Zickafoose v. Upstart Network, Inc

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ISRAEL MALACHI ZICKAFOOSE,

Plaintiff,

v. Case No. 8:25-cv-1280-AAS

UPSTART NETWORK, INC; DAVE

GIROUARD; FMA ALLIANCE, LTD,

Defendants.

_____________________________________/

ORDER

Defendant Upstart Network Inc., (Upstart) moves to dismiss the

Plaintiff Israel Malachi Zickafoose’s amended complaint (Doc. 48). Mr.

Zickafoose opposes the motion. (Doc. 49). On September 19, 2025, the case was

stayed pending the resolution of Upstart’s motion to dismiss. (Doc. 54). David

Girouard was terminated as a party on October 4, 2025, and the amended

complaint does not assert any claims against Mr. Girouard. (Doc. 47).

I. BACKGROUND

On August 4, 2025, Mr. Zickafoose filed an amended complaint against

Upstart. (Doc. 47). The complaint alleges Upstart committed willful violations

of the Fair Debt Collection Practices Act (FDCPA), the Fair Credit Reporting

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Act (FCRA), the Uniform Commercial Code (UCC), breach of contract,

fraudulent misrepresentation, and invasion of privacy. (Doc. 47, p. 1).

These allegations stem from a written agreement for an unsecured

$10,000 personal loan that Mr. Zickafoose obtained through Upstart’s digital

lending platform. (Doc. 47-1, p. 8). The parties agree that the loan proceeds

were disbursed to Mr. Zickafoose’s account. (Doc. 47, p. 3). The central dispute

underlying the claims is whether Mr. Zickafoose discharged his liability under

the loan by “affix[ing] a qualified indorsement, clearly stating ‘W/O Recourse’

above his autograph signature.” (Doc. 47, p. 2). Mr. Zickafoose contends that

his indorsement created a counteroffer, which Upstart accepted by disbursing

the loan proceeds. (Doc. 47, p. 3). Based on his position that a new contract was

created in which Mr. Zickafoose owed no legal obligation to repay, he argues

Upstart committed various violations by attempting to collect on the debt.

Upstart contends that each of Mr. Zickafoose’s claims fails and moves to

dismiss Mr. Zickafoose’s complaint with prejudice. (Doc. 48, p. 2). It contends

the “lawsuit is dependent upon the profoundly flawed vapor money theory” and

that “[t]here is no set of facts that Plaintiff can allege to avoid the debt he

contractually bargained for.” (Doc. 48, p. 2).

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II. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a) requires that a pleading contain “a

short and plain statement of the claim showing that the pleader is entitled to

relief.” A complaint may be attacked—and dismissed—for “failure to state a

claim upon which relief can be granted.” In reviewing a 12(b)(6) motion to

dismiss, a court applies the plausibility standard set forth in Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662

(2009). “To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on

its face.’” Iqbal, 556 U.S. at 679. “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id.

When deciding a Rule 12(b)(6) motion to dismiss for failure to state a

claim, review is generally limited to the four corners of the complaint. When

reviewing a complaint for facial sufficiency, a court “must accept [a] [p]laintiff’s

well pleaded facts as true and construe the [c]omplaint in the light most

favorable to the [p]laintiff.” Rickman v. Precisionaire, Inc., 902 F. Supp. 232,

233 (M.D. Fla. 1995) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Pro

se plaintiff’s complaints are liberally construed, but the court will not “serve as

de facto counsel” or “rewrite an otherwise deficient pleading.” Albert v. Discover

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Bank, No. 24-10224, 2025 WL 1514052 (11th Cir. May 28, 2025) (citing

Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168–69 (11th Cir. 2014).

III. ANALYSIS

The widely rejected “vapor money” theory underlies Mr. Zickafoose’s

claims. The vapor money theory “derives from the sovereign citizen

movement.” Price v. Lakeview Loan Servicing, LLC, No.

219CV655FTM29MRM, 2021 WL 1610097 at *3 (M.D. Fla. Apr. 26,

2021), aff’d, No. 21-11806, 2022 WL 896816 (11th Cir. Mar. 28, 2022). “The

essence of the ‘vapor money’ theory is that the promissory notes (and

similar instruments) are the equivalent of ‘money’ that citizens literally

‘create’ with their signatures.” Id. at *4 (citation omitted). Federal courts

across the country have held “[t]he ‘vapor money’ theory of recovery is patently

frivolous no matter how disguised under a legitimate cause of action.” Adams

v. Partners, No. 24-CV-943-PP, 2025 WL 101615 at *5 (E.D. Wis. Jan. 15, 2025)

(citation omitted); see e.g., Price 2022 WL 896816 at *3 (supporting that claims

founded on the vapor money theory are nonsensical, fundamentally

misunderstand how negotiable instruments work, and are routinely dismissed

by federal courts as frivolous). The complaint could be dismissed simply

because it is predicated on the “patently frivolous” vapor money theory.

Nevertheless, this order will address whether each of Mr. Zickafoose’s

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individual claims state a claim for relief.

A. Count I – Violation of the Fair Debt Collection Practices Act

In Count I, Mr. Zickafoose alleges Upstart committed four violations of

the FDCPA. Upstart argues Count I should be dismissed because the FDCPA

applies to “debt collectors” and Upstart is not a “debt collector” under the

meaning of the FDCPA. (Doc. 48, p. 13). In response, Mr. Zickafoose argues

that Upstart is a debt collector because Upstart “repeatedly engaged in post-

dispute collection efforts, [and] the record itself proves that [Upstart] is a debt

collector under the statute.” (Doc. 49).

As a threshold matter, for Count I to state a claim of relief that is

plausible on its face, the FDCPA must be applicable to Upstart. The parties

both agree the FDCPA applies to debt collectors. The parties disagree on the

meaning of “debt collector,” specifically whether Upstart qualifies as a debt

collector under the FDCPA. It is Mr. Zickafoose’s burden to allege facts

plausibly establishing that Upstart qualifies as a debt collector. See Darrisaw

v. Penn. Higher Educ. Assistance Agency, 949 F.3d 1302, 1308 (11th Cir. 2020)

(finding it was the plaintiff’s burden to allege facts plausibly establishing that

the defendant qualified as a debt collector).

“Whether a party is an FDCPA debt collector is governed by the statutory

definition, not by any self-identification by the party.” Maddox v. Aldridge Pite,

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LLP, No. 23-12853, 2024 WL 1475463 at *2 (11th Cir. 2024). The FDCPA gives

a special definition to “debt collector.” The primary definition of a debt collector

is “any person who uses any instrumentality of interstate commerce or the

mails in any business the principal purpose of which is the collection of any

debts, or who regularly collects or attempts to collect, directly or indirectly,

debts owed or due or asserted to be owed or due another.” 15 U.S.C.

§ 1692(a)(6). The FDCPA further defines “debt collector stating:

the term does not include: (F) any person collecting or attempting

to collect any debt owed or due or asserted to be owed or due

another to the extent such activity (i) is incidental to a bona fide

fiduciary obligation or a bona fide escrow arrangement; (ii)

concerns a debt which was originated by such person; (iii) concerns

a debt which was not in default at the time it was obtained by such

person; or (iv) concerns a debt obtained by such person as a secured

party in a commercial credit transaction involving the creditor.

15 U.S.C. § 1692(a)(6)(f).

Mr. Zickafoose fails to state a claim under Count I because Upstart is not

a “debt collector” under the FDCPA. The record reveals Upstart is the loan

servicer and has been since the loan’s inception. (Docs. 47-1, pp. 8, 11, 12; 48,

p. 3). Cross River Bank made the loan through Upstart’s digital lending

platform. (Docs. 47-1, p. 8; 48, p. 3). A loan servicer is not a debt collector if

the debt was not in default at the time the entity became the servicer. See

Mathieson v. Wells Fargo Bank, N.A., No. 8:20-CV-2728-WFJ-SPF, 2021 WL

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4078140 at *7 (M.D. Fla. Sept. 8, 2021) (stating, “It is well-settled law that if

[the entity] was servicing the loan before the . . . default . . . [the entity] was

not a “debt collector” at that time”); Fenello v. Bank of Am., NA, 577 F. App’x

899, 902 (11th Cir. 2014) (affirming the district court’s conclusion that an

entity was not a debt collector because its debt collection activities involved a

debt that was not in default at the time it became the servicer).

Despite Mr. Zickafoose’s argument he “expressly alleges Upstart is

acting within the FDCPA’s scope,” (Doc. 49, p. 5) Mr. Zickafoose has not met

his burden to allege facts plausibly establishing that Upstart qualifies as a

debt collector under the FDCPA. See Iqbal, 556 U.S. at 679 (“Although for the

purposes of a motion to dismiss we must take all of the factual allegations in

the complaint as true, we “are not bound to accept as true a legal conclusion

couched as a factual allegation”) (quotation and citation omitted). Therefore,

the allegations in Count I do not state a claim under the FDCPA. Count I is

DISMISSED.

B. Count II – Violation of Fair Credit Reporting Act

In Count II, Mr. Zickafoose alleges Upstart violated 15 U.S.C. Section

1681s-2(b) of the FCRA. (Doc. 47). Mr. Zickafoose contends that Upstart

violated Section 1681s-2b “by continuing to furnish information about an

unvalidated and legally disputed debt to . . . credit reporting agencies, even

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after [Mr. Zickafoose’s] lawful demand for validation” and after any obligation

under the contract was extinguished. (Doc. 47, p. 10). Mr. Zickafoose also

alleges that, despite actual knowledge of the dispute, Upstart failed to conduct

a reasonable investigation and continued to furnish the disputed credit

information in violation of the FCRA. (Doc. 47, p. 11). Upstart argues the claim

requires dismissal because Mr. Zickafoose failed to allege a required element

to state a claim under Section 1681s-2b. (Doc. 48).

Under Section 1681s-2a, the FCRA prohibits furnishers of credit

information from providing false information. 15 U.S.C. § 1681s-2a; Peart v.

Shippie, 345 F. App’x 384, 386 (11th Cir. 2009). However, Section 1681s-2a

explicitly bars private suits for an alleged violation. 15 U.S.C. §1681s-2d; Peart

345 F. App’x at 386. Therefore, Mr. Zickafoose cannot state a claim under

Section 1681s-2a.

The FCRA permits a private right of action under Section 1681s-2b. Id.

This Section requires furnishers of credit information to investigate the

accuracy of the furnished information upon receiving notice of dispute “from a

consumer reporting agency.” Peart 345 F. App’x at 386 (citing 15 U.S.C.

§ 1681s-2(b)(1) (emphasis added); see also Hunt v. JPMorgan Chase Bank,

Nat’l. Ass’n, 770 F. App’x 452, 457 (11th Cir. 2019) (finding the plaintiff failed

to state an FCRA claim “because he never alleged . . . [the furnisher] received

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notification from the [credit reporting agency] of such a dispute”).1 Thus, after

a furnisher’s responsibilities are triggered “[u]nder 15 U.S.C. § 1681s-2b,

Plaintiff must allege that the defendants failed to: (1) conduct an investigation

regarding the disputed information; or (2) review all relevant information the

consumer reporting agency (CRA) provided pursuant to § 1681i(a)(2) of the

FCRA; or (3) report the results of the investigation to the CRA; or (4) modify,

delete, or permanently block the reporting of an item of information that was

disputed by a consumer but was inaccurate, incomplete, or unverifiable after

any reinvestigation.” Okereke v. Experian Info. Sols., Inc., No. 8:18-CV-1347-

T-24-AAS, 2018 WL 5631047 at *2 (M.D. Fla. Oct. 31, 2018) (citation omitted).

In Count II, Mr. Zickafoose first alleges Upstart “violated [Section 1681s-

2(b)] by continuing to furnish information about an unvalidated and legally

disputed debt to one or more credit reporting agencies.” (Doc. 47, p. 10). Even

accepting the statement as true and in the light most favorable to Mr.

Zickafoose, this allegation does not state a cause of action under Section 1681s-

2b. The FCRA prohibition on furnishers providing false information to credit

agencies does not permit a private right of action. Further, Mr. Zickafoose does

1 Specifically, to trigger a furnisher's responsibilities under 15 U.S.C. § 1681s-2(b),

the furnisher must have received notice of a consumer's dispute from a CRA.

Boateng v. Equifax Info. Servs., LLC, No. 1:22-CV-3396-VMC-CCB, 2024 U.S. Dist.

LEXIS 10080 at *8 (N.D. Ga. Jan. 18, 2024).

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not allege Upstart received notice of a consumer’s dispute from a CRA to

trigger Upstart’s responsibilities as furnisher under Section 1681s-2b.

Mr. Zickafoose also alleges “[d]espite actual knowledge of the dispute,

Upstart failed to conduct a reasonable investigation.” (Doc. 47, p. 11). Again,

Mr. Zickafoose does not allege Upstart received notice of a consumer’s dispute

from a CRA. Mr. Zickafoose only alleges Upstart received notice from himself,

which does not trigger a furnisher’s responsibility to conduct a reasonable

investigation. Therefore, the allegations in Count II do not state a claim under

15 U.S.C. § 1681. Count II is DISMISSED.

C. Count III – Breach of Contract

In Count III, Mr. Zickafoose alleges Upstart committed a “willful and

material breach of contract by disregarding the lawful terms under which

Plaintiff accepted and executed the loan agreement.” (Doc. 47, p. 11). Mr.

Zickafoose’s main contention is that he modified Upstart’s offer, thereby

creating a counteroffer, to enter into a loan agreement by signing the loan

agreement with the words “W/O Recourse.” (Doc. 47, p. 11). Mr. Zickafoose

claims that because the counteroffer was not rejected within a commercially

reasonable time, the counteroffer “without recourse” was accepted by Upstart

under UCC Sections 3-501(b)(2) and 3-603(a).

Upstart contends no alternative contract was created by writing the

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words “W/O Recourse” on the note, and the claim fails because it is based on

the discredited “vapor money theory.” (Doc. 48, p. 16). Mr. Zickafoose replies

denying the vapor money theory accusation and insisting “a qualified

endorsement was used to make a counter-offer, and [Upstart] accepted it by its

conduct by disbursing funds.” (Doc. 49, p. 3) He claims Upstart is in breach of

contract for attempting to collect on the disbursed funds. (Doc. 49, p. 3)

First, Mr. Zickafoose cannot state a claim for violating the UCC because

“[t]he UCC, itself, is not the law of any state, nor is it federal law. In order to

support a cause of action, a plaintiff must rely on a state’s codification of

the UCC.” Cumberbatch v. Capital One, No. 8:25-CV-1703-TPB-CPT, 2025 WL

2373924 at *3 (M.D. Fla. Aug. 15, 2025) (citation omitted) (dismissing UCC

claims to the extent they are asserted as independent claims for relief).

Relatedly, Mr. Zickafoose’s claims hinge on the argument that because

he indorsed the note without recourse, he is not liable for the loan proceeds. It

appears Mr. Zickafoose relies on UCC § 3-415(b). See Doc. 49, p. 3 (Mr.

Zickafoose stating, “a qualified indorsement was used to make a counter-offer,

. . . the acceptance by conduct made the conditional terms binding . . . ignorance

of the governing statutes is no excuse for breaking them”). Section 3-415(b)

states “If an indorsement states that it is made "without recourse" or otherwise

disclaims liability of the indorser, the indorser is not liable under subsection

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(a) to pay the instrument.” However, Mr. Zickafoose is not an indorser and did

not make an indorsement. An indorser “means a person who makes an

indorsement.” UCC § 3-204(b). An indorsement means “means a signature,

other than that of a signer as maker, drawer , or acceptor . . .” UCC § 3-204(a).

Mr. Zickafoose is a “maker,” because a maker is defined as “a person who signs

or is identified in a note as a person undertaking to pay.” UCC § 3-103(7); see

Doc. 47-1, p. 8, 17 (showing Mr. Zickafoose’s signature on the note that states

“I promise to pay . . . the principal sum . . . with interest”). Therefore, Mr.

Zickafoose did not modify the contract in a manner permitted under the UCC

and cannot state a claim for breach under the UCC.

Second, to state a claim for breach of contract, “Florida law requires the

plaintiff to plead and establish (1) the existence of a contract; (2) a material

breach of that contract; and (3) damages resulting from the breach." Marchisio

v. Carrington Mortgage Services, LLC, 919 F.3d 1288, 1313 (11th Cir. 2019)

(citation omitted). The necessary elements of a valid contract are an offer,

acceptance, and consideration. Britt Green Trucking, Inc. v. FedEx Nat. LTL,

Inc., 511 F. App’x 848, 851 (11th Cir. 2013).

Mr. Zickafoose’s breach of contract claim lacks legal merit because he

asserts a variation of the “vapor money theory” disguised as a breach of

contract claim. Relying on a misunderstanding of how negotiable instruments

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work, Mr. Zickafoose accepted the proceeds of the loan and claims he owes no

obligation because he indorsed without recourse. Besides the note itself not

including the term “without recourse,”2 Mr. Zickafoose cannot accept the

benefits of a loan and reject the obligations by relying on inapplicable UCC

provisions. See Price 2021 WL 1610097 at *3 (finding the amended complaint

“utterly frivolous and lack[ing] any legal foundation because Plaintiff’s

arguments mirror other litigant's attempts to disavow legal obligations based

on the vapor money theory).

Mr. Zickafoose’s claims are an iteration of the vapor money theory. In

attempting to discharge liability through various UCC provisions, Mr.

Zickafoose’s argument is the functional equivalent of attempting to create

money by signing “W/O Recourse” to pay off the loan. See e.g., Price 2021 WL

1610097 at *4 (rejecting, based on the vapor money theory, the plaintiff’s

attempt to discharge liability through a self-executed credit agreement he

presented to the defendant); Demmler v. Bank One NA, No. 2:05-CV-322, 2006

WL 640499 at *4 (S.D. Ohio Mar. 9, 2006) (rejecting the assertion that when

the plaintiff returned the promissory note to the bank he gave back the money

2 The loan agreement, attached as Exhibit 1 of the amended complaint, does not

reflect Mr. Zickafoose’s claim that he signed the note “W/O Recourse.” The language

“without recourse” does not appear anywhere in the note or signature boxes. See Doc.

47-1.

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and discharged his debt). Thus, Mr. Zickafoose's breach of contract claim lacks

legal merit because it is an iteration of the rejected vapor money theory.

Therefore, he cannot allege the existence of an alternative contract nor state a

claim for breach of contract. Count III is DISMISSED.

D. Count IV – Fraudulent Misrepresentation

In Count IV, Mr. Zickafoose alleges Upstart “is liable for fraudulent

misrepresentation by knowingly and willfully asserting that [Mr. Zickafoose]

remained personally liable on a debt obligation.” (Doc. 47, p. 12). Upstart

asserts the claim is meritless. (Doc. 48, p. 17).

Under Florida law, there are four elements to state a claim for fraudulent

misrepresentation: “(1) a false statement concerning a material fact; (2) the

representor's knowledge that the representation is false; (3) an intention that

the representation induce another to act on it; and (4) consequent injury by the

party acting in reliance on the representation.” Butler v. Yusem, 44 So. 3d 102,

106 (Fla. 2010) (citation and quotation omitted).

Mr. Zickafoose does not state a claim for fraudulent misrepresentation.

First, Mr. Zickafoose does not sufficiently allege Upstart made a false

statement concerning a material fact because, as stated above, Mr. Zickafoose

did not discharge the debt through inapplicable UCC provisions. See Iqbal, 556

U.S. at 679 (“Although for the purposes of a motion to dismiss we must take

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all of the factual allegations in the complaint as true, we ‘are not bound

to accept as true a legal conclusion couched as a factual allegation’”)

(quotation and citation omitted).

Second, even if Upstart did make a false statement of material fact, Mr.

Zickafoose does not allege a consequent injury by acting in reliance on the

representation. To the contrary, Mr. Zickafoose initiated this suit to avoid an

injury from acting in reliance on Upstart’s representation that he owes a debt.

Therefore, the allegations in Count IV do not state a claim for fraudulent

misrepresentation. Count IV is DISMISSED.

E. Count V – Florida Deceptive and Unfair Trade Practices Act

In Count V, Mr. Zickafoose alleges “Upstart engaged in unfair and

deceptive trade practices in violation of the [FDUTPA].” (Doc. 47, p. 13). He

alleges Upstart violated the FDUTPA “by attempting to collect on a debt that

had been lawfully discharged and for which no legal obligation remained.”

(Doc. 47, p. 13). Upstart contends Mr. Zickafoose does not state a claim under

the statute because attempting to collect a debt does not constitute “trade or

commerce” under the FDUTPA. (Doc. 48, p. 19).

The FDUTPA prohibits “unfair methods of competition, unconscionable

acts or practices, and unfair or deceptive acts or practices in the conduct of any

trade or commerce.” Fla. Stat. § 501.204(1). The FDUTPA defines “trade or

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commerce” as the advertising, soliciting, providing, offering, or distributing,

whether by sale, rental, or otherwise, of any good or service, or any property,

whether tangible or intangible, or any other article, commodity, or thing of

value, wherever situated.” Fla. Stat. § 501.203(8). “A consumer claim for

damages under [the] FDUTPA has three elements: (1) a deceptive act or unfair

practice; (2) causation; and (3) actual damages.” Bilotta v. Citizens Info.

Associates, LLC, No. 8:13-CV-2811-T-30TGW, 2013 WL 12155486 at *2 (M.D.

Fla. Dec. 20, 2013) (citation omitted).

The FDUTPA does not apply to debt collection activities because debt

collection activities are not considered “trade or commerce.” See e.g. Acosta v.

James A. Gustino, P.A., No. 6:11-CV-1266-ORL-31, 2012 WL 4052245 at *1

(M.D. Fla. Sept. 13, 2012) (finding the plaintiff failed to state a claim under the

FDUTPA because “an attempt to collect a debt by exercising one’s legal

remedies does not constitute ‘advertising, soliciting, providing, offering, or

distributing’ as those terms are used in Fla. Stat. § 501.203(8)”); State, Office

of Att’y. Gen. v. Shapiro & Fishman, LLP, 59 So. 3d 353 (Fla. 4th DCA 2011)

(affirming the trial court’s finding that the law firm’s allegedly deceptive acts

to collect debts did not qualify as trade or commerce under the FDUTPA).

Here, Mr. Zickafoose alleges Upstart violated the FDUTPA by

attempting to collect a debt. As discussed, the FDUTPA prohibits unfair and

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deceptive acts in trade or commerce and courts have consistently held debt

collection is not trade or commerce. Therefore, the allegations in Count V do

not state a claim under the FDUTPA. Count V is DISMISSED.

F. Count VI – Invasion of Privacy / Harassment

In Count VI, Mr. Zickafoose alleges that “despite lawful notice

terminating communication rights” Upstart’s repeated unauthorized digital

and automated contacts were “intrusive, emotionally distressing, and

conducted with reckless disregard for [his] . . . privacy.” (Doc. 47, p. 13). Upstart

argues that, because Mr. Zickafoose consented to communications, the

communications cannot form the basis of an invasion of privacy claim. (Doc.

48, p. 21).

Under Florida law, there are three categories of invasion of privacy torts.

Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156, 162 (Fla. 2003) (listing the four

categories within the common law tort of invasion of privacy as: (1)

appropriation; (2) intrusion; (3) public disclosure of private facts; and (4) false

light in the public eye).3 It appears Mr. Zickafoose attempts to state a claim

under intrusion.4

3 The Florida Supreme Court subsequently held that Florida does not recognize “false

light in the public eye.” Jews For Jesus, Inc. v. Rapp, 997 So.2d 1098, 1115 (Fla.,

2008).

4 Mr. Zickafoose’s amended complaint does not explicitly identify the category under

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Under the common law tort of invasion of privacy, the intrusion category

is defined as “physically or electronically intruding into one’s private quarters.”

Id. “To constitute an invasion of privacy, the intrusion must be highly offensive

to a reasonable person.” Betancourt v. Green Tree Servicing, LLC, No. 8:13-CV-

2759-T-30AEP, 2014 WL 12618198 at *2 (M.D. Fla. Jan. 21, 2014) (citing

Oppenheim v. I.C. Sys., Inc., 695 F. Supp. 2d 1303, 1309 (M.D. Fla.

2010), aff’d, 627 F.3d 833 (11th Cir. 2010) (citation omitted). “The

offensiveness must be ‘so outrageous in character, and so extreme in degree,

as to go beyond all possible bounds of decency.’” Id. (citation and internal

quotation marks omitted).

Generally, communications attempting to a collect on a debt do not go

beyond all possible bounds of decency. See generally Oppenheim, 695 F. Supp.

2d 1303 (indicating debt collection communications without more do not rise to

the level of “beyond the bounds of decency” or “atrocious and utterly intolerable

in a civilized community”). In Oppenheim, the plaintiff alleged the tort of

inclusion upon seclusion. Id. at 1308. The plaintiff in that case received debt

collection calls occurring for a period of three months, in some instances as

often as six times a day. Id. at 1306. Although recognizing the calls to the

which he intends to state a claim. However, his response in opposition to the motion

to dismiss argues he “plausibly pleads intrusion upon seclusion.”

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plaintiff were “annoying and bothersome,” the court found the conduct was not

extreme and outrageous. Id. at 1310; See also Kent v. Harrison, 467 So.2d 1114,

1114–15 (Fla. 2d DCA 1985) (finding the plaintiff’s “state of vexation,

irritation, and agitation cannot be the foundation for a finding that [the

defendant’s] behavior is within the range” of being of “atrocious and utterly

intolerable in a civilized community”).

Here, Mr. Zickafoose does not state an intrusion claim because he does

not allege the communications rose to the level “beyond the bounds of decency.”

Mr. Zickafoose alleges the “unauthorized contacts” were intrusive and

emotionally distressing. His state of vexation, irritation, and agitation cannot

be the foundation for finding Upstart’s communications to be beyond the

bounds of decency.

Therefore, the allegations in Count VI do not state an invasion of privacy

claim. Count VI is DISMISSED.

G. Count VII – UCC Violations

In Count VII, Mr. Zickafoose alleges violations of the UCC Article 3. He

repeats his contention that Upstart wrongfully dishonored his “restrictive

qualified indorsement.” In other words, Mr. Zickafoose argues Upstart

breached UCC provisions by attempting to collect on funds dispersed to Mr.

Zickafoose on which he owned no obligation to re-pay. He specifically identifies

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these UCC Sections: 3-501(b)(2); 3- 415(b), 3-603; and 3-311. Upstart contends

the UCC is not applicable to the note at issue and, even if it were, Mr.

Zickafoose’s allegation that he relieved himself of liability through UCC terms

is frivolous.

Even if the loan was considered a negotiable instrument, Mr. Zickafoose

cannot state a claim for violating the UCC itself. Cumberbatch 2025 WL

2373924 at *3 (dismissing UCC claims to the extent they are asserted as

independent claims for relief). Therefore, the allegations in Count VII do not

state a valid claim to relief. Count VII is DISMISSED.

IV. CONCLUSION

Count I is dismissed because Upstart is not a debt collector under the

meaning of the FDCPA. Count II is dismissed because Mr. Zickafoose does not

allege Upstart received notice of a consumer’s dispute from a CRA to trigger

Upstart’s responsibilities as furnisher under Section 1681s-2b. Count III is

dismissed because Mr. Zickafoose did not create a new contract through

inapplicable UCC provisions, and because courts routinely reject the vapor

money theory. Count IV is dismissed because Upstart did not make a false

representation and, even if Upstart did, Mr. Zickafoose did not allege a

consequent injury by acting in reliance on the representation. Count V is

dismissed because the FDUTPA does not apply to debt collection activities.

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Count VI is dismissed because Mr. Zickafoose did not allege Upstart’s actions

amounted to a tortious invasion of privacy by going “beyond the bounds of

decency.” Count VII is dismissed because Mr. Zickafoose cannot state a claim

for violation of the UCC. The action is also dismissed against Mr. Girouard

because Mr. Zickafoose no longer brings any claims against him.

It would be futile to allow Mr. Zickafoose to amend his complaint. Mr.

Zickafoose has already amended his complaint once and the vapor money

theory, which underlies his claims, is routinely dismissed by federal courts as

frivolous. Under the current set of facts Mr. Zickafoose cannot assert a viable

claim against Upstart. Accordingly, Upstart’s motion to dismiss (Doc. 48) is

GRANTED with prejudice. The Clerk is directed to enter Judgment in favor

of Defendant Upstart Network Inc. as to Counts I-VII. The Clerk is further

directed to terminate any pending motions and deadlines and close this case.

ORDERED in Tampa, Florida, on October 9, 2025.

Aranda. Arne (hk Sanne

AMANDA ARNOLD SANSONE

United States Magistrate Judge

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