United States District Court, D. Delaware
J.V. HAMER, Plaintiff,
NAVIENT CORPORATION, Defendant.
Hamer, Paoli, Pennsylvania; Pro Se Plaintiff.
Eileen Polesky, Esquire, Stradley Ronon Stevens & Young,
LLP, Wilmington, Delaware, Counsel for Defendant.
ANDREWS U.S DISTRICT JUDGE.
J. V. Hamer, who appears pro se, filed this action
In October 2017, in the Justice of the Peace Court of the
State of Delaware in and for New Castle County. Defendant
Navient Corporation removed the matter to this Court on
February 5, 2018. (D.I. 1). The Court has jurisdiction
pursuant to 28 U.S.C. § 1332. Pending is Defendant's
motion to dismiss and Plaintiff's opposition. (D.I. 3, 4,
7). The matter has been fully briefed. For the reasons
discussed below, the Court will grant Defendant's motion.
Plaintiff will be given leave to file an amended complaint.
action concerns five federally guaranteed student loans
Plaintiff secured from Sallie Mae Corporation, the
predecessor of Defendant. The loan process began when
Plaintiff was 17 and continued while he pursued his
education. (D.I. 1-1 at¶ 10). Plaintiff alleges he was
told by Sallie Mae representatives that following his
graduation, his loans would be forgiven after five years of
qualified public service such as a career in education,
military service, or other public service. (Id. at
¶ 11). Plaintiff's great-aunt is a co-signer for one
of the loans. (Id. at ¶ 16). Plaintiff
began repaying his loans on January 7, 2005. (Id. at
¶ 12). He alleges that despite repeated demands,
Defendant did not reveal to him how, and in what manner, the
payments were applied to his loans. (Id.)
2006, Plaintiff enrolled in a master's degree program and
requested forbearance while he completed the program.
(Id. at ¶ 13). He alleges that notwithstanding
the forbearance agreement, Defendant incessantly telephoned
him day, night, and weekends demanding payment even though he
was enrolled in a duly recognized program at a duly
recognized institution of higher learning. (Id.).
Following completion of the master's degree, Plaintiff
resumed payments on the five loans beginning October 15,
2007. (Id. at¶ 14).
about April 30, 2014, Sallie Mae "spun off its loan
servicing operation and most of its loan portfolio into a
separate publicly traded company called Navient."
(Id. at ¶ 7). On or about October 13, 2014,
Sallie Mae assigned all its federal loans to Navient for
servicing and collection. (Id. at ¶ 15).
is currently pursuing a Doctor of Education and is in the
process of researching and writing his thesis. (Id.
at¶ 17). He alleges that "Navient's
recalcitrance and unlawful behavior has continued to cause
[him] problems at his home and at his place of
business." (Id.). Plaintiff alleges that, since
2005, he has repaid over $30, 000, but has not been given
credit for his payments. (Id. at ¶ 18).
Plaintiff alleges that Defendant reported to all three major
credit bureaus that he is delinquent and in arrears in loan
payments while he has attempted in good faith to work out a
payment plan with Defendant. (Id. at ¶ 19).
Plaintiff alleges that during the week of September 11, 2017,
Defendant repeatedly telephoned the office where he is
employed and "left untoward and threatening
messages" in violation of the Fair Debt Collection
Practices Act ("FDCPA"). (Id. at ¶
relief Plaintiff asks the Court to: (1) enjoin Defendant from
calling his great-aunt; (2) order Defendant to provide
Plaintiff a complete accounting; (3) enjoin Defendant from
falsely reporting to the various credit bureaus that
Plaintiff is delinquent; (4) adjudicate as satisfied all
loans between Plaintiff and Defendant; (5) enter declaratory
judgment that Defendant has consistently violated the FDCPA;
and (6) enjoin Defendant from future violations.
(Id. at ¶¶ 21-25). In addition, he seeks
any and all other damages. (Id. at ¶ 26).
moves for dismissal with prejudice pursuant to Rule 12(b)(6).
(D.I. 4). Plaintiff opposes and, in the alternative, contends
that "in the interest of justice and fundamental
fairness," he should be afforded leave to amend or an
opportunity to retain counsel. (D.I. 7atp.3).
reviewing a motion filed under Fed.R.Civ.P. 12(b)(6), the
court must accept all factual allegations in a complaint as
true and take them in the light most favorable to plaintiff.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Because Plaintiff proceeds pro se, his pleading is
liberally construed and his complaint, "however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers."
Erickson, 551 U.S. at 94. A Rule 12(b)(6) motion
maybe granted only if, accepting the well-pleaded allegations
in the complaint as true and viewing them in the light most
favorable to the complainant, a court concludes that those
allegations "could not raise a claim of entitlement to
relief." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 558 (2007).
'detailed factual allegations' are not required, a
complaint must do more than simply provide 'labels and
conclusions' or 'a formulaic recitation of the
elements of a cause of action.'" Davis v.
Abington Mem'l Hosp.,765 F.3d 236, 241 (3d Cir.
2014) (quoting Twombly, 550 U.S. at 555). I am
"not required to credit bald assertions or legal
conclusions improperly alleged in the complaint." In
re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d
198, 216 (3d Cir. 2002). A complaint may not be dismissed,
however, "for ...