Renford v. Capital One Auto Finance

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

___________________________________
)
STACIA RENFORD, )
)
Plaintiff, )
)
v. ) Civil Action No. 1:21-cv-02382 (RC)
)
CAPITAL ONE AUTO FINANCE, )
)
Defendant. )
___________________________________ )

MEMORANDUM OPINION

This civil action found its way to this Court when, on September 9, 2021, defendant

Capital One Auto Finance (“Capital One” or “defendant”) removed it from the Superior Court of

the District of Columbia. ECF No. 1 (Notice of Removal); ECF No. 1-1 (Complaint). Plaintiff

since has filed two amended complaints (ECF Nos. 14 and 20).

Now before the Court are Capital One’s motions to dismiss (ECF Nos. 6 and 23) under

Federal Rule of Civil Procedure 12(b)(6). Because plaintiff is proceeding pro se, the Court not

only treats her original and amended complaints together as the operative pleading, but also

considers all of plaintiff’s motions and additional filings as her opposition to Capital One’s

motions. For the reasons discussed below, the Court will GRANT Capital One’s motions to

dismiss the complaint, as amended, and all other pending motions (ECF Nos. 8, 10, 19, 22, 24,

26, 27, 28, 31 and 32) will be denied.

I. BACKGROUND

Plaintiff’s filings are long on legal conclusions and short on facts. Missing are factual

allegations or exhibits indicating what, when, or how Capital One violated the law and harmed

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plaintiff. That said, the Court surmises from the parties’ submissions that plaintiff secured a loan

from Capital One to purchase an automobile, that plaintiff defaulted on the loan, that Capital One

reported the loan delinquency to credit reporting agencies, and that Capital One attempted to

collect the debt.

Generally, plaintiff alleges violations of the Fair Debt Collection Practices Act

(“FDCPA”), see 15 U.S.C. § 1692 et seq., Uniform Commercial Code § 2-302, the Telephone

Consumer Protection Act (“TCPA”), see 47 U.S.C. § 227 et seq., the Fair Credit Reporting Act

(“FCRA”), see 15 U.S.C. § 1681 et seq., the Truth in Lending Act (“TILA”), see 15 U.S.C. §

1601 et seq., as well as abusive, deceptive, and unfair practices, and invasion of privacy.

II. DISCUSSION

A. Dismissal Under Rule 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must “state a claim upon

which relief can be granted” to survive a motion to dismiss. A motion to dismiss under Rule

12(b)(6) “tests the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242

(D.C. Cir. 2002). It does not test a plaintiff’s ultimate likelihood of success on the merits, but

only forces the Court to determine whether a plaintiff has properly stated a claim. ACLU Found.

of S. Cal. v. Barr, 952 F.2d 457, 467 (D.C. Cir. 1991). “[W]hen ruling on a defendant’s motion

to dismiss [under Rule 12(b)(6)], a judge must accept as true all of the factual allegations

contained in the complaint[,]” Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681 (D.C. Cir.

2009) (citations omitted), and construe them liberally in the plaintiff’s favor. Nevertheless, “[t]o

survive a motion to dismiss, a complaint 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)). This means plaintiff’s

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factual allegations “must be enough to raise a right to relief above the speculative level, on the

assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly,

550 U.S. at 555 (citations omitted). Therefore, “[t]hreadbare recitals of the elements of a cause

of action, supported by mere conclusory statements,” are insufficient to withstand a motion to

dismiss. Iqbal, 556 U.S. at 678. The Court neither must accept a plaintiff’s legal conclusions as

true, see id., nor must presume the veracity of legal conclusions that are couched as factual

allegations, see Twombly, 550 U.S. at 555.

“In determining whether a complaint fails to state a claim, [the Court] may consider only

the facts alleged in the complaint, any documents either attached to or incorporated in the

complaint and matters of which [the Court] may take judicial notice.” EEOC v. St. Francis

Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). Such includes integral documents

that are “attached to the motion papers.” Strumsky v. Washington Post Co., 842 F. Supp. 2d 215,

217-18 (D.D.C. 2012) (citations omitted).

A pro se plaintiff’s pleading is held “to less stringent standards than formal pleadings

drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). While the Court must

“consider[] in toto” all of a pro se plaintiff’s filings to determine whether they “set out

allegations sufficient to survive dismissal,” Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146,

151 (D.C. Cir. 2015) (reversing the district court because it failed to consider allegations found

in a pro se plaintiff's opposition to a motion to dismiss), it is not the Court’s job to “cull through

every filing of a pro se litigant to preserve a defective complaint,” Richardson v. United States,

193 F.3d 545, 549 (D.C. Cir. 1999). “A pro se complaint, like any other, must present a claim

upon which relief can be granted.” Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981)

(per curiam). Dismissal always remains appropriate “where the plaintiff’s complaint provides no

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factual or legal basis for the requested relief.” Strunk v. Obama, 880 F. Supp. 2d 1, 3 (D.D.C.

2011) (citations omitted).

B. Fair Debt Collection Practices Act Claim

FDCPA “imposes civil liability on debt collectors for certain prohibited debt collection

practices.” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 576 (2010)

(brackets and internal quotation marks omitted). For example, FDCPA “prohibits debt collectors

from . . . communicating with consumers at an unusual time or place likely to be inconvenient to

the consumer[,] or using obscene or profane language or violence or the threat thereof.” Id. at

577 (internal citations and quotation marks omitted). It defines the term “debt collector” as “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).

In addition, FDCPA defines the term “creditor” as “any person who offers or extends

credit creating a debt or to whom a debt is owed, but such term does not include any person to

the extent that he receives an assignment or transfer of a debt in default solely for the purpose of

facilitating collection of such debt for another.” 15 U.S.C. § 1692a(4). If, for example, a

financial institution extended credit to a borrower, and attempted to collect on the debt when the

borrower defaulted, the financial institution is not considered a “debt collector” for purposes of

FDCPA. See Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1721 (2017) (affirming

Fourth Circuit ruling that company which purchased debt originated by another and which

attempted to collect debt on its own account is not a “debt collector”); Bank of New York Mellon

Tr. Co. N.A. v. Henderson, 862 F.3d 29, 34 (D.C. Cir. 2017) (concluding that Bank is not “debt

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collector” absent “evidence to indicate the Bank’s ‘principal’ business is debt collection” or that

“the Bank is seeking to collect [a debt] ‘due another’”).

Plaintiff alleges unspecified violations of FDCPA. See, e.g., ECF No. 1-1 at 2 (stating

that action is “for damages brought by an individual consumer for violations of the Fair Debt

Collection Practices Act”); ECF No. 14 at 2 (asserting that Capital One Auto Finance is a debt

collector); ECF No. 20 at 5 (alleging Capital One “provided . . . false and misleading

representations pursuant to 15 USC 1692e”); ECF No. 19 at 2 (asserting that Capital One Auto

Finance is a debt collector).1 Capital One moves to dismiss this claim, arguing that it is not a

“debt collector” to which FDCPA applies. See ECF No. 23-1 (Mem. of Law in Support of Mot.

by Capital One Auto Finance to Dismiss Pursuant to 12(b)(6), “Def.’s Second Mem.”) at 4-7;

ECF No. 6 (Mem. of Law in Support of Motion by Capital One Auto Finance to Dismiss

Pursuant to 12(b)(6), “Def.’s First Mem.”) at 5-6. At most, Capital One argues, it would have

been a creditor collecting on its own account, see Def.’s Second Mem. at 5, such that it is not a

“debt collector” for FDCPA purposes.

Given the dearth of factual allegations in plaintiff’s submissions and plaintiff’s failure to

respond to the substance of Capital One’s argument, the Court concludes that plaintiff fails to

state a claim under FDCPA. She manages only to assert that Capital One is a “debt collector”

which violated FDCPA in an unstated way at an unspecified time, without refuting Capital One’s

assertion that, as a creditor collecting its own debt, it is not subject to FDCPA. Plaintiff’s vague

and conclusory allegations simply cannot withstand a motion to dismiss. See Peek v. SunTrust

Bank, Inc., No. 19-CV-658, 2020 WL 1429935, at *7 (D.D.C. Mar. 24, 2020) (finding that

mortgagee “is the creditor of [plaintiff’s] mortgage loan,” and in this capacity is not liable under

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The Court refers to the parties’ submissions by the page numbers CM/ECF designates.
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FDCPA), aff’d, 848 F. App’x 6 (D.C. Cir. 2021) (per curiam); Carbin v. NRA Grp., LLC, No. 18-

CV-2635, 2019 WL 161724, at *1 (D.D.C. Jan. 10, 2019) (finding allegations that defendant was

“being deceptive in trying to collect an alleged debt and (2) being abusive in [its] conduct” were

deficient); Gore v. First Union Nat’l Bank, No. 01-CV-2166, 2002 WL 34926295, at *4 (D.D.C.

July 29, 2002) (“In order to state a claim under the FDCPA, Plaintiff must do more than merely

recite the statutory language contained in the FDCPA or state vague and conclusory allegations

that Defendants violated the FDCPA.”).

C. Uniform Commercial Code

Plaintiff alleges that the unidentified contract with Capital One is unconscionable and

runs afoul of the Uniform Commercial Code. See, e.g., ECF No. 20 at 3 (alleging defendant

“offered an Unconscionable Contract Pursuant UCC 2-302”); ECF No. 22 at 2 (alleging “clear

and unconscionable contract (UCC2-302)”). Under District of Columbia law, “[if] the court as a

matter of law finds the contract . . . to have been unconscionable at the time it was made the

court may refuse to enforce the contract[.]” D.C. Code § 28:2-302(1). Plaintiff does not produce

a contract, without which the Court cannot review its terms or determine whether its terms are

unconscionable and therefore unenforceable.

In addition, plaintiff appears to raise a fraud claim and cites Article 9 of the Uniform

Commercial Code, regarding secured transactions, in support. See, e.g., ECF No. 14 at 2

(alleging charge off “is Fraudulent Pursuant (UCC 9)”); ECF No. 22 at 4 (alleging that charging

off account “is fraudulent pursuant (UCC 9)”). It is not clear whether or how Article 9 of the

Uniform Commercial Code is relevant here. What is clear is plaintiff’s failure to allege a fraud

claim adequately.

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 Under District of Columbia law, “[t]he essential elements of common law fraud are: (1) a

false representation (2) in reference to material fact, (3) made with knowledge of its falsity, (4)

with the intent to deceive, and (5) action is taken in reliance upon the representation.” Busby v.

Capital One, N.A., 772 F. Supp. 2d 268, 275 (D.D.C. 2011) (citations omitted). Federal Rule of

Civil Procedure 9 requires that a plaintiff “state with particularity the circumstances constituting

fraud.” Fed. R. Civ. P. 9(b). To this end, a complaint must “state the time, place and content of

the false misrepresentations, the fact misrepresented and what was retained or given up as a

consequence of the fraud.” U.S. ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 1251,

1256 (D.C. Cir. 2004) (quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1278 (D.C. Cir.

1994)).

Where, as here, plaintiff neither addresses the elements of a common law fraud claim nor

states with particularity the acts from which her fraud claim arises, the claim fails. See Lewis v.

Full Sail, LLC, 266 F. Supp. 3d 320, 325 (D.D.C. 2017) (where plaintiff “has not provided any

specifics concerning misrepresentations made by [defendants]” he “has not pleaded with

particularity the fraudulent representations of [defendants], and thus he has failed to state a claim

of fraud.”); Carter v. Bank of America, N.A., 888 F. Supp. 2d 1, 14 (D.D.C. 2012) (noting

plaintiff’s failure to plead elements of fraud claim, to “provide[] even approximate dates of when

fraudulent statements were made to her [and] the specific nature of the assurances”).

D. Telephone Consumer Protection Act Claim

“[T]he TCPA generally makes it unlawful to call a cell phone using an [automatic

telephone dialing system].” ACA Int’l v. Fed. Commc’ns Comm’n, 885 F.3d 687, 693 (D.C. Cir.

2018); see Loyhayem v. Fraser Fin. & Ins. Servs., Inc., 7 F.4th 1232, 1233 (9th Cir. 2021)

(“Among other things, the TCPA generally makes it illegal to place what are colloquially known

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as ‘robocalls’ to someone’s home phone or cell phone, subject to differing rules depending on

which type of phone number is called.”). “[A] necessary feature of an autodialer . . . is the

capacity to use a random or sequential number generator to either store or produce phone

numbers to be called.” Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1173 (2021).

“To state a claim under . . . TCPA, a plaintiff must allege: (1) that the defendant called

the plaintiff’s cellular telephone; (2) using an automatic telephone dialing system; (3) without the

plaintiff’s prior express consent.” Hossfeld v. Gov’t Employees. Ins. Co., 88 F. Supp. 3d 504,

509 (D. Md. 2015). Here, as Capital One notes, see Def.’s First Mem. at 6-7, plaintiff fails to

address any of these elements. Rather, she alleges unspecified violations of TCPA, see, e.g.,

ECF No. 1-1 at 3 (alleging “36 (TCPA violations) occurring after a cease and desist was sent to

the defendant”); ECF No. 14 at 2 (alleging Capital One contacted plaintiff “63X after a Cease

and Desist was filed”); ECF No. 20 at 3 (same), without stating that Capital One called her using

an automatic telephone dialing system. Plaintiff’s conclusory allegations fall far short of stating

a plausible TCPA claim. See Camunas v. Nat’l Republican Senatorial Comm., 541 F. Supp. 3d

595, 603 (E.D. Pa. 2021) (dismissing TCPA claim where “Amended Complaint does not

plausibly allege that the [defendant] used an [automatic telephone dialing system] to send the

messages at issue”).

E. Fair Credit Reporting Act Claim

Generally, FCRA’s purpose is “to ensure fair and accurate credit reporting, promote

efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. v. Burr,

551 U.S. 47, 52 (2007) (citations omitted). Only one FCRA provision permits a private right of

action. See Mazza v. Verizon Washington DC, Inc., 852 F. Supp. 2d 28, 34 (D.D.C. 2012)

(recognizing, “as courts in this District and multiple Circuits have held, the FCRA does provide a

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private right of action for violations under Section 1681s–2(b)”). Under 15 U.S.C. § 1681s–2(b),

“upon being notified by a credit reporting agency of a dispute as to the accuracy of its

information, the furnisher of information to a credit reporting agency [CRA] ‘has duties under

[the Fair Credit Reporting Act] to investigate the disputed information and correct it as

necessary.”’ Haynes v. Navy Fed. Credit Union, 52 F. Supp. 3d 13, 19 (D.D.C. 2014) (quoting

Ihebereme v. Capital One, N.A., 933 F.Supp.2d 86, 111 (D.D.C. 2013), aff’d, 573 F. App’x 2

(D.C. Cir. 2014) (per curiam)). “FCRA imposes civil liability on any person who willfully or

negligently fails to comply with any of [its] requirements.” Mazza, 852 F. Supp. 2d at 34 (citing

15 U.S.C. §§ 1681n (creating civil liability for willful noncompliance with any portion of the

Act) and 1681o (creating civil liability for negligent noncompliance with any portion of FCRA).

A viable FCRA claim requires that a plaintiff “show that (1) [she] notified the [credit

reporting agency] directly regarding the disputed credit information, and (2) that the [credit

reporting agency] in turn provided notice to the furnisher of [plaintiff’s] credit information,

which was then obligated to conduct an investigation into the dispute.” Mazza, 852 F. Supp. 2d

at 35 (citations omitted). A person who violates the FCRA’s requirements “with respect to any

consumer is liable to that consumer in an amount equal to the sum of . . . any actual damages

sustained by the consumer as a result of the failure[.]” 15 U.S.C. § 1681o(a)(1).

Plaintiff alleges violations of FCRA, see, e.g., ECF No. 14 at 2 (alleging Capital One

“consistently reported late payments” but “Late payments are not supposed to be on a consumer

report”); ECF No. 20 at 5 (same); ECF No. 22 (same); ECF No. 30 at 3 (alleging plaintiff “never

gave any reporting agency direct written consent to report anything on [her] consumer report, no

consent is identity theft”), yet none of her submissions sets forth facts to support these assertions.

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Capital One argues that FCRA “only provides for a private right of action in the very specific

circumstance where the consumer submitted a dispute to a consumer reporting agency,” and

moves to dismiss because “[p]laintiff’s claim is not grounded in such a dispute[.]” Def.’s

Second Mem. at 8; see Def.’s First Mem. at 6. The Court concurs.

Nowhere does plaintiff allege she contacted a credit reporting agency directly to dispute

credit information Capital One may have furnished. It is not enough that she notified Capital

One in the course of this litigation. See SimmsParris v. Countrywide Fin. Corp., 652 F.3d 355,

358 (3d Cir. 2011) (“Notice under § 1681i(a)(2) must be given by a credit reporting agency, and

cannot come directly from the consumer.”); Young v. Equifax Credit Info. Servs., Inc., 294 F.3d

631, 639–40 (5th Cir. 2002) (finding that FCRA claims fail when plaintiff does not produce

“evidence tending to prove the [furnisher of information] received notice of a dispute from a

consumer reporting agency within five days, as is required to trigger [the furnisher’s] duties

under Section 1681s–2(b).”). For this reason, plaintiff’s FCRA claim, too, fails.

F. Truth in Lending Act Claim

Generally, TILA requires “accurate and meaningful disclosure of material terms to

consumers in credit transactions.” Solomon v. Falcone, 791 F. Supp. 2d 184, 188 (D.D.C. 2011)

(citing 15 U.S.C. § 1601). “Material terms” include “the annual percentage rate, the method of

determining the finance charge and the balance upon which a finance charge will be imposed, the

amount of the finance charge, the amount to be financed, the total of payments, the number and

amount of payments, the due dates or periods of payments scheduled to repay the indebtedness,

and [other] disclosures[.]” 15 U.S.C. § 1602(v).

“To state a claim under TILA, a plaintiff must show either that she did not receive the

required disclosures or that the disclosures provided were not clear and conspicuous.” Thompson

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v. HSBC Bank USA, N.A., 850 F. Supp. 2d 269, 276 (D.D.C. 2012) (internal quotation marks and

citations omitted). What few allegations plaintiff provides, see, e.g., ECF No. 14 at 2 (alleging

Capital One “did not provide clear and conspicuous disclosures” regarding right of recission);

ECF No. 22 at 2 (alleging “no disclosures or rights of recission”); ECF No. 30 at 3 (alleging

Capital One “failed to provide any disclosure recission notice”), are far too vague and conclusory

to support a TILA claim. See Travers v. Wells Fargo Bank, No. 09-CV-1061, 2010 U.S. Dist.

LEXIS 162843, at *4 (D.D.C. May 5, 2010) (dismissing TILA claim where plaintiff “does not

offer a single citation to TILA or Regulation Z,” and offers no “specifics on how the disclosures

were incomplete, misleading, or difficult to understand”).

G. Abusive, Deceptive, and Unfair Practices, and Invasion of Privacy

The Court need not linger over plaintiff’s assertions of “abusive, deceptive, and unfair

practices and invasion of privacy.” ECF No. 1-1 at 2; see ECF No. 24-1 at 2 (alleging “privacy

has been breached”). A complaint presenting an “untidy assortment of claims that are neither

plainly nor concisely stated” must be dismissed. Poblete v. Goldberg, 680 F.Supp.2d 18, 19

(D.D.C. 2009) (quotation marks omitted); see Patton Boggs LLP v. Chevron Corp., 683 F.3d

397, 404 (D.C. Cir. 2012) (dismissing a complaint because it was unclear “who breached what

obligation and how, and the manner in which the defendants intentionally caused that breach”).

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III. CONCLUSION

Having considered plaintiff’s original complaint, two amended complaints, and all her

motions and filings, the Court concludes that none states a claim upon which relief can be

granted. Capital One’s motions to dismiss will be granted, all other motions will be denied, and

the complaint, as amended, and this civil action will be dismissed. An Order is issued separately.

DATE: April 25, 2022 /s/
RUDOLPH CONTRERAS
United States District Judge

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