Gordon v. Wells Fargo Bank NA Inc.

• Docket Number: Civil Action 5:22-cv-458 (MTT)
• Decision Date: 24 August 2023
• Parties: WILLIAM HAYWOOD GORDON, Plaintiff, v. WELLS FARGO BANK NA INC, et al., Defendants.
• Court: U.S. District Court — Middle District of Georgia

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WILLIAM HAYWOOD GORDON, Plaintiff, v. WELLS FARGO BANK NA INC, et al., Defendants.

Civil Action No. 5:22-cv-458 (MTT)

United States District Court, M.D. Georgia, Macon Division

August 24, 2023

ORDER

MARC T. TREADWELL, CHIEF JUDGE

Pro se plaintiff William Haywood Gordon filed this lawsuit against Wells Fargo Bank, N.A., Inc. (“Wells Fargo”) and Superior Recovery and Transport, LLC (“Superior Recovery”) alleging that the defendants unlawfully seized his vehicle. Doc. 1. Wells Fargo moves to dismiss. Doc. 7. In response, Gordon moves to amend his complaint. Doc. 18. For the following reasons, Wells Fargo's motion to dismiss (Doc. 7) is GRANTED and Gordon's motion to amend (Doc. 18) is GRANTED in part and DENIED in part.

I. BACKGROUND

On June 1, 2022, Gordon entered into a retail installment sales contract (“RISC”) for the purchase of a 2019 Chevrolet Tahoe. Docs. 18-3 ¶¶ 11-12, 18; 18-8. The RISC was immediately assigned by the seller, Five Star Chevrolet, to Wells Fargo. Docs. 183 ¶ 21; 18-8 at 4. Pursuant to the RISC, Gordon was required to make monthly payments to Wells Fargo. Doc. 18-8 at 1. Beginning in October 2022, Wells Fargo notified Gordon that it had not received timely payments and warned Gordon that continued default would result in repossession of the vehicle. Docs. 18-13; 18-14; 1817. On December 22, 2022 Wells Fargo, through its repossession agent Superior Recovery, repossessed Gordon's vehicle. Doc. 18-3 ¶¶ 32-37.

Gordon's filings allege multiple, often contradictory, reasons why the repossession of his car was unlawful. See Docs. 1; 2; 12-1; 18-3. Gordon's original complaint and first motion for a Temporary Restraining Order (“TRO”) claim that he “rescinded” the RISC and, thus, Wells Fargo's “security interest rights” were “terminated.” Docs. 1 ¶ 13-14; 2 ¶ 2. Gordon's motion to amend his TRO abandons the “recission” theory and claims that the RISC was never assigned to Wells Fargo- despite Gordon's prior allegation that Five Star Chevrolet “assigned its interest” to Wells Fargo. Compare Doc. 1 ¶ 7 with Docs. 11 at 3; 12 ¶ 1. Finally, Gordon's proposed amended complaint departs from both these theories and contends that he “tendered payment in complete performance of his obligation on RISC 1” and that Wells Fargo created a second “fraudulent” “RISC 2.” Doc. 18-3 ¶¶ 26, 28-32.

All of Gordon's claims arise out of the alleged unlawful repossession of his vehicle.^[1]Specifically, Gordon's proposed amended complaint alleges that Wells Fargo violated the Fair Debt Collection Practices Act (“FDCPA”), and seeks leave to add claims under the Georgia Fair Business Practice Act (“GFBPA”) and for the tort of “deceit,” based on Wells Fargo's efforts to collect payment under the “fraudulent” “RISC 2.” Id. ¶¶ 54-61, 73-74, 80-87. Similarly, Gordon's proposed amended complaint alleges that Superior Recovery violated the FDCPA and seeks leave to add a conversion claim for effectuating the repossession of his vehicle. Id. ¶¶ 62-65, 88-91. Finally, Gordon requests leave to add claims against Five Star Chevrolet, the dealership that sold Gordon the 2019 Tahoe, Cox Automotive, the company now in possession of his car, Michael Santomassimo, Wells Fargo's Chief Financial Officer, and Stephen Rowley, Cox Automotive's Chief Executive Officer. Docs. 18-2; 18-3. Wells Fargo moves to dismiss Gordon's FDCPA claims and contends that Gordon's motion to amend should be denied for futility. Docs. 7; 19. Superior Recovery has not responded.

II. STANDARD

A. Motion to Dismiss^[2]

The Federal Rules of Civil Procedure require that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To avoid dismissal pursuant to Rule12(b)(6), “a complaint must contain sufficient factual matter ... 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)). A claim is facially plausible when “the court [can] draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Factual allegations that are merely consistent with a defendant's liability fall short of being facially plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (internal quotation marks and citations omitted).

At the motion to dismiss stage, “all well-pleaded facts are accepted as true, and the reasonable inferences therefrom are construed in the light most favorable to the plaintiff.” FindWhat Inv. Grp. v. FindWhat.com., 658 F.3d 1282, 1296 (11th Cir. 2011) (internal quotation marks and citations omitted). But “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.” Wiersum v. U.S. Bank, N.A., 785 F.3d 483, 485 (11th Cir. 2015) (cleaned up). The complaint must “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. Where there are dispositive issues of law, a court may dismiss a claim regardless of the alleged facts. Patel v. Specialized Loan Servicing, LLC, 904 F.3d 1314, 1321 (11th Cir. 2018).

B. Motion to Amend

Leave to amend should be “freely give[n] ... when justice so requires.” Fed.R.Civ.P. 15(a)(2). The Court “need not, however, allow an amendment (1) where there has been undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments previously allowed; (2) where allowing amendment would cause undue prejudice to the opposing party; or (3) where amendment would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). “[D]enial of leave to amend is justified by futility when the complaint as amended is still subject to dismissal.” Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th Cir. 2004) (quoting Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999)).

III. DISCUSSION

A. Claims Against Wells Fargo

Gordon claims that Wells Fargo violated the FDCPA, GFBPA, and committed “deceit” by attempting to collect payments on the “fraudulent” “RISC 2” and using “alternative names,” such as Wells Fargo Dealer Services and Wells Fargo Auto. Doc. 18-3 ¶¶ 55-61, 73-74, 80-87. Furthermore, Gordon alleges a breach of fiduciary claim against Michael Santomassimo, Wells Fargo's Chief Financial Officer. Id. ¶¶ 96-99. Wells Fargo moves to dismiss Gordon's claims under the FDCPA and contends that Gordon's motion to amend to add claims under the GFBPA, for the tort of “deceit,” and for breach of fiduciary duty should be denied for futility. Docs. 7; 19.

1. Fair Debt Collection Practice Act

Gordon alleges that Wells Fargo violated §§ 1692d, 1692e, 1692f, 1692g, and 1692j of the FDCPA when it sent him letters informing him that he had defaulted on his loan and ordered Superior Recovery to repossess his vehicle.^[3]Doc. 18-3 ¶¶ 57-60.

To plausibly state a claim under §§ 1692d, 1692e, 1692f, and 1692g of the FDCPA “a plaintiff must allege, among other things, (1) that the defendant is a ‘debt collector' and (2) that the challenged conduct is related to debt collection.” Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1216 (11th Cir. 2012). Under the FDCPA, 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).

Conversely, a creditor is “any person who offers or extends credit creating a debt or to whom a debt is owed.” 15 U.S.C. § 1692a(4).

Gordon alleges that the RISC was immediately assigned by Five Star Chevrolet to Wells Fargo. Docs. 18-3 ¶ 21; 18-8. Because Wells Fargo owns the debt under the RISC, its attempts to collect on that debt are those of a creditor. See Davidson v. Cap. One Bank (USA), N.A., 797 F.3d 1309, 1313 (11th Cir. 2015); see also Montgomery v. Huntington Bank, 346 F.3d 693, 699 (6th Cir. 2003) (“To this, the federal courts are in agreement: A bank that is a creditor is not a debt collector for the purposes of the FDCPA and creditors are not subject to the FDCPA when collecting their accounts.”) (cleaned up); Watts v. Wells Fargo Dealer Servs., Inc., 2017 WL 2289111, at *3 (N.D. Ala. May 25, 2017) (“Under the Retail Installment Contract, Wells Fargo owns the debt owed to it by Mr. Watts; its attempts to collect on that debt are those of a creditor who cannot be liable under the FDCPA.”). Nevertheless, Gordon argues that Wells Fargo is not a creditor because Five Star Chevrolet “failed to sign” the assignment provision of the RISC. Docs. 11 at 8; 12-1 at 2. First, this argument contradicts Gordon's allegation in his complaint that the RISC was assigned to Wells Fargo. Doc. 18-3 ¶ 21; see also Doc. 1 ¶ 7. Second, the RISC Gordon attaches to his complaint is signed by a Five Star Chevrolet representative. Doc. 18-8 at 4. Thus, the RISC was assigned to Wells Fargo, Wells Fargo is not a debt collector, and Gordon fails to state a claim under §§ 1692d, 1692e, 1692f, and 1692g of the FDCPA.

Unlike the above-mentioned sections, § 1692j of the FDCPA does not limit liability to “debt collectors.” This section makes it “unlawful to design, compile, and furnish any form knowing that such form would be used to create the false belief in a consumer that a person other than the creditor of such consumer is participating in the collection of or in an attempt to collect a debt such consumer allegedly owes such creditor, when in fact such person is not so participating.” 15 U.S.C. § 1692j(a). In other words, ...