Opinion
C. A. 2:22-3594-BHH-MHC
06-13-2023
Juanita Wilson, Plaintiff, v. Wells Fargo Bank, Defendant.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY UNITED STATES MAGISTRATE JUDGE
This is a civil action filed by Plaintiff Juanita Wilson, a pro se litigant. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. In an Order entered April 4, 2023, Plaintiff was directed to file certain documents to bring her case into proper form. She was also apprised of material deficits in the Complaint and given time to file an amended complaint. ECF No. 6. Plaintiff has not filed the documents necessary to bring her case into proper form and has not filed an amended complaint.
I. BACKGROUND
This is Plaintiff's fourth lawsuit brought against Defendant Wells Fargo Bank (Wells Fargo) asserting claims under the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681-1681x, concerning alleged negative information on a consumer credit report. The first case (Wilson I) was dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b) because Plaintiff never got the case into proper form. See Wilson v. Wells Fargo, No. 2:19-02712-BHH-BM (D.S.C.). In her second case (Wilson II), Plaintiff again asserted claims pursuant to the FCRA concerning alleged negative information on her consumer report. Wells Fargo's motion to dismiss for failure to state a claim was granted and the case was dismissed without prejudice to afford Plaintiff the opportunity to amend her complaint if she chose to do so. See Wilson v. Wells Fargo Bank, N.A., No. CV 2:20-2780-BHH, 2021 WL 2003184, at *1 (D.S.C. May 19, 2021). Plaintiff did not amend her Complaint in Wilson II. She next filed a third case (Wilson III), alleging claims pursuant to the FCRA concerning credit reporting as to two Wells Fargo education loans. She also alleged claims under the Fair Debt Collections Practices Act, the Telephone Consumer Protection Act, and the Truth-in-Lending Act. After Plaintiff was notified of pleading deficiencies and given an opportunity to amend, the case was dismissed with prejudice for Plaintiff's failure to state a claim under the FCRA (and under the other statutes). See Wilson v. Wells Fargo Bank, N.A., No. CV 2:21-1980-BHH, 2022 WL 2914490, at *2 (D.S.C. July 25, 2022).
A federal court may take judicial notice of the contents of its own records, as well as those records of other courts. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (noting that courts may take judicial notice of other courts' records and proceedings).
In the present case, Plaintiff alleges that Wells Fargo violated the FCRA. Complaint, ECF No. 1 at 1, 3-6. She attached what appears to be a portion of an undated consumer credit report (there is nothing on the sheet to indicate that this is Plaintiff's credit report) from an unknown consumer reporting agency (CRA) for an account titled “WF EFS” for which the purpose is noted to be an education loan. In this report, it is noted that the original amount of the loan was $12,000; there was no balance reported in March 2019 (“*” reported as the balance); and the account was reported as 30 days late in August 2018, 60 days late in September 2018, 90 days late in October 2018, and as a “charge off” from November 2018 through March 2019. Additionally, the account is noted as closed with a payment status of “[l]egally paid in full for less than the full balance” as of the status update date of March 2019. ECF No. 1-1.
Plaintiff alleges that on “a date better known to Defendant,” Wells Fargo allegedly issued inaccurate and misleading information to CRAs relating to her Wells Fargo account. She claims that the account was closed such that she no longer had an obligation to Wells Fargo, but the CRAs allegedly continued “to report the Plaintiff's incorrect payment status of 30 days past due, incorrect balance, and incorrect past due amount.” Complaint, ECF No. 1 at 2. Plaintiff states that she “believes” the CRAs notified Wells Fargo of the dispute. She claims that Wells Fargo failed to conduct a reasonable investigation and continued to report false and inaccurate information on her consumer report with respect to the disputed account. Plaintiff alleges that Wells Fargo committed a willful violation of the FCRA under 15 U.S.C. § 1681n and a negligent violation of the FCRA under 15 U.S.C. §1681o. Id. at 3-6.
Plaintiff contends she “suffered concrete harm in the form of loss of credit, loss of ability to purchase and benefit from credit, a chilling effect on applications for future credit, and the mental and emotional pain, anguish, humiliation and embarrassment of credit denial.” ECF No. 1 at 3. She requests monetary damages. Id. at 6.
II. STANDARD OF REVIEW
This case is before the Court for pre-service review. See 28 U.S.C. § 1915(e)(2)(B); In re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997) (pleadings by non-prisoners should also be screened). Under established local procedure in this judicial district, a careful review has been made of the pro se Amended Complaint herein pursuant to the procedural provisions of § 1915, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989); Haines v. Kerner, 404 U.S. 519 (1972); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
Section 1915 permits an indigent litigant to commence an action in federal court without paying the administrative costs of proceeding with the lawsuit. However, to protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action “is frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A finding of frivolousness can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. at 327.
This Court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
III. DISCUSSION
A. Res Judicata
Plaintiff's claims are barred by the doctrine of res judicata. In Wilson III, Plaintiff brought an action against Wells Fargo alleging claims, including claims pursuant to the FCRA, regarding two student education loans on which Plaintiff was a co-signer with her daughter. She specifically alleged claims concerning a student education loan in the amount of $12,000 from Wells Fargo that was opened in August 2015. Although Plaintiff fails to provide specifics in the present Complaint, she has attached an exhibit that concerns a $12,000 loan opened in August 2015, that was closed in March 2019. Thus, it appears that Plaintiff is again bringing claims concerning the same loan she alleged claims about in Wilson III.
In Wilson III, Plaintiff provided a copy of a purported letter from Wells Fargo Education Financial Services to Plaintiff dated February 25, 2019, in which Plaintiff was offered a settlement as to a loan, with a balance of $11,008.26, for the reduced amount of $4,403.30. The letter provided:
Upon receipt of valid funds, we will update our records to indicate the account is settled, which includes in most circumstances reporting to the consumer reporting agencies that this account has been settled and charged off for less than the full balance.Wilson v. Wells Fargo Bank, N.A., No. 2:21-1980-BHH-MHC (D.S.C.), Doc. No. 1-1 at 4 (emphasis added).
Under the doctrine of claim preclusion, or res judicata, “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Pueschel v. United States, 369 F.3d 345, 354 (4th Cir. 2004) (citing Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981); Brown v. Felsen, 442 U.S. 127, 131 (1979); Meekins v. United Transp. Union, 946 F.2d 1054, 1057 (4th Cir. 1991)). “By precluding parties in a subsequent proceeding from raising claims that were or could have been raised in a prior proceeding, res judicata encourages reliance on judicial decisions, bars vexatious litigation, and frees the courts to resolve other disputes.” Id. (citation and internal quotation marks omitted).
For the doctrine of res judicata to be applicable, there must be: (1) a final judgment on the merits in a prior suit; (2) an identity of the cause of action in both the earlier and later suit; and (3) an identity of parties or their privies in the two suits. Martin v. Am. Bancorp. Ret. Plan, 407 F.3d 643, 650 (4th Cir. 2005); Nash Cnty Bd. of Educ. v. Biltmore Co., 640 F.2d 484, 486 (4th Cir. 1981). Here, there was a final judgment on the merits in the prior suit (Wilson III), the causes of action raised in both this suit and in Wilson III are the same, and the identity of parties is the same in the two lawsuits. See Complaint, ECF No. 1; Wilson v. Wells Fargo Bank, N.A., 2022 WL 2914490.
Thus, the doctrine of res judicata is applicable to bar Plaintiff's claims and the present lawsuit is subject to summary dismissal as it is frivolous. See Brown v. South Carolina, No. 3:13-2983-MBS-PJG, 2014 WL 4826152, *2 (D.S.C. Sept. 24, 2014) (determining that because the pro se litigant had filed another case reasserting the same claims against the same parties as in a prior case, “all three elements of res judicata have been met, subjecting Plaintiff's action to summary dismissal as frivolous”), aff'd, 589 Fed.Appx. 190 (4th Cir. 2015). “[D]istrict courts are not required to entertain duplicative or redundant lawsuits.” Cottle v. Bell, No. 00-6367, 2000 WL 1144623, *1 (4th Cir. Aug.14, 2000); see also MacKinnon v. City of N.Y., 580 Fed.Appx. 44 (2d Cir. 2014) (“[w]e have regularly upheld a district court's authority to dismiss sua sponte a pro se complaint on res judicata grounds”), cert. denied, 575 U.S. 1010 (2015); Paul v. de Holczer, No. 3:15-2178-CMC-PJG, 2015 WL 4545974, *6 (D.S.C. July 28, 2015) (holding that “repetitious litigation of virtually identical causes of action” may be dismissed as frivolous), aff'd, 631 Fed.Appx. 197 (4th Cir. Feb. 4, 2016); Southern Holdings, Inc. v. Horry Cty., No. 4:02-1859-RBH, 2014 WL 11071017, *6 (D.S.C. June 11, 2014) (“the many previous grounds argued and ruled on in previous orders and upheld on appeal lack merit and are simply duplicative”).
B. Failure to State a Federal Claim
Even if this action is not barred by the doctrine of res judicata, this action is subject to summary dismissal because Plaintiff fails to state a claim. Plaintiff asserts that Wells Fargo committed willful and negligent violations of the FCRA such that she is entitled to damages pursuant to 15 U.S.C. §§ 1681n and 1681o.
The FCRA is a statutory scheme designed to regulate the consumer reporting industry and ensure fair and accurate credit reporting. Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007).
The FCRA does not impose strict liability for inaccuracies found on an individual's credit report; instead, it creates a private right of action against reporting agencies for the negligent or willful violation of any duty imposed by the FCRA. See 15 U.S.C. §§ 1681n (willful violations), 1681o (negligent violations); see also Dalton v. Capital Assoc. Indus., Inc., 257 F.3d 409, 417 (4th Cir. 2001).
Plaintiff states that she brings claims for a willful violation pursuant to 15 U.S.C. § 1681n, and for a negligent violation pursuant to 15 U.S.C. § 1681o. However, as in Wilson III, Plaintiff again has not alleged any facts to support an inference that Wells Fargo is a CRA. See 15 U.S.C. § 1681a(d)(2)(A)(i) (excluding from the definition of “consumer report” any “report containing information solely as to transactions or experiences between the consumer and the person making the report”), Smith v. First Nat'l Bank of Atlanta, 837 F.2d 1575, 1578 (11th Cir. 1988) (holding that a bank reporting information solely on its own experience with one of its customers was not acting as a “consumer reporting agency” within the meaning of the FCRA because it has not furnished a “consumer report” as that term is defined in the Act). Thus, Plaintiff fails to state a claim against Wells Fargo under these statutes.
To the extent Plaintiff may instead be attempting to state a claim for a violation of § 1681s-2(b) (Responsibilities of furnishers of information to consumer reporting agencies), Plaintiff must allege that (1) she disputed specific information on her credit report with a CRA, (2) the CRA alerted Wells Fargo of the disputed information, and (3) that the furnisher failed to reasonably investigate and modify the inaccurate information. See Johnson v. MBNA Am. Bank, NA, 357 F.3d 426, 431 (4th Cir. 2004); Long v. Pendrick Capital Partners II, LLC, 374 F.Supp.3d 515, 527 (D. Md. 2019); Croft v. Bayview Loan Servicing, LLC, 166 F.Supp.3d 638, 641 (D.S.C. 2016). “[A]” furnisher's duty to investigate is not triggered until it receives notification of a dispute from a consumer reporting agency.” Mavilla v. Absolute Collection Serv., Inc., 539 Fed.Appx. 202, 207 (4th Cir. 2013).
Plaintiff fails to state a claim under § 1681s-2(b) because she has not alleged any facts as to when she allegedly disputed information, with which CRA(s) she disputed the information, how she disputed the information, what information about which account she disputed, and other facts to support her belief that these unidentified CRA(s) notified Wells Fargo of the dispute. Moreover, Plaintiff has not plead facts indicating that the information Wells Fargo furnished to the CRA was, in fact, inaccurate. Shulman v. Lendmark Fin., No. CV 3:21-1887-CMC-SVH, 2022 WL 16700301, at *3 (D.S.C. Sept. 6, 2022), report and recommendation adopted, 2022 WL 7967304 (D.S.C. Oct. 14, 2022) (“A plaintiff cannot prevail unless the furnisher provides inaccurate or incomplete information.”). Additionally, a plaintiff “cannot prevail on the claim without demonstrating that had the furnisher conducted a reasonable investigation, the result would have been different, i.e., that the furnisher would have discovered that the information it reported was inaccurate or incomplete, triggering the furnisher's obligation to correct the information.” Felts v. Wells Fargo Bank, N.A., 893 F.3d 1305, 1313 (11th Cir. 2018); see also Leones v. Rushmore Loan Mgmt. Servs., LLC, 749 Fed.Appx. 897, 899 (11th Cir. 2018) (applying Felts and affirming dismissal where the plaintiff claimed an inaccuracy based on report of monthly payment amount following acceleration of loan and filing of foreclosure). A plaintiff “must show a factual inaccuracy rather than the existence of disputed legal questions to bring suit against a furnisher under § 1681s-2(b).” Hunt v. JPMorgan Chase Bank Nat'l Ass'n, 770 Fed.Appx. 452, 458 (11th Cir. 2019).
C. Failure to Get Case into Proper Form
Finally, Plaintiff has failed to bring this case into proper form. Plaintiff was directed to bring the case into proper form by signing her Complaint with her original signature and also submitting a summons form listing Defendant, a signed (with her original signature 285 listing Defendant, and a completed and signed pro se party's answers to Loc 26.01 (D.S.C.) interrogatories form. ECF No. 6.
The time for Plaintiff to bring this case into proper form has passed, and sh provide all of the required proper form documents. Plaintiff was specifically warned that the failure to provide the necessary information within the timetable set forth would subject the case to dismissal. See Fed.R.Civ.P. 41. Thus, in the alte recommended that this action be dismissed without prejudice in accordance with F 41. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F (4th Cir. 1989) (holding that district court's dismissal following an explicit and reaso was not an abuse of discretion).
IV. RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss this action w without further leave to amend, and without issuance and service of process. See B 45 F.4th 790 (4th Cir. 2022) (noting that “when a district court dismisses a complain without providing leave to amend ... the order dismissing the complaint is final and
Plaintiff's attention is directed to the important notice on the following
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. \0 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).