Willard v. Bank of America et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Motion to Dismiss Amended Complaint

E.D. Pa.August 1, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA G. VERONICA WILLARD, Plaintiff, v. Case No.: 2:16-cv-01199-ER BANK OF AMERICA N.A., BANK OF AMERICA CONSUMER CARD SERVICES, LLC, BANK OF AMERICA CREDIT CARD FUNDING LLC, BLATT HASENMILLER, ET AL, and JOHN DOES 1-100, Defendants. MOTION TO DISMISS AMENDED COMPLAINT BY DEFENDANTS BANK OF AMERICA, N.A., BANC OF AMERICA CONSUMER CARD SERVICES, LLC AND BA CREDIT CARD FUNDING, LLC Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendants Bank of America, N.A. (“BANA”), Banc of America Consumer Card Services, LLC (“BACCS”) and BA Credit Card Funding, LLC (“Funding”) (incorrectly named in the Amended Complaint as “Bank of America Credit Card Funding LLC”) respectfully move this Court for the entry of an Order dismissing Counts I, II, III, IV, V VI, and VII of Plaintiff’s Amended Complaint for failure to state a claim as a matter of law. The grounds for this motion are stated more fully in the accompanying Memorandum of Law, which is incorporated herein by reference. Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 1 of 34 2 Respectfully submitted, MCGUIREWOODS LLP /s/ K. Issac deVyver K. Issac deVyver (PA ID 202655) admitted in the E.D. PA McGuireWoods LLP EQT Plaza 625 Liberty Avenue 23rd Floor Pittsburgh, PA 15222-3142 (412) 667-7986 kdevyver@mcguirewoods.com Counsel for Defendants Bank of America, N.A., Banc of America Consumer Card Services, LLC, and BA Credit Card Funding, LLC Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 2 of 34 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA G. VERONICA WILLARD, Plaintiff, v. Case No.: 2:16-cv-01199-ER BANK OF AMERICA N.A., BANK OF AMERICA CONSUMER CARD SERVICES, LLC , BANK OF AMERICA CREDIT CARD FUNDING LLC, BLATT HASENMILLER, ET AL, and JOHN DOES 1-100, Defendants. ORDER AND NOW, this day of , 2016, upon consideration of Defendants’ Motion to Dismiss, it is hereby ORDERED that Plaintiff’s Amended Complaint, including Counts I-VII, is DISMISSED WITH PREJUDICE in its entirety against Bank of America, N.A., Banc of America Consumer Card Services, LLC and BA Credit Card Funding, LLC (incorrectly named in the Amended Complaint as “Bank of America Credit Card Funding LLC”). BY THE COURT: Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 3 of 34 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA G. VERONICA WILLARD, Plaintiff, v. Case No.: 2:16-cv-01199-ER BANK OF AMERICA, BANK OF AMERICA CONSUMER CREDIT, BANK OF AMERICA FUNDING LLC, BLATT HASENMILLER, ET AL, and JOHN DOES 1-100, Defendants. MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS BY DEFENDANTS BANK OF AMERICA, N.A., BANC OF AMERICA CONSUMER CARD SERVICES, LLC, AND BA CREDIT CARD FUNDING, LLC K. Issac deVyver (PA ID 202655) admitted in the E.D. PA McGuireWoods LLP EQT Plaza 625 Liberty Avenue 23rd Floor Pittsburgh, PA 15222-3142 (412) 667-7986 kdevyver@mcguirewoods.com Counsel for Defendants Bank of America, N.A., Banc of America Consumer Card Services, LLC, and BA Credit Card Funding, LLC Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 4 of 34 i TABLE OF CONTENTS Page I. INTRODUCTION ...............................................................................................................1 II. PLAINTIFF’S ALLEGATIONS IN THE AMENDED COMPLAINT ..............................3 III. LAW AND ARGUMENT ...................................................................................................5 A. Legal Standard For A Motion To Dismiss ...............................................................5 B. Plaintiff’s Allegations−That The Purported Securitization Of Her Receivables Relieved Her Of Her Obligation To Pay On The Defaulted Account−Has Been Consistently Rejected By Judges In This District And Nationwide ...............................................................................................................6 C. Plaintiff’s Unjust Enrichment Claim (Count I) Should Be Dismissed Because The Parties’ Relationship Was Governed By A Written Agreement And Because No Benefit, Unjust Or Otherwise, Was Conferred Upon The Bank Defendants ..................................................................11 D. Plaintiff’s Fraudulent Misrepresentation Claim (Count V) Should Be Dismissed Because She Has Not Shown That The Bank Intended To, Or Did Make A Misrepresentation Upon Which She Justifiably Relied ....................13 E. Plaintiff’s FDCPA Claim (Count III) Should Be Dismissed Against The Bank Defendants Because She Has Not Alleged Facts Showing That They Violated The Statute Or Are “Debt Collectors” ....................................................15 F. Plaintiff’s RICO Claim (Count VI) Should Be Dismissed Because Plaintiff Has Failed To Plead With The Specificity Required By Federal Rule Of Civil Procedure 9(b) ...............................................................................................17 G. Plaintiff’s FCEUA Claim Against BANA (Count II) Should Be Dismissed Because FCEUA Does Not Provide A Private Right Of Action ...........................19 H. Plaintiff’s UTPCPL Claim (Count IV) Should Be Dismissed Because Plaintiff Has Failed To Allege A Misrepresentation Or Justifiable Reliance ........21 I. Plaintiff’s Civil Conspiracy Claim Should Be Dismissed Because Plaintiff Failed To Allege That The Bank Defendants Acted With Malice Or Intent To Specifically Harm Plaintiff ...............................................................................22 J. Plaintiff’s Prayer For Declaratory And Injunctive Relief Should Be Denied Where Each Of Her Underlying Substantive Claims Is Dismissed ..........24 IV. CONCLUSION ..................................................................................................................24 Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 5 of 34 ii TABLE OF AUTHORITIES Page CASES Alamo v. ABC Financial Services, Inc., No. 09-5686, 2011 WL 221766 (E.D. Pa. Jan. 20, 2011) ........................................................16 Allegheny General Hospital v. Philip Morris, Inc., 228 F.3d 429 (3d Cir. 2000)...............................................................................................12, 13 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................................................................5 Batchelor v. Wells Fargo Bank, N.A., No. 12-14835, 2013 WL 1499583 (E.D. Mich. Mar. 15, 2013) ................................................8 Baum v. Keystone Mercy Health Plan, No. 1250 EDA 2015, 2016 WL 1658057 (Pa. Super. Apr. 26, 2016) .....................................21 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ...............................................................................................................5, 6 Belmont v. MB Inv. Partners, Inc., 708 F.3d 470 (3d Cir. 2013).....................................................................................................21 Benner v. Bank of America, N.A., No. 11-6574, 2013 WL 85913 (E.D. Pa. Jan. 7, 2013) ............................................................19 Bhatti v. Guild Mortgage Co., No. 11-0480, 2011 WL 6300229 (W.D. Wash. Dec. 16, 2011), aff’d in part, 550 F. App’x 514 (9th Cir. 2013) .........................................................................8 Bolick v. DFS Services LLC, No. 10-5211, 2011 WL 4359987 (E.D. Pa. Sept. 16, 2011) ..............................................16, 17 Citibank (South Dakota), N.A. v. Carroll, 220 P.3d 1073 (Idaho 2009).......................................................................................................8 Coulter v. Paul Laurence Dunbar Cmty. Ctr., No. 16CV0125, 2016 WL 1535084 (W.D. Pa. Apr. 15, 2016), reconsideration denied, No. 16CV0125, 2016 WL 2909445 (W.D. Pa. May 19, 2016), appeal filed, No. 16-2809 (3d Cir. June 16, 2016) .......................................................23 Curley v. Allstate Ins. Co., 289 F. Supp. 2d 614 (E.D. Pa. 2003) .......................................................................................12 Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 6 of 34 iii Davidson v. Capital One Bank (USA), N.A., 44 F. Supp. 3d 1230 (N.D. Ga. 2014), aff’d 797 F.3d 1309 (11th Cir. 2015) ...........................8 Enslin v. The Coca-Cola Co., 136 F. Supp. 3d 654 (E.D. Pa. 2015) .................................................................................22, 23 Garczynski v. Countrywide Home Loans, Inc., 656 F. Supp. 2d 505 (E.D. Pa. 2009) .......................................................................................22 Golphin v. Wells Fargo Bank, N.A., No. 3:CV-09-2001, 2010 WL 4536766 (M.D. Pa. Nov. 2, 2010) ...........................................22 Harper v. Borough of Pottstown, No. 11-1939, 2013 WL 1187051 (E.D. Pa. Mar. 21, 2013) ....................................................15 Hartman v. Deutsche Bank National Trust Co., No. 07-5407, 2008 WL 2996515 (E.D. Pa. Aug. 1, 2008) ..........................................14, 15, 20 In re American Business Financial Services, Inc., 362 B.R. 135 (Bankr. D. Del. 2007) ........................................................................................24 In re Insurance Brokerage Antitrust Litigation, 618 F.3d 300 (3d Cir. 2010).....................................................................................................17 Jones v. Select Portfolio Servicing, Inc., No. 08-972, 2008 WL 1820935 (E.D. Pa. Apr. 22, 2008) .................................................16, 17 Kern v. Lehigh Valley Hosp., 108 A.3d 1281 (Pa. Super. 2015) .............................................................................................21 Klohs v. Wells Fargo Bank, N.A., 901 F. Supp. 2d 1253 (D. Haw. 2012) .......................................................................................8 Lance v. Weltman, Weinberg & Reis Co., et al., No. 11-1254 (E.D. Pa. June 8, 2012) .........................................................................................6 Leone v. Citigroup, Inc., No. 12-10597, 2012 WL 1564698 (E.D. Mich. May 2, 2012) ..................................................8 Ludwig v. Apothaker & Associates, et al., No. 12-1129 (E.D. Pa. July 31, 2012) ........................................................................................6 Lum v. Bank of America, 361 F.3d 217 (3d Cir. 2004)...............................................................................................17, 18 McCracken v. Ford Motor Co., 588 F. Supp. 2d 635 (E.D. Pa. 2008) .......................................................................................14 Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 7 of 34 iv Miller v. Shubin, No. 4:15-CV-1754, 2016 WL 2752675 (M.D. Pa. May 11, 2016) ..........................................23 Morse v. Lower Merion School District, 132 F.3d 902 (3d Cir. 1997).....................................................................................................13 Scott v. Bank of America, No. 13-987, 2013 WL 6164276 (E.D. Pa. Nov. 21, 2013) ....................................1, 6, 8, 10, 11 Scott v. Bank of America, 580 F. App’x. 56 (3d Cir. Nov. 3, 2014) ...........................................................................1, 6, 7 Shade v. Bank of America, No. 08-1069, 2009 WL 5198176 (E.D. Cal. Dec. 23, 2009), aff’d, 2011 WL 794605 (9th Cir. 2011) ...............................................................................7, 18 Sofi Classic S.A. de C.V. v. Hurowitz, 444 F. Supp. 2d 231 (S.D.N.Y. 2006) ......................................................................................24 Staub v. Harris, 626 F.2d 275 (3d Cir. 1980).....................................................................................................16 Taggart v. GMAC Mortgage, LLC, No. 12-415, 2012 WL 5929000 (E.D. Pa. Nov. 26, 2012) ................................................21, 22 Tostado v. Citibank (South Dakota), N.A., No. 09-549 XR, 2010 WL 55976 (W.D. Tex. Jan. 4, 2010) ..................................................7, 8 Weinberg v. Sun Co., 777 A.2d 442 (Pa. 2001) ..........................................................................................................21 Wilson Area School District v. Skepton, 895 A.2d 1250 (Pa. 2006) ........................................................................................................12 RULES Fed. R. Civ. Proc. 9(b) .........................................................................................................3, 14, 18 Fed. R. Civ. Proc. 12(b)(6) ..............................................................................................................5 STATUTES 15 U.S.C. § 1692a(6) .....................................................................................................................16 15 U.S.C. § 1692a(6)(F)(ii) ............................................................................................................16 15 U.S.C. § 1692a(6)(F)(iii) ..........................................................................................................16 Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 8 of 34 v 15 U.S.C. §§ 1692-1692p ................................................................................................................2 18 U.S.C. § 1341 ............................................................................................................................17 18 U.S.C. § 1343 ............................................................................................................................17 18 U.S.C. §§ 1961-1968 ..................................................................................................................2 18 U.S.C. §§ 1962 (c) and (d) ..................................................................................................17, 18 73 P.S. §§ 201-1 thru 201-9.3 ..........................................................................................................2 73 P.S. § 201-2(4)(xxi) ..................................................................................................................21 73 P.S. §§ 2270.1-2270.6 .................................................................................................................2 OTHER AUTHORITIES Adam J. Levitin, Skin–in–the–Game: Risk Retention Lessons from Credit Card Securitization, 81 Geo. Wash. L. Rev. 813 (2013) ....................................................................7 Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 9 of 34 1 I. INTRODUCTION Despite its title, the Amended Complaint is fundamentally the same as the original Complaint. Compare Am. Compl. (ECF No. 20) with Compl. (ECF No. 1). In fact, apart from the additional, unfounded civil conspiracy claim and re-numbering and reordering of paragraphs to avoid an easy compare of the two Complaints, most of the allegations in the Amended Complaint were taken verbatim from the original Complaint.1 Furthermore, the Amended Complaint contains the same allegations as those in a complaint filed by Plaintiff’s counsel in a different case against the same defendants in this very Court in Scott v. Bank of America, No. 13- 987, 2013 WL 6164276 (E.D. Pa. Nov. 21, 2013) (hereinafter “Scott I”). Each version of this complaint (Plaintiff’s original complaint, her amended complaint and the Scott Complaint) is based on the same faulty premise—that banks relinquish their rights to collect on a delinquent account when the receivables associated with the account are securitized. This argument has been repeatedly and consistently rejected by courts around the country. As outlined below, in Scott I, this Court dismissed these very allegations on a motion to dismiss in 2013. Id. Plaintiff’s counsel appealed and the Third Circuit affirmed. See Scott v. Bank of America, 580 F. App’x. 56 (3d Cir. Nov. 3, 2014) (hereinafter “Scott II”). Nonetheless, with Plaintiff’s counsel leading the way once again, Plaintiff G. Veronica Willard brings this putative class action wherein she alleges various state and federal claims against Bank of America, N.A. (“BANA”), Banc of America Consumer Card Services, LLC (“BACCS”) and BA Credit Card Funding, LLC (“Funding”) (again incorrectly named in the 1 Although some of the Complaint’s paragraphs have been moved to different sections of the Amended Complaint, only Paragraphs 18, 33-34, 43-44, 46-47, and new Conspiracy count at Paragraphs 76-79 of the Amended Complaint (ECF No. 20) are actually additions to the original Complaint (ECF No. 1). However, and as more fully explained herein, even these additions were specifically addressed and rejected by the court in Scott I and affirmed by the Third Circuit in Scott II. Essentially, there is nothing new here. Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 10 of 34 2 Amended Complaint as “Bank of America Credit Card Funding LLC”) (collectively the “Bank Defendants”), all of which pertain to her delinquent credit card account. Plaintiff’s claims rest on the theory that BANA, as the issuer of her credit card, allegedly relinquished the right to collect on her delinquent credit card account when it securitized the receivables associated with the account. Plaintiff’s Amended Complaint asserts claims for unjust enrichment, fraudulent misrepresentation, and civil conspiracy, and for alleged violations of the Pennsylvania Fair Credit Extension Uniformity Act (“FCEUA”), 73 P.S. §§ 2270.1-2270.6, the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p, the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. §§ 201-1 thru 201-9.3, and the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968. The most fatal flaw in Plaintiff’s Amended Complaint is that it is entirely predicated on the theory that when creditors securitize receivables they somehow lose the right to collect on the underlying debt. Courts from many other districts, as well as this Court in at least three prior instances, have dismissed such claims. Plaintiff’s claims here should likewise be dismissed with prejudice. For additional reasons, each of Plaintiff’s common law claims also fails as a matter of law. She cannot state a claim for unjust enrichment, because the relationship between Plaintiff and BANA is governed by a written agreement—her credit card agreement—and, where the parties have entered into a written agreement, an unjust enrichment claim cannot be stated. Moreover, Plaintiff has not alleged any facts showing that she actually paid any money to BACCS or Funding. Thus, even accepting Plaintiff’s allegations as true, she conferred no benefit upon those entities, unjust or otherwise. In addition, Plaintiff has failed to state a claim Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 11 of 34 3 for fraudulent misrepresentation, because she has not pled that claim with the required specificity nor has she even pled facts that support the elements of the claim. Each of Plaintiff’s statutory claims likewise fails as a matter of law. First, her FDCPA claim fails as a matter of law because none of the Bank Defendants qualifies as a “debt collector” under the statute. Second, Plaintiff has failed to plead her RICO claim with the specificity required by Federal Rule of Civil Procedure 9(b). Third, Plaintiff’s FCEUA claim fails because that statute does not provide individuals with a private right of action, and because Plaintiff has simply parroted the statute as her claim, instead of alleging facts. Plaintiff’s UTPCPL claim fails because Plaintiff has not alleged that the Bank Defendants made any misrepresentations to her or that she justifiably relied upon any such misrepresentations. Finally, because each of Plaintiff’s claims fails, Plaintiff cannot state a claim for civil conspiracy. Plaintiff’s civil conspiracy claim fails for the additional reason that Plaintiff has not alleged that the Bank Defendants acted with the requisite malice or intent to specifically cause Plaintiff any purported harm. For these reasons, which are explained in detail below, Plaintiff has failed to state a claim upon which relief can be granted and her claims, Counts I-VII, should be dismissed, with prejudice, as a matter of law against the Bank Defendants. II. PLAINTIFF’S ALLEGATIONS IN THE AMENDED COMPLAINT On March 15, 2016, Plaintiff filed her putative class action Complaint against each of the Bank Defendants and Blatt Hasenmiller, et al.,2 alleging claims for unjust enrichment and negligent misrepresentation, along with claims for alleged violations of the FDCPA, FCEUA, and UTPCPL. See generally Compl. (ECF No. 1). After the Bank Defendants and Defendant 2 Plaintiff also brought claims against John Does 1-100. Am. Compl., (ECF No. 20). Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 12 of 34 4 Blatt Hasenmiller moved to dismiss, (ECF Nos. 8, 12), Plaintiff filed an Amended Complaint on June 30, 2016, (ECF No. 20). As was the case with the initial Complaint, each and every claim arises out of a credit card account which she opened with BANA on or about August 24, 2004. See Am. Compl., at ¶ 20. Plaintiff alleges that, at some point thereafter, BANA sold the receivables for Plaintiff’s credit card account to a trust, but still accepted payments.3 Id. According to a Pooling and Servicing Agreement attached by Plaintiff to the Amended Complaint, BANA allegedly sold the receivables to a trust. See Am. Compl., Exhibit A (ECF No. 20), Second Amended and Restated Pooling and Servicing Agreement (“the Pooling Agreement”)). At some point, Plaintiff stopped making payments on her credit card account and fell into default.4 As a result, Plaintiff alleges that BANA commenced a collection lawsuit against her by filing a civil action complaint and was awarded judgment against her on February 5, 2016. Am. Compl., at ¶ 30. Plaintiff then filed this lawsuit. As to BANA, Plaintiff contends that by securitizing the receivables related to her credit card account, BANA has “relinquished its beneficial interest, …[and] no longer has a debt obligation owed to it by Plaintiff or the Class.” Id. at ¶ 2. With respect to the other Bank Defendants, BACCS and Funding, Plaintiff claims that the account is sold to BACCS after a balance is created, and then ultimately to Funding. Id. at ¶¶ 3, 36. Funding then sells the account to two different Bank of America Master Card Trusts, and then to the Wilmington Trust Company. Id. Apart from these allegations, Plaintiff fails to assert any 3 The Bank Defendants dispute that Plaintiff’s credit card account receivables were ever sold to a trust in the first place, negating Plaintiff’s entire factual premise for her claims. This factual inaccuracy has been raised with Plaintiff’s counsel, but he refused to dismiss the Complaint – and in fact, filed the Amended Complaint instead, continuing to allege the facts that the Bank Defendants told him were inaccurate. The Bank Defendants will address this issue with the Court at the appropriate time. Nevertheless, even accepting these false allegations as true, Plaintiff has still failed to state a claim. 4 Plaintiff does not dispute in her Amended Complaint that she defaulted. See Am. Compl., (ECF No. 20). Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 13 of 34 5 other facts that would explain BACCS’ and Funding’s involvement in the alleged wrongdoing outlined in the Amended Complaint. At a minimum, this constitutes a failure to plead sufficient factual allegations to state a claim against those entities. Even more, Plaintiff’s Amended Complaint does not allege any facts showing that BACCS engaged in any purported misconduct. Nor does it include facts showing that BACCS communicated or interacted with Plaintiff or collected any credit card payments from her. The same goes for Funding. Plaintiff makes no allegation of any kind regarding Funding’s alleged involvement in the matters giving rise to her claims. Indeed, her sole allegation in the entire Amended Complaint about Funding is that it sells the account to two Trusts and then to the Wilmington Trust Company. Id. at ¶¶ 3, 36. III. LAW AND ARGUMENT A. Legal Standard For A Motion To Dismiss. A complaint must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted if it does not plead enough facts to state claim for relief that is “plausible” (as opposed to just “conceivable”). Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “[Federal Civil] 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). This standard “demands more than an unadorned, the- defendant-unlawfully-harmed-me accusation.” Id. at 678. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557)(citations omitted). Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 14 of 34 6 To survive a motion to dismiss, a complaint must contain factual allegations which are “enough to raise a right to relief above the speculative level on the assumption that all of the complaint’s allegations are true.” Twombly, 550 U.S. at 545. Applying this standard, Plaintiff’s Amended Complaint fails to state a claim against the Bank Defendants and should accordingly be dismissed with prejudice. B. Plaintiff’s Allegation–That The Purported Securitization Of Her Receivables Relieved Her Of Her Obligation To Pay On The Defaulted Account–Has Been Consistently Rejected By Judges In This District And Nationwide. Plaintiff’s Amended Complaint is at least this Court’s fourth encounter with claims alleging that the securitization of receivables caused the owner of a debt to lose its interest in, and ability to collect on, that debt.5 As noted, in 2013, this Court dismissed an action filed by the same Plaintiff’s counsel alleging nearly identical claims against the same Bank Defendants. Scott I, 2013 WL 6164276, *3 (E.D. Pa. 2013) aff’d Scott II, 580 F. App’x. 56 (3d Cir. 2014). In fact, much of the language in the Amended Complaint here is verbatim to the dismissed complaint in that action. Compare Am. Compl., Scott I, No. 13-00987, ECF No. 23 with Am. Compl., (ECF No. 20), (E.D. Pa. May 15, 2016). In addition to Scott I, which is discussed below, this Court dismissed two nearly identical complaints. In Lance v. Weltman, Weinberg & Reis Co., et al., No. 11-1254 (E.D. Pa. June 8, 2012) (Shapiro, J.) and Ludwig v. Apothaker & Associates, et al., No. 12-1129 (E.D. Pa. July 31, 2012) (Shapiro, J.),6 plaintiffs argued that by securitizing the receivables to their accounts and then attempting to collect on them after default, Discover Bank and its affiliated servicing 5 While the Bank Defendants deny that Plaintiff’s account was securitized, securitization is defined as a process which enables banks and other issuers of credit to convert their receivables into cash, thereby allowing those entities to continue extending credit to new customers. In a typical securitization, the owner of the credit card receivables sells them to a trust. Generally, the trust then sells bonds to investors which are backed by the receivables. 6 Orders attached hereto as Exhibit 1 and Exhibit 2. Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 15 of 34 7 entities violated the FDCPA, FCEUA and the UTPCPL. This Court rejected those arguments and dismissed both actions holding none of those entities qualified as “debt collectors,” and, therefore, plaintiffs had not stated a claim. Lance Order at ¶ J(e); Ludwig Order at ¶ O. Plaintiff’s Amended Complaint here is no different. Moreover, the Third Circuit has squarely addressed this issue in the nearly-identical Complaint in Scott I, which cited to the very same Pooling Agreement as alleged and attached to the Amended Complaint in this case. The Court of Appeals found that, “[Plaintiff] misapprehends the effect of securitizing a credit card receivable.” Scott II, 580 F. App’x at 57. The Court explained that “[c]redit card securitization involves the securitization solely of the receivables, not of the accounts themselves.” Id. ((quoting Adam J. Levitin, Skin–in–the–Game: Risk Retention Lessons from Credit Card Securitization, 81 GEO. WASH. L. REV. 813, 826 (2013); see also Pooling & Servicing Agr. § 2.01, (setting forth that Bank of America was selling only the receivables associated with the credit card accounts, not ownership of the accounts)). Thus, the Court noted, other cases that “have considered the effect of securitizing credit card receivables are all in agreement that it does not divest the issuer of its ownership interest in the credit card accounts.” Scott II, 580 F. App’x at 57. The Bank Defendants deny that Plaintiff’s account was securitized, but, even if it was, Plaintiff’s claims still fail. In addition to the authority discussed above, numerous courts nationwide have rejected this exact legal theory time and time again—that the creditor securitized the receivables attached to plaintiff’s account and therefore lost the right to collect on those accounts. See, e.g., Shade v. Bank of America, No. 08-1069, 2009 WL 5198176, at *3-4 (E.D. Cal. Dec. 23, 2009) (“Plaintiff has also failed to demonstrate how defendants’ efforts to collect on an overdue credit card account constitutes fraud, even where the account may have been securitized.”), aff’d, 2011 WL 794605 (9th Cir. 2011); Tostado v. Citibank (South Dakota), Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 16 of 34 8 N.A., No. 09-549 XR, 2010 WL 55976, at *3-4 (W.D. Tex. Jan. 4, 2010) (dismissing plaintiff’s FDCPA claim in relation to this credit card account where it was “premised on the argument that Citibank ‘did not own the debt or the right to sue for the debt.’ …Citibank has demonstrated that it retains ownership over the accounts to which the master trust owns the receivables.”) (citation omitted); Citibank (South Dakota), N.A. v. Carroll, 220 P.3d 1073, 1076 (Idaho 2009) (holding the credit card issuer had standing to bring a collection action and rejecting plaintiff’s argument that “Citibank’s assignment of the receivables from her account to a trust, as part of an asset- securitization transaction, deprives Citibank of the right to sue because an assignor is not a real party in interest”); Batchelor v. Wells Fargo Bank, N.A., No. 12-14835, 2013 WL 1499583, at *3 (E.D. Mich. Mar. 15, 2013) (“Plaintiff’s argument – that Defendant’s securitization of his loan relieved him of his obligation to pay on the note – has been consistently rejected by judges in this district and nationwide.”); Leone v. Citigroup, Inc., No. 12-10597, 2012 WL 1564698, at *4 (E.D. Mich. May 2, 2012) (“Finally, to the extent plaintiff is attempting to assert a claim based upon the securitization of the mortgage loan, such a claim fails.”); Bhatti v. Guild Mortgage Co., No. 11-0480, 2011 WL 6300229, at *5 (W.D. Wash. Dec. 16, 2011) (“Securitization merely creates a separate contract, distinct from the Plaintiffs’ debt obligations under the Note, and does not change the relationship of the parties in any way.”),7 aff’d in part, 550 F. App’x 514 (9th Cir. 2013). All of these cases deal with the same securitization process at issue here. 7 See also, Davidson v. Capital One Bank (USA), N.A., 44 F. Supp. 3d 1230, 1243, n. 16 (N.D. Ga. 2014) aff’d 797 F.3d 1309 (11th Cir. 2015) (“Plaintiff's understanding of securitization is incorrect. The securitization of receivables does not change the relationship between a debtor and creditor.”) (citing Scott I, 2013 WL 6164276, at *3); Klohs v. Wells Fargo Bank, N.A., 901 F. Supp. 2d 1253, 1260 (D. Haw. 2012) (“Securitization does not alter the relationship or rights of the parties to the loan, but merely creates a separate contract, distinct from plaintiffs' debt obligations under the note and does not change the relationship of the parties in any way.”) (internal quotations omitted). Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 17 of 34 9 Here, Defendants BACCS and Funding were both indirect subsidiaries of Bank of America Corporation (“BAC”).8 BACCS purchases the credit card receivables from other BAC entities. BACCS then sells those receivables to Funding. To create an asset-backed security based on those receivables, Funding entered into the Pooling Agreement with a trust on October 20, 2006.9 As Defendants explained in Scott I, under the Pooling Agreement, Funding transfers eligible credit card receivables to a trust, which then sells bonds backed by those receivables.10 So long as the accounts are in good standing, their receivables remain in the trust. However, if an account falls into default and has all its receivables charged off as uncollectible, those receivables are immediately ejected from the trust and sold back to Funding, which then sells them back to the BAC entity that originated them.11 As the Pooling Agreement makes explicitly clear, the only thing being sold to the trust are the receivables, not the underlying accounts.12 The BAC entity that sells the credit card receivables to BACCS at the beginning of the securitization maintains ownership of the related credit card accounts, and the right to collect thereon, throughout the entire process. Based on the overwhelming authority outlined above, this process is proper and does not cause the owner of the account to lose the right to collect on the debt. Plaintiff’s attempt at adding new allegations in this case at paragraphs 33 through 44 and 45 through 49 of the Amended Complaint (compared to the amended complaint in Scott) does 8 Effective July 17, 2015, BACCS was dissolved. 9 See Am. Compl. at Exhibit A, (Pooling Agreement). 10 See Am. Compl. at Exhibit A, (Pooling Agreement) at § 2.01 “Conveyance of Receivables.” 11 See Ex. A to the Am. Compl. (ECF 20) at §§ 2.04 (d)(ii) and (iii). This only confirms that Plaintiff’s account was never securitized. Once Plaintiff defaulted on her credit card, her account would have been ejected from the trust (had it even been securitized in the first place). 12 See Ex. A to the Am. Compl. (ECF 20) at § 2.01 (“Section 2.01. Conveyance of Receivables – The Transferor hereby transfers, assigns, sets over, and otherwise conveys to the Trustee, without recourse, all of the Transferor’s right, title and interest in, to and under the Receivables existing at the close of business on the Amended Closing Date….”) (emphasis added). Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 18 of 34 10 not change this analysis.13 Plaintiff alleges that under state law a UCC termination statement must filed, and in the event of default, a termination statement must then also be filed. See Am. Compl., at ¶¶ 18, 30-49. Plaintiff then goes on to argue that Pennsylvania law applies, and analogizing to mortgage issues, argues that in the event that a termination statement is not filed under the UCC, then the Bank Defendants cannot collect the debt. Id. at ¶¶ 30-49. However, the Court in Scott I already analyzed, and soundly rejected this very same argument. As the court explained in Scott I, any citation to a provision of the Pennsylvania U.C.C. that requires the filing of a termination statement to remove receivables from the trust is unsupported by the law. Scott I, 2013 WL 6164276 at *4. Specifically, the court stated: At oral argument and then in supplemental briefing, counsel for Ms. Scott pointed to two provisions in the Agreement which she claims require such a filing. Exhibits G and H to the Agreement, however, are merely sample forms to be used when reconveying or removing receivables from the Trust. Given that the forms in these exhibits require the reconveyance or removal of at least $100,000 of receivables, it does not appear that they bear any relation to the automatic ejection of defaulted receivables. Ms. Scott also cites a provision of the Pennsylvania U.C.C. which she claims requires the filing of a termination statement to remove receivables from the Trust. Beyond citing to a Pennsylvania bankruptcy case that held that the Pennsylvania U.C.C. applied to a promissory note that was held by a securitization trust, she does not explain why a Pennsylvania statute would apply to the Agreement in this case, particularly when it is, by its own terms, governed by Delaware law. See Walker, 466 B.R. 271. Furthermore, the comments to the Pennsylvania U.C.C. section cited by Ms. Scott, as well as the comments to the related Delaware U.C.C. provision, state that the filing of a termination statement is not required unless the debtor demands it. See 13 Pa.C.S.A. § 9513, cmt. 2 (“Because most financing statements expire in five years unless a continuation statement is filed (Section 9-515), no compulsion is placed on the secured party to file a termination statement unless demanded by the debtor. . .”); 6 Del. C. § 9- 513, cmt. 2 (same). 13 In fact, Plaintiff’s counsel asserted the same arguments added to the Complaint and Amended Complaint here through the briefing in the Scott cases. As such, the district court and appellate court in Scott I and Scott II already addressed, and rejected, these additional arguments. Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 19 of 34 11 Scott I, 2013 WL 6164276, at *4 (internal footnote omitted). The court dismissed the case in its entirety, further noting that “the [c]ourt was unable to find a single federal case endorsing [plaintiff]’s securitization theory.”14 Id. at *4, n.7. In addition, to the extent that Plaintiff attempts to claim that the Pooling and Servicing Agreement was not followed here, that not only is false based on the terms of the Agreement, but Plaintiff does not have standing to make that challenge. See, Scott I, 2013 WL 6164276 at *4, n.8 (the holding of In re Walker “seems to support the Defendants” in finding a lack of standing). The bottom line is that Plaintiff’s account was not securitized. However, even accepting Plaintiff’s allegations as true, the BAC entity that originated Plaintiff’s credit card account also maintained ownership of that account throughout the entire securitization. This case is directly on point with other authority dismissing claims challenging securitizations. Accordingly, based on this overwhelming authority, each and every one of Plaintiff’s claims here should be dismissed with prejudice against the Bank Defendants. C. Plaintiff’s Unjust Enrichment Claim (Count I) Should Be Dismissed Because The Parties’ Relationship Was Governed By A Written Agreement And Because No Benefit, Unjust Or Otherwise, Was Conferred Upon The Bank Defendants. Plaintiff attempts to state a claim for unjust enrichment against the Bank Defendants in Count I. See Am. Compl., at ¶¶ 50-51. Plaintiff contends that the Bank Defendants were unjustly enriched by collecting credit card payments from her after her credit card receivable was securitized and for their alleged debt collection efforts after Plaintiff defaulted on her credit card 14 The Bank Defendants anticipate that Plaintiff will make the non-sensical argument in Paragraph 45 of the Complaint that the Pooling Agreement itself mentions that collateral includes accounts, and accounts are defined under Delaware law, therefore negating the entire process of how securitization occurs. Am. Compl. at ¶ 45. However, this ignores the explanation of how the Pooling Agreement only conveys the Receivable, which is defined as “any amount payable on an Account.” See Exhibit A to the Am. Compl. (ECF 20), (Pooling Agreement) Section 2.01 and Article I, page 15. Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 20 of 34 12 account. Id. Plaintiff maintains that BANA specifically did so without any beneficial ownership in the accounts. Id. at ¶ 50. These allegations fail to state a claim. Plaintiff has not stated an unjust enrichment claim under Pennsylvania law, which requires: (1) that benefits were conferred on one party by another; (2) appreciation of such benefits by the recipient; and (3) the acceptance and retention of those benefits under such circumstances would be unjust without the recipient paying value therefor. Allegheny General Hospital v. Philip Morris, Inc., 228 F.3d 429, 447 (3d Cir. 2000) (affirming dismissal of a hospital’s unjust enrichment claim seeking to recover costs of health care provided to nonpaying patients suffering from tobacco related diseases where the plaintiff could not allege the tobacco defendants had an obligation to pay those costs and thus, no benefit had been conferred upon them and the claim failed). Plaintiff’s unjust enrichment claim against BANA should be dismissed because she had a contract with BANA. “[I]t has been long held in this Commonwealth that the doctrine of unjust enrichment is inapplicable when the relationship between parties is founded upon a written agreement or express contract, regardless of how ‘harsh the provisions of such contracts may seem in the light of subsequent happenings.’” Wilson Area School District v. Skepton, 895 A.2d 1250, 1254 (Pa. 2006) (holding plaintiff’s unjust enrichment claim did not apply against the defendant where the relationship was forged in written contracts) (citations omitted). Further, “[i]t has been recognized that this bright-line rule not only has ‘a distinguished common-law pedigree, but also derives a great deal of justification from bedrock principles of contract law.’” Id. at 1254 (citing Curley v. Allstate Ins. Co., 289 F. Supp. 2d 614, 620 (E.D. Pa. 2003)). Here, Plaintiff alleges that she opened a credit card account with BANA on or about August 24, 2004. See Am. Compl., at ¶ 20. In connection with that credit card account, Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 21 of 34 13 Plaintiff had to execute a credit card agreement with BANA at that time. Thus, like the parties in Wilson, Plaintiff’s relationship with BANA was born completely out of a written contract. Therefore, she may not bring an unjust enrichment claim and Count I should be dismissed with prejudice as to BANA. As to BACCS and Funding, Plaintiff has failed to state a claim for unjust enrichment because she has not alleged facts showing that she paid any funds to those Defendants. The lone reference to payments Plaintiff allegedly made in the entire Amended Complaint is that: As set forth above, by way of plaintiff’s said payments to Bank of America, benefits were conferred on Bank of America, After [sic] G. Veronica Willard’s account was securitized Bank of America continued accepting payments as they did with the Class. Bank of America and their law firm collected money from unlawful lawsuits it filed illegally because it had no beneficial ownership in the accounts they sued upon, additionally Bank of America received a tax benefit when it wrote off the debt[.] Am. Compl., at ¶ 50. As to BACCS and Funding, Plaintiff makes no factual allegation of any kind showing that she made a payment to, or conferred a benefit on, those Defendants. Morse v. Lower Merion School District, 132 F.3d 902, 908 (3d Cir. 1997) (“As we have noted, [courts] need not accept ‘bald assertions’ or ‘legal conclusions’ contained in the complaint.”). Accordingly, Plaintiff has not alleged that she conferred any benefit upon BACCS and Funding and her unjust enrichment claim against those Defendants should be dismissed, with prejudice, as a matter of law. Allegheny General Hospital, 228 F.3d at 447 (dismissing unjust enrichment claim where plaintiff failed to allege any facts in the complaint showing that it conferred any benefit on the defendant). D. Plaintiff’s Fraudulent Misrepresentation Claim (Count V) Should Be Dismissed Because She Has Not Shown That The Bank Intended To, Or Did Make A Misrepresentation Upon Which She Justifiably Relied. In Count V, Plaintiff summarily claims that, because BANA surrendered its right to collect on her account and Plaintiff continued to make payments, this constitutes fraudulent Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 22 of 34 14 misrepresentation. However, the Amended Complaint does not even attempt to tie in the Bank Defendants’ conduct in any way that constitutes factual support for her fraudulent misrepresentation claim. In Pennsylvania, fraudulent misrepresentation consists of five elements: (1) a misrepresentation, (2) a fraudulent utterance of the misrepresentation, (3) an intention by the maker that the recipient will thereby be induced to act, (4) justifiable reliance by the recipient upon the misrepresentation, and (5) damage to the recipient as a proximate result. McCracken v. Ford Motor Co., 588 F. Supp. 2d 635, 644 (E.D. Pa. 2008) (citation omitted). Such a claim is subject to the heightened pleading requirements of Federal Rule of Civil Procedure 9(b), which requires “plaintiff to use specificity in pleading intentional misrepresentation in order to give defendants sufficient notice of the claims against them.” McCracken, at 644 (citation omitted) (“[P]laintiffs must plead with particularity the ‘circumstances’ of the alleged fraud in order to place the defendants on notice of the precise misconduct with which they are charged.”). Id. The allegations in Plaintiff’s Amended Complaint do not meet this standard. Plaintiff states in conclusory fashion that “[t]he conduct of Bank of America and their law firm caused the plaintiff, and the class, to rely on their statements and make payment to Bank of America on a debt that they did not own.” Am. Compl., at ¶ 66. As outlined above, the Bank Defendants had the right to collect payments from Plaintiff and, therefore, there could be no misrepresentation. Moreover, these non-specific and conclusory allegations do not meet Federal Civil Rule 9(b)’s specificity requirement, nor do these allegations show that the Bank Defendants intentionally made any misrepresentation to Plaintiff or that she relied up any misrepresentations. Thus, Plaintiff has failed to state a claim for fraudulent misrepresentation. See Hartman v. Deutsche Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 23 of 34 15 Bank National Trust Co., No. 07-5407, 2008 WL 2996515 at *5 (E.D. Pa. Aug. 1, 2008) (dismissing fraudulent misrepresentation claim for failure to plead required elements).15 E. Plaintiff’s FDCPA Claim (Count III) Should Be Dismissed Against The Bank Defendants Because She Has Not Alleged Facts Showing That They Violated The Statute Or Are “Debt Collectors.” In Count III of the Amended Complaint, Plaintiff alleges that the Bank Defendants violated the FDCPA by attempting to collect on her credit card debts. See Am. Compl., at ¶¶ 55- 60. As a threshold matter, Plaintiff’s claims should be dismissed because she has failed to allege any facts showing that BACCS or Funding attempted to collect a debt from her, let alone engaged in debt collection practices that violated the FDCPA. Among other things, there are no factual allegations showing when and how BACCS or Funding allegedly attempted to collect a debt from her or what false, deceptive, and or misleading representations the Bank Defendants made to Plaintiff. Id. Indeed, Plaintiff has done nothing more than parrot the FDCPA’s statutory language. Id. These legal conclusions–as opposed to factual allegations–do not comply with Twombly and Iqbal and fail to state a claim. See Hartman, 2008 WL 2996515, at *3-4 (dismissing claims where plaintiff simply mimicked the elements of the claim without alleging facts to support the same.) Plaintiff has also failed to state a claim under the FDCPA because none of the Bank Defendants is a debt collector under the statute. The FDCPA defines a “debt collector” as: [A]ny 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 15 Further showing Plaintiff’s failure to edit the Amended Complaint following Scott and the Bank Defendants’ first Motion to Dismiss in this case, Plaintiff alleges emotional distress in Paragraphs 14, 67 and 79 of the Amended Complaint (an apparent leftover from the prior attempt at pleading negligent infliction of emotion distress). Plaintiff has failed to plead any cognizable damages, as she alleges “extreme emotional distress” but points to no other facts to support this claim or tie this to any action of the Bank Defendants. Further, it is well established that any claim for negligent infliction of emotional distress must involve the suffering of “immediate and substantial physical harm” which is not alleged here. Harper v. Borough of Pottstown, No. 11-1939, 2013 WL 1187051, at *11 (E.D. Pa. Mar. 21, 2013). Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 24 of 34 16 regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding … 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(6) (emphasis added). Among other limitations imposed by the FDCPA, the term “debt collector” does not include “any person collecting or attempting to collect any debt … to the extent such activity … concerns a debt that was originated by such person….” 15 U.S.C. § 1692a(6)(F)(ii). In other words, the party who originates the debt, or who obtains the debt prior to default, is not a “debt collector.” See Staub v. Harris, 626 F.2d 275, 277 (3d Cir. 1980) (“The [FDCPA] does not apply to persons or businesses collecting debts on their own behalf.”); Lance Order at ¶ J(b) attached as Ex. 1; Ludwig Order at ¶ N attached as Ex. 2. Plaintiff alleges that BANA opened a credit card account for her on or about August 24, 2004. See Am. Compl., at ¶ 20. Accordingly, accepting Plaintiff’s allegations as true, BANA, as the entity that originated Plaintiff’s debt, does not qualify as a debt collector under the FDCPA. See Staub 626 F.2d at 277. Thus, Count III of Plaintiff’s Amended Complaint should be dismissed with prejudice against BANA. “Under the FDCPA, a loan servicer, someone who services but does not own the debt, is not a ‘debt collector’ under the FDCPA unless the debt being serviced was in default at the time the servicer obtained it.” Bolick v. DFS Services LLC, No. 10-5211, 2011 WL 4359987, at *2 n. 26 (E.D. Pa. Sept. 16, 2011) (citing § 1692a(6)(F)(iii)); see also Alamo v. ABC Financial Services, Inc., No. 09-5686, 2011 WL 221766, at *3-6 (E.D. Pa. Jan. 20, 2011) (holding that a gym’s servicing agent was not a debt collector under the FDCPA where the agent began servicing the account five months before the account went into default); Jones v. Select Portfolio Servicing, Inc., No. 08-972, 2008 WL 1820935, at *7 (E.D. Pa. Apr. 22, 2008) (holding a Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 25 of 34 17 mortgage servicing company was not a debt collector under the FDCPA where it began servicing the loan prior to default). As to BACCS, Plaintiff generally alleges that it was a credit servicer (see Am. Compl., at ¶ 3), although she never alleges that BACCS began servicing her account after it was in default. Thus, accepting these allegations as true, BACCS, as a servicer, does not qualify as a “debt collector” under the FDCPA. Bolick, 2011 WL 4359987, at *2 n. 26. Therefore, Count III of the Amended Complaint should be dismissed against BACCS with prejudice. Finally, though Count III is directed against all defendants, the pleading is otherwise completely devoid of any factual allegations that establish that Funding is a “debt collector.” A plaintiff seeking to state an FDCPA claim must plead specific facts to establish that the defendant was a “debt collector” with respect to the debt at issue. See Jones, 2008 WL 1820935, at *7 (dismissing a FDCPA claim where plaintiff failed to plead sufficient facts and merely offered “the bald legal conclusion that Defendant is a ‘debt collector….’”). Plaintiff failed to plead any such facts as to Funding; thus, Count III must be dismissed with prejudice against it as well. F. Plaintiff’s RICO Claim (Count VI) Should Be Dismissed Because Plaintiff Has Failed To Plead With The Specificity Required By Federal Rule Of Civil Procedure 9(b). At Count VI, Plaintiff alleges a claim for violations of the RICO Act, namely 18 U.S.C. §§ 1962 (c) and (d), predicated on mail and wire fraud, 18 U.S.C. §§ 1341, 1343. See Am. Compl., at ¶¶ 68-75. “In order to plead a violation of RICO, plaintiffs must allege (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Lum v. Bank of America, 361 F.3d 217, 223 (3d Cir. 2004) (abrogation on other grounds recognized by In re Insurance Brokerage Antitrust Litigation, 618 F.3d 300, 323 n. 22 (3d Cir. 2010)). The Amended Complaint fails to meet this standard. Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 26 of 34 18 Plaintiff contends that “Defendants have engaged in at least two acts of racketeering activity in interstate commerce through a pattern of racketeering activity including but not limited to mail fraud and bank [i.e., wire] fraud[.]” Am. Compl., at ¶ 73. However, “[w]here, as here, plaintiffs rely on mail and wire fraud as a basis for a RICO violation, the allegations of fraud must comply with Federal Rule of Civil Procedure 9(b), which requires that allegations of fraud be pled with specificity.” Lum, 361 F.3d at 223. “Plaintiffs may satisfy this requirement by pleading the ‘date, place or time’ of the fraud, or through ‘alternative means of injecting precision and some measure of substantiation into their allegations of fraud.’” Id. at 224 (citations omitted). Furthermore, plaintiffs must allege who made a representation to whom and the general content of the misrepresentation. Id. Plaintiff fails to meet this pleading standard. See Am. Compl., at ¶¶ 68-75. Plaintiff’s Amended Complaint fails to allege any references to times, dates or places of the alleged fraud, along with no mention of what allegedly fraudulent representations were made, by whom and/or to whom. Id. All that is contained therein is another series of legal conclusions that simply parrot the types of conduct prohibited by §§ 1962 (c) and (d). As the Lum Court held, “these conclusory allegations do not satisfy Rule 9(b).” 361 F.3d at 224. In fact, the only act complained of in Count VI is that the Bank Defendants’ “enterprise for more than four years has been engaged in activities that affect interstate commerce and remains continuous and open ended.” Am. Compl., at ¶71. Courts have found such conduct does not constitute fraud, let alone mail fraud and wire fraud. See, e.g., Shade, 2009 WL 5198176, at *3- 4 (holding there is nothing fraudulent about creditors either collecting on overdue securitized accounts, or assigning those accounts for collection). Accordingly, because Plaintiff has failed to plead sufficient facts Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 27 of 34 19 in Count VI to meet the level specificity mandated by Rule 9(b), Count VI should be dismissed with prejudice against the Bank Defendants. G. Plaintiff’s FCEUA Claim Against BANA (Count II) Should Be Dismissed Because FCEUA Does Not Provide A Private Right Of Action. At Count II, Plaintiff seeks to state a claim solely against the Bank Defendants for an alleged violation of the FCEUA. See Am. Compl., at ¶¶ 52-54. As an initial matter, Plaintiff’s FCEUA claim should be dismissed for the simple reason that the FCEUA does not provide individuals with the right to institute private causes of action for alleged violations. Benner v. Bank of America, N.A., No. 11-6574, 2013 WL 85913, at *16 (E.D. Pa. Jan. 7, 2013). To obtain relief for a violation of the FCEUA, a plaintiff must avail herself of the UTPCPL’s remedial provisions. Id. Although Plaintiff also brings a UTPCPL claim, she makes absolutely no reference to any purported FCEUA violations in that claim. Instead, she alleges other violations of the statute. See Am. Compl., at ¶¶ 52-54. Plaintiff’s FCEUA claim, standing alone, does not state a claim. Benner, at *16. Even if the Court were to overlook that deficiency, the claim still fails as a matter of law. A cursory review of Count II reveals that Plaintiff has simply recited provisions of the FCEUA that prohibit certain types of conduct, but failed to allege any facts to support those obvious legal conclusions. For the Court’s convenience, below is a comparison of Count II and the corresponding provisions of the FCEUA. Count II of Plaintiff’s Amended Complaint (ECF No. 20) Corresponding Provision of the FCEUA “53. Bank of America and their law firm violated the FCEUA by using false, deceptive, and/or misleading representations and/or means in connection with the collection of a debt. FCEUA 73 P.S. § 2270.3” “A creditor may not use any false, deceptive or misleading representation or means in connection with the collection of any debt.” 73 P.S. § 2270.4(b)(5). Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 28 of 34 20 “54. Bank of America violated the FCEUA by falsely representing the character, amount, and/or legal status of a debt. 73 P.S. § 2270.4(b)(5)(ii).” “The false representation of the character, amount or legal status of any debt.” 73 P.S. § 2270.4(b)(5)(ii). 54. (Continued) “Bank of America violated the FCEUA by attempting to collect an amount (including interest, fees, and charges) not expressly authorized by any agreement creating the debt or permitted by law. 73 P.S. § 2270.4(b)(6)(I).” “The collection of any amount, including any interest, fee, charge or expense incidental to the principal obligation, unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” 73 P.S. § 2270.4(b)(6)(i). It is clear that Plaintiff has not alleged any facts in Count II to support her FCEUA claim. In Hartman, 2008 WL 2996515, at *3-4, this Court granted the defendants’ motion to dismiss plaintiff’s FCEUA claim as deficient under Twombly. In explaining the rationale for the dismissal, the court stated: In support of this claim, Plaintiffs allege generally that ‘Defendants sent communications or communicated with Plaintiffs in an attempt to collect a debt.’ They further allege, without elaboration, that Defendants used ‘unfair and unconscionable collection methods,’ gave ‘a false impression of the character, extent or legal status of the alleged debt,’ used ‘false and deceptive collection methods,’ made ‘threats and/or [took] illegal action,’ and ‘otherwise used false, deceptive, misleading, and unfair and unconscionable means to collect and/or attempt to collect a debt.’ The Complaint, however, does not identify a single communication between MERS and Plaintiffs, much less one that constituted an ‘attempt to collect a debt.’ It also contains no allegations regarding ‘collection methods’ used by MERS, threats made by MERS, or illegal action taken by MERS. Finally, it contains no facts indicating MERS ever created a false impression as to the ‘character, extent or legal status’ of Plaintiffs’ debt. Under the Twombly standard, Plaintiffs have not alleged facts pertaining to MERS that would even bring MERS within the scope of the FCEUA claim as they themselves have defined it. Plaintiffs have therefore failed to state a claim upon which relief may be granted, and we grant MERS’s Motion to Dismiss the FCEUA claim against it. Id. (citations omitted). Accordingly, the Court should dismiss Count II with prejudice. Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 29 of 34 21 H. Plaintiff’s UTPCPL Claim (Count IV) Should Be Dismissed Because Plaintiff Has Failed To Allege A Misrepresentation Or Justifiable Reliance. In Count IV, Plaintiff attempts to plead a violation of the UTPCPL under its catch-all provision. Am. Compl., at ¶¶ 61-64. This provision prohibits “[e]ngaging in any other fraudulent or deceptive conduct which creates the likelihood of confusion or of misunderstanding.” 73 P.S. § 201-2(4)(xxi). But, Plaintiff’s UTPCPL claim fails, because she has not plead the elements of common-law fraud, or, at a minimum, justifiable reliance, as required by Pennsylvania law. Taggart v. GMAC Mortgage, LLC, No. 12-415, 2012 WL 5929000, at *6 (E.D. Pa. Nov. 26, 2012); Baum v. Keystone Mercy Health Plan, No. 1250 EDA 2015, 2016 WL 1658057, at *6 (Pa. Super. Apr. 26, 2016) (internal footnote and emphasis omitted) (quoting Kern v. Lehigh Valley Hosp., 108 A.3d 1281, 1287 (Pa. Super. 2015)). While the Pennsylvania Supreme Court has not ruled on this issue, both the Pennsylvania Superior Court and the Third Circuit explicitly have held that a Plaintiff must plead justifiable reliance to state a claim under the catch-all provision of the UTPCPL. See Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 499 (3d Cir. 2013) (citing Weinberg v. Sun Co., 777 A.2d 442, 446 (Pa. 2001) (noting that a UTPCPL plaintiff must demonstrate that he justifiably relied on the defendant's deceptive practice and that he suffered harm as a result of that reliance)). Considering recent Superior Court rulings and binding Third Circuit precedent, this Court likewise should evaluate the Plaintiff’s Amended Complaint under this standard. In Taggart, the plaintiff appraiser attempted to bring a UTPCPL claim against numerous federal agencies in connection with his removal from HUD’s Roster of Approved Appraisers. Id. at *1. In dismissing his claim, the court stated, “[n]ot only does Taggart fail to identify any misrepresentation made to him by the federal defendants, but he fails to allege facts to suggest he Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 30 of 34 22 ‘justifiably relied on the defendants’ wrongful conduct or representation and that he suffered harm as a result of that reliance.’” Id. at *6 (citations omitted).16 The Plaintiff’s UTPCPL claim suffers from the same incurable deficiencies. First, she fails to allege any facts showing that the Bank Defendants made any representations to her of any kind. See Am. Compl., at ¶¶ 61-64. “Without a representation, there [can be] no misrepresentation.” Garczynski v. Countrywide Home Loans, Inc., 656 F. Supp. 2d 505, 512 (E.D. Pa. 2009) (citations omitted). Further, Plaintiff fails to allege that she relied upon (let alone justifiably relied upon) on a misrepresentation made by the Bank Defendants. Without an allegation of a misrepresentation and her corresponding justifiable reliance, Plaintiff’s UTPCPL claim fails, and should be dismissed with prejudice against the Bank Defendants. Taggart, 2012 WL 5929000, at *6. I. Plaintiff’s Civil Conspiracy Claim Should Be Dismissed Because Plaintiff Failed To Allege That The Bank Defendants Acted With Malice Or Intent To Specifically Harm Plaintiff. In Count VII, Plaintiff adds a claim for civil conspiracy. To state a claim for conspiracy claim, Plaintiff must allege facts showing “(1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose; (2) an overt act done in pursuance of the common purpose; and (3) actual legal damage.” Enslin v. The Coca-Cola Co., 136 F. Supp. 3d 654, 679 (E.D. Pa. 2015) (quotation omitted). Plaintiff also must plead both malice on the part of the wrongdoers and intent to injure the plaintiff. Id. at 679-80 (citation omitted). To this end, “[b]ald assertions that 16 See also Golphin v. Wells Fargo Bank, N.A., No. 3:CV-09-2001, 2010 WL 4536766, at *7 (M.D. Pa. Nov. 2, 2010) (dismissing claim brought under the catchall provision of the UTPCPL because plaintiff did not plead justifiable reliance) (citations omitted). Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 31 of 34 23 certain actions were malicious are insufficient; it must be alleged that the sole purpose of the conspiracy was to injure the Plaintiffs.” Id. (internal citation and quotation omitted). Plaintiff’s conspiracy claim does not meet this pleading standard and Plaintiff has accordingly failed to state a claim. The Amended Complaint does not contain any allegations that the Bank Defendants acted with malice or any intention to specifically cause harm to Plaintiff. See Enslin, 136 F. Supp. 3d at 679-80. Rather, Plaintiff simply has alleged that Defendants and “numerous other organizations engaged in a conspiracy by suing the class for a credit card debt that Bank Of [sic] America no longer ow[n]ed[.] . . . Bank of America accepted, appreciated, and retained such benefits.”). Am. Compl., at ¶¶ 76, 77. In addition to failing to allege any malicious or intentional acts, these vague allegations do not claim that the sole purpose of this alleged conspiracy was to injure Plaintiff. Because Plaintiff has failed to (and cannot) allege that the Bank Defendants acted with malice and intent to specifically cause harm to Plaintiff, she has not stated a claim for civil conspiracy. Enslin, at 680. Furthermore, because each of Plaintiff’s underlying tort claims fails, the civil conspiracy claim necessarily must be dismissed. See Miller v. Shubin, No. 4:15-CV-1754, 2016 WL 2752675, at *12 (M.D. Pa. May 11, 2016) (dismissing civil conspiracy claim where all other underlying claims were dismissed, because “absent a civil cause of action for a particular act, there can be no cause of action for civil conspiracy to commit that act.”) (internal citation omitted); Coulter v. Paul Laurence Dunbar Cmty. Ctr., No. 16CV0125, 2016 WL 1535084, at *5 (W.D. Pa. Apr. 15, 2016) (same), reconsideration denied, No. 16CV0125, 2016 WL 2909445 (W.D. Pa. May 19, 2016), appeal filed, No. 16-2809 (3d Cir. June 16, 2016). Accordingly, because Plaintiff has failed to plead the requisite intent and each of the underlying torts fails, the civil conspiracy claim should be dismissed with prejudice. Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 32 of 34 24 J. Plaintiff’s Prayer For Declaratory And Injunctive Relief Should Be Denied Where Each Of Her Underlying Substantive Claims Is Dismissed. Finally, in the paragraphs following Count VII, Plaintiff prays for declaratory and injunctive relief. See Am. Compl., at ¶¶ 80-81. But, where a plaintiff fails to state a claim for relief in the underlying substantive claims, the corresponding request for relief must be denied. See In re American Business Financial Services, Inc., 362 B.R. 135, 148 (Bankr. D. Del. 2007) (dismissing plaintiff’s request for declaratory relief as it related to underlying tort claims that were also dismissed) (citation omitted); Sofi Classic S.A. de C.V. v. Hurowitz, 444 F. Supp. 2d 231, 249-50 (S.D.N.Y. 2006)). Therefore, because Plaintiff has failed to state a claim against any of the Bank Defendants in Counts I through VII of the Amended Complaint, Plaintiff’s request for declaratory and injunctive relief must be denied to the extent it is directed toward the Bank Defendants. IV. CONCLUSION For all of the foregoing reasons, Defendants Bank of America, N.A., Banc of America Consumer Card Services, LLC and BA Credit Card Funding, LLC respectfully request that the Court dismiss Plaintiff’s claims with prejudice as to each of the Bank Defendants. /s/ K. Issac deVyver K. Issac deVyver (PA ID 202655) admitted in the E.D. PA McGuireWoods LLP EQT Plaza 625 Liberty Avenue 23rd Floor Pittsburgh, PA 15222-3142 (412) 667-7986 kdevyver@mcguirewoods.com Counsel for Defendants Bank of America, N.A., Banc of America Consumer Card Services, LLC, and BA Credit Card Funding, LLC Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 33 of 34 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA G. VERONICA WILLARD, Plaintiff, v. Case No.: 2:16-cv-01199-ER BANK OF AMERICA, BANK OF AMERICA CONSUMER CREDIT, BANK OF AMERICA FUNDING LLC, BLATT HASENMILLER, ET AL, and JOHN DOES 1-100, Defendants. CERTIFICATE OF SERVICE I hereby certify that on this 1st day of August, 2016, I caused true and correct copies of the foregoing Motion to Dismiss by Defendants Bank of America, N.A., Banc of America Consumer Card Services, LLC, and BA Credit Card Funding, LLC and Memorandum of Law in Support of said Motion to be served via the electronic filing (ECF) system for the U.S. District Court for the Eastern District of Pennsylvania. /s/ K. Issac deVyver K. Issac deVyver Case 2:16-cv-01199-ER Document 29 Filed 08/01/16 Page 34 of 34 EXHIBIT 1 Case 2:16-cv-01199-ER Document 29-1 Filed 08/01/16 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA BARBARA E. LANCE, : Plaintiff, : : CIVIL ACTION v. : : WELTMAN, WEINBERG & : REIS CO., L.P.A., and DISCOVER : No. 11-1254 FINANCIAL SERVICES, INC. d/b/a : DISCOVER BANK, d/b/a : DFS SERVICES LLC, : Defendants. : ORDER AND NOW, this 8 day of June, 2012, following a hearing on defendants’ Motions toth Dismiss Plaintiff’s Second Amended Complaint (papers no. 20, 21), it appearing that: A. Plaintiff Barbara E. Lance (“Lance”) opened a credit card account with defendant Discover Financial Services, Inc., d/b/a Discover Bank, d/b/a DFS Services LLC, d/b/a DB Servicing Corporation (“Discover”). 1 B. Discover, contending Lance subsequently defaulted on her account, brought a collection action against her in the Court of Common Pleas of Philadelphia; defendant Weltman, Weinberg & Reis Co., L.P.A. (“Weltman”) represented Discover in that action. C. The parties agreed to dismiss with prejudice the Court of Common Pleas action. D. On February 23, 2011, Lance commenced the instant action against Discover and Weltman for “false, deceptive, misleading, unfair, abusive, and oppressive practices” when attempting to collect the alleged credit card debt. Compl. Prelim. Statement (paper no. 1). E. Lance filed her First Amended Complaint on May 16, 2011 (paper no. 9) . The court found Lance failed to state a claim and granted without prejudice Discover’s Motion to Dismiss Lance’s First Amended Complaint (paper no. 17). F. Lance filed her Second Amended Complaint on September 8, 2011 (paper no. 19). Lance refers to the Discover entities as “Discover” and by their individual names.1 Case 2:16-cv-01199-ER Document 29-1 Filed 08/01/16 Page 2 of 5 G. Lance accuses Discover and Weltman of violating: (1) the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p; (2) the Pennsylvania Fair Credit Extension Uniformity Act (“FCEUA”), 73 P.S. §§ 2270.1-2270.6; and (3) the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. §§ 201-1 to 201-9.3. H. Discover and Weltman move to dismiss Lance’s Second Amended Complaint for “failure to state a claim upon which relief can be granted,” Fed. R. Civ. P. 12(b)(6) (papers no. 20, 21). I. When reviewing a motion to dismiss, the court must “accept as true all the allegations of the complaint and all inferences arising from them.” Anjelino v. N.Y. Times Co., 200 F.3d 73, 87 (3d Cir. 1999). This principle “is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). J. Lance’s FDCPA allegation against Discover: a. Lance states Discover, as DFS Services LLC and DB Servicing Corporation, was liable under the FDCPA as a debt-collector for using “false, deceptive, misleading, and unfair practices and means in conjunction with attempts to collect” Lance’s debt. Second Amend. Compl. ¶¶ 1, 13 (paper no. 19). Lance states Discover, as Discover Bank, was a creditor and was not liable under the FDCPA. Second Amend. Compl. ¶ 9 (paper no. 19). b. The term, “debt collector,” does not include any person collecting a debt to the extent that such activity “concerns a debt which was originated by such person,” or “was not in default” upon the collector’s obtainment. 15 U.S.C. § 1692a (6)(F)(iii). c. Lance admits it is “unclear” whether Lance’s debt was already in default when DFS Services LLC, DB Servicing Corporation, or Discover Financial Services Inc. obtained it “for collection purposes” from Discover Bank. She contends it is “reasonable to suspect that the debt was already in default.” Opp. to Mot. to Dismiss p. 3, 4 (paper no. 23) (emphasis added). d. “[A] complaint must do more than allege the plaintiff’s entitlement to relief. A complaint has to ‘show’ such an entitlement with its facts. . . . As the Supreme Court instructed in Iqbal, ‘[w]here the Page 2 of 4 Case 2:16-cv-01199-ER Document 29-1 Filed 08/01/16 Page 3 of 5 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.’ Iqbal, 129 S. Ct. at 1950.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). e. Lance’s second amended complaint against Discover does not “show” Lance is entitled to relief; Lance fails “to state a claim [under the FDCPA] upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). K. Lance’s FDCPA allegation against Weltman: a. Lance contends Weltman violated the FDCPA by using “false, deceptive, misleading, and unfair practices and means in conjunction with attempts to collect” Lance’s debt. Second Amend. Compl. ¶ 1 (paper no. 19) b. Lance contends Weltman “regularly collected . . . debts on behalf of Discover and knew or should have known” Discover’s “pattern or practice” of not owning the debts Discover wanted collected. Second Amend. Compl. ¶¶ 46-47 (paper no. 19). c. Discover’s “pattern or practice” is irrelevant because this is not a class action. The court is concerned only with the events underlying the instant action. See, e.g., Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 355-56 (5th Cir. 2001) (“The typical pattern or practice discrimination case is brought either by the government or as a class action . . . . While the Supreme Court has not explicitly stated that the pattern or practice method of proof may never be used in private non-class suits, other [circuit] courts have reached this conclusion.”). d. “[T]he law is well established that an attorney is entitled to rely in good faith upon the statement of facts made to him by his client, and is not under a duty to institute an inquiry for the purpose of verifying his statement . . . .” Kitt v. Mitchell, 771 A.2d 814, 822 (Pa. Super. 2001) (internal quotation marks and citation omitted). e. Lance does not dispute Weltman’s claim that Discover told Page 3 of 4 Case 2:16-cv-01199-ER Document 29-1 Filed 08/01/16 Page 4 of 5 Weltman that Discover owned Lance’s debt. Lance’s Second Amended Complaint fails to allege specific facts showing Weltman violated the FDCPA. L. Failure to state a claim under the FDCPA is also a failure to state a claim under the FCEUA and the UTPCPL. 73 P.S. §§ 2270.4(a), 2270.5(a). Lance’s FCEUA and UTPCPL claims against Discover and Weltman fail. M. Lance has twice amended her complaint; the court will not grant her a third opportunity to amend. It is therefore ORDERED that: 1. The Motion of Discover Financial Services, Inc., d/b/a Discover Bank, d/b/a DFS Services, LLC, to Dismiss Plaintiff’s Second Amended Complaint (paper no. 21) is GRANTED WITH PREJUDICE. 2. The Motion of Weltman, Weinberg & Reis Co., L.P.A. to Dismiss Plaintiff’s Second Amended Complaint (paper no. 20) is GRANTED WITH PREJUDICE. /s/ Norma L. Shapiro J. Page 4 of 4 Case 2:16-cv-01199-ER Document 29-1 Filed 08/01/16 Page 5 of 5 EXHIBIT 2 Case 2:16-cv-01199-ER Document 29-2 Filed 08/01/16 Page 1 of 4 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA RITA M. LUDWIG : CIVIL ACTION : v. : : APOTHAKER AND ASSOCIATES, P.C., : DAVID J. APOTHAKER, DISCOVER : BANK, AND DB SERVICING : CORPORATION : No. 12-1129 ORDER AND NOW, this 31st day of July, 2012, after a hearing on defendants’ Motions to Dismiss plaintiff’s First Amended Complaint (papers no. 17, 18), it appearing that: A. Plaintiff Rita M. Ludwig (“Ludwig”) opened a credit card account with defendants Discover Bank (“Discover”) and DB Servicing Corporation (“DB Servicing”). B. Ludwig’s account went into default in the amount of $7,671.43. C. Discover brought a collection action against Ludwig in the Court of Common Pleas of Montgomery County. Defendants Apothaker and Associates, P.C. and David J. Apothaker (collectively “Apothaker”) represented Discover in that action. D. Ludwig filed this action against Discover, DB Servicing, and Apothaker for “false, deceptive, misleading, unfair, and unconscionable practices and means” in attempting to collect the credit card debt. Compl. ¶ 1 (paper no. 1). E. Ludwig accuses Apothaker of violating the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692–1692p. Ludwig accuses Discover and DB Servicing of violating: (1) the FDCPA; (2) the Pennsylvania Fair Credit Extension Uniformity Act (“FCEUA”), 73 P.S. §§ 2270.1–2270.6; and (3) the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. §§ 202-1 to 202-9.3. F. Discover, DB Servicing, and Apothaker move to dismiss the First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Apothaker Mot. Dismiss (paper no. 17); Discover and DB Servicing Mot. Dismiss (paper no. 18). G. To withstand a motion to dismiss, a complaint must contain sufficient factual matter to state a claim for relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The court Case 2:16-cv-01199-ER Document 29-2 Filed 08/01/16 Page 2 of 4 2 of 3 must “accept as true all the allegations of the complaint and all inferences arising from them.” Anjelino v. N.Y. Times Co., 200 F.3d 73, 87 (3d Cir. 1999). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. FDCPA claims H. Ludwig claims Apothaker, Discover, and DB Servicing violated the FDCPA by using misleading practices in attempts to collect her debt. First Amend. Compl. ¶ 1 (paper no. 16). Claim against Apothaker I. Discover hired Apothaker to initiate debt collection proceedings on its behalf. Ludwig contends Apothaker “regularly collected . . . . debts on behalf of Discover and knew or should have known about” Discover’s and DB Servicing’s “pattern or practice” of not owning the debts Discover and DB Servicing sought to collect. First Amend. Comp. ¶¶ 47, 48 (paper no. 16). J. A “debt collector” is any person who uses interstate commerce for business, the “principal purpose of which is the collection of debts, or who regularly collects or attempts to collect . . . debts owed or due another.” 15 U.S.C. § 1692a(6). K. The FDCPA does not require debt collectors to verify the status of the debt to be collected. An attorney is obligated to investigate the status of the debt only when the target of the collection disputes the debt. See 15 U.S.C. § 1692g. L. Ludwig presents no facts showing she disputed the status of her debt. The First Amended Complaint fails to allege specific facts showing Apothaker violated the FDCPA. Claim against Discover and DB Servicing M. Ludwig admits Discover owned and serviced her account when the account went into default. Without any supporting facts, she suggests DB Servicing may have acquired her account after default. Opp. Mot. Dismiss at 3 (paper no. 20). N. Under FDCPA, the person who originates the debt or any person that obtains a debt prior to default is not a “debt collector.” See 15 U.S.C. § 1692a(6)(F). O. Discover and DB Servicing are not debt collectors under FDCPA. See 15 U.S.C. § 1692a(6)(F). P. The First Amended Complaint fails to show Ludwig has a plausible claim for relief from Discover or DB Servicing; Ludwig fails to state a claim upon which relief can be granted under the FDCPA. See Fed. R. Civ. P. 12(b)(6). Case 2:16-cv-01199-ER Document 29-2 Filed 08/01/16 Page 3 of 4 3 of 3 The Motions to Dismiss the FDCPA claims will be granted. FCEUA and UTPCPL claims Q. Failure to state a claim under the FDCPA is also a failure to state a claim under the FCEUA and UTPCPL. 73 P.S. §§ 2270.4(a), 2270.5(a). Ludwig’s FCEUA and UTPCPL claims against Apothaker, Discover, and DB Servicing fail to state a claim. The Motion to Dismiss the FCEUA and UTPCPL claims will be granted. R. Ludwig has failed to make any meaningful amendments to her complaint. Allowing Ludwig to further amend the complaint would be futile. The court will not grant Ludwig an opportunity to amend. It is ORDERED that: 1. The Apothaker Motion to Dismiss (paper no. 17) is GRANTED WITH PREJUDICE. 2. The Discover’s and DB Servicing’s Motion to Dismiss (paper no. 18) is GRANTED WITH PREJUDICE. /s/ Norma L. Shapiro J. Case 2:16-cv-01199-ER Document 29-2 Filed 08/01/16 Page 4 of 4