Morgan v. Vogler Law Firm, P.C.
| Decision Date | 22 July 2016 |
| Docket Number | Case No. 4:15-CV-1654 SNLJ |
| Parties | JESSE L. MORGAN, Plaintiff, v. THE VOGLER LAW FIRM, P.C., et al., Defendants |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on defendants' motions to dismiss (#14, #16). The following facts are alleged in the complaint and, for the purposes of the motions to dismiss, are presumed true.
Plaintiff Jesse Morgan resided at 7244 Rockspring Drive in St. Louis, Missouri from 2007 to 2015. The home was owned by Ronald Reynolds. Reynolds also owned a number of other properties in the St. Louis area that frequently required extensive repairs and maintenance. Reynolds hired plaintiff Morgan to perform repairs on Reynolds's various rental properties and, in return, Reynolds credited plaintiff for the value of the repairs against plaintiff's lease obligations. On December 12, 2014, the Vogler Law Firm sent plaintiff a collection letter ("Dunning Letter") demanding payment of $21,164.22 on behalf of Ron Reynolds. The Dunning Letter stated as follows:
The Dunning Letter was signed by Vincent D. Vogler. At no time before receiving the letter had Reynolds sent plaintiff any delinquency notices, bills, or other correspondence claiming that plaintiff owed any money for unpaid lease payments. Plaintiff believed that he had complied with his agreement with Reynolds and that his rent payments satisfied his lease obligations in full. Plaintiff disputed the debt by sending a letter dated January 5, 2015. On January 13, 2015, the Vogler Law Firm sent plaintiff a letter that attached a handwritten accounting of alleged unpaid rent that was dated February 28, 2013. The letter was again signed by Vincent D. Vogler, but plaintiff alleges that non-lawyer Vincent V. Vogler (not to be confused with attorney Vincent D. Vogler) was actually responsible for sending that letter and the December 12 letter. Notably, the signatures on the two letters do not resemble one another. Plaintiff alleges that the Vogler Law Firm did not actually verify the debt, but rather that it merely forwarded the documentation initially provided by Reynolds. Further, the handwritten accounting includes unpaid rents only through February 2013, nearly two years before defendants sent the December 12, 2014 collection letter, and plaintiff says the accounting showed plaintiff owed $14,860 (not $21,164.22 as indicated on the initial letter).
Reynolds, through the Vogler Law Firm, filed a collection suit against plaintiff in St. Louis County on April 13, 2015, demanding $24,972.00. They did not attach awritten lease agreement to their petition because no such written agreement existed. Because the claim was based on an oral lease, the statute of limitations was five years, and plaintiffs thus say that the claim for debts from June 2007 through April 2010 were time barred. Plaintiffs also suggest that attorney Vincent D. Vogler had not reviewed the lawsuit and would not have filed the lawsuit with a facially time-barred claim.
On June 18, 2015, Reynolds left a message on plaintiff's voicemail saying Plaintiff was at the time living in the subject residence with his wife and children and began to fear for the safety of his family as a result of the hostile phone message.
Plaintiff filed for bankruptcy as a result of Reynolds's collection suit because, although he did not owe the debt, he could not afford thousands of dollars it would cost to hire an attorney to defend the suit. On June 30, 2015, plaintiff filed for Chapter 7 bankruptcy protection. An automatic stay was thus in force pursuant to the United States Bankruptcy Code, which prohibited plaintiff's creditors and collectors from continuing to collect or to attempt to collect any debts. However, the collection lawsuit was set for a hearing on July 7, 2015, and Reynolds and his law firm moved for a default judgment in violation of the automatic stay. On July 9, 2015, and in further violation of the automatic stay, they filed a garnishment against plaintiff. Although plaintiff alleged in his complaint that Reynolds and his law firm received notification of the bankruptcy filing from the bankruptcy trustee or through conducting a "bankruptcy scrub" on the debt, plaintiff does not now disagree that the defendants did not receive actual notice until after the default judgment.
Plaintiff's bankruptcy attorney contacted the Vogler Firm on July 9 and directed them to cease violating the automatic stay. The Vogler Firm promised to set the default judgment aside and filed a motion to do so on July 9, but they did not call their motion up for a hearing until October 27, 2015. In the meantime, the default judgment remained a matter of public record and decreased plaintiff's credit score. Plaintiff had to hire another law firm to enter an appearance on his behalf to effectuate the setting aside of the default judgment. The collection lawsuit was dismissed on October 27, 2015, as well.
Plaintiff brought this lawsuit against defendants the Vogler Law Firm, P.C., Vincent D. Vogler, Vincent V. Vogler, and Ronald K. Reynolds on November 4, 2015. The complaint includes the following counts:
Defendants have moved to dismiss each of the counts against them.
The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the legal sufficiency of a complaint so as to eliminate those actions "which are fatally flawed in their legal premises and deigned to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity." Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (citing Neitzke v. Williams, 490 U.S. 319, 326-27 (1989)). "To survive amotion to dismiss, a claim must be facially plausible, meaning that the 'factual content. . . allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Cole v. Homier Dist. Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court must "accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party." Id. (quoting Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005)). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," will not pass muster. Iqbal, 556 U.S. at 678.
Each of plaintiff's three counts is discussed in turn below.
The purpose of the FDCPA is to eliminate abusive debt collection practices by debt collectors ...". Dunham v. Portfolio Recovery Assocs., LLC, 663 F.3d 997, 1000 (8th Cir. 2011). To state a claim for violation of the FDCPA, plaintiff must allege facts establishing that (1) plaintiff is a consumer, (2) the payment obligation defendant seeks to recoup was a "debt" as defined by the statute, (3) the defendant is a "debt collector" as defined by the statute, and (4) the defendant violated any of the protections afforded by the FDCPA. Id. at 1001. Defendants do not appear to contest elements one through three. Each of their several arguments for dismissal pertains to whether they violated particular sections of the statute.
15 U.S.C. § 1692g(a). Plaintiff claims that defendants did not include the statements required in § 1692g(a)(4). Defendants argue that the initial communication itself included the required verification language. The language on the communication states:
Here, plaintiff claims that defendants improperly required him...
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