Opinion
Civil Action No. 4:19-cv-2799-SAL-TER
05-05-2020
CHARLES RAY THOMAS, II, Plaintiff, v. FAIRWAY INDEPENDENT MORTGAGE, Defendant.
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff, who is proceeding pro se, originally filed this action in the Florence County Magistrate's Court alleging Defendant falsely reported information on his credit report. Defendant removed the action to this court pursuant to 28 U.S.C. § 1441, asserting this court had federal question jurisdiction under 28 U.S.C. § 1331. Presently before the court is Defendant's Motion to Dismiss (ECF No. 8). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendant's motion could result in dismissal of his case. Plaintiff timely filed a response. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(e), DSC. This report and recommendation is entered for review by the district judge.
II. ALLEGATIONS
Plaintiff filed this complaint for "the report of false information on my credit report," and cites the South Carolina Unfair Trade Practices Act (SCUTPA) , S.C. Code Ann. § 36-5-10, et seq. and the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq. He requests $2,000, the closing of his mortgage, release of the lien, and release from any third party connected to Defendant. Compl. p. 1 (ECF No. 1-1). Attached to his one-page complaint are various documents, including a mortgage executed by Plaintiff on March 29, 2019, granting Defendant a lien against 1308 Harmony Street, Florence, SC 29501 to secure his obligation to repay a loan in the original principal amount of $79,000, plus interest. Mortgage (ECF No. 1-2, pp. 6-21).
III. STANDARD OF REVIEW
A Rule 12(b)(6) motion examines whether Plaintiff has stated a claim upon which relief can be granted. The United States Supreme Court has made clear that, under Rule 8 of the Federal Rules of Civil Procedure, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
Expounding on its decision in Twombly, the United States Supreme Court stated in Iqbal:
[T]he pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation. 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."Iqbal, 556 U.S. at 677-78 (quoting Twombly, 550 U.S. at 555, 556, 557, 570) (citations omitted); see also Bass v. Dupont, 324 F.3d 761, 765 (4th Cir.2003). The court may consider documents attached to a complaint or motion to dismiss "so long as they are integral to the complaint and authentic." Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir.2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n. 1 (4th Cir.2006)).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
IV. DISCUSSION
A. FDCPA
Congress "enacted the FDCPA with the goal of eliminating abusive, deceptive, and unfair debt collection practices." Clark v. Absolute Collection Serv., Inc., 741 F.3d 487, 490 (4th Cir. 2014) (citing 15 U.S.C. § 1692). To establish an FDCPA claim, a plaintiff must prove that (1) he has been the object of collection activity arising from consumer debt; (2) the defendant is a debt collector as defined by the FDCPA; and (3) the defendant has engaged in an act or omission prohibited by the FDCPA. Boosahda v. Providence Dane LLC, Case No. 10-1933, 2012 WL 268345, at *1 n.3 (4th Cir. Jan. 31, 2012). Defendant argues that it is a not a debt collector as defined by the FDCPA. This court has held that "creditors collecting their own debts are not 'debt collectors' for purposes of the FDCPA and are exempt from the FDCPA's provisions." Barber v. Rushmore Loan Mgmt. Servs., LLC, No. 3:17-cv-982-TLW-SVH, 2018 WL 4957409, at *4 (D.S.C. Feb. 21, 2018), report and recommendation adopted, No. 3:17-982-TLW, 2018 WL 4489290 (D.S.C. Sept. 19, 2018), aff'd, 769 F. App'x 106 (4th Cir. 2019) (citing Glover v. Univ. Motor Co., No. 3:08-2254, 2010 WL 234903, at *3 (D.S.C. Jan. 15, 2010); Serfass v. CIT Group/Consumer Fin., Inc., No. 8:07-90, 2008 WL 351116, at *3 (D.S.C. Feb. 7, 2008) (finding the defendant was not regulated by the FDCPA because the defendant was a creditor collecting its own debts). "Under the FDCPA, 'debt collectors do not include creditors, mortgagors, mortgage servicing companies, trustees exercising their fiduciary duties, or assignees of debt so long as the debt was not in default at the time it was assigned.'" Id. (citing Patrick v. PHH Mortg. Corp, 937 F.Supp.2d 773, 789-90 (N.D.W. Va. 2013); Stoudemire v. Ray, C/A No. 3:09-2485-CMC-JRM, 2012 WL 762037, at *3 (D.S.C. Feb. 9, 2012) ("creditors, mortgagors, and mortgage servicing companies are not debt collectors under the FDCPA and are therefore exempt from liability under the FDCPA"), adopted by 2012 WL 762021 (D.S.C. Mar. 8, 2012)); see also Perry v. Stewart Title Co., 756 F.2d 1197 (5th Cir.1985), modified on other grounds, 761 F.2d 237 (5th Cir.1985) (Debt collector does not include consumer creditors, mortgage servicing company, or assignee of debt, as long as debt was not in default at time it was assigned). The mortgage identifies Defendant as the originating lender to whom Plaintiff owes the debt. Mortgage (ECF No. 1-2, p. 7). Therefore, dismissal is appropriate as to Plaintiff's FDCPA claim.
The term "debt collector" means any 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 regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.15 U.S.C. § 1692a(6).
Plaintiff's response does not address the arguments raised by Defendant in its motion. In addition, to the extent Plaintiff is attempting to pursue theories presented by redemptionist and sovereign citizen adherents, such theories have been recognized by the courts as frivolous and a waste of court resources. Estrada Tr. v. All Assets Held in 57995-019 / Ismael Estrada, No. CV 4:19-2968-MGL-TER, 2019 WL 6330745, at *2 (D.S.C. Oct. 25, 2019), report and recommendation adopted sub nom., No. CV 4:19-02968-MGL, 2019 WL 6320153 (D.S.C. Nov. 26, 2019)(collecting cases).
B. SCUTPA
As stated above, this action stems from Defendant's reporting of alleged false information to Plaintiff's credit report. As such, his SCUPTA claim is preempted by the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, et seq., because it relates "to the responsibilities of persons who furnish information to consumer reporting agencies." 15 U.S.C. § 1681t(b)(1)(F). "The FCRA generally preempts the use of state statutory law as a 'requirement or prohibition' concerning 'subject matter regulated under section 1681s-2.'" Muntean v. Discover Fin. Servs., No. 6:13-1151-HMH, 2013 WL 2636003, at *4 (D.S.C. June 12, 2013) (holding that the plaintiff's SCUPTA claim relating to reports made to credit reporting agencies was preempted by the FCRA). Accordingly, Plaintiff's SCUTPA claim is subject to dismissal as well.
Further, even if Plaintiff asserted a FCRA claim, the complaint is void of any factual allegations to support such a claim. See Mavilla v. Absolute Collection Serv., Inc., 539 F. App'x 202, 208 (4th Cir.2013) (finding that while there is a private right of action under 15 U.S.C. § 1681s-2(b), duties only arise under that provision upon the furnisher's receipt of notice from a credit reporting agency that information has been disputed); see also Best v. Cequel, C/A No. 4:14-CV-61-FL, 2014 WL 6453960, at *2 (E.D.N.C. Nov.17, 2014) (collecting cases holding that notice of dispute must be received from the credit reporting agency to trigger a violation under § 1681 s-2(b)).
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendant's Motion to Dismiss (ECF No. 8) be granted and this case be dismissed in its entirety.
If the District Judge accepts this recommendation, all other motions will be moot.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge May 5, 2020
Florence, South Carolina