Rogers v. Keffer, Inc.

• Decision Date: 17 March 2017
• Docket Number: No. 5:16–CV–671–D,5:16–CV–671–D
• Citation: 243 F.Supp.3d 650
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Andrew S. ROGERS, Plaintiff, v. KEFFER, INC., d/b/a Keffer Chrysler Jeep Dodge, SunTrust Bank, JPMorgan Chase Bank, National Association d/b/a Chase, Equifax Information Services, LLC, Experian Information Solutions, Inc., and Trans Union, LLC, Defendants.

243 F.Supp.3d 650

Andrew S. ROGERS, Plaintiff,

v.KEFFER, INC., d/b/a Keffer Chrysler Jeep Dodge, SunTrust Bank, JPMorgan Chase Bank, National Association d/b/a Chase, Equifax Information Services, LLC, Experian Information Solutions, Inc., and Trans Union, LLC, Defendants.

No. 5:16–CV–671–D

United States District Court, E.D. North Carolina, Western Division.

Signed March 17, 2017

Joseph Z. Frost, Matthew W. Buckmiller, Stubbs & Perdue, P.A., Raleigh, NC, for Plaintiff.

Brian A. Kahn, Anita M. Foss, McGuireWoods, LLP, Christopher P. Raab, Boyd Alexander Correll, Jr., Caudle & Spears, P.A., Charlotte, NC, Brian David Darer, Michael J. Crook, Parker, Poe, Adams & Bernstein, LLP, Joseph W. Williford, Kelly Street Brown, Nathan D. Childs, Young, Moore & Henderson, P.A., Raleigh, NC, Kendall W. Carter, King & Spalding LLP, Atlanta, GA, Paul L. Myers, Strasbruger & Price, LLP, Frisco, TX, for Defendants.

ORDER

JAMES C. DEVER III, Chief United States District Judge

On June 3, 2016, Andrew Stutfield Rogers ("Rogers" or "plaintiff") filed this action in Wake County Superior Court against Keffer, Inc., d/b/a Keffer Chrysler Jeep Dodge ("Keffer"), SunTrust Bank ("SunTrust"), Elite Skippers, Inc., ("Elite Skippers"), JPMorgan Chase Bank, National Association d/b/a Chase ("Chase"), Equifax Information Services LLC ("Equifax"), Experian Information Solutions, Inc., ("Experian"), and Trans Union LLC ("Trans Union") (collectively, "defendants") [D.E. 1–3]. On July 13, 2016, Chase removed the action to this court based on federal-question jurisdiction [D.E. 1]. On August 12, 2016, Chase moved to dismiss counts one, three, four, and six [D.E. 32] and filed a memorandum in support [D.E. 33]. On August 12, 2016, Keffer moved to dismiss counts one, two, three, and six [D.E. 35] and filed a memorandum in support [D.E. 36]. On September 16, 2016, Rogers responded in opposition to Chase's motion to dismiss [D.E. 43]. On September 30, 2016, Rogers responded in opposition to Keffer's motion to dismiss [D.E. 45]. On October 3, 2016, Chase replied [D.E. 46]. On October 20, 2016, Keffer replied [D.E. 47]. As explained below, Chase's motion to dismiss is granted in part and denied in part, and Keffer's motion to dismiss is granted in part and denied in part.

I.

Rogers is a resident of Wake County, North Carolina, whose identity was stolen. See Compl. [D.E. 1–3] ¶¶ 30, 50–58, 79–82. Before November 30, 2015, Rogers's credit score exceeded 800. Id. ¶¶ 50, 134. Keffer is a North Carolina corporation with its principal place of business in Charlotte, North Carolina, where it operates a car dealership. Id. ¶¶ 4, 33. Chase is a bank that operates throughout the United States, with headquarters in Columbus, Ohio. Id. ¶¶ 17–18.

On November 30, 2015, an unknown person claiming to be "Andrew L. Rogers" ("the identity thief") entered Keffer's car dealership and sought to purchase a 2015 Dodge Challenger. Id. ¶¶ 50–52. The identity thief used Rogers's social security number, his date of birth, and a driver's license for an "Andrew Leon Rogers" who resided at "239 Sunset Drive, Rock Hill, South Carolina, 29730." Id. ¶¶ 53–56. No such address exists. Id. ¶ 57. Rogers has not lived in South Carolina since 1992 and has never resided in Rock Hill, South Carolina. Id. ¶¶ 72–73.

The identity thief presented this false information to Keffer's employees, who did not verify its authenticity before using Rogers's social security number to access his credit report from Equifax, Experian, or Trans Union ("the credit reporting agencies" or "the CRAs"). Id. ¶¶ 58–60. Keffer does not require purchasers to show a valid social security card before Keffer requests a credit report. Id. ¶ 66. At least one CRA "failed to properly verify the identity of the consumer on whose behalf the report was purportedly requested" and to verify that the report had been requested for a proper purpose. Id. ¶ 64.

Keffer disclosed the contents of Rogers's credit reports to the identity thief. Id. ¶ 68. Keffer then used the social security number the identity thief had provided to initiate six hard inquiries into Rogers's credit report. Id. ¶ 69.¹ Having obtained Rogers's credit information, Keffer then assisted the identity thief in obtaining a car loan with Chase. Id. ¶¶ 70–71. Rogers already had an account with Chase. Id. at ¶ 75. Chase extended a $27,995.00 car loan based on the loan application the identity thief and Keffer submitted. Id. ¶ 76. Chase did not speak to Rogers before extending the loan "and unilaterally changed [Rogers's] street address in its own system." Id. ¶ 75. Chase reported the loan to the CRAs. Id. ¶ 78.

On December 10, 2015, the identity thief returned to Keffer to obtain a second car, a 2012 Chrysler 300. Id. ¶¶ 79–80. The identity thief used the same false information he had used to obtain the 2015 Dodge Challenger Id. ¶ 81. Keffer initiated multiple hard inquiries against Rogers's credit report and assisted the identity thief in securing a car loan with SunTrust for $29,928.99. Id. ¶ 84.

Rogers alleges that Keffer failed to conduct a reasonable investigation into the identity of the person seeking a car loan and failed to notice or properly respond to inconsistencies in the identity thief's information: that the identity thief used a different middle name; that the identity thief used a non-existent home address; that the identity thief's loan application to SunTrust contained numerous inconsistencies with Rogers's credit report; that the loan application listed a non-operational phone number for "Access to Healthcare"; that the identity thief's loan application did not include an email address, driver's license number, or the issuing state of a driver's license; that the identity thief did not show a social security card; and that the loan application was "so shockingly bare and lacking in supporting documentation that no reasonable person could conclude that the application was a sufficient basis on which to loan $28,000.00." Id. ¶ 85.

On December 30, 2015, Rogers received an email from Chase about Rogers's new car loan. Id. ¶ 88. Rogers then realized that someone obtained a fraudulent loan in his name. Rogers initiated a fraud alert, set a security freeze with the CRAs, and filed a police report with the Charlotte–Mecklenburg Police Department. Id. ¶¶ 89–92. Rogers also notified Chase that he had not requested or authorized the loan and that his identity had been stolen. Id. ¶ 93. Rogers continued to notify Chase via at least seven phone calls between January 11 and January 28, 2016. Id. ¶ 94. Rogers "spent hours on hold being bounced around between various departments within" Chase's phone system, "losing precious working and leisure hours." Id. ¶ 95. Rogers also sent Chase letters and emails on unspecified dates. Id. ¶ 96. Chase, however, did not correct the information Chase had reported to the CRAs about the loan and continued to report to the CRAs that the loan was Rogers's. Id. ¶¶ 97–98.

On January 14, 2016, Rogers learned from Keffer employee Mike Streng ("Streng") that a second loan had been taken out in his name. Id. ¶¶ 99–101, 104. During this conversation, Rogers told Streng that he would ask a detective from the Charlotte–Mecklenburg Police Department about the second loan, to which Streng replied:

Yeah, but, but, do this just, just to protect me, cause I'm, cause right now he's working very closely with me [pause] to try to get this figured out, just tell him, you know, you got a contact from SunTrust or something and now you found out there's a second one.

Id. ¶ 102 (alteration in original). Streng's reply "caused [Rogers] increased stress, anxiety, and fear, as it caused [Rogers] to question the integrity of ... Keffer, who had [Rogers's] sensitive personal information at its mercy." Id. ¶ 106.

On January 19, 2016, Rogers contacted SunTrust about the loan issued in his name. Id. ¶ 109. Although Rogers repeatedly contacted SunTrust and "spent hours on hold" trying to resolve the issue, "again losing precious working and leisure hours," "SunTrust continues to report the loan to [the] CRAs." Id. ¶¶ 111–13.

By letter dated January 25, 2016, and mailed to Rogers, Chase demanded that Rogers pay $407.40. Id. ¶¶ 154–56. By letter dated January 28, 2016, and mailed to Rogers, Chase demanded that Rogers pay $413.40. Id. ¶ 157

On April 22, 2016, at 9:02 am, Rogers received a voicemail saying:

Andrew Rogers give me a call back as soon as possible this is investigator Doug Smith, I am doing the investigation in reference to a case that you have been accused of, please return call back at 7062213446, ... I really need to talk to you, uh, as soon as possible. Thank you.

Id. ¶¶ 115–17. Also on April 22, 2016, at 9:11 am and 9:14 am, Rogers received identical text messages saying "Call the investigator smith asap 7062213446 on missing vehicle you have been accused we are needing location immediately." Id. ¶ 118. Rogers spoke to Doug Smith ("Smith") later that day. Id. ¶¶ 119–20. During the conversation the following exchange occurred:

[Rogers]: What is your association with the dealership?

[Smith]: OK. They hire us as to locate your whereabouts in reference to the property that they have been trying to retrieve back...

[Rogers]: OK.

[Smith]: ... umm, such as we, such as like bounty hunters, or, or the third party company that is essentially trying to retrieve the property for them.

Id. ¶ 120 (alterations in original). Smith never stated that he worked for a "debt collector" or that he was trying to collect a "debt." Id. ¶ 121. Also on April 22, 2016, Rogers called Keffer and spoke with Keith Carpenter and asked whether Keffer had hired Smith. Id. ¶¶ 123–25. Carpenter confirmed that Keffer had hired a recovery company, Elite Skippers, to try and recover the vehicles that the identity thief had fraudulently purchased. Id. ¶ 125. Rogers's contacts with Elite Skippers caused "emotional distress, outrage, stress, fear, anxiety, and confusion." Id. ¶ 131.

Rogers's credit report "still...