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May v. Consumer Adjustment Co., Inc.

United States District Court, E.D. Missouri, Eastern Division

February 5, 2015

DONNA MAY, Plaintiff,



This litigation is before the Court having been removed to this Court pursuant to 28 U.S.C. § 1446(a), based on the Court's federal question jurisdiction, 28 U.S.C. § 1331.

It is now before the Court on Defendants' Motion to Dismiss. [Doc. No. 10]. Plaintiff has filed a response in opposition to the motion. [Doc. No. 12]. Defendants have filed a Reply. [Doc. No. 13]. Plaintiff further filed a supplement to her response. [Doc. No. 17]. For the reasons set forth below, the Motion is granted.

Facts and Background[1]

Plaintiff Donna May filed this putative class action in the Circuit Court of Jefferson County, alleging that Defendants Consumer Adjustment Company, Inc. and Roger Weiss violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA") by sending Plaintiff a collection letter for her overdue utility bill that stated the full amount of the debt without informing her that the amount owed included interest, and that the interest would continue to accrue until the debt was paid. Plaintiff alleges that Defendants, who are "debt collectors, " as defined by the FDCPA, attempted to collect a debt that arose from utilities provided by Ameren Missouri. Neither party has filed the collection letter in question with the Court.


A defendant may file a motion to dismiss for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In other words, a plaintiff must plead facts from which the court can draw a "reasonable inference" of liability. Iqbal, 556 U.S. at 678. The complaint need not contain "detailed factual allegations" but must contain more than mere "labels and conclusions, and a formulaic recitation of the elements" or "naked assertion[s]" devoid of "further factual enhancement." Twombly, 550 U.S. at 555, 557. An "unadorned, the-defendant-unlawfully-harmed-me accusation" will not suffice. Iqbal, 556 U.S. at 678. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations, " id. at 679, which "raise a right to relief above the speculative level, " Twombly, 550 U.S. at 555.

In evaluating a motion to dismiss, the court can "choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679. Turning to any "well-pleaded factual allegations, " the court should "assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. The court may only consider the initial pleadings. Brooks v. Midwest Heart Grp., 655 F.3d 796, 799 (8th Cir. 2011).


Plaintiff's sole claim in this action is that Defendants violated § 1692g(a)(1) of the FDCPA, which requires debt collectors to state the amount of debt in collection letters. Plaintiff predicates this claim on her interpretation of a line of Seventh Circuit cases. See, e.g., Chuway v. Nat. Action Fin. Servs., 362 F.3d 944 (7th Cir. 2004); Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, and Clark, LLC, 214 F.3d 872 (7th Cir. 2000). Under this Court's interpretation of the relevant Seventh Circuit cases and, more importantly, the FDCPA, Plaintiff has failed to state a claim under the FDCPA. Accordingly, the Court will grant Defendants' Motion and Plaintiff will be given leave to amend.


"The FDCPA was enacted to eliminate abusive debt collection practices by debt collectors [and] to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged.'" McIvor v. Credit Control Servs., 773 F.3d 909, 913 (8th Cir. 2014) (alteration in original) (quoting 15 U.S.C. § 1692(e)). Alleged violations of the FDCPA are "reviewed utilizing the unsophisticated-consumer standard which is designed to protect consumers of below average sophistication or intelligence without having the standard tied to the very last rung on the sophistication ladder.'" Strand v. Diversified Collection Serv., Inc., 380 F.3d 316, 317 (8th Cir. 2004) (quoting Duffy v. Landberg, 215 F.3d 871, 874 (8th Cir. 2000)). This standard is intended to "protect[] the uninformed or naive consumer, " while maintaining "an objective element of reasonableness to protect debt collectors from liability for peculiar interpretations of collection letters." Id. at 317-18.

Under the FCDPA, debt collectors must send a written validation notice to consumer debtors within five days of initial communication with the consumer regarding the collection of a debt. 15 U.S.C. § 1692g(a). The FDCPA requires the written notice to include information such as: the amount of the debt, 15 U.S.C. § 1692g(a)(1); the name of the creditor, 15 U.S.C. § 1692g(a)(2); "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[, ]" 15 U.S.C. § 1692g(a)(3); "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 provide verification of the debt, 15 U.S.C. § 1692g(a)(4); and "a ...

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