United States District Court, W.D. Missouri, Western Division
MILADY R. PETERS, Plaintiff,
FINANCIAL RECOVERY SERVICES, INC., Defendant
For Milady R. Peters, Plaintiff: Alan J. Stecklein, LEAD ATTORNEY, Consumer Legal Clinic LLC, Kansas City, KS.
For Financial Recovery Services, Inc., Defendant: Kersten Holzhueter, LEAD ATTORNEY, Spencer, Fane, Britt & Browne LLP-KCMO, Kansas City, MO; Joshua C Dickinson, Spencer, Fane, Britt & Browne LLP-Omaha, Omaha, NE.
Gary A. Fenner, United States District Judge.
Presently before the Court is Defendant Financial Recovery Services, Inc.'s (" Defendant" ) Motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. # 21). Plaintiff Milady R. Peters (" Plaintiff" ) opposes. (Doc. # 24). For the reasons set forth below, Defendant's Motion is GRANTED.
Plaintiff was a debtor of GE Electric Capital Corp (" GE" ) who, according to Plaintiff, owed GE $400 at the time GE charged-off her debt. (First Amended Complaint ¶ ¶ 3, 7). LVNV Funding LLC (" LVNV" ) purchased Plaintiff's debt from GE. ( Id. ¶ 6). Defendant is a debt collection agency who attempted to collect Plaintiff's debt on behalf of LVNV. ( Id. ¶ ¶ 4, 6). When attempting to collect the debt, Defendant claimed Plaintiff owed $403.24 in principal and $486.92 in interest. ( Id. ¶ 8). Plaintiff alleges tat Defendant charged the $486.92 in interest after GE had charged-off the debt. ( Id. ¶ 10). After GE charged-off the debt, GE stopped sending billing statements to Plaintiff. ( Id. ¶ 20).
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint that fails to state a claim upon which relief may be granted. When considering a Rule 12(b)(6) motion to dismiss, a court treats all well-pleaded facts as true and grants the non-moving party all reasonable inferences from the facts. Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). However, courts are " not bound to accept as true a legal conclusion couched as a factual allegation" and such " labels and conclusions" or " formulaic recitation[s] of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (internal quotation marks omitted). A Rule 12(b)(6) motion should be granted only if the non-moving party fails to plead facts sufficient to state a claim " that is plausible on its face" and would entitle the party to the relief requested. Twombly, 550 U.S. at 570.
Plaintiff asserts that a creditor must send periodic billing statements to its debtor under 15 U.S.C. § 1637(b) unless the creditor has charged-off the debt and will not charge any additional fees or interest on the account. (First Amended Complaint ¶ ¶ 12, 15, 16). Plaintiff further asserts that since GE stopped sending billing statements, it was precluded from and had waived its ability to charge additional interest or fees on the account. ( Id. ¶ ¶ 22, 24). According to Plaintiff, because Defendant was " in the same shoes as GE" there was no legal basis for Defendant to charge interest on Plaintiff's account. ( Id. ¶ ¶ 25, 28). As a result, Plaintiff argues Defendant's attempt to collect the $486.92 in interest was a violation of 15 U.S.C. § 1692k. ( Id. ¶ 29). This statute provides for civil liability when a debt collector attempts
to collect an amount that is not expressly authorized by the agreement creating the debt or authorized by law. 15 U.S.C. § 1692f, k. Thus, for Plaintiff's claim to survive, it must be plausible on the face of Plaintiff's First Amended ...