United States District Court, E.D. Missouri, Eastern Division
Margaretta Bland, Plaintiff: Richard A. Voytas, Jr., LEAD
ATTORNEY, VOYTAS AND COMPANY, St. Louis, MO.
LVNV Funding, LLC, Defendant: Mayer S. Klein, LEAD ATTORNEY,
Samuel Michael Goldenhersh, FRANKEL AND RUBIN, Clayton, MO.
W. SIPPEL, UNITED STATES DISTRICT JUDGE.
matter is before me on Defendant LVNV Funding, LLC's
Motion to Dismiss
in this Fair Debt Collection Practices Act, 15 U.S.C. §
§ 1692, et seq. (" FDCPA" ), action.
The issues are fully briefed and I have heard oral argument
on the motion. For the reasons that follow, I will grant in
part and deny in part defendant's motion to dismiss.
action arises out of a debt collection lawsuit. In 2002,
Sears Roebuck Co. sued plaintiff to collect on an unpaid
credit card bill. Plaintiff did not respond to the lawsuit
and Sears took a default judgment in the amount of $3,387.96.
Sears assigned the 2002 judgment to defendant, a debt
collector. Defendant hired the law firm Miller & Steeno, P.C.
(" Miller" ) to revive the judgment. Miller filed a
motion to revive the judgment, and then somewhat sporadically
sought to serve plaintiff with process between November 2011
and June 2014. Plaintiff was served with the revival suit on
June 25, 2014. The state court held a hearing on
defendant's motion to revive judgment. Again, plaintiff
did not respond to the motion or appear at the hearing. On
August 7, 2014, the Circuit Court of St. Louis City, Missouri
revived the judgment against plaintiff, giving full force and
effect to the 2002 judgment in the amount of $3,387.96.
Plaintiff never appealed the default judgment or the revival
of the judgment.
August or early September 2014, defendant, through Miller,
contacted plaintiff about the debt by phone. Plaintiff
alleges that the phone call was the " initial
communication" as defined by the FDCPA, triggering
defendant's requirement to provide plaintiff with notice
of her dispute and validation rights. Plaintiff alleges that
defendant never sent her notification of her dispute and
validation rights, nor did defendant provide plaintiff with
written notice of the amount of the debt or a copy of either
of the state court judgments. Plaintiff alleges that during
the phone call, defendant told plaintiff it would take legal
action such as garnishment if she did not make payment that
day. Shortly after receiving the phone call, plaintiff
started making payments to defendant.
January 2015, Miller sent plaintiff a collection letter.
Plaintiff alleges that the letter did not state the amount of
the debt and concealed the fact that defendant was assessing
interest on the debt. The letter instructed plaintiff to make
$50 monthly payments through April 2015 and stated that after
April 2015, Miller would seek to collect the full amount due.
February 6, 2015, plaintiff filed this action in the Circuit
Court of St. Louis County, Missouri, alleging violations of
the FDCPA, abuse of process, and violation of the Missouri
Merchandising Practices Act, RSMo. § 407.025(1) ("
MMPA" ). Defendant removed this action to this Court on
March 9, 2015. On April 7, 2015, plaintiff filed her First
addition to plaintiff's state law claims, plaintiff
alleges that defendant violated § § 1692d, 1692e,
1692f, and 1692g of the FDCPA because defendant (1) fooled
plaintiff into believing that Sears, rather than defendant,
was pursuing her, (2) failed to notify plaintiff of her
dispute and validation rights, (3) overshadowed
plaintiff's dispute and validation rights, (4) attempted
to collect a debt from plaintiff when it had no legal
standing to do so, (5) failed to accurately state the amount
of the debt, and (6) used unfair and unconscionable practices
to attempt to collect the debt.
April 20, 2015, defendant filed this motion to dismiss,
arguing that plaintiff has failed to state a claim under
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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing
Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127
S.Ct. 1955, 167 L.Ed.2d 929 (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., 611 F.3d 451, 454 (8th Cir. 2010) (internal
citations 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 citations omitted).
The purpose of the FDCPA is to eliminate abusive debt
collection practices by debt collectors . . ." Dunham v.
Portfolio Recovery Assocs., LLC, 663 F.3d 997, 1000 (8th Cir.
2011). When a court is evaluating a debt collection
communication it must view it " through the eyes of an
unsophisticated consumer." Freyermuth v. Credit
Bureau Services, Inc., 248 F.3d 767, 771 (8th Cir.
2001). This standard 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 Services, Inc., 380 F.3d 316, 317-18 (8th
Cir. 2004) (internal quotations and citations omitted). It
" protects the uninformed or naive consumer, yet also
contains an objective element of reasonableness to protect
debt collectors from liability for peculiar interpretations
of collection letters." Id.
1692d of the FDCPA provides that " a debt collector may
not engage in any conduct the natural consequence of which is
to harass, oppress, or abuse any person in connection with
the collection of any debt." Section 1692e provides that
a " debt collector may not use any false, deceptive, or
misleading representation or means in connection with the
collection of any debt." Section 1692f provides that a
" debt collector may not use unfair or unconscionable
means to collect or attempt to collect any debt."
Section 1692g sets out information a debt collector must
provide to a consumer within five days after the initial
communication of a debt collection.
Section 1692g Dispute and Validation Rights
alleges that defendant violated 15 U.S.C. § 1692g by
failing to send plaintiff the requisite written notice
informing plaintiff of her rights under the FDCPA. Section
1692g requires a debt collector to provide to a consumer
certain information within five days after the initial
communication of a debt collection. The required information
includes " the amount of the debt" and " the
name of the creditor to whom the debt is owed." 15
U.S.C. § 1692g(a)(1),(2). The notice must also contain:
(3) 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 ...