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Glick v. Cavalry SPV I, LLC

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

July 16, 2015

LESLIE J. GLICK, Plaintiff,
CAVALRY SPV I, LLC, Defendant.


E. RICHARD WEBBER, Senior District Judge.

This matter comes before the Court on Defendant Cavalry SPV I, LLC's "Motion to Dismiss" [ECF No. 10], and Plaintiff Leslie Glick's "Motion for Remand" [ECF No. 14].


This lawsuit arises out of a previously-adjudicated state court collection suit brought by Cavalry SPV I, LLC ("Cavalry") against Leslie Glick ("Glick") for collection of a supposed debt. According to Glick, Cavalry filed the collection suit, "Cause No. 13SL-AC40425, " on December 19, 2013, in St. Louis County Associate Circuit Court, alleging the following: (1) Cavalry was the assignee of HSBC Bank, the original creditor; (2) there was an agreement between HSBC Bank and Glick; and (3) HSBC Bank, and subsequently Cavalry, had made a demand for payment of an outstanding sum of $1, 479.57, but Glick had refused to pay [ECF No. 4 at ¶ 15]. Cavalry obtained default judgment against Glick.

In November 2014, Glick initiated the present action by filing suit against Cavalry in the Associate Circuit Court for St. Louis County, "seek[ing] to challenge [Cavalry's] litigation misconduct, including but not limited to false representations about the validity and amount of the debt [Glick] allegedly owed, that went unnoticed by the trial court" [ECF No. 4 at ¶ 2]. Specifically, Glick alleges the violation of the Fair Debt Collections Practices Act ("FDCPA"). On January 16, 2015, Cavalry removed the case to this Court, pursuant to 28 U.S.C. §§ 1331, 1441, and 1446 [ECF No. 1].

Glick alleges various conduct by Cavalry during the collection suit litigation. According to Glick, Cavalry failed to attach an affidavit from the original creditor, as well as a "contract or agreement purportedly existing between the original creditor and [Glick], " the attachment of which Glick claims was required by Missouri law [ECF No. 4 at ¶¶ 16, 20-21]. Similarly, Cavalry allegedly failed to attach any records of assignment of Glick's debt from the original creditor to Cavalry [ECF No. 4 at ¶ 22]. Relatedly, Glick claims the "affidavit of indebtedness" Cavalry did attach was "not made by anyone with personal knowledge about the debt, although [Cavalry] falsely and deceptively claimed in the affidavit that it did have such personal knowledge" [ECF No. 4 at ¶ 19]. Thus, Glick alleges Cavalry sued on the "alleged debt without any way to substantiate the balance owed or even confirm that there was indeed a debt in the first place, " adding Cavalry lacked: (1) valid proof of assignment; (2) valid proof the debt was even owed; and (3) "the required contract needed to obtain judgment" [ECF No. 4 at ¶¶ 23, 25]. Further, Glick claims Cavalry knew it lacked the required evidence and "intend[ed] to take advantage of [Glick's] dire economic circumstances and unsophistication, " knowing Glick neither had "the resources to hire an attorney to decipher [Cavalry's] [] affidavit of indebtedness, " nor had the ability to "decipher the [] affidavit on her own" [ECF No. 4 at ¶¶ 26-28]. The Complaint[1] also states, "[Cavalry] filed the Collection Suit and, in its Motion to Default..., actively and falsely represented to the Court (via the [] affidavit of indebtedness that [Cavalry] did present to the Court) that [Cavalry] had standing and sufficient proof as to the validity and amount of the debt" [ECF No. 4 at ¶ 29]. "But for these false representations, " Glick argues, Cavalry "would not have obtained judgment against Plaintiff" [ECF No. 4 at ¶ 30].

Thus, Glick argues Cavalry, through this alleged conduct, has violated the FDCPA, 15 U.S.C. § 1692d-f, in particular, by: (1) "[u]tilizing false, unfair, and misleading representations in connection with the collection of a debt"; (2) "[e]ngaging in deceptive and harassing conduct in the collection of a debt"; and (3) "us[ing] unfair and unconscionable practices to attempt to collect the debt" [ECF No. 4 at ¶ 38].[2] Glick claims she has incurred actual damages including, but not limited to, anxiety, frustration, and worry, and she seeks relief in the form of actual damages, statutory damages, costs, reasonable attorney's fees, and the release of the debt [ECF No. 4 at ¶ 32].

On February 20, 2015, Cavalry filed the pending Motion to Dismiss, asking the Court to dismiss the case for lack of subject matter jurisdiction under Federal Rule of Civil Procedure ("FRCP") 12(b)(1), or, in the alternative, to dismiss the case for failure to state a claim under FRCP 12(b)(6). On March 13, Glick filed her Motion for Remand, arguing a ruling in favor of Cavalry on the issue of subject matter jurisdiction requires the Court to remand the case back to state court rather than dismiss it altogether.


The purpose of a Rule 12(b)(1) motion is to allow the Court to address the threshold question of jurisdiction, as "judicial economy demands that the issue be decided at the outset rather than deferring it until trial." Osborn v. U.S., 918 F.2d 724, 729 (8th Cir. 1990). "A district court has the authority to dismiss an action for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Johnson v. U.S., 534 F.3d 958, 962 (8th Cir. 2008) (internal quotation marks and citation omitted). "Jurisdictional issues, whether they involve questions of law or of fact, are for the court to decide." Osborn, 918 F.2d at 729.

Under FRCP 12(b)(6), a party may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). The notice pleading standard of FRCP 8(a)(2) requires a plaintiff to give "a short and plain statement showing that the pleader is entitled to relief." To meet this standard and to survive a Rule 12(b)(6) 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) (internal quotations and citation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. A court accepts "as true all of the factual allegations contained in the complaint, " and affords the non-moving party "all reasonable inferences that can be drawn from those allegations" when considering a motion to dismiss. Jackson v. Nixon, 747 F.3d 537, 540-41 (8th Cir. 2014) (internal quotations and citation omitted). However, the Court is "not bound to accept as true a legal conclusion couched as a factual allegation." Carton v. Gen. Motor Acceptance Corp., 611 F.3d 451, 454 (8th Cir. 2010) (internal citation omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678 (internal citation omitted). Additionally, "some factual allegations may be so indeterminate that they require further factual enhancement in order to state a claim." Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).

A well-pleaded complaint may not be dismissed even if it appears proving the claim is unlikely and if the chance of recovery is remote. Bell Atlantic v. Twombly, 550 U.S. 544, 556 (2007). However, where the allegations on the face of the complaint show "there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate." Young v. St. John's Mercy Health Sys., No. 10-824, 2011 WL 9155, at *4 (E.D. Mo. Jan. 3, 2011) (internal citation omitted). Further, if a claim fails to allege one of the elements necessary to recovery on a legal theory, that claim must be dismissed for failure to state a claim upon which relief can be granted. Crest Constr. II, Inc. v. Doe, 660 F.3d 346, 355 (8th Cir. 2011). Bare assertions constituting merely conclusory allegations failing to establish elements necessary for recovery will not suffice. See id. ("Plaintiffs, relying on facts not in the complaint, make bare assertions that [defendants] were not just lenders, but owners that controlled the RICO enterprise... these assertions are more of the same conclusory allegation..."). Courts must assess the plausibility of a given claim with reference to the plaintiff's allegations as a whole, not in terms of the plausibility of each individual allegation. Zoltek Corp. v. Structural Polymer Grp., 592 F.3d 893, 896 n.4 (8th Cir. 2010) (internal citation omitted). This inquiry is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.


A. Motion to Dismiss [ECF No. 10]

1. The Rooker-Feldman Doctrine and Subject ...

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