Ware v. Bank of America Corp.

9 F. Supp. 3d 1329, 2014 U.S. Dist. LEXIS 46275, 2014 WL 1302605
CourtDistrict Court, N.D. Georgia
DecidedJanuary 8, 2014
DocketCivil Action No. 1:13-CV-1647-CC
StatusPublished
Cited by12 cases

This text of 9 F. Supp. 3d 1329 (Ware v. Bank of America Corp.) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ware v. Bank of America Corp., 9 F. Supp. 3d 1329, 2014 U.S. Dist. LEXIS 46275, 2014 WL 1302605 (N.D. Ga. 2014).

Opinion

ORDER

CLARENCE COOPER, Senior District Judge.

This matter is before the Court on the Final Report and Recommendation [Doc. No. 15] issued by Magistrate Judge Gerri-lyn G. Brill on December 4, 2013. Magistrate Judge Brill recommends that the Court grant Defendant Bank of America’s Motion for Summary Judgment [Doc. No. 6]. The record reflects that no objections to the Final Report and Recommendation have been filed and that the time for filing objections has elapsed.

After carefully reviewing the Final Report and Recommendation for plain error in accordance with United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.1983), the Court finds that the Final Report and Recommendation is correct both in fact and in law. Accordingly, the Court ADOPTS the Final Report and Recommendation as the opinion of this Court and GRANTS Defendant Bank of America’s Motion for Summary Judgment [Doc. No. 6].

FINAL REPORT AND RECOMMENDATION

GERRILYN E. BRILL, United States Magistrate Judge.

The above-styled matter is before the Court on the motion for summary judgment filed by Defendant Bank of America Corporation (“Defendant”).1 Plaintiff Re[1332]*1332ginald B. Ware (“Plaintiff’) is proceeding in this matter pro se. For the reasons stated below, I RECOMMEND that Defendant’s motion for summary judgment [Doc. 6] be GRANTED.

I. BACKGROUND

On May 15, 2013, Plaintiff filed a pro se complaint in this court alleging claims for damages and injunctive relief pursuant to the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681. [Doc. 1, Compl., at 1],

Plaintiffs complaint alleges that Defendant has repeatedly violated the FDCPA by attempting to collect on a debt allegedly owed by the Plaintiff, and by failing to validate the debt in accordance with the FDCPA. [Compl. at 4-5]. Plaintiff alleges that he reviewed his credit report on May 4, 2012 and discovered a delinquent account. He alleges that he disputed the account with “the credit agencies” Equifax, Experian and Trans Union. [Id. at 6]. Plaintiff asserts that he also mailed a debt validation letter dated September 10, 2012 to Defendant, but Defendant refused to comply with the demands that he made in his letter, including the demands that Defendant mail Plaintiff a signed copy of his original contract, and a signed copy of the original application between Plaintiff and Defendant in reference to the alleged debt. [Id. at 5-6]. Plaintiff denies ever opening a credit account with Defendant Bank of America, and asserts that he spoke to several bank representatives about removing the erroneous account.

With regard to Plaintiffs claim under the FCRA, Plaintiff alleges that Defendant repeatedly violated the FCRA by reporting (and continuing to report) on Plaintiffs credit bureau report from January 2010 until the present day that Plaintiff is delinquent on a debt. [Id.]. Plaintiff alleges that in or around January 2013, Defendant mailed a 2012 1099-C cancellation of debt form to Plaintiff, purportedly informing him that Defendant had charged off the alleged debt to the Internal Revenue Service (“IRS”) in the amount of $26,845.57 as of December 31, 2012. [Id. at 7; Doc. 1 at 16, Pl.’s Ex. 7]. Plaintiff states that when he obtained a copy of his credit bureau report on February 17, 2013 and again on April 15, 2013, the reports continued to show a debt balance of “$26,845.” [Compl. at 7,13-14].

Based on the 1099-C cancellation of debt form that he received, Plaintiff alleges that Defendant is attempting to collect on a non-existent debt twice, once from the IRS and also from the Plaintiff. Plaintiff further alleges that he called Defendant on May 13, 2013 and spoke to one of its representatives, Trent Machalette, who told Plaintiff that the account was charged off to the IRS, but that Plaintiff still owed the balance to Defendant and Defendant is actively attempting to collect the debt. [Id. at 7].

[1333]*1333II. SUMMARY JUDGMENT STANDARD

Summary judgment is proper when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party has the initial burden of showing the court, by reference to materials on file, the basis for the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, the nature of the mov-ant’s initial burden “varies depending on whether the legal issues, as to which the facts in question pertain, are ones on which the movant or the non-movant would bear the burden of proof at trial.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). If the movant bears the burden of proof at trial, that party “must show that, on all the essential elements of its case, ... no reasonable jury could find for the non-moving party.” United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir.1991)(en banc). “Only when that burden has been met does the burden shift to the nonmoving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991).

Where the movant bears the burden of proof at trial, the non-movant may avoid summary judgment only by coming forward with evidence sufficient to withstand a motion for directed verdict at trial. Fitzpatrick, 2 F.3d at 1116. The nonmov-ant is required “to go beyond the pleadings” and to present competent evidence in the form of affidavits, answers to interrogatories, depositions, admissions and the like, designating “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324, 106 S.Ct. 2548. See Fed.R.Civ.P. 56(e). “Mere conclusions and unsupported factual allegations are legally insufficient to create a dispute to defeat summary judgment.” Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir.1989). Resolving all doubts in favor of the nonmoving party, the court must determine “whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. APPLICABLE FEDERAL AND LOCAL RULES

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Bluebook (online)
9 F. Supp. 3d 1329, 2014 U.S. Dist. LEXIS 46275, 2014 WL 1302605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ware-v-bank-of-america-corp-gand-2014.