United States District Court, D. Kansas
ANTHONY J. HAMPTON, Plaintiff,
BARCLAYS BANK DELAWARE, et al., Defendants.
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
plaintiff 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.
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.
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.
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.
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 Second Amended 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
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
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.
following facts come from plaintiff's Second Amended
Complaint (Doc. 141). 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)).
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.
Disputes the Accuracy of Information Reported by LD and
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.
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
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
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
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.
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
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.
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” against LD for making these
calls. Id. at 11 (“WHEREFORE”
paragraph). LD's calls “have caused Plaintiff
anguish, frustration, lack of meaningful sleep, and fear of
incoming calls.” Id. Also, LD's actions
have “caused Plaintiff to experience a decrease in his
credit score, which [a]ffects his ability to obtain credit,
rent property, and obtain adequate employment.”
also asserts a claim against LD for violating the FDCPA
“by failing to discontinue communications with
Plaintiff after notice to discontinue.” Id.
¶ 89. More specifically, LD “called
Plaintiff's cellular phone after [plaintiff made a]
demand to stop . . . on March 20, 2018.” Id.
¶ 90. Plaintiff asserts that the FDCPA “is a
strict liability statute” and “therefore no
damages need to be alleged.” Id. ¶ 89.
court recites the legal standard for a Rule 12(b)(1)
dismissal for lack of subject matter jurisdiction and a Rule
12(b)(6) dismissal for failure ...