Fisher v. Bernhardt & Strawser, PA

• Decision Date: 02 August 2013
• Docket Number: CASE NO. 5:11-cv-00034-RLV-DSC
• Court: U.S. District Court — Western District of North Carolina
• Parties: ELIZABETH FISHER, Plaintiff, v. BERNHARDT AND STRAWSER, PA, Defendant.

ELIZABETH FISHER, Plaintiff,

v.BERNHARDT AND STRAWSER, PA, Defendant.

CASE NO. 5:11-cv-00034-RLV-DSC

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA STATESVILLE DIVISION

Signed: August 2, 2013

MEMORANDUM AND ORDER

THIS MATTER is before the Court on a Motion to Dismiss by Defendant Bernhardt and Strawser, P.A., filed on May 10, 2011, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, alleging failure to state a claim for which relief can be granted. (Doc. 5.)

I. BACKGROUND

This action involves the alleged obligation of Plaintiff Elizabeth Fisher to pay a debt owed or due to a creditor other than Defendant. Defendant is a collection agency hired by creditors, GE Finance-Money Bank ("GE") and Citibank, to whom Plaintiff allegedly owed outstanding debts of $1,665.83 and $2,926.78, respectively. (Compl., Ex. 1.) Acting on behalf of the creditors, Defendant sent two letters to Plaintiff in an effort both to apprise Plaintiff of her rights in connection with repayment of the debts and to affect payment of the debts in a timely manner. Id.

The first collection letter was sent directly to Plaintiff, on April 21, 2010, by Defendant on behalf of GE; the second letter was sent on May 12, 2010, by Defendant on behalf of Citibank. Both letters were printed on the official law-firm letterhead of Defendant and contained identical language stating the amount due, the potential consequences for non-payment within acertain time frame, and the general rights reserved by Plaintiff. The language of the body of each letter reads as follows:

Re: [Creditor]

Total Due: [Amount due]

My File: [File #]

Dear Sir/Madam:

I have been retained by [creditor] in regards to the balance you owe them on your account. Your contract with [creditor] provides for payment of the reasonable attorney fees if legal action is required to collect the balance due on your account. The attorney fee provision is authorized by North Carolina General Statues GS. 6-21.2. Please be advised that if the outstanding balance due with my client, [amount due], is not received from you in my office within 30 days of the receipt of this letter, my client may seek to enforce the attorney fee provision of your [creditor] contract, all as provided by G.S. 6-21.2. Your check or money order should be payable to [creditor].

Unless you notify this office within 30 days after receiving this notice that you dispute the validity of the debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice, this office will obtain verification of the debt or obtain a copy of a Judgment (if one has been entered) and mail you a copy of such verification or Judgment. If you request this office in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor. This letter is sent in an attempt to collect a debt and any information obtained will be used for that purpose.

Yours Very Truly,

[Signature]

(Compl., Ex. 1.)

On August 30, 2010, Defendant initiated a state-court collections action on behalf of Citibank in Wilkes County District Court, where Plaintiff resided. (Doc. 6, Ex. 2.) During this proceeding, Plaintiff appeared pro se. Subsequent to Plaintiff's appearance in state court, counsel for Plaintiff notified Defendant, in a letter dated January 28, 2011, that she was representing Plaintiff "regarding claims against [Defendant] pursuant to the Federal Fair Debt CollectionPractices Act," further demanding that Defendant "not contact [her] client for any reason" and to "direct all future contact and correspondence to [counsel for Plaintiff's] office." (Doc. 6, Ex. 5.)

Within two months of receipt of the notification letter sent by Plaintiff's attorney, Defendant mailed a March 10, 2011, letter directly to Plaintiff regarding overdue discovery responses in the aforementioned state-court proceeding, at which Plaintiff was initially representing herself pro se. (Compl., Ex. 2.) Defendant also copied Plaintiff's attorney on this communication. Id.

Plaintiff filed this action with the Court on March 18, 2011, and alleges two separate violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.: (1) Plaintiff alleges that Defendant overshadowed the statutorily required disclosures in its collection letters, thus violating 15 U.S.C. § 1692g(a) and (b); and (2) Plaintiff alleges that Defendant communicated with Plaintiff despite being represented by counsel, thus violating 15 U.S.C. § 1692c(a)(2). (Compl. ¶¶ 11, 12.)

II. STANDARD OF REVIEW

A motion filed per the Federal Rule of Civil Procedure 12(b)(6) challenges the legal sufficiency of a complaint, Jordan v. Alternatives Res. Corp., 458 F.3d 332, 338 (4th Cir. 2006), measured by whether it meets the standards stated in Rule 8 (providing generals rules of pleading), Rule 9 (providing rules for pleading special matters), Rule 10 (specifying pleading form), Rule 11 (requiring the signing of pleading and stating its significance), and Rule 12(b)(6) (requiring that a complaint state a claim upon which relief can be granted), Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). While a complaint need not contain detailed factual allegations, the courts require more than labels and conclusions, and a formulaicrecitation of the elements of a cause of action will not do. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (applying Rule 8).

"Federal Rules of Civil Procedure 8(a)(2) requires only a '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.'" Id. (quoting Fed. R. Civ. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). The decisive standard is that the combined allegations, taken as true, must state a "plausible," not merely conceivable, case for relief. Sepúlveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (citations omitted)). To have facial plausibility—a standard that lies between the outer boundaries of a probability requirement and the mere possibility of unlawful conduct—the pleading must contain factual content that permits the court, using its "judicial experience and common sense," reasonably to infer the defendant's liability. Id.

III. DISCUSSION

Defendant moves to dismiss Plaintiff's claim for violations of the FDCPA, 15 U.S.C. § 1692 et seq., for failure to state a claim upon which relief can be granted. The Plaintiff alleges two distinct violations of the FDCPA: (1) that Defendant "overshadowed" the disclosures required under the statute, 15 U.S.C. § 1692g(a)-(b); and (2) that Defendant communicated with Plaintiff despite knowledge that she was represented by counsel, 15 U.S.C. § 1692c(a)(2).

Every FDCPA claim must establish three prima facie elements showing that (1) the plaintiff is a "consumer" within the meaning of the statute; (2) the defendant collecting the debt is a "debt collector" within the meaning of the statute; and (3) the defendant has violated by act or omission a provision of the FDCPA. Creighton v. Emporia Credit Serv., Inc., 981 F. Supp. 411, 414 (E.D. Va. 1997). Both parties seem to agree that the first two elements are satisfied;thus, the sole issue is whether Plaintiff has sufficiently pled the third element for each individual charge. Whether Plaintiff has shown, with facial plausibility, that the "defendant has violated by act or omission a provision of the FDCPA" must be evaluated against the context of the allegedly breached provision. Such evaluation will be performed below. Id.

A. Count 1: Defendant Overshadowed the Required Disclosures (§ 1692g)

Plaintiff alleges that "Defendant overshadowed the statutorily required disclosures in its . . . dunning letters" in violation of section 1692g of the FDCPA. (Compl. ¶ 11.) The relevant disclosures as provided for in section 1692g(a) are as follow:

Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

15 U.S.C. § 1692g(a).

Specifically, Plaintiff alleges that Defendant violated section 1692g(b), which states, in relevant part, that "[a]ny collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt or request the name and address of the original creditor." 15 U.S.C. § 1692g(b).

1. Question of Law or Fact

Defendant has denied any violation of section 1692g(b) and has asked this Court to rule on the issue as a matter of law. Plaintiff, however, urges that many courts have found such an overshadowing claim to be a question of fact and that this Court should follow suit. The Court agrees with Defendant:...