Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kibbie v. BP/ Citibank

September 9, 2009

JULIE LYNETTE KIBBIE, PLAINTIFF
v.
BP/ CITIBANK, ET AL DEFENDANTS



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

Plaintiff, Julie Lynette Kibbie, proceeding pro se, brought this action alleging violation of her rights under the Fair Credit Reporting Act and the Fair Debt Collection Practices Act. Defendants Verizon and World Financial Network National Bank ("WFNNB") have filed Motions to Dismiss. Verizon has also filed a Motion to Strike Plaintiff's Brief in Opposition based on Plaintiff's inclusion of settlement discussions in her argument.

Defendant Verizon's Motion to Dismiss will be granted as Plaintiff has failed to properly plead a cause of action against it. Verizon's Motion to Strike will also be granted as Plaintiff's brief improperly relies on settlement discussions. Plaintiff has properly pled a claim pursuant to the Fair Credit Reporting Act against WFNNB, but not under the Fair Debt Collection Practices Act as WFNNB is not a debt collector as defined by the statute. Accordingly, WFNNB'S motion will be granted in part.

In addition to Defendants' motions, Plaintiff has filed a motion for a default judgment against Defendant Financial Recoveries, three motions to strike accounts from her credit report, a motion for leave to file a second amended complaint, and a motion for sanctions. Plaintiff's motions to strike accounts for her credit report will be dismissed as without merit. Plaintiff's failure to file supporting briefs is fatal to both her motion for default judgment and her motion for sanctions; consequently, both motions will be dismissed. Permitting Plaintiff to file her proposed second amended complaint would be futile; accordingly, the motion for leave to file a second amended complaint will be denied.

I. BACKGROUND

On September 30, 2008, Plaintiff filed a pro se complaint pursuant to the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (Dkt. 1.) On October 27, 2008, Plaintiff filed a First Amended Complaint against Defendants BP/Citibank, Citgo Citibank, Equifax, Experian, Financial Recoveries, Harleysville National Bank & Trust, Sterling, Trans Union, Focus Receivable Management, Unique Management Services, Inc. d/b/a Unique National Collections, WFNNB/New York & Co., Verizon, and Brian Lazar. (Dkt. 20.) Plaintiff's twelve count complaint asserts violation of the Fair Debt Collection Practices Act and the Fair Credit Reporting Act against each of the Defendants, excluding Verizon. (Id.) There are no counts in the First Amended Complaint alleging claims against Verizon. (Id.)

As of the date of this Memorandum, Plaintiff has settled her claims against BP/Citibank (Dkt. 65), Citgo/Citibank (Dkt. 65), Equifax (Dkt. 87), Harleysville National Bank & Trust (Dkt. 132), Unique Management Services Inc. (Dkt. 96), Brian Lazar (Dkt. 30), Sterling Credit Corp. (Dkt. 115), and Focus Receivables Management (Dkt. 123). The remaining Defendants include Experian, Financial Recoveries, Trans Union, WFNNB, and Verizon.

Plaintiff claims that Experian is a credit reporting agency as defined by 15 U.S.C. § 1692a, and that she contacted Experian via certified mail on August 12, 2008, disputing the accounts with the following creditors for improper validation: AFNI, Inc., Elan Financial Services, Inc., Apex Asset Management, Harleysville National Bank and Trust, Primus Financial Services, Sterling Corporation, Unique National Credit, WFNN[B]/New York and Company, Financial Recoveries, Citgo/Citibank SD, BP/Citibank, and NCO Financial. (Dkt. 20, at ¶ 70.) On August 16, 2008, Experian sent her a letter indicating that the Apex Asset Management account would be updated and the account was subsequently removed. (Id. at ¶ 72.) She avers that the certified mail receipt of her August 12, 2008 letter was signed by an agent of Experian on August 19, 2008, (id. at ¶ 71), and that on August 25, 2008, Experian sent her a letter indicating "accounts disputed have 30 days to respond." (Id. at ¶ 73.) Plaintiff states that on September 11, 2008, Experian provided an updated credit report which indicated that Unique National Collections, WFNNB, and Financial Recoveries were updated and that the Sterling Credit account remained on file. (Id. at ¶ 74.)

Plaintiff alleges that Experian failed to provide her "with the response information from the creditors in accordance with 15 U.S.C. § 1681i," (id. at ¶ 76), and failed to remove the Elan Financial Services, Financial Recoveries, Sterling Credit, Unique National Collections, and WFNNB accounts from her report in violation of 15 U.S.C. § 1681i. (Id. at ¶ 75.) She states that to the best of her knowledge and belief "Experian failed to provide the other credit bureaus with the accurate information related to AFNI, Inc, Apex Asset Management, Primus Financial Services, Inc., Harleysville National Bank and Trust, Citgo/Citibank, NCO Financial and BP/Citibank in accordance with 15 U.S.C. § 1681s(2), FCRA § 623(a)(C)." (Id. at ¶ 77.) She alleges that Experian has failed to follow the compliance procedures required by 15 U.S.C. § 1681e, (id. at ¶ 79), and that Equifax (not Experian), "has failed to mark the debts as 'disputed' or 'under investigation' on Plaintiff's credit report in accordance with 15 U.S.C. § 1681(c)," and continues to report the adverse accounts. (Id. at ¶ 78.) Plaintiff avers that Experian's conduct was willful, wanton, and malicious and that, in addition to embarrassment and duress, it has caused her to be denied applications for credit and has required her to pay higher interest rates. (Id. at ¶¶ 80-82.)

Plaintiff claims that Trans Union is a credit reporting agency as defined by 15 U.S.C. § 1692a, and that she contacted Trans Union via certified mail on August 12, 2008, disputing the accounts with the following creditors for improper validation: AFNI, Inc., Elan Financial Services, Inc., Apex Asset Management, Harleysville National Bank and Trust, Primus Financial Services, Sterling Corporation, Unique National Credit, WFNN[B]/New York and Company, Financial Recoveries, Citgo/Citibank SD, BP/Citibank, and NCO Financial. (Dkt. 20, at ¶ 111.) The letter was received on August 18, 2008, and in a reply letter dated August 19, 2008, Trans Union indicated that the "disputed accounts did not exist on Plaintiff's credit report." (Id. at ¶ 113.) Plaintiff states that Trans Union failed to remove the Harleysville National Bank judgment, Elan Financial Services account, and WFNNB account in violation of 15 U.S.C. § 1681i, and has failed to provide her with the response information from her creditors in violation of 15 U.S.C. § 1681i. (Id. at ¶¶ 114-15.) She also alleges that Trans Union has failed to provide the other credit bureaus with the accurate information related to her accounts. (Id. at ¶ 116.) Plaintiff avers that the Harleysville National Bank and Trust, Elan Financial, and WFNNB accounts remain on her credit report and that Trans Union has failed to mark the debts as "disputed" or "under investigation" in violation of 15 U.S.C. § 1681c. (Id. at ¶ 117-18.) She alleges that Trans Union's conduct was willful, wanton, and malicious and that, in addition to embarrassment and duress, it has affected her credit, caused her to be denied applications for credit, and has required her to pay higher interest rates. (Id. at ¶¶ 119-21.)

Count nine of Plaintiff's Amended Complaint includes claims for relief against Defendant WFNNB. Plaintiff avers that she contacted WFNNB by certified mail on July 8, 2008, requesting a validation of debt pursuant to 15 U.S.C. § 1692g,*fn1 and expressing a desire to settle the debt upon validation. (Id. at ¶ 134.) Plaintiff's letter was received on July 12, 2008 (Id. at ¶ 135), but WFNNB did not respond. "Plaintiff again contacted Defendant, WFNNB, via certified mail on August 14, 2008, . . . asking for a 'validation of debt' pursuant to 15 U.S.C. § 1692(g)." (Id. at ¶ 136.) WFNNB received the letter on August 18, 2008. (Id. at ¶ 137.) On August 28, 2008, WFNNB sent Plaintiff a letter indicating that they were unwilling to provide any information regarding the account. (Id. at ¶ 139.) Since then, WFNNB has failed to remove the debt from Plaintiff's credit report and has failed to mark the debt as "disputed" or "under investigation," allegedly in violation of 15 U.S.C. § 1681i. (Id. at ¶¶ 140-41.) Plaintiff avers that WFNNB's conduct was willful, wanton, and malicious and that, in addition to embarrassment and duress, it has caused her to be denied applications for credit and has required her to pay higher interest rates. (Id. at ¶¶ 119-21.)

Count ten of Plaintiff's Amended Complaint alleges claims against Defendant Financial Recoveries. Plaintiff avers that Financial Recoveries is a "debt collector" as defined in 15 U.S.C. § 1692a(6). (Id. at ¶¶ 12-13.) Plaintiff avers she contacted Financial Recoveries via certified mail on July 8, 2008, requesting a "validation of debt" pursuant to 15 U.S.C. § 1692g, and expressing a desire to settle the debt upon validation. (Id. at ¶ 146.) On August 10, 2008, Plaintiff's letter was returned to her as "Not Deliverable as Addressed, Unable to Forward". (Id. at ¶ 147.) Plaintiff sent a second certified letter on August 15, 2008, which was returned on September 5, 2008, as "Return to Sender, Refused, Unable to Forward." (Id. at ¶¶ 148-49.) Plaintiff alleges that Financial Recoveries has not responded to her request for validation in violation of 15 U.S.C. § 1692g, (id. at ¶ 151), has failed to remove the alleged debt from her credit report in violation of 15 U.S.C. § 1681i, (id. at ¶ 152), has failed to mark the debt as "disputed" or "under investigation" in violation of 15 U.S.C. § 1681i, (id. at ¶ 153), and has failed to update its address with the credit bureaus in accordance with 15 U.S.C. § 1681s-(2). (Id. at ¶ 154.) Plaintiff avers that Financial Recoveries' conduct was willful, wanton, and malicious, and that it has caused her to be denied applications for credit and has required her to pay higher interest rates. (Id. at ¶¶ 155-56.)

As noted above, Plaintiff's Amended Complaint does not include any claim against Verizon. Nor does the Amended Complaint make any mention of Verizon other than in the caption.

With regard to relief, Plaintiff requests: this Honorable Court grant Judgment for Plaintiff in such sum that is reasonable, and additional damages under 15 U.S.C. § 1692(k), FDCPA § 813(a)(2)(A), plus attorney's fees under 15 U.S.C. § 1692(k), FDCPA § 813(a)(3) and 15 U.S.C. § 1692(k), FDCPA § 813(b)(1) and all allowable costs of suit. (Id. at 8, 12, 14, 15.)

Currently pending is WFNNB's Motion to Dismiss (Dkt. 39), Verizon's Motion to Dismiss (Dkt. 64), Plaintiff's Motion for Leave to File a Second Amended Complaint (Dkt. 67), Verizon's Motion to Strike Plaintiff's Brief in Opposition to Motion to Dismiss (Dkt. 89), Plaintiff's Motion for a Default Judgment against Defendant Financial Recoveries (Dkt. 100), and Plaintiff's Motion to Strike the WFNNB Account (Dkt. 108), Financial Recoveries Account (Dkt. 109), and Verizon Account (Dkt. 110) from her credit report. The briefing period for each of these motions has expired and the claims are ripe for review.

II. DISCUSSION

A. Motions to Dismiss

The court's task on a Rule 12(b)(6) motion to dismiss for failure to state a claim is to "determine whether, under any reasonable reading of the pleadings, the plaintiffs may be entitled to relief." Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000). In doing so, all factual allegations and all reasonable inferences drawn therefrom are assumed to be true. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). "The complaint will be deemed to have alleged sufficient facts if it adequately puts the defendants on notice of the essential elements of the cause of action." Id.

The court, however, need not accept as true a complaint's "bald assertions" or "legal conclusions." In re Burlington Coat Factory Secs. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997). Thus, a Rule 12(b)(6) motion does not serve to question a plaintiff's well-pled facts, but rather tests the legal foundation of the plaintiff's claims. United States v. Marisol, Inc., 725 F. Supp. 833, 836 (M.D. Pa. 1989). The Supreme Court recently abrogated its longstanding decision in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which had held that a complaint may be dismissed only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." The Court retired this "no set of facts" language in favor of a new standard: a plaintiff's obligation to state a claim for relief under Rule 8(a)(2) "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007).

As a result of Twombly, plaintiffs are required to nudge their claims "across the line from conceivable to plausible." Id. To state a claim consistent with the language of Fed. R. Civ. P. 8(a)(2), which requires only a "short and plain statement of the claim showing that the pleader is entitled to relief," a complaint must contain factual allegations sufficient "to raise a right to relief above a speculative level." Id. "[W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only 'fair notice,' but also the 'grounds' on which the claim rests." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). As such, courts may dismiss a complaint if it fails to "contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 127 S.Ct. at 1969; see also Phillips, 515 F.3d at 234 (in order to survive a motion to dismiss, a plaintiff must allege in his complaint "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]" of a particular cause of action).

Moreover, the Court's more recent decision in Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (May 18, 2009), held that Rule 8 mark "does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Consequently, "where 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,'" and the complaint should be dismissed. Id.

Additionally, pro se pleadings are to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972), and pro se litigants are to be granted leave to file a curative amended complaint "even when a plaintiff does not seek leave to amend," unless such an amendment would be inequitable or futile. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). However, a complaint which sets forth facts affirmatively demonstrating that the plaintiff has no right to recover is properly dismissed without leave to amend. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

1. WFNNB's Motion to Dismiss

Plaintiff's Amended Complaint presents claims against WFNNB alleging violation of 15 U.S.C. § 1692g, 15 U.S.C. § 1681i, and 15 U.S.C. § 1681s-(2). WFNNB moves to dismiss, contending:

Plaintiff's FDCPA claim fails as a matter of law because Defendant is not [a] debt collector subject to FDCPA. Rather, WFNNB is a "creditor," to which the FDCPA does not apply. Second, . . . Plaintiff's claims under FCRA should be dismissed to the extent they arise under 15 U.S.C. § 1681s-2(a) because there is no private cause of action under Section § 1681s-2(a). (Dkt. 40, at 2.)

a. Fair Debt Collection Practices Act

The purpose of the Fair Debt Collection Practices Act ("FDCPA") is "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C.A. § 1692. The FDCPA defines a "creditor," in part, as "any person who offers or extends credit creating a debt or to whom a debt is owed . . . ." 15 U.S.C.A. § 1692a(4). The FDCPA defines "debt collector," in part, as "any person who uses an instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C.A. § 1692a(6) (emphasis added).

The FDCPA's provisions generally apply only to "debt collectors." Petit v. Retrieval Masters Creditors Bureau, Inc., 211 F.3d 1057, 1059 (7th Cir. 2000). Creditors - as opposed to "debt collectors" - generally are not subject to the FDCPA. See Aubert v. American Gen. Fin., Inc., 137 F.3d 976, 978 (7th Cir. 1998) ("Creditors who collect in their own name and whose principal business is not debt collection . . . are not subject to the Act. . . . Because creditors are generally presumed to restrain their abusive collection practices out of a desire to protect their corporate goodwill, their debt collection activities are not subject to the Act unless they collect under a name other than their own."); Staub, 626 F.2d at 277 ("The FDCPA does not apply to persons or businesses collecting debts on their own behalf."); Hon. D. Duff McKee, Liability of Debt Collector to Debtor under the Federal Fair Debt Collection Practices Act, 41 Am. Jur. Proof of Facts 3d 159, at § 3 (1997) . . . ("Interestingly, the term 'debt collector' does not include the creditor collecting its own debt.").

Pollice v. Nat'l Tax Funding, L.P., 225 F.3d 379, 403 (3d Cir. 2000).

Plaintiff admits that WFNNB is a creditor, and not a debt collector (see Dkt. 20, at ΒΆ134), and does not allege that WFNNB has tried to collect the debt in a name other than its own. See Pollice, 225 F.3d at 403. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.