United States District Court, E.D. North Carolina, Western Division
ANDREW S. ROGERS, Plaintiff,
KEFFER, INC., d/b/a KEFFER CHRYSLER JEEP DODGE, SUNTRUST BANK, JPMORGAN CHASE BANK, NATIONAL ASSOCIATION d/b/a CHASE, EQUIFAX INFORMATION SERVICES, LLC, EXPERIAN INFORMATION SOLUTIONS, INC., and TRANS UNION, LLC, Defendants.
C. DEVWR Chief United States District Judge.
3, 2016, Andrew Stutfield Rogers ("Rogers" or
"plaintiff') filed this action in Wake County
Superior Court against Keffer, Inc., d/b/a Keffer Chrysler
Jeep Dodge ("Keffer"), SunTrust Bank
("SunTrust"), Elite Skippers, Inc., ("Elite
Skippers"), JPMorgan Chase Bank, National Association
d/b/a Chase ("Chase"), Equifax Information Services
LLC ("Equifax"), Experian Information Solutions,
Inc., ("Experian"), and Trans Union LLC
("Trans Union") (collectively,
"defendants") [D.E. 1-3]. OnJuly 13, 2016, Chase
removed the action to this court based on federal-question
jurisdiction [D.E. 1]. On August 12, 2016, Chase moved to
dismiss counts one, three, four, and six [D.E. 32] and filed
a memorandum in support [D.E. 33]. On August 12, 2016, Keffer
moved to dismiss counts one, two, three, and six [D.E. 35]
and filed a memorandum in support [D.E. 36]. On September 16,
2016, Rogers responded in opposition to Chase's motion to
dismiss [DiE. 43]. On September 30, 2016, Rogers responded in
opposition to Keffer's motion to dismiss [D.E. 45]. On
October 3, 2016, Chase replied [D.E. 46]. On October 20,
2016, Keffer replied [D.E. 47]. As explained below,
Chase's motion to dismiss is granted in part and denied
in part, and Keffer's motion to dismiss is granted in
part and denied in part.
is a resident of Wake County, North Carolina, whose identity
was stolen. See Compl. [D.E. 1-3] ¶¶ 30, 50-58,
79-82. Before November 30, 2015, Rogers's credit score
exceeded 800. Id. ¶¶ 50, 134. Keffer is a
North Carolina corporation with its principal place of
business in Charlotte, North Carolina, where it operates a
car dealership. Id. ¶¶ 4, 33. Chase is a
bank that operates throughout the United States, with
headquarters in Columbus, Ohio. Id. ¶¶
November 30, 2015, an unknown person claiming to be
"Andrew L. Rogers" ("the identity thief)
entered Keffer's car dealership and sought to purchase a
2015 Dodge Challenger. Id. ¶¶ 50-52. The
identity thief used Rogers's social security number, his
date of birth, and a driver's license for an "Andrew
Leon Rogers" who resided at "239 Sunset Drive, Rock
Hill, South Carolina, 29730." IcL ¶¶ 53-56. No
such address exists. IcL ¶ 57. Rogers has not lived in
South Carolina since 1992 and has never resided in Rock Hill,
South Carolina. Id. ¶¶ 72-73.
identity thief presented this false information to
Keffer's employees, who did not verify its authenticity
before using Rogers's social security number to access
his credit report from Equifax, Experian, or Trans Union
("the credit reporting agencies" or "the
CRAs"). Id. ¶¶ 58-60. Keffer does not
require purchasers to show a valid social security card
before Keffer requests a credit report. Id. ¶
66. At least one CRA "failed to properly verify
the identity of the consumer on whose behalf the report was
purportedly requested" and to verify that the report had
been requested for a proper purpose. Id. ¶ 64.
disclosed the contents of Rogers's credit reports to the
identity thief. Id. ¶ 68. Keffer then used the
social security number the identity thief had provided to
initiate six hard inquiries into Rogers's credit report.
Id. ¶ 69. Having obtained Rogers's credit
information, Keffer then assisted the identity thief in
obtaining a car loan with Chase. Id. ¶¶
70-71. Rogers already had an account with Chase. Id.
at ¶ 75. Chase extended a $27, 995.00 car loan based on
the loan application the identity thief and Keffer submitted.
Id. ¶ 76. Chase did not speak to Rogers before
extending the loan "and unilaterally changed
[Rogers's] street address in its own system."
Id.¶75. Chase reported the loan to the CRAs.
December 10, 2015, the identity thief returned to Keffer to
obtain a second car, a 2012 Chrysler 300. Id.
¶¶ 79-80. The identity thief used the same false
information he had used to obtain the 2015 Dodge Challenger
Id. ¶ 81. Keffer initiated multiple hard
inquiries against Rogers's credit report and assisted the
identity thief in securing a car loan with SunTrust for $29,
928.99. Id. ¶ 84.
alleges that Keffer failed to conduct a reasonable
investigation into the identity of the person seeking a car
loan and failed to notice or properly respond to
inconsistencies in the identity thief s information: that the
identity thief used a different middle name; that the
identity thief used a non-existent home address; that the
identity thief s loan application to SunTrust contained
numerous inconsistencies with Rogers's credit report;
that the loan application listed a non-operational phone
number for "Access to Healthcare"; that the
identity thief s loan application did not include an email
address, driver's license number, or the issuing state of
a driver's license; that the identity thief did not show
a social security card; and that the loan application was
"so shockingly bare and lacking in supporting
documentation that no reasonable person could conclude that
the application was a sufficient basis on which to loan $28,
000.00." Id. ¶ 85.
December 30, 2015, Rogers received an email from Chase about
Rogers's new car loan. Id. ¶ 88. Rogers
then realized that someone obtained a fraudulent loan in his
name. Rogers initiated a fraud alert, set a security freeze
with the CRAs, and filed a police report with the
Charlotte-Mecklenburg Police Department. Id.
¶¶ 89-92. Rogers also notified Chase that he had
not requested or authorized the loan and that his identity
had been stolen. Id. ¶ 93. Rogers continued to
notify Chase via at least seven phone calls between January
11 and January 28, 2016. Id. ¶ 94. Rogers
"spent hours on hold being bounced around between
various departments within" Chase's phone system,
"losing precious working and leisure hours."
Id. ¶ 95. Rogers also sent Chase letters and
emails on unspecified dates. Id. ¶ 96. Chase,
however, did not correct the information Chase had reported
to the CRAs about the loan and continued to report to the
CRAs that the loan was Rogers's. Id.
January 14, 2016, Rogers learned from Keffer employee Mike
Streng ("Streng") that a second loan had been taken
out in his name. Id. ¶¶ 99-101, 104.
During this conversation, Rogers told Streng that he would
ask a detective from the Charlotte-Mecklenburg Police
Department about the second loan, to which Streng replied:
Yeah, but, but, do this just, just to protect me, cause
I'm, cause right now he's working very closely with
me [pause] to try to get this figured out, just tell him, you
know, you got a contact from SunTrust or something and now
you found out there's a second one.
Id. ¶ 102 (alteration in original).
Streng's reply "caused [Rogers] increased stress,
anxiety, and fear, as it caused [Rogers] to question the
integrity of... Keffer, who had [Rogers's] sensitive
personal information at its mercy." Id. ¶
January 19, 2016, Rogers contacted SunTrust about the loan
issued in his name. Id. ¶ 109. Although Rogers
repeatedly contacted SunTrust and "spent hours on
hold" trying to resolve the issue, "again losing
precious working and leisure hours, " "SunTrust
continues to report the loan to [the] CRAs."
Id. ¶¶ 111-13.
letter dated January 25, 2016, and mailed to Rogers, Chase
demanded that Rogers pay $407.40. Id. ¶¶
154-56. By letter dated January 28, 2016, and mailed to
Rogers, Chase demanded that Rogers pay $413.40. Id.
On April 22, 2016, at 9:02 am, Rogers received a voicemail
Andrew Rogers give me a call back as soon as possible this is
investigator Doug Smith, I am doing the investigation in
reference to a case that you have been accused of, please
return call back at 7062213446, ... I really need to talk to
you, uh, as soon as possible. Thank you.
Id. ¶¶ 115-17. Also on April 22, 2016, at
9:11 am and 9:14 am, Rogers received identical text messages
saying "Call the investigator smith' asap 7062213446
on missing vehicle you have been accused we are needing
location immediately." Id. ¶ 118. Rogers
spoke to Doug Smith ("Smith") later that day.
Id. ¶¶ 119-20. During the conversation the
following exchange occurred:
[Rogers]: What is your association with the dealership?
[Smith]: OK. They hire us as to locate your whereabouts in
reference to the property that they have been trying to
[Smith]: . . . umm, such as we, such as like bounty hunters,
or, or the third party company that is essentially trying to
retrieve the property for them.
Id. ¶ 120 (alterations in original). Smith
never stated that he worked for a "debt collector"
or that he was trying to collect a "debt."
Id. ¶ 121. Also on April 22, 2016, Rogers
called Keffer and spoke with Keith Carpenter and asked
whether Keffer had hired Smith. Id. ¶¶
123-25. Carpenter confirmed that Keffer had hired a recovery
company, Elite Skippers, to try and recover the vehicles that
the identity thief had fraudulently purchased. Id.
¶ 125. Rogers's contacts with Elite Skippers ...