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Delisi v. Midland Funding, LLC

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

July 16, 2015



RODNEY W. SIPPEL, District Judge.

This matter is before me on Defendant Midland Funding, LLC ("Midland")'s Motion to Dismiss Case and Plaintiff Edmund Delisi's Motion to Remand Case to State Court in this Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. ("FDCPA"), action. The parties oppose each other's motions and the motions are fully briefed. For the reasons that follow, I will grant Midland's motion to dismiss and will deny Delisi's motion to remand as moot.


This action is based on events occurring in a previous debt collection lawsuit. The debt collection suit was brought by Midland against Delisi in the Circuit Court of Franklin County, Missouri on February 28, 2014. On April 15, 2014, Midland obtained a default judgment against Delisi for the full amount of the debt owed. Delisi never appealed or otherwise directly attacked the entry of default judgment against him.

On November 26, 2014, Delisi filed this suit in the Circuit Court of Franklin County, Missouri, alleging that Midland's conduct in connection with the debt collection suit violated the FDCPA. On December 31, 2014, Midland removed this action to this Court pursuant to 28 U.S.C. § 1441(a). On January 20, 2015, Delisi filed his First Amended Complaint.

In the complaint, Delisi alleges that Midland sent Delisi a collection letter dated November 16, 2013, informing Delisi that it would be filing a lawsuit against him for a debt of $3, 019.53. On February 28, 2014, Midland filed the debt collection suit. In the debt collection suit, Midland pleaded that it was the assignee of the original creditor, Citibank, that there had been an agreement between Citibank and Delisi, and that Citibank and Midland had made demands for payment to Delisi for the outstanding sum of $2, 294.32, but Delisi had failed and refused to satisfy the obligation. Delisi alleges that the demand letter was confusing because it sought an amount different from the amount demanded in the state court petition.

Delisi also alleges that Midland failed to attach proper documentation to the state court petition in violation of the FDCPA. Delisi pleads that Midland failed to attach a contract or agreement between Citibank and Midland, any records of assignment of the debt, or an affidavit from Citibank to the state court petition. Instead, Midland attached an "affidavit of indebtedness" that was prepared by a Midland employee. Delisi alleges that because the affidavit was not prepared by Citibank, the original creditor, it was "therefore not made by anyone with personal knowledge about the debt, although Defendant falsely and deceptively claimed in the affidavit that it did have such personal knowledge."

Additionally, Delisi alleges that Midland, "came to realize, after many years of suing consumers like Plaintiff, that the vast majority of debtors lacked the resources to come into court to defend Defendant's meritless and unsubstantiated debt collection lawsuits, " and that Midland filed the collection suit "intending to take advantage of [Delisi]'s dire economic circumstances and unsophistication." Delisi further alleges that Midland knew or should have known that Delisi would not have the resources to hire an attorney or "decipher the bogus affidavit" on his own. Based on all of these allegations, Delisi pleads that Midland "filed the Collection Suit and took judgment against [Delisi] with full knowledge that it lacked the evidence required in Missouri to prove... standing to sue... and... the amount and/or validity of the debt." Delisi further pleads that, "[b]ut for these false representations, Defendant would not have obtained judgment against Plaintiff, " causing actual damages of anxiety, frustration, and worry.

Delisi seeks relief under the FDCPA, 15 U.S.C. §§ 1692d-e, for utilizing false, unfair, and misleading representations in connection with the collection of a debt; § 1692d-f for engaging in deceptive and harassing conduct in the collection of a debt; and §1692f for unfair and unconscionable practices to attempt to collect the debt.[1]

On February 3, 2015, Midland filed the instant motion to dismiss, arguing that the Court lacks subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) or, in the alternative, seeking dismissal of the case for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). On March 6, 2015, Delisi filed a motion to remand, arguing that if the Court finds that it lacks subject matter jurisdiction, it must remand the case back to state court rather than dismiss it altogether.

Legal Standard

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.

In ruling on a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6), I must accept as true all factual allegations in the complaint and view them in the light most favorable to the plaintiff. Kohl v. Casson, 5 F.3d 1141, 1148 (8th Cir. 1993). "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) (citing Bell Atl. Corp. V. Twombly, 550 U.S. 544, 570 (2007)). "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." Iqbal, 556 U.S. at 678. While a court must accept factual allegations as true, it is "not bound to accept as true a legal conclusion couched as a factual allegation." Carton v. Gen. Motor Acceptance Corp., ...

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