Chalik v. Westport Recovery Corp., Case No. 09-60819-CIV.

• Decision Date: 30 October 2009
• Docket Number: Case No. 09-60819-CIV.
• Citation: 677 F. Supp.2d 1322
• Parties: Charles CHALIK, individually, Plaintiff, v. WESTPORT RECOVERY CORP., a Florida Corporation, Friedman & Greenberg, P.A., a Florida Corporation, and "Jane Doe", individually, Defendants.
• Court: U.S. District Court — Southern District of Florida

677 F.Supp.2d 1322

Charles CHALIK, individually, Plaintiff, v. WESTPORT RECOVERY CORP., a Florida Corporation, Friedman & Greenberg, P.A., a Florida Corporation, and "Jane Doe", individually, Defendants.

Case No. 09-60819-CIV.

United States District Court, S.D. Florida.

October 30, 2009.

Scott David Owens, Cohen & Owens PA, Hollywood, FL, for Plaintiff.

Robert D. Friedman, Friedman & Greenberg, P.A., Plantation, FL, for Defendants.

ORDER DENYING IN PART AND GRANTING IN PART MOTIONS TO DISMISS

WILLIAM P. DIMITROULEAS, District Judge.

THIS CAUSE is before the Court upon the Defendants Friedman and Greenberg, P.A. and Westport Recovery Corp.'s Motions to Dismiss Amended Complaint, DE-14, 15 respectively. The Court has carefully considered the Motions, Plaintiffs Response DE-17, the Replies to each DE-18, 19, and is otherwise fully advised in the premises.

I. BACKGROUND

Plaintiff Charles Chalik filed the instant action on June 2, 2009, alleging Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. ("FDCPA") and the Florida Consumer Collections Practices Act, Fla. Stat. §§ 559.55, et seq. ("FCCPA"). Specifically, Plaintiff claimed a violation of 15 U.S.C. § 1692e(11). On August 4, 2009, Plaintiff filed a Motion for Leave to File Amended Complaint DE-10, which this Court granted on August 5, 2009. In his Amended Complaint, Plaintiff alleges Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. ("FDCPA")¹. Specifically, Plaintiff claims violations of 15 U.S.C. § 1692e(11), 15 U.S.C. § 1692d, 15 U.S.C. § 1692e, and 15 U.S.C. § 1692f. He seeks damages, attorney's fees, and other litigation expenses. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1337, and 15 U.S.C. § 1692k(d)

The following facts are according to Plaintiffs Complaint, the allegations of which we must regard as true for the purposes of these Motions to Dismiss:

Plaintiff is a natural person and resident of Broward County, Florida. Defendants Westport Recovery Corp. ("Westport") and Friedman & Greenberg, P.A. ("F & G") are both corporations and citizens of the State of Florida. Both corporations are debt collectors and regularly use the mail and telephone in the ordinary course of business. Jane Doe is an employee of F & G whose name is unknown to Plaintiff. The sole principals of both Westport and F & G are Robert D. Friedman and Debra Greenberg.

Plaintiff had debt that arose from the non-payment of a personal credit card. Plaintiff's debt was reduced to a judgment on or about December 1, 1992. Defendants were attempting to collect on this debt. On May 5, 2009, Jane Doe left the following voice mail message on Plaintiffs telephone:

Hi Mr. Chalik. This is first and last name indiscernible from Friedman and Greenberg, I'm returning your call. You can give me give me a call back at nine five four, three seven zero, four seven seven four. Thank you

(Amended Complaint, ¶ 16).

Plaintiff claims that the message violates the FDCPA as it omits the disclosure that it is a debt collector.

On or about April 2, 2009, Defendants commenced post-judgment proceedings against Plaintiff, specifically, a writ of garnishment against Chalik Investigators, Inc., Plaintiff's employer. On or about May 5, 2009, Plaintiff, representing himself, filed a claim of exemption from Defendants' writ, of garnishment. On or about May 8, 2009, Defendants filed a sworn statement denying Plaintiff's entitlement to an exemption from garnishment. Plaintiff alleges the sworn statement was filed in bad faith because Defendants had no specific knowledge regarding the exemption and merely sought to delay resolution of the post-judgment proceedings in an effort to collect the debt from Plaintiff.

II. DISCUSSION

On August 17, 2009, Defendant F & G filed a Motion to Dismiss the Amended Complaint DE-14. On the same date, Defendant Westport also filed a Motion to Dismiss the Amended Complaint DE-15. Defendants argue that Plaintiff has failed to state a claim upon which relief can be granted for the following reasons: (1) the voice mail message at issue was not a "communication," as defined by the FDCPA; (2) the voice mail message at issue was not a false, deceptive, or misleading representation or means in connection with the collection of any debt under 15 U.S.C. § 1692e; and (3) the sworn denial of Mr. Chalik's claim of exemption complied with the provisions of Florida Statute §§ 77.041 and 222.12 and are therefore not harassing, oppressive or abusive under 15 U.S.C. § 1692d, false, deceptive or misleading under 15 U.S.C. § 1692e, or unfair or unconscionable under 15 U.S.C. § 1692f.

Plaintiff counters that the failure to identify oneself as a debt collector in a voice mail message is a well-established violation of the FDCPA. Plaintiff also claims that it is a well-established principle that by following an authorized state law procedure, a debt collector may in fact violate the FDCPA.

A. Standard of Decision

1. Motion to Dismiss

To adequately plead a claim for relief, Federal Rule of Civil Procedure 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss should be granted only if the plaintiff is unable to articulate "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference, that the defendant is liable for the misconduct alleged," Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

The allegations of the claim must be taken as true and must be read to include any theory on which the plaintiff may recover. See Linder v. Portocarrero, 963 F.2d 332, 334-36 (11th Cir.1992) (citing Robertson v. Johnston, 376 F.2d 43 (5th Cir.1967)). However, this is inapplicable if the allegations are merely "threadbare recitals of a cause of action's elements, supported by mere conclusory statements. . .". Iqbal, 129 S.Ct. at 1949. Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint, and "a district court weighing a motion to dismiss asks `not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Twombly, 550 U.S. at 563 n. 8, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984)).

2. Fair Debt Collection Practices Act

Congress established the FDCPA to "eliminate abusive debt collection practices." 15 U.S.C. § 1692. The FDCPA restricts communications from debt collectors to consumers in many different ways. See e.g., 15 U.S.C. § 1692d (prohibiting harassing or abusive conduct in connection with the collection of a debt). Although debt collectors are to refrain from mentioning the debt when communicating with third parties, they must provide a warning that is sometimes referred to as the "mini-Miranda." See e.g., Barows v. Chase Manhattan Mortgage Corp., 465 F.Supp.2d 347, 359-60 (D.N.J.2006). This warning requires that debt callers give "meaningful disclosure of the caller's identity" when placing telephone calls, except when communicating with third parties. 15 U.S.C. § 1692d(6). It is also required that in an initial oral communication, a debt collector must indicate that it is "attempting to collect a debt and that any information obtained will be used for that purpose," and that in subsequent communications, it must identify itself as a debt collector. 15 U.S.C. § 1692e(11).

Notably, "the FDCPA establishes a strict liability standard; a consumer need not show an intentional violation of the Act by a debt collector to be entitled to damages." Castro v. A.R.S. Nat'l Servs., Inc., 2000 WL 264310, *2 (S.D.N.Y. Mar. 8, 2000) (citing Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir.1996)). A single violation of the Act is sufficient to subject a debt collector to liability under the Act. Id. When a court evaluates whether language is deceptive under the FDCPA, it applies an objective standard to the language's tendency "`to mislead the least sophisticated'" consumer, in order to give effect to the FDCPA's purpose of protecting consumers. Jeter v. Credit Bureau, 760 F.2d 1168, 1175 (11th Cir.1985) (quoting Wright v. Credit Bureau of Ga., Inc., 548 F.Supp. 591, 599 (N.D.Ga.1982)). Courts may assume, however, that the least sophisticated consumer will "possess a rudimentary amount of information about the world" and will not make "unreasonable misinterpretations." Rivera v. Amalgamated Debt Collection Servs., 462 F.Supp.2d 1223, 1227 (S.D.Fla.2006) (quotations omitted).

B. Count I—Failure to Disclose Status as Debt Collector

Both Defendants move to dismiss Plaintiff's claim of failure to disclose status as debt collector, Count I of the Amended Complaint, arguing that the voice mail message at issue is not a "communication," as defined by the FDCPA and that even if the Court found it to be a "communication," it is not a false, deceptive, or misleading representation or means in connection with the collection of any debt under 15 U.S.C. § 1692e.

1. Whether Voice Mail was a "Communication," as Defined by the FDCPA

Defendants argue that the voice mail was not a communication under the FDCPA because it was not a communication "in connection with the collection of any...