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Hanks v. Valarity, LLC

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

April 24, 2015

MARSHALL HANKS, Plaintiff,
v.
VALARITY, LLC, Defendant.

MEMORANDUM AND ORDER

JOHN A. ROSS, District Judge.

This matter is before the Court on Defendant Valarity, LLC's ("Valarity" or "Defendant") Motion to Dismiss (Doc. 4). The motion is fully briefed and ready for disposition. For the following reasons, the motion will be GRANTED in part.

I. Motion to Dismiss Standard of Review

In ruling on a motion to dismiss, the Court must view the allegations in the Complaint liberally in the light most favorable to the plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008) (citing Luney v. SGS Auto Servs., 432 F.3d 866, 867 (8th Cir. 2005)). Additionally, the Court "must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party." Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005) (citation omitted). To survive a motion to dismiss, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555; Huang v. Gateway Hotel Holdings, 520 F.Supp.2d 1137, 1140 (E.D. Mo. 2007).

II. Background

Plaintiffs factual allegations, in the light most favorable to him, are as follows. On April 16, 2014, Marshall Hanks ("Hanks" of "Plaintiff') received a call on his home telephone from a Valarity representative in connection with the collection of a debt (Doc. 1 at ¶ 12). Hanks disputed the debt and told the representative that the debt possibly belonged to his deceased ex-girlfriend (Id. at ¶ 13). The Valarity representative responded, "Well, that's not my problem, this is going to be your responsibility. I've heard those stories before" (Id. at ¶14). Hanks, upset and shocked by these comments, ended the call (Id. at ¶ 15).

On April 21, 2014, a Valarity representative contacted Hanks on his home telephone in connection with the collection of a debt (Id. at ¶ 16). Hanks again disputed the debt and requested Valarity cease any further calls (Id. at ¶ 17). During this call, the Valarity representative said, "Ok, you are going to be put in the automatic dialing system and we are going to continue to call you" (Id. at ¶ 18).

Thereafter, Valarity contacted Hanks on his home telephone in connection with the collection of a debt on numerous occasions (Id. at ¶ 19). On more than one occasion, Hanks requested Valarity cease any further calls (Id. at ¶ 20). During one of the calls, a Valarity representative demanded Hanks' personal information, including a debit card number (Id. at 21). During a call on April 29, 2014, Hanks notified Valarity that he was represented by an attorney (Id. at ¶ 22). The Valarity representative immediately hung up (Id. ). On May 1, 2014, Hanks was again contacted regarding the debt and, during this call, provided his attorney's contact information (Id. at ¶¶ 23, 24).

On August 18, 2014, Hanks brought the current action against Valarity alleging that Valarity violated the Fair Debt Collection Practices Act ("FDCPA"). Specifically, in his five-page Complaint, Hanks alleges Valarity committed the following four FDCPA violations: called him at a time or place known to be inconvenient to him (15 U.S.C. § 1692c(a)(1)) (Count I); communicated with him even though he was represented by an attorney (15 U.S.C. § 1692(a)(2)) (Count II); engaged in conduct the natural consequence of which is to harass, oppress or abuse Hanks in connection with the collection of the debt (15 U.S.C. § 1692d) (Count III); and used unfair or unconscionable means to collect a debt (15 U.S.C. § 1692f) (Count IV). Valarity now moves to dismiss Hanks' Complaint for failure to state a claim upon which relief can be granted.

III. Analysis

The FDCPA was enacted to "eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent state action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e). "In order to establish an FDCPA violation, Plaintiff[] must prove that [he is a] consumer[]; Defendant is a debt collector; there was an attempt to collect a debt; and Defendant violated, by act or omission, a provision of the FDCPA." Hutsler v. Shapiro & Kreisman, LLC, No. 4:13-CV-2159-SPM, 2014 WL 2452977, at *2 (E.D. Mo. June 2, 2014). "The FDCPA is construed using an unsophisticated consumer standard designed to protect consumers of below average sophistication or intelligence without having the standard tied to the very last rung on the sophistication ladder." Baker v. Allstate Fin. Servs., Inc., 554 F.Supp.2d 945, 951 (D. Minn. 2008).

A. Inconvenient Time or Place (15 U.S.C. § 1692c(a)(1))

Defendant first asserts that Plaintiff has failed to allege sufficient facts to show the Valarity's calls were made at a time or place that was inconvenient for Plaintiff. Specifically, Defendant argues that Plaintiff does not allege either that Valarity called him at an inconvenient time or place or that Valarity knew it was calling Plaintiff at an inconvenient time or place, only that Valarity called him at home. Plaintiff responds that Defendant had reason to know that Plaintiff considered the calls to be inconvenient because during the initial call, Hanks indicated that the disputed debt may have belonged to his deceased ex-girlfriend.

The Court finds that even in the light most favorable to Plaintiff, Hanks fails to sufficiently allege a violation of the FDCPA under section 1692c(a)(1). Pursuant to 15 U.S.C. § 1692c(a)(1), "a debt collector may not communicate with a consumer in connection with the collection of any debt at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer." (emphasis added). Here, Plaintiff has not alleged that the communications occurred at an unusual time or place or at a time or place inconvenient to him. Instead, Plaintiff appears to assert that given the nature of the debt, specifically that it may have belonged to his deceased ex-girlfriend, this provision of the FDCPA applies. However, Section 1692c(a)(1) concerns the time and location of the communication, not emotional inconvenience. Furthermore, communications directed at an ...


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