Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Barbero v. Regional Recovery Services, Inc.

United States District Court, W.D. Missouri, Southern Division

June 27, 2018

THERESA MARIE BARBERO, Plaintiff,
v.
REGIONAL RECOVERY SERVICES, INC., ROBERT SCHUMANN, TOM HYBERGER, and JAMES AXFORD, Defendants.

          ORDER

          DOUGLAS HARPOOL, UNITED STATES DISTRICT JUDGE.

         Before 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).

         BACKGROUND[1]

         Plaintiff 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.

         Plaintiff 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.

         In 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 case.[2]

         In July 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.”[3] 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.

         Plaintiff 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 card.

         LEGAL STANDARD

         In 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).

         DISCUSSION

         The 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).

         I. Motion to Dismiss by Schumann, Hyberger, and RRS (Doc. 38)

         Defendants 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.

         There 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.

         The remainder of Defendants' motion concerns the FDCPA, FCRA, FCA, and defamation claims against RRS. The Court will address each in turn.

         a. Fair Debt Collection Practices Act

         To 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).

         Plaintiff's 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.

         Plaintiff 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).

         Plaintiff 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 multiple times.”

         Plaintiff's 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.