United States District Court, W.D. Missouri, Southern Division
DOUGLAS HARPOOL, UNITED STATES DISTRICT JUDGE.
the Court are Defendants' Motion to Dismiss for Failure
to State a Claim filed by Defendants Schumann, Hyberger, and
Regional Recovery Services, Inc. (Doc. 38), Defendants'
Motion for More Definite Statement filed by Defendants
Schumann, Hyberger, and Regional Recovery Services, Inc.
(Doc. 40), Defendant Schumann's Motion to Dismiss for
Lack of Jurisdiction and Insufficient Service of Process
(Doc. 41), Defendant Axford's Motion to Dismiss for
Failure to State a Claim (Doc. 50), and Defendants'
Motions to Strike. (Docs. 57 and 58).
filed this action pro se alleging violations of the
Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681,
et seq., the Fair Debt Collection Practices Act
(FDCPA), 15 U.S.C. § 1692, et. seq., the False
Claims Act (FCA), 31 U.S.C. § 3729, and common law
claims for defamation. This matter arises from a dispute
concerning a debt that Plaintiff claims she does not owe.
sought a loan for a surgical procedure from a company named
Med Loan Finance. It appears Plaintiff elected to pay a fee
of $445.50 as part of the application process. Pursuant to
her application for a loan, Plaintiff was approved for a
Capital One credit card. However, she was unable to activate
it because Capital One found it suspicious. Plaintiff
attempted to get a refund from med Loan Finance for her
$445.50, but was denied.
November 2015, Plaintiff filed a small claims action in
Angelina County, Texas, against Med Loan Finance and
Defendant Jim Axford, the operator of Med Loan Finance. Med
Loan Finance filed a counterclaim. The Justice of the Peace
for Angelina County entered judgment in favor of Med Loan
Finance in the amount of $662, plus court costs of $131.
Plaintiff alleges that she has appealed this judgment but
provided no indication concerning the status of the
2017, Axford submitted the judgment and debt to Defendant
Regional Recovery Services, Inc. (RRS). The debt referred to
RRS was for the amount of $1, 419, which was based on a
“finance fee” and a “collection
fee.” Plaintiff alleges that this was an attempt
to “scare, intimidate and try to extort, burden and
harass Plaintiff for money she does not owe.” (Docs. 10
and 11). Plaintiff further alleges that RRS fabricated the
amount owed to them and threatened to increase the amount
owed if Plaintiff did not pay the amount by a certain date.
alleges that Axford violated the FDCPA by falsely
representing the status of a debt and by communicating credit
information he knew to be false. Plaintiff alleges that
Axford and RRS violated the FCRA by performing a background
and credit check on her without her permission and “for
no reason other than to spy and damage Plaintiff's credit
and reputation.” Plaintiff has also alleges defamation
and violations of the FCA by Axford and RRS. Plaintiff seeks
a refund of her money and the interest accrued on her credit
examining a Rule 12(b)(6) motion to dismiss for failure to
state a claim, the Court accepts all of Plaintiff's
factual allegations as true and construes those allegations
in Plaintiff's favor. Kulkay v. Roy, 847 F.3d
637, 641 (8th Cir. 2017). To survive such a motion,
Plaintiff's complaint “must include sufficient
factual allegations to provide the grounds on which the claim
rests.” Drobnak v. Andersen Corp, 561 F.3d
778, 783 (8th Cir. 2009). Put simply, Plaintiff's claim
for relief must be “plausible on its face.”
Bell Atl. 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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009).
Court has 4 motions before it: Defendants' Motion to
Dismiss for Failure to State a Claim filed by Defendants
Schumann, Hyberger, and Regional Recovery Services, Inc.
(Doc. 38), Defendants' Motion for More Definite Statement
filed by Defendants Schumann, Hyberger, and Regional Recovery
Services, Inc. (Doc. 40), Defendant Schumann's Motion to
Dismiss for Lack of Jurisdiction and Insufficient Service of
Process (Doc. 41), and Defendant Axford's Motion to
Dismiss for Failure to State a Claim. (Doc. 50).
Motion to Dismiss by Schumann, Hyberger, and RRS (Doc.
begin by asserting that Defendants Schumann and Hyberger
should be dismissed from this action because Plaintiff's
Complaint (Doc. 5) and Plaintiff's Statement of Claim for
Relief (Docs. 10 and 11) fail to put forward any allegations
of wrongdoing by either Shumann or Hyberger. In examining
both documents, the Court concludes that Defendants Robert
Schumann and Tom Hyberger should be dismissed from this
action. Other than being a named defendant, Hyberger is not
named at any point in Plaintiff's factual allegations.
There is no allegation of wrongdoing directed at Hyberger.
Robert Schumann is mentioned only once in the documents:
Plaintiff alleges that Schumann owns RRS and another
collection agency. Plaintiff alleges no wrongdoing by
Schumann himself, only by his corporation.
must be sufficient factual allegations directed at the
defendant to enable the Court to conclude that Plaintiff has
a plausible cause of action against that defendant. Where a
plaintiff fails to make allegations directed at a defendant,
the plaintiff has not presented a plausible cause of action
against the defendant. In such a case, the defendant must be
dismissed from the matter. See Peters v. Bray, 2013
WL 7137524, at *4 (S.D. Iowa Apr 1, 2013); see also
Gooden v. City of N. Kansas City, Mo., 2012 WL 4068582,
at *1 (W.D. Mo. Sept. 14, 2012). In this case, Plaintiff
asserts no allegations of wrongdoing by either Schumann or
Hyberger. Other than being named in the caption, no
allegations relate to Hyberger. The only allegation
pertaining to Schumann alleges that he owns RRS and another
collection agency. That is not sufficient to state a claim
against Schumann. Therefore, the Court will dismiss Defendant
Robert Schumann and Tom Hyberger from this action.
remainder of Defendants' motion concerns the FDCPA, FCRA,
FCA, and defamation claims against RRS. The Court will
address each in turn.
Fair Debt Collection Practices Act
state a claim for violations of the FDCPA, a plaintiff must
allege (1) she has been the object of collection activity
arising from consumer debt, (2) the defendant attempting to
collect the debt qualifies as a debt collector under the Act,
and (3) the defendant has engaged in a prohibited act or has
failed to perform an act required by the FDCPA. Pace v.
Portfolio Recovery Associates, LLC, 872 F. Supp, 2d 861,
864 (W.D. Mo. 2012).
pleadings are anything but clear. In her original Complaint
(Doc. 5), Plaintiff appears to allege that RRS contacted her
at “unusual times” in violation of 15 U.S.C.
§ 1692c(a)(1). Plaintiff's Complaint alleges,
“They called me over 6 times, phone calls, emails
demanding I pay money I don't owe.” But this does
not state a claim under Section 1692c(a)(1). Assuming
Plaintiff's allegation is true, as the Court must, the
Court still has no way of determining whether Section
1692c(a)(1) was violated. The statute prohibits
communications before 8:00 a.m. and after 9:00 p.m. There is
no allegation addressing when the phone calls or emails were
sent to Plaintiff. Thus, the Court cannot determine whether
these communications violation Section 1692c(a)(1). As such,
Plaintiff has failed to state a claim under this theory.
also appears to allege that RRS continued to contact her
after she disputed her claim. (Docs. 10 and 11). She alleges
that “it is illegal to continue harassment after
consumer disputed (Plaintiff disputed multiple times)”.
Section 1692c(c) prohibits debt collectors from continuing
communications with a consumer after the consumer
“notifies a debt collector in writing that the consumer
refuses to pay a debt or that the consumer wishes the debt
collector to cease further communication with the
consumer.” However, the debt collector may communicate
with the consumer to notify them that further collection
efforts will be terminated, the remedies the debt collector
or creditor may invoke, and, if applicable, what specific
remedy will be invoked. 15 U.S.C. § 1692c(c)(1)-(3).
Plaintiff's allegations do not address how she disputed
the debt, whether she communicated in writing to RRS that she
was refusing to pay or that she wanted their communication to
cease, when she might have sent this communication, or what
form RRS's communications took after she might have sent
this communication. In other words, all the Court knows is
that Plaintiff alleges she “disputed” the debt
and RRS continued to contact her in some form or another.
This is insufficient to state a claim under Section 1692c(c).
raises two theories in support of claims under Section 1692e.
(Docs. 10 and 11). The first relates to Section 1692e(2),
which deals with false representations of “the
character, amount, or legal status of any debt.” The
second concerns Section 1692e(8), which prohibits
“[c]ommunicating or threatening to communicate to any
person credit information which is known or which should be
known to be false, including the failure to communicate that
a disputed debt is disputed.” Plaintiff alleges that
“[I]t is illegal to falsely represent the status of any
debt, ” and “Defendants continue to file false
claims with malice, even after disputing with them in writing
pleadings make it clear that she has disputed the debt and
that RRS and/or Defendant Axford have reported her debt to
credit reporting agencies. But her allegations go no further.
Under either theory, Plaintiff fails to state a claim because
she has not alleged that RRS failed to notify the credit
reporting agencies of the fact that Plaintiff disputed the
debt. Furthermore, Plaintiff makes no allegations that RRS
has reported information that it knew or should have known
was false. The fact that a debt is disputed does not render
information concerning that debt to be false. Finally, to
state a claim under Section 1692(e)(8), Plaintiff must allege
that RRS's reporting of the debt to credit reporting
agencies was made voluntarily - rather than a report required
by law. See McIvor v. Credit Control Servs., Inc.,
773 F.3d 909, 915-16 ...