Sacco v. Bank of Am., N.A.
| Decision Date | 13 December 2012 |
| Docket Number | CASE NO. 5:12-cv-00006-RLV-DCK |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | DARLENE SUE SACCO, Plaintiff, v. BANK OF AMERICA, N.A., successor by merger to BAC HOME LOAN SERVICING, L.P., Defendant. |
THIS MATTER is before the court on Defendant Bank of America's Motion to Dismiss. (Doc. 5.)
Plaintiff Darlene Sue Sacco, a resident of Mooresville, North Carolina, here contends that Defendant Bank of America, through its debt-collection efforts, has violated various provisions of the North Carolina Debt Collection Act ("NCDCA"), N.C. Gen. Stat. § 75-50 et seq., as well as the Telephone Consumer Protection Act ("TCPA"), 42 U.S.C. § 227. Defendant, headquartered in Charlotte, North Carolina, and with a principal executive office in Charlotte, North Carolina, and a registered agent in Raleigh, North Carolina, here moves to dismiss Plaintiff's Complaint, arguing that the NCDCA-based claims are preempted by federal law and therefore do not survive Federal Rule of Civil Procedure 12(b)(6), and that the TCPA-based claim is insufficiently supported by the alleged facts vis-à-vis Federal Rule of Civil Procedure 8(a).
Plaintiff, a "consumer" within the meaning of N.C. Gen. Stat. § 75-50(1) as a naturalperson who has "incurred a debt or alleged debt for personal, family, household or agricultural purposes," alleges that Defendant, a "debt collector" as defined by N.C. Gen. Stat. § 75-50(3), has contacted or attempted to contact her in an unlawful manner in order to collect a mortgage debt that Defendant was not obligated to pay. (Doc. 1-1 at 6.) In April 2011, Plaintiff filed for bankruptcy protection and included Bank of America as a creditor to be discharged. (Doc. 1-1 at 6.) Bank of America's debt was not discharged until July 2011, yet on or about April 5, 2011, the U.S. Bankruptcy Court for the Western District of North Carolina sent a notice to Bank of America, advising it that Plaintiff had filed for bankruptcy and that "any further attempts to collect a debt from the Plaintiff were strictly prohibited." (Doc. 1-1 at 6.)
Defendant thereafter continued to call Plaintiff's cellular phone in an attempt to collect the alleged debt. (Doc. 1-1 at 6.) On July 11 and 12, 2011, Plaintiff's counsel sent letters to Defendant, warning that its attempts to collect Mrs. Sacco's debt were "in violation of the law and that Mrs. Sacco would act to enforce her rights . . . ." (Doc. 1-1 at 6.) Despite Plaintiff's correspondence, Defendant continued in its efforts to collect the debt, even after it had knowledge or reason to know that Plaintiff had filed bankruptcy, that the debt was discharged, and that Plaintiff was represented by counsel. (Doc. 1-1 at 6.)
Plaintiff alleges that Defendant called her cellular phone at least 197 times between April 4, 2011, and November 29, 2011, and more than fifty times between November 29, 2011, and January 23, 2012. (Doc. 1-1 at 7.) In placing these calls, Defendant allegedly used an automatic telephone dialing system or a prerecorded or artificial voice. (Doc. 1-1 at 7.) Plaintiff further alleges that, in making the calls, Defendant failed to alert her that it was a debt collector, in violation of N.C. Gen. Stat. § 75-54(2). (Doc. 1-1 at 7.) Plaintiff has characterized such behavior as conduct, the natural consequence of which is to harass, to oppress, or to abuse Plaintiff bycausing her phone to ring excessively. (Doc. 1-1 at 7.)
Plaintiff asserts that she did not expressly consent to the phone calls and that she, on multiple occasions, told Defendant that she had filed bankruptcy and no longer owed a debt. (Doc. 1-1 at 7.) She conveyed the name of her attorney and her bankruptcy case number, and told Defendant to stop calling her. (Doc. 1-1 at 7.) Due to Defendant's continued calls to Plaintiff's cellular phone after this communication, Plaintiff contends that Defendant willfully or knowingly violated the TCPA, which prohibits the use of any automatic telephone dialing system or an artificial or prerecorded voice for non-emergency reasons.
As a result of these phone calls, Plaintiff claims that she suffered injury in the form of emotional distress, humiliation, embarrassment, and mental anguish. (Doc. 1-1 at 8.) As such, Plaintiff requests fair and reasonable compensatory damages for the emotional distress, aggravation, annoyance, and inconvenience that she suffered as a result of Defendant's allegedly unlawful acts. (Doc. 1-1 at 8.) Plaintiff further requests actual, statutory, and punitive damages, attorney's fees, and other expenses. (Doc. 1-1 at 8.) Plaintiff finally seeks declarative and injunctive relief, such that would prevent Defendant from placing any non-emergency calls to Plaintiff's cellular phone. (Doc. 1-1 at 9.)
Defendant here moves to dismiss Plaintiff's Complaint pursuant to Rules 12(b)(6) and 8(a) of the Federal Rules of Civil Procedure. Rule 12(b)(6) provides for the dismissal of a claim based upon a plaintiff's "failure to state a claim upon which relief can be granted." Pursuant to Rule 8(a)(2), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." In evaluating motions to dismiss, the court must construe the complaint's factual allegations "in the light most favorable to the plaintiff" and "must accept astrue all well-pleaded allegations." Randall v. United States, 30 F.3d 518, 522 (4th Cir. 1994). The court, however, will neither "accept the legal conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable conclusions, or arguments." Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d. 175, 180 (4th Cir. 2000)).
While Rule 8(a)(2) does not require "detailed factual allegations," a complaint must offer more than "naked assertion[s]" and unadorned "labels and conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In order to survive a Rule 12(b)(6) motion to dismiss, the facts alleged must be sufficient "to raise a right to relief above the speculative level" and "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). Requiring plausibility "does not impose a probability requirement at the pleading stage." Id. at 556. It does, however, demand more than a "sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 662. Ultimately, a claim has facial plausibility when the plaintiff pleads factual content that permits the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 663.
and N.C. Gen. Stat. § 75-1.1, which states that "[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful."
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