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May v. Consumer Adjustment Company, Inc.

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

July 24, 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.

This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's First Amended Complaint. [Doc. No. 24]. Plaintiff has filed a response in opposition to the motion. [Doc. No. 28]. Defendants have filed a Reply. [Doc. No. 31]. For the reasons set forth below, the Motions is granted in part and denied in part.

Procedural Background

Plaintiff Donna May filed this putative class action in the Circuit Court of Jefferson County, alleging that Defendants Consumer Adjustment Company, Inc. ("CACi") 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.

On February 5, 2015 the Court granted Defendants' Motion to Dismiss, and dismissed Plaintiff's Complaint, with leave to amend. Plaintiff filed her Amended Complaint on February 19, 2015, and Defendants again request dismissal.

Factual Background[1]

Plaintiff allegedly incurred a debt to Ameren Missouri. Ameren hired Defendant CACi, to collect the debt. Defendant Weiss is CACi's principal officer. Defendants sent Plaintiff a collection letter dated June 19, 2013 stating that she owed $495.02.[2] Defendants did not provide Plaintiff any indication that the amount Plaintiff purportedly owed, and for which Defendants were demanding payment, would change for any reason. In reality, Defendants, and not Ameren as the original creditor, were actively assessing and attempting to collect interest on the debt beyond what was factored into the amount due that Defendants listed on their collection letter. Plaintiff alleges that at the time Defendants sent the collection letter, neither Defendants nor Ameren was in possession of the original contract or agreement that permitted the assessment of interest on Plaintiff's Ameren account, much less at the rate Defendants were assessing and attempting to collect.

After receiving Defendants' collection letter, Plaintiff compared the amount Defendants were attempting to collect with the last bill she received from Ameren a few days prior. The Ameren bill stated that Plaintiff was only obligated to pay $493.92. On July 9, 2013, Plaintiff called CACi to inquire why the two amounts were different. During the call, a representative of Defendants admitted to charging interest, and attempted to collect an amount in excess of the balance disclosed within the June 19, 2013 collection letter-approximately $497. Because interest was constantly accruing, the amount Defendants were attempting to collect in the June 19, 2013 collection, $495.02, was less than the amount Defendants were attempting to collect from Plaintiff on the day she received the letter.


A complaint must set out a "short and plain statement of [a plaintiff's] claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). To test the legal sufficiency of a complaint, 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.

Under Twombly and Iqbal, "[a] plaintiff... must plead facts sufficient to show that her claim has substantive plausibility." Johnson v. City of Shelby, 135 S.Ct. 346, 347 (2014). If the plaintiff "inform[s] the [defendant] of the factual basis for [her] complaint, [she] [is] required to do no more to stave off threshold dismissal for want of an adequate statement of [her] claim." Id.

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).


In the sole count of Plaintiff's Amended Complaint, she claims that Defendants violated four provisions of the FDCPA: 1) Section 1692g(a)(1), which requires debt collectors to state the amount of debt in collection letters; 2) Section 1692e(2)(A), which prohibits the false representation of the character, amount, or legal status of any debt; 3) Section 1692d, which prohibits conduct that harasses, oppresses, or abuses debtors; and 4) Section 1692f(1), which prohibits collection of an amount not expressly authorized by the agreement creating the debt and not permitted by law. The Court finds that Plaintiff has stated a claim for alleged violations of Sections 1692g(a)(1) and 1692e(2)(A), but not for the alleged violations of Sections 1692f(1) and 1692d. Accordingly, the Court will grant in part and deny in part Defendants' Motion to Dismiss.


"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 FDCPA, 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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