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Somlar v. Nelnet Inc.

United States District Court, E.D. Missouri, Eastern Division

January 4, 2017

STUART SOMLAR, Plaintiff,
v.
NELNET INC., Defendant.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the motion (Doc. No. 21) of Defendant Nelnet, Inc. to dismiss Plaintiff's complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Plaintiff, who filed this action pro se, has not responded to Defendant's motion, despite requesting and receiving an extension of time to do so. For the reasons set forth below, the Court will grant Defendant's motion.

         BACKGROUND

         Plaintiff's complaint seeks relief under the Fair Debt Collection Practices Act (“FDCPA”) and the Fair Credit Reporting Act (“FCRA”). Plaintiff alleges that Defendant is “claiming holder in due course of [Plaintiff's] twelve student loan accounts, ” which “are being reported to . . . consumer reporting agencies.” Plaintiff alleges that he has “attempted to gain specific account documentation, which would allow him to do a complete audit on what is owed, so he can plan his repayment, and budget for his future.” (Doc. No. 1 at 1.)

         According to the complaint and the exhibits attached thereto, [1] on or about April 11, 2016, Plaintiff sent Defendant a letter titled “Request for VALIDATION, NOT Verification, ” in which he stated that he was responding to notices sent to him from Defendant, and to Defendant's “erroneous reporting to the Credit Bureau(s), ” in order to notify Defendant that its “claim is disputed and validation is requested.” (Doc. No. 1-1.) In this letter, Plaintiff requested that Defendant provide him with evidence establishing, for example, what money Plaintiff owed, how that amount was calculated, the identity of the original creditor, and Defendant's license to collect in Plaintiff's state. Plaintiff's “sole purpose of communicating to [Defendant] was to validate the accounts claiming to be owed.” (Doc. No. 1 at 1.) Plaintiff demanded that Defendant send him the information requested within 30 days.

         Plaintiff further stated in the letter that “if [Defendant's] offices have reported invalidated information to any of the 4 major Credit Bureau[s] . . . this action may constitute fraud under both Federal and State Laws, ” and that “during this validation period, if any action is taken which could be considered detrimental to any of my credit reports, ” including “listing any information with a credit reporting repository that could be inaccurate or invalidated or verifying an account as accurate, when in fact there is no provided proof that it is accurate, ” Plaintiff would consult legal counsel. (Doc. No. 1-1.) Defendant did not respond within that time or any time thereafter. Plaintiff therefore filed this lawsuit.

         Plaintiff alleges that Defendant's “refus[al] to send validation for accounts disputed by [P]laintiff reporting to one or more consumer reporting agencies (credit bureaus), ” and its “refus[al] to give notice that accounts are being disputed by Plaintiff to one or more consumer reporting agencies (credit bureaus), ” violated 15 U.S.C. § 1692g(b) of the FDCPA. Plaintiff further alleges that Defendant's failure to provide Plaintiff or the consumer reporting agencies notice of “this disputed matter” violated the 15 U.S.C. § 1681s-2 of the FCRA[2] (Doc. No. 1 at 5.) For relief, Plaintiff seeks statutory and punitive damages, an injunction, and costs and attorney's fees.

         In its motion to dismiss, Defendant argues that Plaintiff's FDCPA claim should be dismissed because Plaintiff has failed to adequately allege that Defendant is a debt collector, that Plaintiff timely disputed his debt, or that Defendant engaged in any collection activities in violation of the FDCPA. Defendant contends that Plaintiff's FCRA claim fails because, to the extent that Plaintiff intended to invoke 15 U.S.C. § 1681s-2(a), Plaintiff lacks a private right of action, and to the extent Plaintiff intended to invoke 15 U.S.C. § 1681s-2(b), Plaintiff has failed to allege that he notified any consumer reporting agencies of a dispute.

         Plaintiff has not responded to Defendant's motion, and the time to do so has passed.

         DISCUSSION

         To survive a motion to dismiss for failure to state a claim, a plaintiff's allegations must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The reviewing court must accept the plaintiff's factual allegations as true and construe them in plaintiff's favor, but it is not required to accept the legal conclusions the plaintiff draws from the facts alleged. Id.; Retro Television Network, Inc. v. Luken Commc'ns, LLC, 696 F.3d 766, 768-69 (8th Cir. 2012).

         A “pro se complaint must be liberally construed, ” meaning that “if the essence of an allegation is discernible, even though it is not pleaded with legal nicety, then the district court should construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework.” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 849 (8th Cir. 2014) (quoting Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004)). However, pro se plaintiffs “still must allege facts to support the claims advanced, ” and a district court is not required to “assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint.” Stone, 364 F.3d at 914-15.

         FDCPA

         “To prevail on a claim pursuant to the FDCPA, plaintiff must allege and prove that (1) the plaintiff is a ‘consumer' within the meaning of the statute; (2) the defendant collecting the debt is a ‘debt collector' within the meaning of the statute; and (3) the defendant has violated by act or omission a provision of the FDCPA.” Schuller v. AllianceOne Receivables, Mgmt., Inc., No. 4:15 CV 298 CDP, 2016 WL 427961, at *2 (E.D. Mo. Feb. 4, 2016) (citation omitted). A “debt collector” is “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.” 15 U.S.C. § 1692a(6). Explicitly excluded from the definition of “debt collector” is, among other persons, “any officer or employee of a creditor while, in the name of a creditor, collecting debts for such creditor, ” and “any person collecting or attempting to collect any debt owed or asserted to be owed or due another to the extent such activity . . . concerns a debt which was originated by such person . . . or concerns a debt which was not in default at ...


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