Fisher v. Educ. Credit Mgmt. Corp., CIVIL ACTION FILE NO. 1:16-CV-2724-TWT-JFK

CourtU.S. District Court — Northern District of Georgia
PartiesGERALD FISHER, Plaintiff, v. EDUCATIONAL CREDIT MANAGEMENT CORPORATION, LLC, a foreign limited liability company, Defendant.
Decision Date05 July 2017
Docket NumberCIVIL ACTION FILE NO. 1:16-CV-2724-TWT-JFK

a foreign limited liability company, Defendant.



July 5, 2017


The above-styled case is presently before the Court on a motion [Doc. 11] to dismiss filed by Defendant Educational Credit Management Corporation, LLC ("ECMC"), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim for which relief can be granted. Also before the Court is a document filed by the Pro Se Plaintiff Gerald Fisher ("Fisher") on September 22, 2016, entitled "Motion for Summary Judgement [sic]." [Doc. 7].

Plaintiff Fisher filed his Complaint [Doc. 3] in this case on July 29, 2016. In his Complaint, Plaintiff asserts claims against Defendant ECMC alleging violation of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, et seq., Bank Fraud, 18 U.S.C.

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§ 1344, and the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-68. [Doc. 3 - Plaintiff's Complaint ("Compl.")].

This matter has been submitted to the undersigned for Report and Recommendation to the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B). Notwithstanding Plaintiff's summary judgment motion, as explained infra, the Court's analysis is under Fed. R. Civ. P. 12(b)(6).

I. Factual Background

On a motion to dismiss under Rule 12(b)(6), the complaint's factual allegations are assumed true and construed in the light most favorable to the plaintiff. Hardy v. Regions Mortg., Inc., 449 F.3d 1357, 1359 (11th Cir. 2006); M.T.V. v. DeKalb County School Dist., 446 F.3d 1153, 1156 (11th Cir. 2006). "However, conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal." Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) (citations omitted).

As an initial matter, the Complaint includes a number of conclusory allegations and citations to legal authorities that are not appropriate for inclusion in a complaint and will not be set forth in the following statement of facts.1 See Moore v. McCalla

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Raymer, LLC, 916 F. Supp. 2d 1332, 1342 (N.D. Ga. 2013) ("The complaint contains whole paragraphs of legal argument, quotations, and citations which have no place in a complaint.") (citing Chevy Chase Bank, F.S.B. v. Carrington, 2010 WL 745771, at *4 (M.D. Fla. March 1, 2010) ("Huge swaths of the . . . Complaint are improper irrespective of their relevance, consisting of lengthy legal arguments, case citations, and quotations from treatises-material proper in legal memoranda, but almost never proper in a complaint.")).

In his Complaint, Plaintiff Fisher identifies two causes of action, described as his First and Second Claims for Relief, yet the Complaint includes reference to multiple statutes.2 [Compl.]. Plaintiff's First Claim for Relief is brought under 15

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U.S.C. § 1681n and includes allegations that Defendant willfully failed to comply with Subsections 1681e(b), 1681i, 1681b, and 1681g. [Compl. at 4-5]. Plaintiff's Second Claim for Relief alleges negligent violation of 15 U.S.C. § 1681o by Defendant and then recites verbatim the allegations set forth under Claim One. [Compl. at 5].

The following factual allegations are drawn from the Complaint.

On or about October 13, 2003, three student loans were obtained from Bank of America by Plaintiff Fisher. [Compl. at 2, ¶ 2]. Plaintiff identifies a Promissory Note ("Note") that he signed in favor of Bank of America in connection with his student loans described as Loan No. 909488 / 01, 03, 04 - Loan amounts 01 ($4,532.46), 02 ($1,313.00), and 03 ($1,300.00), for a total of $7,145.46.3 [Compl. at 1]. Paragraph Thirteen of Plaintiff's Complaint represents that the Note is attached as Exhibit A but there is no attachment. [Compl. at 3, ¶ 13].

According to Plaintiff, the Note, which Plaintiff Fisher admittedly executed, was then deposited by Bank of America into "a commercial account[.]" [Compl. at 1 and 3, ¶ 12]. Plaintiff also alleges: that "ECMC has not exchange[d] any value . . . for the alleged 'loans'" [Compl. at 1]; that it is illegal for a bank to loan its money or currency

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or its customers' money or currency [Compl. at 2, ¶ 2]; that "Bank of America never loaned the plaintiff its money" [Compl. at 2, ¶¶ 4, 5]; that Plaintiff signed a promissory note "but never 'borrowed' money and or currency, from Bank of America nor ECMC" [Compl. at 3, ¶ 12]; and that ECMC sought to collect from Plaintiff "a non existent debt" [Compl. at 4, ¶¶ 23-24].

Plaintiff alleges that during the past several years, ECMC has sent a number of letters and has made several phone calls to Plaintiff in connection with his student loans and the Note. [Compl. at 4, ¶ 25]. Plaintiff complains that ECMC has never zeroed the fraudulent balance of Plaintiff's student loans and would not investigate Plaintiff's disputes. [Compl. at 4, ¶ 25].

Specifically, in response to Plaintiff's inquiry about the validity of the student loans, on or about June 8, 2012, Defendant "refused to remove negative reports from the [P]laintiff[']s credit reports" and the loan amounts have not been brought to a zero balance. [Compl. at 2-3, ¶¶ 9, 15].

On April 23, 2013, Plaintiff requested that "ECMC correct the false negative reports regarding [P]laintiff's 'loans' to all credit agencies . . . [and] ECMC refused to adjust the false loan amounts to a zero balance." [Compl. at 2-3, ¶¶ 3, 16].

On May 8, 2013, ECMC wrote Plaintiff to advise that Plaintiff had "defaulted loans" and that ECMC was required to report: "(1) the total amount of loans made to

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the borrower and the remaining balance; (2) the date of default; (3) information concerning collection of the loan, including repayment status of the loan; [(4)] any changes or corrections in the information since the initial report; (5) the date the loan is fully repaid or discharged." [Compl. at 3, ¶ 11]. ECMC stated, "The debt will appear as paid in full on your credit record once you have retired the entire outstanding balance[.] The default will remain on your credit report until this seven-year reporting requirement has expired." [Compl. at 3, ¶ 18]. Plaintiff alleges that ECMC's May 8, 2013, correspondence was an attempt to collect "an illegal debt" and constitutes a "pattern of racketeering[.]" [Compl. ¶¶ 6, 18].

On September 9, 2013, Plaintiff mailed "a negative averment to ECMC . . . with the opportunity to cure the 'loans' [but] ECMC did not respond to the averment nor did ECMC present an opportunity to cure the disputed 'loans[.]'" [Compl. at 4, ¶ 19].

On September 9, 2014, Plaintiff mailed "a negative averment to ECMC . . . with the opportunity to cure the 'loans' [but] ECMC did not respond to the averment nor did ECMC present an opportunity to cure the disputed 'loans[.]'"4 [Compl. at 4, ¶ 22].

On December 1, 2014, via two different facsimiles to ECMC, "Plaintiff faxed proof of fraudulent loan practices" explaining "the mechanics of how a loan works"

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and "a nine page 'truth of affidavit' detailing the bank loan fraud against the [P]laintiff by ECMC" but ECMC did not respond. [Compl. at 4, ¶¶ 20-21].

On February 9, 2016, ECMC called Plaintiff at 1:32 p.m. in an attempt to defraud money from Plaintiff for a "non existent debt." [Compl. at 4, ¶ 23].

On February 11, 2016, ECMC called Plaintiff at 2:30 p.m. in an attempt to defraud money from Plaintiff for a "non existent debt." [Compl. at 4, ¶ 24]. "ECMC also threatened to with hold any income tax return from the [P]laintiff . . . in order to 'pay' back the 'loan' debt." [Compl. at 4, ¶ 24].

Plaintiff asserts that Defendant ECMC "claims to be a student loan guarantor" and that Defendant's claim is false and/ or amounts to fraud. [Compl. at 1, ¶¶ 2, 4, 7]. According to Plaintiff, "On August 27, 2007, the [P]laintiff entered into the Federal Family Education Loan Program (FFELP). ECMC was never the 'guarantor' of any student 'loans'." [Compl. at 2, ¶ 5]. Plaintiff alleges that ECMC's guarantor claim "shows a pattern of racketeering, in an attempt to defraud the plaintiff from . . . property and currency." [Compl. at 2, ¶ 2].

As a result of ECMC's violations of the FCRA, Plaintiff Fisher alleges that he "has suffered, continues to suffer, and will suffer future damages, including denial of credit, lost opportunity to receive credit, damage to reputation, worry, distress, frustration, embarrassment, and humiliation, all to [his] damages . . . ." [Compl. at

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4-5]. Fisher requests actual damages, punitive damages, statutory damages, and attorney's fees and costs. [Compl. at 4-5].

On September 22, 2016, Plaintiff filed a two-page document entitled "Motion for Summary Judgement [sic]." [Doc. 7]. Plaintiff's motion is in large part duplicative of the Complaint and is not supported by a memorandum of law, exhibits, affidavits, or other evidence. [Doc. 7]. On October 19, 2016, the Court issued an oral order providing for Defendant's response to Plaintiff's motion and noted that Plaintiff's motion was premature and did not comply with the Local Rules of this Court, namely, L.R. 56, N.D. Ga. [10/19/16 Docket Entry - Oral Order].

On October 20, 2016, Defendant filed its motion [Doc. 11] to dismiss.

On November 9, 2016, Defendant filed a response [Doc. 12] to Plaintiff's summary judgment motion.

Plaintiff has not filed a response to Defendant's motion [Doc. 11] to dismiss or any reply in support of his own motion [Doc. 7] for summary judgment. The time period for doing so has since expired. For this reason, Defendant's motion to dismiss is technically unopposed.5 See LR 7.1B, N.D. Ga. ("Failure to file a response shall indicate that there is no opposition to the motion.").

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ECMC contends that Plaintiff's summary judgment motion should be denied as premature in light of the fact...

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