Hampton v. Barclays Bank Del.

ANTHONY J. HAMPTON, Plaintiff, v. BARCLAYS BANK DELAWARE, et al., Defendants.

Case No. 18-4071-DDC-ADM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

December 11, 2019

MEMORANDUM AND ORDER

Pro se plaintiff¹ Anthony J. Hampton brings this action against eight named defendants, including defendants loanDepot.com ("LD") and Discover Bank ("Discover"). This matter comes before the court on LD's Motion to Dismiss (Doc. 149) and Discover's Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. 161). For reasons explained below, the court grants Discover's Motion to Dismiss. Also, the court grants LD's Motion to Dismiss in part and denies it in part. The court explains why it reaches these conclusions, below.

I. Procedural Background

On July 13, 2018, plaintiff filed his original Complaint in this case. Doc. 1. The original Complaint named LD and Discover as two of eight named defendants. The original Complaint alleged that Discover had violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C § 1681, and the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. See id. at 9, 11(Counts I & III). And it alleged just one count against LD for violating the FCRA. See id. at 11 (Count III). Both LD and Discover filed Motions to Dismiss plaintiff's original Complaint. Docs. 38, 46.

Plaintiff then filed a First Amended Complaint as a matter of right under Fed. R. Civ. P. 15(a)(1)(B). Doc. 48. The First Amended Complaint added a TCPA claim against LD and reasserted the FCRA claim against this defendant. Id. at 9 (Counts I & III). Also, the First Amended Complaint omitted the TCPA claim against Discover, and, in its place, asserted just one claim against Discover for violating the FCRA. Id. at 11 (Count III). Both LD and Discover filed Motions to Dismiss Plaintiff's First Amended Complaint for failing to state a claim. Docs. 56, 58, & 75.

On September 9, 2019, the court issued a Memorandum and Order ruling several motions including LD and Discover's Motions to Dismiss. Doc. 137. The court agreed with Discover, concluding that plaintiff's First Amended Complaint failed to allege facts capable of supporting a plausible FCRA claim against Discover. Id. at 6-9. Also, the court agreed with LD that plaintiff's First Amended Complaint failed to allege plausible TCRA and FCRA claims against LD. Id. at 9-14.

But, the court recognized that plaintiff—who proceeds pro se—possibly could overcome his pleading deficiencies and amend his claims to provide sufficient factual detail to state plausible claims against these defendants under Rule 8. Id. at 9, 12, 14. So, the court granted him leave to file an amended complaint. Id. The court specifically directed plaintiff, within 20 days, to file an amended complaint providing "factual allegations" that "properly . . . state a plausible FCRA claim against Discover" and "properly . . . state a plausible TCPA and FCRA claim against LD." Id. at 9, 14; see also id. at 2 (granting "plaintiff leave to file a SecondAmended Complaint—one that cures the pleading defects that the court identifies" in the Order); id. at 22 (ordering plaintiff to "file a Second Amended Complaint that cures the defects identified in this Order within 20 days").

On September 27, 2019, plaintiff timely filed his Second Amended Complaint. Doc. 141. This Second Amended Complaint again asserts one claim against Discover for violating the FCRA under 15 U.S.C. § 1681. Id. at 13-16 (Count III). And, it asserts three claims against LD, claiming it has violated: (1) the TCPA, (2) the FCRA, and (3) the Fair Debt Collection Practices Act ("FDCPA") under 15 U.S.C. § 1692c. Id. at 9, 13, 23 (Counts I, III & VII).

With the pending motions, both LD and Discover again move to dismiss plaintiff's claims. Both LD and Discover assert that plaintiff lacks standing to assert all of his claims against them because he fails to allege that he sustained an injury in fact caused by LD and Discover's purported statutory violations. LD and Discover thus move to dismiss plaintiff's claims under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Also, both LD and Discover move to dismiss plaintiff's claims under Federal Rule of Civil Procedure 12(b)(6) for failing to state plausible claims for relief.

II. Factual Background

The following facts come from plaintiff's Second Amended Complaint (Doc. 141).² The court accepts these facts as true and views them in the light most favorable to plaintiff. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) ("We accept as true all well-pleaded factual allegations in the complaint and view them in the light most favorable to the [plaintiffs]." (citation and internal quotation marks omitted)).

Although plaintiff's allegations are difficult to discern, the court understands them to arise from LD and Discover's alleged reporting of "derogatory remarks" to consumer reporting agencies ("CRAs") and "attempts to collect alleged but non-existent debt." Compl. ¶¶ 1, 4.

Plaintiff Disputes the Accuracy of Information Reported by LD and Discover

On March 19, 2018, plaintiff sent Discover a "Notice of Dispute." Id. ¶ 25. This Notice demanded validation of an alleged account (0773). Id. On March 20, 2018, plaintiff sent defendant LD a "Notice of Dispute." Id. ¶ 26. This Notice demanded validation of an alleged account (9589). Id. Both Notices included a demand "that the claim of debt was invalid, free from any claims and defects, whether there was a breach of agreement, whether there was a failure of consideration or material alterations, whether the alleged account was transferred, and that the original lender provided value." Id. ¶¶ 25-26. The Notices also "included a request for a complete statement of damages and losses incurred" either by LD or Discover. Id.

On March 20, 2018, plaintiff sent Notices of Disputes to three CRAs. Id. ¶ 27. These Notices disputed LD and Discover's accounts and the accuracy of the information that LD and Discover had provided to the CRAs. Id. ¶¶ 27, 30. The CRAs then contacted LD and Discover "requesting reinvestigation of the alleged debt." Id. ¶ 28. LD and Discover failed to investigate plaintiff's "disputed information (as shown in his Notice of Dispute), and failed to report such results to the CRAs." Id. ¶ 29. LD and Discover never have reported the disputed matter to the CRAs. Id. ¶ 30; see also id. ¶ 54 ("The CRAs contacted [LD and Discover], and [LD and Discover] failed to report the results of their investigation to the CRAs.").

Plaintiff disputes the accuracy of the:

demand that the claim of debt was valid, free from any claims and defects, whether there was a breach of agreement, whether there was a failure of consideration or material alterations, whether the alleged account was transferred, and that the original lender provided value by sourcing the funds from creditor's account.

Id. ¶ 30. Plaintiff alleges that "[o]n more than one occasion," LD and Discover "reported inaccurate derogatory information to one or more CRAs." Id. at ¶ 51. Plaintiff asserts, "[d]ue to the securitization process, [LD and Discover] are not holders in due course, and therefore cannot have incurred a loss . . . ." Id. Thus, plaintiff contends, LD and Discover "reported inaccurate derogatory information, which is fraud in the factum." Id.

Also, plaintiff sent written requests to LD and Discover "[o]n more than one occasion" and they "disput[ed] the information and demand[ed] that [LD and Discover] investigate the inaccuracies and derogatory information that [they] reported." Id. ¶ 52. LD and Discover "failed to investigate the dispute, continued to report inaccurate information, and failed to report true information, to the CRAs even after receiving notice of dispute from Plaintiff, and reinvestigation from the CRAs." Id. ¶ 54. Discover inaccurately reported "an amount due of $30,289 (Equifax); $30,289 (Experian); $30,289 (TransUnion)." Id. LD inaccurately reported "an amount due of $16,283 (TransUnion)." Id. According to plaintiff, "[t]he amount reported should be [$]0.00." Id. LD and Discover's conduct, plaintiff alleges, has caused plaintiff to sustain damage. Id. at 16 ("WHEREFORE" paragraph). Based on LD and Discover's conduct, plaintiff seeks statutory damages under the FCRA in amount of $1,000. Id. ¶ 58.

Besides statutory damages, plaintiff asks the court to award "other and additional relief as the Court may determine to be just and proper." Id. at 24 (Prayer for Damages ¶ (j)). Plaintiff cites cases where courts have awarded emotional distress damages for injury to reputation. Id. at 24-25 (Prayer for Damages ¶ (j) (first citing Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329 (9th Cir. 1995); then citing Acton v. Bank One Corp., 293 F. Supp. 2d 1092 (D. Ariz. 2003) (other citations omitted))).

LD's Phone Calls

On March 20, 2018, plaintiff sent a demand to LD asking that LD not call him. Compl. ¶ 19. But, between March 24 and April 19, 2018, plaintiff received 10 calls on his cell phone from LD, where LD used an automatic telephone dialing system or artificial or prerecorded voices. Id. ¶ 23. LD made the calls to plaintiff's cell phone from "number 855-214-6424" using an "'automatic telephone dialing system that has the capacity to store or produce telephone numbers', without human intervention, even if that capacity is turned off." Id. at ¶ 38. At the beginning of the calls, plaintiff "would be put through to a person who identified themselves as [calling] from LD to collect on a debt." Id. When he answered these calls, he heard "an artificial sounding computer voice from the caller, which waited for [p]laintiff to press a specific number on his keypad." Id. Once plaintiff recognized the phone number as a frequent call from LD, he "discontinued the call." Id.

Based on these allegations, plaintiff asserts a claim against LD for violating the TCPA. Id. ¶¶ 35-41. Plaintiff seeks "actual or statutory damages, and punitive damages and costs"...