1:14-cv-14449
E.D. Mich.Mar 31, 2015Background
- Lemke sues Barclays Bank Delaware under the FDCPA and possibly the FCRA, alleging improper debt collection actions.
- Magistrate Judge Morris recommends dismissing the case, finding Barclays not a debt collector and no private FCRA action.
- Plaintiff filed in state court on October 17, 2014, listing disputes over validation and reporting to credit bureaus as the grounds.
- Plaintiff sent a July 31, 2014 validation letter disputing the debt and demanding original documents; the letter relied on boilerplate language.
- Barclays allegedly responded August 7, 2014, and plaintiff claimed it violated the FDCPA and UCC by failing to validate the debt.
- Plaintiff sent a September 8, 2014 letter reiterating dispute; she later alleged additional FDCPA and credit reporting violations, though the complaint lacks proper factual support for a FDCPA claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Barclays is a debt collector under the FDCPA | Lemke contends Barclays acts as a debt collector subject to the FDCPA. | Barclays is a creditor, not a debt collector, and thus not subject to FDCPA liability. | Barclays is not a debt collector; no FDCPA claim stated. |
| Whether the FDCPA § 1692g claim is properly pleaded | Lemke sought validation and cessation of collection activities under § 1692g. | Plaintiff failed to plead timely, proper notice and validation under § 1692g; defendant had no obligation absent timely dispute. | Plaintiff fails to state a § 1692g claim. |
| Whether there is a private right of action under the FCRA § 1681s-2 | Lemke asserts Barclays violated FCRA reporting duties. | There is no private cause of action under § 1681s-2 for such claims. | No private FCRA claim is stated. |
| Whether Michigan UCC or contract theory supports a claim | Plaintiff invokes UCC § 3-3501 and demands production of negotiable instruments to prove enforceability. | Credit card agreements are not negotiable instruments; presentment rights do not apply here. | No viable UCC-based claim; no negotiable instrument presentment. |
Key Cases Cited
- Golliday v. Chase Home Fin., LLC, 761 F. Supp. 2d 629 (W.D. Mich. 2011) (FDCPA debt-collector status governs rights under the Act)
- Yaldu v. Bank of Am. Corp., 700 F. Supp. 2d 832 (E.D. Mich. 2010) (no private action under certain FCRA provisions)
- Ruggiero v. Kavlich, 411 F. Supp. 2d 734 (N.D. Ohio 2005) (FCRA private remedies limitations)
- Joyner v. MERS, 451 F. App’x 505 (6th Cir. 2011) (creditor not a debt collector under FDCPA)