Harrington v. Cacv of Colorado, LLC

• Decision Date: 30 August 2007
• Docket Number: Civ. Action No. 06cv11216-NG.
• Citation: 508 F.Supp.2d 128
• Parties: Michelle HARRINGTON, Plaintiff, v. CACV OF COLORADO, LLC, and J.A. Cambece Law Office, PC, Defendants.
• Court: U.S. District Court — District of Massachusetts

Page 128

508 F.Supp.2d 128

Michelle HARRINGTON, Plaintiff, v. CACV OF COLORADO, LLC, and J.A. Cambece Law Office, PC, Defendants.

Civ. Action No. 06cv11216-NG.

United States District Court, D. Massachusetts.

August 30, 2007.

Jason D. Fregeau, Longmeadow, MA, for Plaintiff.

Kathryn E. Pieczarka, Lawson & Weitzen, LLP, Boston, MA, for Defendants.

MEMORANDUM & ORDER

GERTNER, District Judge.

I. INTRODUCTION

In the above-titled action, Plaintiff Michelle Harrington ("Harrington") has filed suit against Defendants CACV of Colorado LLC ("CACV") and J.A. Cambece Law Office PC ("Cambece"). The claims stem from an underlying suit by Defendants for the repayment of a debt (approximately $14,000) owed by Plaintiff.

The complaint raises four claims. Count 1 alleges that Defendants violated the Fair Debt Collection Practice Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), and Mass. Gen. Laws ch. 93A by (1) filing a suit in the improper venue; (2) filing for and obtaining a default based upon the alleged misrepresentation that Harrington had failed to respond to discovery; (3) filing and maintaining suit even though Defendant CACV is a foreign entity unregistered with the Massachusetts Secretary of State; and (4) filing and maintaining suit without giving the file a proper review.

Count 2 alleges that these acts and omissions are, in addition, violations of the Massachusetts Consumer Protection Act, Mass. Gen. Laws ch. 93A ("Chapter 93A").¹

Count 3 alleges that Defendants' acts and omissions inflicted severe emotional distress upon Harrington.

Count 4 alleges that Defendants breached their duty to supervise their agents, directly and proximately causing harm to Plaintiff.

Defendants have filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) (document entry # 7).

Plaintiff neither denies nor concedes that she owed the debt Defendants sought in the underlying suit or that Defendants had the right to file a collection suit against her at all. Rather, her claims are based on Defendants' conduct of the suit.

For the reasons below, I GRANT IN PART AND DENY IN PART the motion to dismiss.

II. PROCEDURAL HISTORY

Plaintiff filed her complaint against CACV and Cambece on July 14, 2006. (Document # 1-1). Defendants filed their motion to dismiss on September 19, 2006. (Documents ## 7, 8). Plaintiff filed her opposition on October 3, 2006. (Document # 9-1), and Defendants replied on March 19, 2007. (Document # 11).

III. FACTS

The following facts are stated in the complaint and are uncontested by Defendants.

Plaintiff Harrington lived in Falmouth, Massachusetts, for the entire time relevant to this case. Defendants CACV and Cambece are in the business of debt collection and regularly collect or attempt to collect, directly or indirectly, consumer debts due and owing or allegedly due and owing to themselves and/or others. Defendant CACV is incorporated in Colorado, with its principal place of business in Denver, Colorado. Defendant Cambece is incorporated in Massachusetts with its principal place of business located in Peabody, Massachusetts.

Plaintiff owed a debt to Fleet Bank for personal, household, and family uses. Defendant CACV purchased the debt from Fleet Bank and hired Defendant Cambece to collect it. Beginning in or about June 1994, Defendants communicated with Harrington via telephone calls and letters, attempting to collect the debt.

On November 15, 2004, Defendants filed a collection suit against Harrington in Barnstable District Court, even though Harrington's residence was in the Falmouth Judicial District, and Defendants had been communicating with her at her home address. Harrington lived twenty-one miles from the Barnstable District Court and one block from the Falmouth District Court.

Defendants sent discovery requests to Harrington on August 9, 2005, to which Harrington responded by certified mail, return receipt requested, on September 24. Despite her response, Defendants moved for default against her, claiming that she had failed to respond. The Barnstable District Court defaulted Harrington on November 28, 2005. When Harrington informed the court that she had in fact responded, Defendants moved to vacate the judgement, and the, court complied. Harrington then moved for a change of venue to Falmouth District Court; Defendants did not oppose the motion.

Harrington then moved to dismiss the collection suit, as it appears that CACV had failed to be registered with the Massachusetts Secretary of State as a foreign corporation as required under Mass. Gen. Laws ch. 156D, § 15.01 et seq. Defendants opposed dismissal, and, after a hearing on March 20, 2006, the trial, court dismissed Defendants' lawsuit with prejudice.

Harrington filed this action on July 14, 2006.

IV. LEGAL STANDARDS

A. Standard for A Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)

In evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), courts "must accept as true the well-pleaded factual allegations of the Complaint, draw all reasonable inferences therefrom in the plaintiffs favor, and determine whether the complaint, so read, limns facts sufficient to justify recovery on any cognizable theory." LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir. 1998) (internal citation omitted). The Court may "differentiate between well-pleaded facts, on the one hand, and bald assertions, unsupportable conclusions, periphrastic circumlocution, and the like, on the other hand;" the latter "can safely be ignored." Id. (internal quotation omitted). A complaint should be dismissed only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (internal citation omitted).

B. Relevant Statutes of Limitation

The FDCPA "contains a jurisdictional, one-year statute of limitations." Alger v Ganick, O'Brien & Sarin, 35 F.Supp.2d 148, 150 (D.Mass.1999) (citing 15 U.S.C. § 1692k(d)). Specifically, the statute states that "an action to enforce any liability created by this title may be brought ... within one year from the date on which the violation occurs." 15 U.S.C. § 1692k(d).

A claim under Chapter 93A "brought by any person, including the attorney general shall be commenced only within four years next after the cause of action accrues." Mass. Gen. Laws ch 260, § 5A.

In Massachusetts, the statute of limitations for claims of emotional distress and negligent supervision is three years "after the cause of action accrues." Mass. Gen. Laws ch. 260, § 2A.

As Plaintiff brought this action on July 14, 2006, the FDCPA statute of limitations bars claims for violations occurring before July 14, 2005. Claims under 93A are barred for violations occurring prior to July 14, 2002. State tort claims for emotional distress and negligent supervision are barred for conduct occurring before July 14, 2003.

V. COUNT I: VIOLATIONS OF THE FDCPA

Count I of Plaintiff's complaint alleges that Defendants violated the FDCPA through four acts or omissions: (1) filing the underlying lawsuit in the improper venue; (2) filing for and obtaining a default for Plaintiff's supposed failure to answer discovery; (3) filing and maintaining suit while CACV was not registered with the Massachusetts Secretary of State, and; (4) filing and maintaining suit without giving the file a proper review. Defendants argue that Count I of Plaintiff's complaint should be dismissed because claims arising from the first, third and fourth allegations are barred by the statute of limitations and that all four allegations are not actionable under the FDCPA as a matter of law.

A. Relevant Law

Congress passed the FDCPA to combat the "use of abusive, deceptive, and unfair debt collection practices by many debt collectors ... [that] contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy." 15 U.S.C. § 1692. The FDCPA prohibits various practices by debt collectors including, but not limited to, harassment and abuse, unfair practices, false or misleading representation, and attempting communication with debtors at improper or inconvenient times. 15 U.S.C. §§ 1692a-1692j.

The FDCPA imposes strict liability on debt collectors for their violations. See Pettway v. Harmon Law Offices, P.C., 2005 WL 2365331 *3, 2005 U.S. Dist. LEXIS 21341 *10-11 (D.Mass.2005) (Stearns, J.); see also Picht v. Jon R. Hawks, Ltd., 236 F.3d 446, 451 (8th Cir.2001); Foti v. NCO Fin. Sys., 424 F.Supp.2d 643, 661 (S.D.N.Y.2006). A plaintiff need not show intentional conduct by the collector or actual damages. See Pettway, 2005 WL 2365331 at *3, 2005 U.S.Dis. LEXIS 21341 at *11. Plaintiff need only show a violation of one of the FDCPA's provisions in order to make out a prima facie case. Defendants may, as an affirmative defense, claim that their violations were unintentional, but they must meet the burden of showing "by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error." 15 U.S.C. § 1692k(c); see also Russell v. Equifax A.R.S., 74 F.3d 30, 36 (2d Cir.1996) (A "plaintiff need not show intentional conduct under the Act to be entitled to damages. The unintentional acts of defendant are a defense to be raised against a claimed violation"). As implied by the final clause of § 1692k(c), even unintentional violations are actionable if Defendants did not maintain "procedures reasonably adapted to avoid any such error." See Fox v. Citicorp Credit. Servs., 15 F.3d 1507, 1514 (9th Cir.1994); Maxwell v. Fairbanks Capital Corp. (In re Maxwell), 281 B.R. 101, 120 (Bankr.D.Mass.2002).

Courts have split on whether mistakes of law may be considered "bona fide error" for the purposes of the affirmative defense. See Shapiro v. Haenn, 222 F.Supp.2d 29, 43 ...