415 F.Supp.3d 745 (W.D.Tex. 2019), A-19-CV-00827-JRN, Gilani v. Javitch Block, LLC,

• Docket Nº: No. A-19-CV-00827-JRN
• Citation: 415 F.Supp.3d 745
• Opinion Judge: JAMES R. NOWLIN, UNITED STATES DISTRICT JUDGE
• Party Name: Amer GILANI, Plaintiff v. JAVITCH BLOCK, LLC, Defendant
• Attorney: Tyler Hickle, Law Office of Tyler Hickle, PLLC, Austin, TX, for Plaintiff. Michael D. Slodov, Javitch Block LLC, Cleveland, OH, for Defendant.
• Case Date: December 03, 2019
• Court: United States District Courts, 5th Circuit, Southern District of Texas

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415 F.Supp.3d 745 (W.D.Tex. 2019)

Amer GILANI, Plaintiff

v.

JAVITCH BLOCK, LLC, Defendant

No. A-19-CV-00827-JRN

United States District Court, W.D. Texas, Austin Division

December 3, 2019

Tyler Hickle, Law Office of Tyler Hickle, PLLC, Austin, TX, for Plaintiff.

Michael D. Slodov, Javitch Block LLC, Cleveland, OH, for Defendant.

ORDER

JAMES R. NOWLIN, UNITED STATES DISTRICT JUDGE

Before the Court in the above-entitled and styled cause of action are Defendant’s Second Motion to Dismiss for Failure to State a Claim (Dkt. 13); Plaintiff’s Response (Dkt. 19); and Defendant’s Reply (Dkt. 23). Plaintiff filed this action on August 21, 2019 and now alleges one cause of action: violation of the Fair Debt Collection Practices Act ("FDCPA") § 1692e(2). See 15 U.S.C.A. § 1692e. That section bars, in relevant part, "[t]he false representation of [ ] the character, amount, or legal status of any debt." Id.

Defendant is a debt-collection company hired to collect a debt that Plaintiff allegedly owes. (Compl., Dkt. 1, at 2). Plaintiff asserts that information provided to Plaintiff’s counsel in a September 4 email from Defendant’s counsel constitutes a violation of § 1692e, because it either contains the wrong date of default or attempts to collect a debt which is time-barred and judicially unenforceable. (Am. Compl., Dkt. 11, at 3). Defendant asks the court to dismiss the Plaintiff’s complaints under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). Having considered the relevant law and the parties’ arguments, the Court will GRANT the Motion to Dismiss.

I. STANDARD OF REVIEW

Under the Fifth Circuit’s strict standard of review for Rule 12(b)(6) motions, the Court "must accept all well-pleaded facts

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as true, and ... view them in the light most favorable to the plaintiff." Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir. 1986). Further, "all questions of fact and any ambiguities in the controlling substantive law must be resolved in the plaintiff’s favor." Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 734-36 (5th Cir. 2019). On the other hand, courts are not bound to accept as true a legal conclusion couched as a factual allegation. Id. "Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In determining whether claims survive a Rule 12(b)(6) motion to dismiss, the court may address its inquiry to the facts set forth in the complaint, documents attached to the complaint, and matters of which the court may take judicial notice under Federal Rule of Evidence 201. Walker, 938 F.3d at 734-36.

II. DISCUSSION

Plaintiff filed this cause of action on August 21, 2019 alleging violations of state and federal debt collection acts. (Compl., Dkt. 1, at 3). Defendant moved to dismiss, and, in response, Plaintiff filed an amended complaint, this time alleging only one violation of the FDCPA. (Am. Compl., Dkt. 11, at 3). That alleged violation stems from a September 4, 2019 email from Defendant’s counsel which included a copy of a complaint in state court in Williamson County, Texas. Id. at 1-2. That complaint, which had been filed about a week prior, was part of an attempt to collect a $15,104.21 student loan debt from Plaintiff. Id. at 2. Specifically, the alleged FDCPA violation centers around Paragraph 8 of the state court complaint, which reads, "On or about March 29, 2015, Defendant ceased making payments and thus defaulted on the obligations as stated in the contract." Id. Plaintiff asserts that either the date listed for the cessation of payments is wrong, constituting a "materially false statement" within the definitions of the FDCPA, or the state-court lawsuit was filed outside the appropriate statute of limitations, which would also be a...