Swallow v. Wells Fargo BankSwallow v. Wells Fargo Bank
Case Information
*1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION
WILLIAM SWALLOW, ) Case No. 1:23-cv-02094
)
Plaintiff, ) Judge J. Philip Calabrese )
v. ) Magistrate Judge
) James E. Grimes, Jr.
WELLS FARGO BANK, N.A., )
)
Defendant. )
)
OPINION AND ORDER
Plaintiff William Swallow brought this action alleging that Defendant Wells Fargo Bank violated the Fair Debt Collection Practices Act when Wells Fargo acted as a “creditor” in collecting on a debt. (ECF No. 1-2, ¶ 1, PageID #15.) Defendant moves to dismiss the complaint for failure to state a claim. (ECF No. 7-1, PageID #29.) Plaintiff did not respond to the motion, which the GRANTS .
STATEMENT OF THE FACTS
Taking the facts alleged in the complaint as true and construing them in Plaintiff’s favor, as the Court must on the motion before it, Mr. Swallow bases his claims on the following facts.
Mr. Swallow owes some debt of an unspecified nature and amount to Wells Fargo. (ECF No. 1-2, ¶¶ 4 & 9, PageID #15–16.) Mr. Swallow alleges that he is a “debtor” and Wells Fargo Bank is a “creditor” within the meaning of the FDCPA. ( , ¶ 1, PageID #15.) Mr. Swallow also alleges that Wells Fargo was “a company engaged . . . in the business of collecting a debt from Plaintiff.” (ECF No. 1-2, ¶ 3, PageID *2 #15.) To “verify the alleged debt,” Mr. Swallow requested that Wells Fargo provide him details about his “billing statements, interest, payments applied, and delinquency information.” ( Id. , ¶ 5, PageID #16.)
At some point, Mr. Swallow retained an attorney, who submitted a notice of representation to Wells Fargo’s complaint management office. ( Id. , ¶ 6, PageID #16.) Mr. Swallow retained the attorney to “dispute [his] debt, added on fees, and penalties.” ( Id. ) Despite having notice of Mr. Swallow’s legal representation, Wells Fargo continued contacting Mr. Swallow directly. ( Id. , ¶ 7, PageID #16.)
Wells Fargo failed to clarify the amount Mr. Swallow owes on his debt and to “reset [the] interest-free period after [Mr. Swallow] was provided with a non-defective product.” ( Id. , ¶ 9, PageID #16.) As a result, Mr. Swallow’s credit rating has suffered, and he has been unable to receive credit from third parties. ( Id. , ¶ 10, PageID #16.) Mr. Swallow alleges that Wells Fargo’s conduct violated the FDCPA more than ten times. ( , ¶ 8, PageID #16.)
STATEMENT OF THE CASE
On September 18, 2023, Plaintiff filed a complaint against Defendant in the Parma Municipal Court (No. 23CVF03609), raising three claims for relief under the Fair Debt Collection Practices Act. ( ECF No. 1-2, PageID #15–17.) On October 25, 2023, Defendant timely removed this action under 28 U.S.C. § 1331 based on federal question jurisdiction. (ECF No. 1, PageID #1.) On November 27, 2023, Defendant moved to dismiss Plaintiff’s complaint for failure to state a claim. (ECF *3 No. 7-1, PageID #29.) Plaintiff did not oppose the motion, request an extension of time to do so, or otherwise respond.
ANALYSIS
Rule 12(b)(6) provides that a court can dismiss a complaint if it fails to state a
claim on which relief can be granted. A Rule 12(b)(6) motion tests “the plaintiff’s
cause of action as stated in the complaint,” and is “not a challenge to the plaintiff's
factual allegations.”
Golden v. City of Columbus
, 404 F.3d 950, 958–59 (6th Cir.
2005). Dismissal is proper if the complaint lacks an allegation regarding a required
element necessary to obtain relief.
Craighead v. E.F. Hutton & Co., Inc.
, 899 F.2d
485, 489–90 (6th Cir. 1990). When determining whether the plaintiff states a claim
on which relief can be granted, the Court must construe the complaint in the light
most favorable to the plaintiff, accept all factual allegations as true, and determine
whether the complaint contains “enough facts to state a claim to relief that is
plausible on its face.”
Bell Atl. Corp. v. Twombly
,
A claim is plausible “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”
Id.
at 678 (citing
Twombly
,
The plaintiff’s obligation to provide the grounds for relief “requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” at 555.Nor is a court required to accept “[c]onclusory allegations or
*4
legal conclusions masquerading as factual allegations[.]”
Eidson v. Tennessee Dep’t
of Child.’s Servs.
, 510 F.3d 631, 634 (6th Cir. 2007). Therefore, the Court
distinguishes between “well-pled factual allegations,” which must be treated as true,
and “naked assertions,” which need not be.
See Iqbal
,
I. Plaintiff’s Failure to Respond
Defendant moved to dismiss Plaintiff’s complaint on November 27, 2023. (ECF
No. 7.) Plaintiff has not filed a response and the time for doing so has now passed.
Local Rule 7.1(d) (“[E]ach party opposing a motion must serve and file a
memorandum in opposition within thirty (30) days after service of any dispositive
motion . . . .”). The Court may interpret the absence of a response to a motion to
dismiss as a waiver of the right to respond.
See Notredan, LLC v. Old Republic Exch.
Facilitator Co.
,
Accordingly, Plaintiff’s failure to oppose the motion to dismiss supplies an adequate basis to dismiss this case. See also N.D. Ohio Local Rule 7.1(g) (noting that the Court may rule on unopposed motions without hearing any time after the time for filing has passed).
II. Failure to State a Claim
Notwithstanding Plaintiff’s failure to respond to Defendant’s motion to
dismiss, Plaintiff’s complaint fails to state a claim for relief on the merits. The Fair
Debt Collection Practices Act prohibits “debt collectors” from collecting on a debt
using false, deceptive, or misleading statements, 15 U.S.C. § 1692e, or otherwise
engaging in unfair practices,
id.
§ 1692f. To prevail on a claim under the FDCPA, the
defendant must be a “debt collector” within the meaning of the statute.
Mellentine v.
Ameriquest Mortg. Co.
,
The FDCPA defines a “debt collector” as “any person” who: (1) operates in “any
business the principal purpose of which is the collection of debts,” or (2) “regularly
collects . . . debts owed . . . to be owed or due another.” 15 U.S.C. § 1692a(6). These
two definitions impose distinct requirements,
Schroyer v. Frankel
, 197 F.3d 1170,
1176 (6th Cir. 1999), particularly “critical” is the distinction between “the ‘principal
purpose’ of the defendant’s business or the actions that the defendant ‘regularly’
takes.”
Bates v. Green Farms Condo. Ass’n
,
Under the second definition, a “debt collector” must collect debts on behalf of
others, that is, on behalf of a creditor. 15 U.S.C. § 1692a(6);
see also Iler v. Wells
Fargo Bank N.A.
, No. 1:13-cv-281,
Here, Plaintiff does not allege that Defendant qualifies as a debt collector under the “principal purpose” definition—Plaintiff merely asserts that Defendant is in “the business of collecting a debt.” (ECF No. 1, ¶ 3, PageID #15.) That bare allegation is not enough to state a claim under the FDCPA. See Montgomery , 346 *7 F.3d at 701 (affirming dismissal of a plaintiff’s FDCPA claim in part because the plaintiff failed to allege that the defendant bank was a business whose “principal purpose” was debt collection). Moreover, Plaintiff’s allegations do not place Defendant under the second definition because there is no allegation that Defendant attempted to collect a debt on behalf of a third party. Even if Defendant “regularly” collected debts, 15 U.S.C. § 1692a(6), Defendant owned the debt that Plaintiff owed—making Defendant a “creditor” under the FDCPA. Montgomery , 346 F.3d at 699. Plaintiff even characterized Defendant as a “creditor” and not as a debt collector. (ECF No. 1-2, ¶ 1, PageID #15.) Therefore, Plaintiff’s claims that Defendant violated the FDCPA fail as a matter of law.
CONCLUSION
For all these reasons, the Court determines that Plaintiff has failed to state a claim against Wells Fargo Bank. Therefore, the Court GRANTS Defendant’s unopposed motion to dismiss and DISMISSES this action with prejudice.
SO ORDERED.
Dated: January26, 2024
J. Philip Calabrese United States District Judge Northern District of Ohio