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Aycock v. Bank of America, N.A.

United States District Court, W.D. Tennessee, Western Division

May 28, 2015



TU M. PHAM, Magistrate Judge.

Before the court are the Motions to Dismiss filed by defendants Bank of America, N.A. ("BOA") on October 27, 2014 (ECF No. 5), and the Marinosci Law Group, PC ("Marinosci") on October 31, 2014 (ECF No. 8). Plaintiff Calvin Dee Aycock filed a response in opposition on November 14, 2014. (ECF No. 10.) On April 20, 2015, Aycock filed a proposed amended complaint, which the court will construe as a motion to amend his complaint. (ECF No. 25.) BOA responded by filing a motion to strike the proposed amendment on April 29, 2015. (ECF No. 26.)

For the reasons below, it is recommended that the defendants' motions be granted, and Aycock's motion to amend be denied.


Aycock filed a fifty-one page complaint on October 10, 2014. (ECF No. 1.) Although it is difficult to decipher, it appears that Aycock's complaint arises out of the foreclosure of a residence located at 8840 River Rise Drive, Cordova, Tennessee. Among his various allegations, Aycock alleges that "the mortgage note which purportedly secures the subject real property of which AYCOCK has equitable and possessory interest, ... has been discharged by either charge off' against federal taxes or by mortgage default insurance proceeds...." (Compl. ¶ 20.) Aycock also alleges that BOA should not be allowed to initiate foreclosure proceedings because BOA is a debt collector that is not entitled to the collateral used for a loan. (Compl. ¶ 26.) Aycock also alleges that Marinosci sent him a letter on April 28, 2014, stating that he was in default with a current unpaid principal balance of $348, 647.02 plus interest, costs, and attorney fees. (Compl. ¶ 30.) Aycock alleges that BOA and Marinosci "do not have the legal right to collect said sum from AYCOCK or any other amount." (Compl. ¶ 33.) Aycock "demands strict proof and an accounting of any and all alleged claims made by BOA and Marinosci." (Compl. ¶ 37.) Aycock claims that he sent by "first class U.S. Mail a debt validation letter to BOA" and that he received "a non-responsive response" from BOA. (Compl. ¶¶ 34, 41.) Aycock further alleges that "BOA and MARINOSCI have used the U.S. Postal Service in a fraudulent attempt to collect a debt from Aycock, in violation of [] federal statutes and state codes, for an alleged debt purportedly owed to a Lender' or Creditor' other than BOA." (Compl. ¶ 45.) Aycock purports to bring a variety of claims, including claims under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. and the Tennessee Consumer Protection Act ("TCPA"), Tenn. Code Ann. § 47-18-104, et seq. (Compl. ¶¶ 60-77; 78-82.)

In their motions to dismiss, BOA and Marinosci argue that Aycock's complaint does not meet the requirements of Rule 8 of the Federal Rules of Civil Procedure because he has not alleged any facts that support a cause of action to plausibly state a claim for relief.


A. Standard of Review

In assessing whether the complaint in this case states a claim on which relief may be granted, the standards under Rule 12(b)(6) of the Federal Rules of Civil Procedure, as stated in Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007), are applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). "Accepting all well-pleaded allegations in the complaint as true, the Court consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.'" Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681) (alteration in original). "[P]leadings that... are no more than conclusions[] are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 ("Rule 8(a)(2) still requires a showing, ' rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only fair notice' of the nature of the claim, but also grounds' on which the claim rests.").

Rule 8(a)(2) requires "[a] pleading that states a claim for relief" to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint violates these provisions when it "is so verbose that the Court cannot identify with clarity the claim(s) of the pleader and adjudicate such claim(s) understandingly on the merits." Harrell v. Dirs. of Bur. of Narcotics & Dangerous Drugs, 70 F.R.D. 444, 446 (E.D. Tenn. 1975); see also Dillard v. Rubin Lublin Suarez Serrano, No. 12-2182-STA-dkv, 2013 WL 1314399, at *2 (W.D. Tenn. Mar. 28, 2013) (citing Flayter v. Wis. Dep't of Corr., 16 F.Appx. 507, 509 (7th Cir. 2001) (dismissing 116-page complaint pursuant to Rule 8(a)(2)); Plymale v. Freeman, No. 90-2202, 1991 WL 54882, at *1 (6th Cir. Apr. 12, 1991) (district court did not abuse its discretion in dismissing with prejudice "rambling" 119-page complaint containing nonsensical claims); Jennings v. Emry, 910 F.2d 1434, 1436 (7th Cir. 1990) ("A... complaint must be presented with intelligibility sufficient for a court or opposing party to understand whether a valid claim is presented and if so what it is. And it must be presented with clarity sufficient to avoid requiring a district court or opposing party to forever sift through its pages in search of that understanding.") (citations omitted)); Michaelis v. Neb. State Bar Ass'n, 717 F.2d 437, 438-39 (8th Cir. 1983) (per curiam) (affirming dismissal of 98-page complaint where "[t]he style and prolixity of these pleadings would have made an orderly trial impossible"); Gordon v. Green, 602 F.2d 743, 744-45 (5th Cir. 1979) (concluding that a 4000-page pleading, comprised of "various complaints, amendments, amended amendments, amendments to amended amendments, and other related papers, " did not comply with Rule 8(a) "as a matter of law"); Windsor v. A Fed. Exec. Agency, 614 F.Supp. 1255, 1258 (M.D. Tenn. 1983) (noting that a 47-page complaint was excessive, in light of the purpose of a pleading to state a simple claim, as well as "confusing and distracting" and ordering plaintiff to amend his complaint to comply with Rule 8), aff'd mem., 767 F.2d 923 (table), 1985 WL 13427 (6th Cir. June 27, 1985) (per curiam).

" Pro se complaints are to be held to less stringent standards than formal pleadings drafted by lawyers, and should therefore be liberally construed." Williams, 631 F.3d at 383 (internal quotation marks omitted). Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F.Appx. 608, 613 (6th Cir. 2011) ("[A] court cannot create a claim which [a plaintiff] has not spelled out in his pleading") (internal quotation marks omitted); Payne v. Sec'y of Treasury, 73 F.Appx. 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed.R.Civ.P. 8(a)(2) and stating, "[n]either this court nor the district court is required to create Payne's claim for her"); cf. Pliler v. Ford, 542 U.S. 225, 231 (2004) ("District judges have no obligation to act as counsel or paralegal to pro se litigants."); Young Bok Song v. Gipson, 423 F.Appx. 506, 510 (6th Cir. 2011) ("[W]e decline to affirmatively require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not only would that duty be overly burdensome, it would transform the courts from neutral arbiters of disputes into advocates for a particular party. While courts are properly charged with protecting the rights of all who come before it, that responsibility does not encompass advising litigants as to what legal theories they should pursue.")

B. FDCPA Claims

"Congress enacted the FDCPA in 1977 to eliminate abusive debt collection practices by debt collectors' and to insure that debt collectors who refrain from abusive practices are not competitively disadvantaged." McCabe v. Crawford & Co., 272 F.Supp.2d 736, 741 (N.D. Ill. 2003); 15 U.S.C. § 1692(e). The FDCPA forbids a debt collector from making a false representation of "the character, or legal status of any debt." 15 U.S.C. § 1692e(2)(A); see also Aronson v. Commercial Fin. Servs., Inc., No. Civ. A 96-2113, 1997 WL 1038818, at *4 (W.D. Pa. Dec. 22, 1997) (a debt collector's false statement made during a telephone conversation violates the § 1692e(2)(A) if it misrepresents the amount or character of a debt); Kimber v. Federal Fin. Corp., 668 F.Supp. 1480, 1488-89 (D. Ala. 1987) (debt collector violates § 1692e(2)(A) when it threatens to sue a consumer on a claim that the debt collector knows is barred by the applicable statute of limitations).

A prima facie FDCPA claim must allege facts showing: (1) the plaintiff is a natural person who is harmed by violations of the FDCPA, or is a "consumer" within the meaning of 15 U.S.C.A. §§ 1692a(3), 1692(d) for purposes of a cause of action, 15 U.S.C.A. § 1692c or 15 U.S.C.A. § 1692e(11); (2) the "debt" arises out of a transaction entered primarily for personal, family, or household purposes, 15 U.S.C.A. § 1692a(5); (3) the defendant collecting the debt is a "debt collector" within the meaning of 15 U.S.C.A. § 1692a(6); and (4) the defendant has violated, by act or omission, a provision of the FDCPA, 15 U.S.C.A. § 1692a-16920; 15 U.S.C.A. § 1692a; 15 U.S.C.A. § 1692k. Langley v. Chase ...

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