United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE
the Court is the United States Magistrate Judge's Report
and Recommendation that Plaintiff's pro se
Complaint (ECF No. 1) be dismissed pursuant to 28 U.S.C.
§ 1915 for failure to state a claim upon which relief
may be granted. (ECF No. 10.) United States Magistrate Judge
Charmiane G. Claxton submitted her Report and Recommendation
on January 31, 2019. (Id.) Plaintiff filed a
“Response to Defendants' Motion to Dismiss”
on February 14, 2019. (ECF No. 11.) The Court construes
Plaintiff's “Response” as her objections to
the Magistrate Judge's Report. Having reviewed the
Magistrate Judge's Report and Recommendation de
novo and the entire record of the proceedings, the Court
hereby ADOPTS the Report. Plaintiff's
Complaint is DISMISSED.
asserted the following causes of action: (1) that Ameriquest
Mortgage Securities, Inc. (“Ameriquest”), Ocwen
Loan Servicing (“Ocwen”), and Deutshce Bank
National Trust Co. (“Deutshce”) be ordered to
provide an account “for monies purportedly owed . . .
and payments made by Plaintiff (ECF No. 1 at 12-13); (2) that
Ameriquest, Ocwen, Duetshce, Jason Mangrum, Benjamin Perry,
and Heather Wright violated the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. §1692,
et seq. (EC No. 1 at 25); that
“Defendants” violated Tennessee Code Annotated
§ 62-20-102(3) and § 62-20-115(b)(5), which
Plaintiff refers to as the “Tennessee Fair Debt
Collection Practices Act, ” but which is officially
titled the Tennessee Collection Service Act
(“TCSA”); (4) that Defendants violated the
Tennessee Consumer Protection Act, Tennessee Code Annotated
§ 47-18-104 (“TCPA”); (5) that Ocwen,
Duetshce, and Ameriquest committed invasion of privacy by
illegally obtaining Plaintiff's consumer credit reports;
(6) that Ocwen, Duetshce, and Ameriquest violated 18 U.S.C.
§ 245; (7) that Ocwen, Duetshce, and Ameriquest violated
18 U.S.C. § 1983 by depriving Plaintiff of her rights
under Article 1, Sections 17 and 21 of the Tennessee
Constitution; (8) that Ocwen, Duetshce, and Ameriquest
violated 42 U.S.C. § 1985 by conspiring to interfere
with her civil rights; (9) that Ocwen, Duetshce, and
Ameriquest “induced and produced any and all contracts
they allege exist . . . through fraud, coercion,
misrepresentation, and non-disclosure”; and (10) that
Ocwen, Duetshce, and Ameriquest have committed grand larceny
against the estate.
regard to Plaintiff's FDCPA claims, Plaintiff only
conclusorily alleged that Ocwen, Ameriquest, and Deutsche
bank are debt collectors. Such a conclusory allegation is
insufficient. As to the attorney-Defendants, Plaintiff has
stated no facts to support the assertion that the attorneys
were “debt collectors” within the meaning of the
FDCPA. Further, Plaintiff failed to allege facts amounting to
acts or omissions prohibited by the FDCPA. Because Plaintiff
failed to plead facts necessary to support her FDCPA claim,
Magistrate Judge Claxton correctly concluded that Plaintiff
failed to state a claim upon which relief may be granted.
Plaintiff's accounting demand, the Court agrees with
Magistrate Judge Claxton's recommendation to construe
Plaintiff's request as substantially similar to a claim
seeking verification of debt under 15 U.S.C. § 1692g.
Plaintiff, however, fails to allege that she has not been
properly notified of her debts in accordance with the FDCPA.
Failure to allege improper notification warrants dismissal
for failing to state a claim upon which relief may be
regard to Plaintiff's allegations that Defendants
violated the TCSA, Magistrate Judge Claxton found that none
of the provisions Plaintiff cited give rise to a federal
cause of action against the named Defendants. The Court
agrees. Therefore, Plaintiff's TCSA claims must be
dismissed for Plaintiff's failure to state a claim upon
which relief may be granted.
Plaintiff alleges that Defendants violated the TCPA.
Magistrate Judge Claxton correctly reports that the statute
to which Plaintiff refers is inapplicable to claims against a
mortgage holder arising from a foreclosure. Further,
Plaintiff provided no facts supporting a claim for relief
under the TCPA as it pertains to the individual defendants.
Thus, Plaintiff's TCPA claims shall be dismissed because
Plaintiff failed to state a claim upon which relief may be
regard to Plaintiff's invasion of privacy claim, the
Court agrees with Magistrate Judge Claxton's reading of
Plaintiff's allegation in context of the entire
Complaint. Plaintiff's allegations that Defendants
unlawfully obtained her social security number and credit
reports are insufficient to support her claim in this
context. Because Plaintiff fails to adequately state a claim
for unreasonable intrusion upon the seclusion of another,
Plaintiff's invasion of privacy claim is dismissed.
the 18 U.S.C. § 245 claim, Magistrate Judge Claxton
correctly reported that Plaintiff's claim cannot survive,
as section 245 claims may only be brought by the government.
Because Plaintiff is a private party, Plaintiff's section
245 claim must be dismissed.
Court also agrees that Plaintiff's 42 U.S.C. § 1983
claim cannot survive. Because section 1983 claims cannot be
brought against private actors and Plaintiff has not
attributed any of the private actors' actions to the
state, Plaintiff's section 1983 claim shall be dismissed.
is also unable to proceed with her claim pursuant to 42
U.S.C. § 1985. While section 1985 claims can proceed
against a private actor-unlike section 1983 claims-who
deprives a person of her constitutional rights, such a
deprivation is not before the Court in this case. Plaintiff
fails to set forth any facts in her Complaint to support a
section 1985 claim. Therefore, the Court agrees with
Magistrate Judge Claxton that Plaintiff's section 1985
claim must be dismissed.
brings two contract claims. One claim is based on fraudulent
inducement and the other is based on Defendants' attempts
to enforce a contract to which Plaintiff was not a party. The
Court agrees with Magistrate Judge Claxton that
Plaintiff's own pleadings contradict her contract claims.
Therefore, Plaintiff does not state a contract claim upon
which relief may be granted.
also attempts to bring a criminal theft claim against
Defendants. As stated by Magistrate Judge Claxton,
“[C]riminal offenses may only be brought by a
prosecuting authority and contain no private right of
action.” (ECF No. 10 at 15.) Because Plaintiff is a
private party, her claim for grand larceny must be dismissed.
the Court agrees with Magistrate Judge Claxton as to
Plaintiff's various other unsubstantiated claims. Because
the Court finds no cognizable claims, the remaining portions
of Plaintiff's Complaint are also dismissed for