 Monthly beginning 04114/2014 Or As Follows; Late Charge, if payment is not received in full within 10 days after it Is due, you will pay a late charge of $ 50.00 or 5 % of the part of the payment that is late, whichever Is less. Prepayment, If you pay off all your debt early, you will not have to pay a penalty. Security Interest, You are giving a security interest in the vehicle being purchased, Additional Information: See this contract for more information including information about nonpayment, default, any required repayment in full before the scheduled data and security interest. NO COOLING OFF PERIOD . State law does not provide for a "cooling off" or cancellation period for this sale, After you sign this contract, you may only cancel it if the seller agrees or for legal cause. You cannot cancel this contract simply because you change your mind. Used Car Buyers Guide. The informa- tion you see on the window form for this vehicle is part of this contract, Information on the window form overrides any contrary provisions In the contract of sale. Spanish Translation: Guia para compradorea de vehiculos usados. La information que ve en el formulario de la ventanilla para este vehiculo forma parte del presents contrato. La InformaciOn del formulario de fa ventanilla deja sin efecto toda disposiciOn en contrario contenida en el contrato de yenta. Relented Check Charge: You agree to pay a charge equal to the greater of $30 or 5% of the check amount II any check you give us Is dishonored and we make written demand that you do so, EJ VENDOR'S SINGLE INTEREST INSURANCE (VSI Insurance): If the preceding box Is checked, the Creditor requires VSI Insurance for the Initial term of the contract to protect the Creditor for loss or damage to the vehicle (collision, fire, theft). VSI Insurance Is for the Creditor's sole protection. This Insurance does not protect your Interest In the vehicle. You may choose the insurance company through which the VSI Insurance is obtained, 11 you elect to purchase VSI Insurance through the Creditor, the cost of this Insurance Is $ N/A and Is also shown In Item 48 of the Itemization of Amount Financed. The coverage Is for the Initial term of the contract. NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF, RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER. If the goods or services are obtained primarily for business or agricultural use, Buyer will not assert against any subsequent holder or assignee of this contract any claims or defenses the Buyer (debtor) may have against the Seller, or against the manufacturer of the vehicle or equipment obtained under this contract, unless the law allows it. Buyer Signs X Co-Buyer Signs 03/15/2014, 00:08 pm LAW 553-GA-eps 3113 vi Page 1 of 4 Case 1:17-cv-01257-TCB-CMS Document 7-2 Filed 06/26/17 Page 1 of 4 ITEMIZATION OF AMOUNT FINANCED 1 Cash Price (IndudIng taxes of $ 1201.60) $ 18701.60 (1) 2 Total Downpayment Trade In (Year) (Make) (Model) Gross TratelnAllowance N/A Less Pay 01 Made By Seller N/A Equals Net Trade In N/A + Cash 1500.00 .4. °Thor N/A N/A (It total downpayrnent is negative, enter "0" and see 41 below) $ 1600.00 (2) 3 Unpaid Balance of Cash Price (1 minus 2) $ 17201.50 (3) 4 Other Charges Including Amounts Paid to Others on Your Behalf (Seller may keep part of these amounts): A Cost of Optional Credit Insurance Pald to Insurance Company or Companies. Lie N/A Disability N/A $ N/A B Vendor's Single Interest Insurance Paid to insurance Company N/A C Other Optional Insurance Paki to Insurance Company or Companies N/A 0 Optimal Gap Contrail 599.00 E Official Fees Paid to Government Agencies to for N/A to for $ N/A to for $ N/A F Government Taxes Not included In Cash Price $ N/A G Government License andlor Registratbn Fees $ 88.00 H Government Certilmle of Die Fees $ 18.00 I Other Charges (Seller must Identify who Is paid and desalt:4a purpose.) to N/A for Prior Credit or Lease Balance $ N/A lo N/A for N/A $ N/A to N/A for N/A $ N/A to INFINITI OF GWINNETT for DOCUMENTATION FEE $ 599.00 to N/A for N/A $ N/A to for $ N/A to for $ N/A to for $ N/A to for $ N/A to for $ N/A $ 1304.00 (4) $ 18505.50 (5) Total Other Charges and Amounts Paid to Others on Your Behalf 5 Amount Financed (3 + 4) OPTION: El You pay no finance charge If the Amount Financed, Item 5, Is paid In full on or before N/A Year N/A SELLER'S INITIALS OPTIONAL GAP CONTRACT. A gap contract (debt cancellation contract) Is not required to obtain credit and will not be provided unless you sign below and agree to pay the extra charge, If you choose to buy a gap contract, the charge is shown In Item 4D of the Itemization of Amount Financed. See your gap contract for details on the terms and conditions it provides. It is a part of this contract, Term 60 Moe, GAP INSURANCE I want to buy a gap conic Buyer Signs X Buyer Signs X Co-Buyer Signs Name of Gap Contract Inaurence, You may tuy the physical damage Insurance this contract requires horn anyone you choose who Is authorized to sell such Insurance In Georgia, You are not required to buy any other Insurance to obtain credit unless the box indicating Vendor's Single Interest Insurance is required Is Tchebked cinipage I c( thls contract. I f any Insurance Irchecked tidlow, policies or certificates horn the named Insurance companies will describe the terms and condlbns, Check the Inourance you went and aIgn below: Optional Credit Insurance I. Credit Lila: D Buyer IN Co-Buyer II Both III Credit Disability: IN Buyer IIN Co-Buyer II Both Premium: Credit Life $ N/A Credit Disability $ N/A Insurance Company Name N/A Home Office Address N/A Credit lie Insurance and credit clsabIllty Insurance we not required to obtain credit, Your decision to buy or not buy credit tie Insurance and credit disability Insurance bull not be a facia In the credit approval process, They will not beprovided unless you sign and agree to pay the extra cost. II you choose if/s Insurance, the cost Is shown In Item 4A of the ItemIzetIon of Amount Financed, Credit life Insurance Is based en your original paymerrt schedule, This insurance may not pay all you owe on this contract II you make late payments. Credit disability Insurance does not cover any Increase In your payment or In the number of payments. Coverage for credit life Insurance and credit disability Insurance ends on the original due date for the last payment unless a different term tor It insurance Is shown below, Other Optional Insurance IN WA Type of insurance Term Premium $ N/A Insurance Company Name N/A Horne Office Address N/A • N/A Type of Insurance Term Premium $ N/A Insurance Company Name N/A Home Office Address N/A Other optional Insurance Is not faulted to obtain credit. Your dedsbn to buy or not buy other optonal Insurance will not be a factor In the credllapproval crocess, It Wil not be provided unless you sIgn and agree to pay lie extra cost, I want the Insurance checked above, X Buyer Signature Date X Co Buyer Signature 15Efte THIS INSURANCE DOES NOT INCLUDE INSURANCE ON YOUR LIABILITY FOR BODILY INJURY OR PROPERTY DAMAGE CAUSED TO OTHERS, 03/15/2014, 08:06 pm LAW 553-GA•eps 3/13 v/ Page 2 of 4 Case 1:17-cv-01257-TCB-CMS Document 7-2 Filed 06/26/17 Page 2 of 4 , OTHER IMPORTANT AGREEMENTS 1. FINANCE CHARGE AND PAYMENTS a. How we will figure Finance Charge. We will figure the. Finance. Charge on a daily basis at the Annual Percentage Rate on the unpaid part of the Amount Financed, b. How we will apply payments. We may apply each payment to the earned and unpaid part of the Finance Charge, to the unpaid part of the Amount Financed and to other amounts you owe under this contract in any order we choose. c. How late payments or early payments change what you must pay. We based the Finance Charge, Total of Payments, and Total Sale Price shown on page 1 of this contract on the assumption that you will make every payment on the day it is due. Your Finance Charge, Total of Payments, and Total Sale Price will be more if you pay late and less if you pay early. Changes may take the form of a larger or smaller final payment or, at our option, more or fewer payments of the same amount as your scheduled payment with a smaller final payment. We will send you a notice telling you about these changes before the final scheduled payment is due. d. You may prepay. You may prepay all or part of the unpaid part of the Amount Financed at any time with- out penalty. If you do so, you must pay the earned and unpaid part of the Finance Charge and all other amounts due up to the date of your payment. 2. YOUR OTHER PROMISES TO US a, If the vehicle is damaged, destroyed, or missing. You agree to pay us all you owe under this contract even if the vehicle is damaged, destroyed, or missing. b. Using the vehicle. You agree not to remove the vehicle from the U.S. or Canada, or to sell, rent, lease, or transfer any interest In the vehicle or this contract without our written permission. You agree not to expose the vehicle to misuse, seizure, confiscation, or involuntary transfer. If we pay any repair bills, storage bills, taxes, fines, or charges on the vehicle, you agree to repay the amount when we ask for it. c. Security Interest. You give us a security Interest in: • The vehicle and all parts or goods put on it; • All money or goods received (proceeds) for the vehicle; • All insurance, maintenance, service, or other contracts we finance for you; and • All proceeds from insurance, maintenance, ser- vice, or other contracts we finance for you. This includes any refunds of premiums or charges from the contracts. This secures payment of all you owe on this contract. It also secures your other agreements in this contract. You will make sure the title shows our security interest (lien) in the vehicle. You will not allow any other security interest to be placed on the title without our written permission. Buyer Signs Co-Buyer Sign d. Insurance you must have on the vehicle. You agree to have physical damage insurance covering loss of or damage to the vehicle for the term of this contract, The insurance must cover our Interest in the vehicle. If you do not have this Insurance, we may, if we choose, buy physical damage insurance. If we decide to buy physical damage insurance, we may either buy insurance that covers your interest and our interest in the vehicle, or buy insurance that covers only our interest, If we buy either type of insurance, we will tell you which type and the charge you must pay. The charge will be the premium of the insurance and a finance charge computed at the Annual Percentage Rate shown on page 1 of this contract or, at our option, the highest rate the law permits. If the vehicle is lost or damaged, you agree that we may use any insurance settlement to reduce what you owe or repair the vehicle. e. What happens to returned insurance, mainte- nance, service, or other contract charges. If we obtain a refund of insurance, maintenance, service, or other contract charges, you agree that we may subtract the refund from what you owe. 3. IFYOU PAY LATE OR BREAKYOUR OTHER PROMISES a. You may owe late charges. You will pay a late charge on each late payment as shown on page 1 of this contract. Acceptance of a late payment or late charge does not excuse your late payment or mean that you may keep making late payments. If you pay late, we may also take the steps described below. b. You may have to pay all you owe at once. If you break your promises (default), we may demand that you pay all you owe on this contract at once, Default means: • You do not pay any payment on time; • You give false, incomplete, or misleading informa- tion on a credit application; • You start a proceeding in bankruptcy or one Is started against you or your property; or • You break any agreements In this contract. The amount you will owe will be the unpaid part of the Amount Financed plus the earned and unpaid part of the Finance Charge, any late charges, and any amounts due because you defaulted. c. You may have to pay collection costs. If we hire an attorney to collect what you owe, you will pay 15% of the amount you owe as attorney's fees, plus court costs. We will charge only attorney's fees and court costs the law permits. d. We may take the vehicle from you. If you default, we may take (repossess) the vehicle from you if we do so peacefully and the law allows it. If your vehicle has an electronic tracking device, you agree that we may use the device to find the vehicle. If we take the vehicle, any accessories, equipment, and replacement parts will stay with the vehicle. If any personal items are in the vehicle, we may store them for you at your expense. If you do not ask for these items back, we may dispose Myhern as the law allows. 03/15/2014, 06:06 pm LAW 553-GA-eps 3/13 vl Page 3 at 4 Case 1:17-cv-01257-TCB-CMS Document 7-2 Filed 06/26/17 Page 3 of 4 g. e, How you can get the vehicle back if we take it. If we repossess the vehicle, you may pay to get it back (redeem). We will tell you how much to pay to redeem. Your right to redeem ends when we sell the vehicle. f. We will sell the vehicle if you do not get it back, If you do not redeem, we will sell the vehicle. We will send you a written notice of sale before selling the vehicle. We will apply the money from the sale, less allowed expenses, to the amount you owe, Allowed expenses are expenses we pay as a direct result of taking the vehicle, holding it, preparing it for sale, and selling It. Attorney fees and court costs the law permits are also allowed expenses. If any money Is left (surplus), we will pay it to you unless the law requires us to pay it to someone else. If money from the sale is not enough to pay the amount you owe, you must pay the rest to us. If you do not pay this amount when we ask, we may charge you Interest at a rate not exceeding the highest lawful rate until you pay. What we may do about optional insurance, main- tenance, service, or other contracts. This contract may contain charges for optional insurance, maintenance, service, or other contracts. If we demand that you pay all you owe at once or we repossess the vehicle, we may claim benefits under these contracts and cancel them to obtain refunds of unearned charges to reduce what you owe or repair the vehicle. If the vehicle is a total loss because it is confiscated, damaged, or stolen, we may claim benefits under these contracts and cancel them to obtain refunds of unearned charges to reduce what you owe, 4. WARRANTIES SELLER DISCLAIMS Unless the Seller makes a written warranty, or enters into a service contract within 90 days from the date of this contract, the Seller makes no warranties, express or implied, on the vehicle, and there-will be no implied warranties of merchantability or of fitness for a particular purpose. This provision does not affect any warranties covering the vehicle that the vehicle manufacturer may provide. 5. Servicing and Collection Contacts. You agree that we may try to contact you in writing, by e-mail, or using prerecorded/artificial voice messages, text messages, and automatic telephone dialing systems, as the law allows. You also agree that we may try to contact you in these and other ways at any address or telephone number you provide us, even if the telephone number is a cell phone number or the contact results in a charge to you, 6. Applicable Law Federal law and the law of the state of our address shown on page 1 of this contract apply to this contract. The Annual Percentage Rate may be negotiable with the Seller. The Seller may assign this contract and retain its right to receive a part of the Finance Charge. HOW THIS CONTRACT CAN BE CHANGED. This contract contains the entire agreement between contract must be In an ut_sign it. No oral changes are binding. C--- :5--Buyer Signs X Co-Buyer Signs you and us relating to this contract. Any change to this ....x cs x 0, If any part oft contract Is not valid, all other parts stay valid, We may delay or refrain from enfo For example, we may extend the time for making some payments without extending the time for See the rest of this contract for other Important agreements. NOTICE TO THE BUYER: Do not sign this contract before you read it or if it contains exact copy of the contract you sign. oing any of our right un r this contract with t losing them, making others, any blank spaces, You are entitled to an You agree to the terms of this contract. You confirm that before you signed this to take it and review it, You confirm that you received a completely filled-'n -Z---- Buyer Signs ----- Date 03/15/2014Co-Buyer Signs contract, we gave it to you, and you copy when you signed it, i were free Oill lk. Date 03/15/2014 Cot3uyers and 01 er Owners - A co•buyer is a person who is responsible for paying the entire debt, An other dons not have to pay the dobt,The other owner agrees to the security interest in the vehicle ig ven to us in this contract Other owner signs here X Date vehicle butowner is a perso one name is the title to the Seller sign, INFINITI OF GWINNETT Date 03/15/201 Zi3y lltle Cr.t4\-)____\I Seller assigns its Interest in this contract to WELLS FARGO DLR SRVS (Assignee) under the rms of Seller's agreement(s) it ssignee, • Assigned with recourse ai] Assigned without nurse • Assigned with limited recourse Seller INFINITI OF GWINNETT ,.._„.n., _X Title tiNAA „_____J:.,__ LAw® FORM NO. 553-GA-eps irev.vis VS. PATENT NO. 000,78202013 The R tynolds and R.rnold•ComPrV THERE ARE NO WARHANT1TB, EXPRESS OR IMPLIED, A610 CONTENT OR FITNESS Fon PURPORT OF THIS FOIW, CCO4GULT YOUR OWN LEGAL COUN6EL. 03/15/2014, Ola:06 emLAW 553-GA-ops 3/13 v1 Hoge 4 of 4 Case 1:17-cv-01257-TCB-CMS Document 7-2 Filed 06/26/17 Page 4 of 4