United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants Dennis J. Barton and
the Barton Law Group, LLC’s Motion to Dismiss. (Doc.
No. 11) The motion is fully briefed and ready for
disposition. For the following reasons, the motion will be
Thomas Wade brings this action against Defendants Account
Resolution Corporation (“ARC”),  Dennis J. Barton,
and the Barton Law Group, LLC, for alleged violations of the
Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et
seq. (“FDCPA”). Plaintiff alleges that on or
about September 16, 2014, a default judgment was taken
against him in a state collection action brought by ARC to
collect a debt on behalf of SLUCare. (Complaint
(“Compl.”), Doc. No. 1 at ¶¶ 7, 8)
According to the Affidavit of Claim, no interest was accruing
on the debt prior to any judgment being taken. (Id.
at ¶ 9) When the default judgment was entered, however,
Defendants added $190.14 in pre-judgment interest.
(Id. at ¶ 10) Plaintiff contends that
Defendants had no legal authority to add pre-judgment
interest to the default judgment. Defendants argue the Court
need not reach the merits of Plaintiff’s claim because
it is time-barred.
12(b)(6) motion challenges the adequacy of a complaint on its
face. A limitations defense may properly be raised in a
12(b)(6) motion to dismiss when it “appears from the
face of the complaint itself that the limitation period has
run.” R.W. Murray Co. v. Shatterproof Glass
Corp., 697 F.2d 818, 821 (8th Cir. 1983); see also
Jessie v. Potter, 516 F.3d 709, 713 n. 2 (8th Cir.
2008); Varner v. Peterson Farms, 371 F.3d 1011, 1016
(8th Cir. 2004). For the purposes of a 12(b)(6) motion to
dismiss, the Court takes all facts alleged in the complaint
as true. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
556 (2007); Joyce v. Armstrong Teasdale, LLP, 635
F.3d 364, 365 (8th Cir. 2011).
contend that Plaintiff’s complaint is time-barred
because it was filed on August 31, 2015, one year and
eighteen days after Plaintiff was served on August 13, 2014
with the petition and affidavit in the state court collection
action. (Doc. No. 12 at 3-4) Plaintiff responds that the
service date is relevant only where the FDCPA claim is based
on allegations in the complaint in the state court action.
Here, Plaintiff argues his claim is not based on the contents
of Defendants’ pleadings, but rather on the entry of
default judgment awarding interest on September 16, 2014.
(Doc. No. 16 at 2) Defendants reply that any FDCPA violation
that arose from Defendants seeking interest accrued when
Plaintiff was served with the state court petition, which
specifically alleged that interest was due. (Doc. No. 18 at
action under the FDCPA must be brought “within one year
from the date on which the violation occurs.” 15 U.S.C.
§ 1692k(d). The statute of limitations is triggered in
the Eighth Circuit when the debt collector had “its
last opportunity to comply with the FDCPA.” Ness v.
Gurstel Chargo, P.A., 933 F.Supp.2d 1156, 1165 (D. Minn.
2013) (citing Mattson v. U.S. W. Commc’ns,
Inc., 967 F.2d 259, 261 (8th Cir. 1992). In this case,
Defendants’ last such opportunity was when they
obtained default judgment against Plaintiff on September 16,
2014. See Coble v. Cohen & Slamowitz, LLP, 824
F.Supp.2d 568, 570 (S.D.N.Y. 2011) (holding that the
debtors’ FDCPA claims accrued, and the one-year
limitations period began to run, when the consumer collection
law firm obtained default judgments against them in
state-court debt collection actions). This action was filed
on August 31, 2015, within the one-year limitations period.
Plaintiff plausibly alleges that Defendants violated the
FDCPA when they added pre-judgment interest to the default
judgment when according to the affidavit of claim, no
interest was accruing on the debt prior to judgment.
See, e.g., Hasbrouck v. Arrow Fin.
Servs. LLC, 09 Civ. 748(GLS), 2010 WL 1257885, at *1-3
(N.D.N.Y. Mar. 26, 2010) (FDCPA applies to statements in
affidavits submitted by debt collector in default judgment
application.); Gargiulo v. Forster & Garbus
Esqs., 651 F.Supp.2d 188, 191-92 (S.D.N.Y. 2009)
(applying FDCPA to statements in affidavits submitted by
defendant law firm in default judgment application);
Stolicker v. Muller, Muller, Richmond, Harms, Myers, and
Sgroi, P.C., 04 Civ. 733(RHB), 2005 WL 2180481, at *4-5
(W.D. Mich. Sept. 9, 2005) (same). Thus, Defendants’
motion to dismiss will be denied.
IT IS HEREBY ORDERED that Defendants Dennis
J. Barton and the Barton Law Group, LLC’s Motion to
Dismiss  is DENIED.
IS FURTHER ORDERED that no later than
September 9, 2016, counsel shall
file with the Clerk of the Court a joint proposed scheduling
plan. All dates required to be set forth in the plan shall be
within the range set forth below for Track 2: Standard.
parties’ joint proposed scheduling ...