Jacques v. Solomon & Solomon P.C.

• Decision Date: 21 August 2012
• Docket Number: Civil Action No. 11–801–RGA.
• Citation: 886 F.Supp.2d 429
• Court: U.S. District Court — District of Delaware
• Parties: Rose M. JACQUES, Plaintiff, v. SOLOMON & SOLOMON P.C., et al., Defendants.

886 F.Supp.2d 429

Rose M. JACQUES, Plaintiff,

v.SOLOMON & SOLOMON P.C., et al., Defendants.

Civil Action No. 11–801–RGA.

United States District Court,

D. Delaware.

Aug. 21, 2012.

Rose M. Jacques, Pro se.

Tracy A. Burleigh, Esq., Marshall, Dennehey, Warner, Coleman & Goggin, Wilmington, DE, for Defendant Northland Group, Inc.

MEMORANDUM OPINION

ANDREWS, District Judge:

Plaintiff Rose M. Jacques, appearing pro se, filed this action against defendants Northland Group, Inc.,¹ Solomon & Solomon P.C., Todd M. Sardella, Capital One Bank (USA) N.A., Lyons, Doherty & Veldhuis, and NCO Financial Systems, Inc., alleging violations of the Fair Debt Collection Practices Act (the “FDCPA”), 15 U.S.C. § 1692 et seq., and the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. (D.I. 1). Currently before the Court is Northland's Motion for Judgment on the Pleadings Pursuant to Federal Rule of Civil Procedure 12(c) or, Alternatively, Motion for Summary Judgment Pursuant to Federal Rule of Civil Procedure 56. (D.I. 25). For the reasons that follow, the Court grants Northland's Motion for Judgment on the Pleadings.²

I. BACKGROUND

The following facts are taken from Plaintiff's complaint. Plaintiff is a resident of Delaware. (D.I. 1 at ¶ 6). Northland is a corporation engaged in the business of collecting debts, often by mail or telephone. ( Id. at ¶ 11). On November 26, 2010, Northland sent a notice of collection of a debt on behalf of creditor Capital One. ( Id. at ¶¶ 26, 27). Plaintiff sent various letters to Northland disputing the debt, to which Northland did not respond. ( Id. at ¶¶ 27–29; D.I. 33 at 4). Other debt collectors also attempted to collect alleged debts from Plaintiff prior to Northland's attempt. ( Id. at ¶¶ 14, 17, 20). Plaintiff sent written notice disputing the debt to these collectors as well. ( Id. at ¶¶ 15, 18, 21). Plaintiff further alleges that Northland and the other collectors failed to report to the credit reporting agencies that the debt was disputed. ( Id. at ¶ 29). Northland admits that it did not report that Plaintiff had disputed the debt. (D.I. 33 at 4–5).

Plaintiff alleges that Northland violated the FDCPA by failing to verify the debt after Plaintiff sent notice that she disputed the debt, failing to show that it had a contract with Capital One, failing to notify the credit reporting agencies that the debt was disputed, and attempting to collect a debt that was previously disputed to other agencies. Plaintiff also alleges that Northland violated the FCRA by accessing Plaintiff's credit report without a permissible purpose and failing to report that the debt was disputed.

II. STANDARD OF REVIEW

Northland moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. A motion under Rule 12(c) is reviewed under the same standard as a motion to dismiss under Rule 12(b)(6). Turbe v. Gov't of the Virgin Islands, 938 F.2d 427, 428 (3d Cir.1991). The court must accept all factual allegations in a complaint as true and “draw[ ] all reasonable inferences in the plaintiff's favor.” Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 483 (3d Cir.1998). The motion can be granted only if no relief could be afforded under any set of facts that could be proved. Turbe, 938 F.2d at 428. However, the “court need not credit a complaint's ‘bald assertions' or ‘legal conclusions' when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997). Thus, the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Because Jacques proceeds pro se, her pleading is liberally construed, and her complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citations omitted).

III. DISCUSSIONA. FDCPA Claims

The FDCPA “provides a remedy for consumers who have been subjected to abusive, deceptive, or unfair debt collection practices by debt collectors.” Pollice v. Nat'l Tax Funding, L.P., 225 F.3d 379, 400 (3d Cir.2000); see also Wright v. Portfolio Recovery Affiliates, 2011 WL 1226115, at *4 (D.Del. Mar. 30, 2011). The purpose of the FDCPA is to “eliminate abusive debt collection practices by debt collectors.” 15 U.S.C. § 1692e. A debt collector “may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt,” id., nor may a debt collector “use unfair or unconscionable means to collect or attempt to collect any debt.” Id. § 1692f.

Count 1 of the Complaint raises claims under the FDCPA. Specifically, Plaintiff alleges that Northland violated §§ 1692e(2)(A), 1692e(8), and 1692e(10), which provide that:

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(2) The false representation of—

(A) the character, amount or legal status of any debt;

* * *

(8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.

* * *

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

15 U.S.C. §§ 1692(e)(2)(A), 1692e(8) and 1692e(10). Plaintiff further alleges that Northland violated §§ 1692f and 1692f(1), which provide that:

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

Id. § 1692f. Finally, Plaintiff alleges that Northland violated § 1692g(b), which provides that, if the consumer disputes the debt in writing within thirty days, “the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt.” Plaintiff's claims seem to rest on four allegations: (1) Northland failed to validate the debt upon Plaintiff's dispute (D.I. 1 at ¶ 29; D.I. 31 at ¶ 35); (2) Northland failed to show that it had a contract with Capital One (D.I. 31 at ¶ 34); (3) Northland attempted to collect on a debt that was previously disputed to other agencies (D.I. 1 at ¶ 52; D.I. 31 at ¶ 25); and (4) Northland failed to notify the credit reporting agencies that Plaintiff disputed the debt. (D.I. 1 at ¶ 29; D.I. 31 at ¶ 36).

As to the first three allegations, each of which relate to the validity of the debt and whether Northland had the authority to attempt to collect it, the Complaint fails to state a claim against Northland. Northland had no obligation to verify the debt. Once a consumer disputes a debt, the debt collector has a choice whether to verify the debt or cease collection efforts. 15 U.S.C. § 1692g(b); see Guerrero v. RJM Acquisitions, LLC, 499 F.3d 926, 940 (9th Cir.2007) (stating that “[n]othing in [§ 1692g(b) ] suggests an independent obligation to verify a disputed debt where the collector abandons all collection activity with respect to the consumer”); Jang v. A.M. Miller & Assocs., 122 F.3d 480, 482 (7th Cir.1997) (“When a collection agency cannot verify a debt, the statute allows the debt collector to cease all collection activities at that point without incurring any liability for the mistake.”); Smith v. Transworld Sys., Inc., 953 F.2d 1025, 1031 (6th Cir.1992) (holding that debt collector did not violate the FDCPA when it ceased collection activity after receiving request for validation); F.T.C. Staff Opinion Letter, 1997 WL 33791232 (Dec. 23, 1997) (“There is nothing in the FDCPA that requires a response to a written dispute if the debt collector chooses to abandon its collection effort with respect to the debt at issue.”); F.T.C. Staff Opinion Letter, 1992 WL 12144210 (Mar. 3, 1992) (“In the event the collector decides not to pursue the collection efforts, there is no requirement to furnish the documentation of the indebtedness to the consumer.”). Thus, Northland had no obligation to verify the debt so long as it ceased collection efforts after Plaintiff disputed the debt.³

Plaintiff does not allege that Northland continued collection efforts after she disputed the debt. Rather, she asserts that Northland's attempt to collect the debt was improper because Capital One and other prior debt collectors had failed to validate the debt. (D.I. 31 at 8, ¶ H). Plaintiff does not allege that Northland had actual knowledge of the prior disputes with Capital One and other debt collectors but instead seeks to impute their knowledge to Northland. The FDCPA does not impose upon a debt collector any duty to investigate independently the validity of the debt. See Slanina v. United Recovery Sys., LP, 2011 WL 5008367, at *3 (M.D.Pa. Oct. 20, 2011) (“The FDCPA did not require [the debt collector] to validate the debt prior to its initial contact with [the consumer].”); Yentin v. Michaels, Louis & Assocs., Inc., 2011 WL 4104675, at *9 (E.D.Pa. Sept. 15, 2011) (concluding that no provision of the FDCPA “impos[es] upon a debt collector any duty to ‘investigate’ debts that it seeks to collect—either before collection activities begin or after a consumer disputes a debt”); see also Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1174 (9th Cir.2006) (“[T]he FDCPA did not impose...