Jones v. Economic Recovery Consultants, Inc. et al
Filing
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ORDER granting 7 Defendant's Motion for Judgment on the Pleadings; case dismissed with prejudice. Signed by Honorable Susan O. Hickey on August 14, 2018. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
HEATHER JONES a/k/a HEATHER
DEMPSEY, individually, and on behalf
of all others similarly situated
v.
PLAINTIFF
Case No. 1:18-cv-01025
ECONOMIC RECOVERY CONSULTANTS, INC.
and JOHN DOES 1-25
DEFENDANT
ORDER
Before the Court is a Motion for Judgment on the Pleadings filed by Defendant Economic
Recovery Consultants, Inc. (“Defendant”). ECF No. 7. Plaintiff has filed a response. ECF No.
13. The Court finds this matter ripe for its consideration. For the reasons explained below,
Defendant’s motion is granted.
I. BACKGROUND
This action arises under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq.
(“FDCPA”). Defendant is a “debt collector” within the meaning of FDCPA, with its principal
place of business in Searcy, Arkansas. ECF No. 1, ¶ 6. According to the Complaint, Plaintiff
allegedly incurred a debt to Ouachita County Medical Center (“Ouachita Medical”) for medical
services provided to Plaintiff. Id. at ¶ 20. Defendant contracted with Ouachita Medical to collect
the alleged debt. Id. at ¶ 23. On January 31, 2018, Plaintiff received a collection letter from
Defendant demanding payment on her past due account with Ouachita Medical. Id. at ¶ 25. The
top paragraph of the letter reads “Please be advised that your account has been assigned to
[Defendant]. You are directed to address all future correspondence and payments concerning this
account to the address below.” Id. at ¶ 30. Plaintiff alleges, however, that the letter “fails to
provide any address below this language where the consumer can dispute or get information about
the debt.” Id. at ¶ 31. It is further alleged that the only information below the paragraph is a phone
number for Defendant’s collection department. Id. at ¶ 31.
On April 27, 2018, Plaintiff, on behalf of herself and all other similarly situated consumers,
filed a putative class action complaint against Defendant, alleging two violations of the FDCPA
stemming from the collection letter. Specifically, Plaintiff alleges that Defendant “made deceptive
and misleading representations when [it] sought to collect a debt from Plaintiff but failed to provide
an address where [it] could be contacted, in violation of 15 U.S.C. §§ 1692 and 1692e(10).” Id. at
¶ 37. In addition, Plaintiff asserts that Defendant violated 15 U.S.C. § 1692g because the letter
failed “to clearly display the address to send disputes” and only provided a phone number, thereby
causing consumers’ rights to be limited. Id. at ¶ 42.
On June 6, 2018, Defendant filed the instant motion pursuant to Federal Rule of Civil
Procedure 12(c), arguing that Plaintiff’s allegations regarding the collection letter are unsupported
by the contents of the letter. Specifically, Defendant asserts that its address is listed below the
directive to “address all future correspondence and payments concerning this account to the
address below.” Defendant further contends that its address is listed at the top of the letter.
According to Defendant, an unsophisticated consumer would not be misled as to its mailing
address. Thus, the letter is not deceptive or violative of the FDCPA as a matter of law, according
to Defendant. With this background in mind, the Court will turn to the merits of the instant motion.
II. LEGAL STANDARD
For a motion for judgment on the pleadings under Rule 12(c), a court shall apply the same
legal standard as it does for a motion to dismiss under Rule 12(b)(6). Ashley Cnty., Ark. v. Pfizer,
Inc., 552 F.3d 659, 665 (8th Cir. 2009). A pleading must state “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To meet this standard
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and to survive a Rule 12(b)(6) motion, a complaint need only state factual allegations sufficient to
raise a right to relief above the speculative level that is plausible on its face. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (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 (2009).
In deciding a Rule 12(b)(6) motion, courts are required to accept all of the complaint’s
well-pled allegations as true and resolve all inferences in the plaintiff’s favor. Miller v. Redwood
Toxicology Lab., Inc., 688 F.3d 928, 933 n.4 (8th Cir. 2012). However, this tenet does not apply
to legal conclusions, “formulaic recitation of the elements of a cause of action,” or naked assertions
which are so indeterminate as to require further factual enhancement. Braden v. Wal-Mart Stores,
Inc., 588 F.3d 585, 594 (8th Cir. 2009). “Judgment on the pleadings is appropriate only when
there is no dispute as to any material facts and the moving party is entitled to judgment as a matter
of law.” Wishnatsky v. Rovner, 433 F.3d 608, 610 (8th Cir. 2006).
When considering a motion for judgment on the pleadings, a court must generally ignore
all materials outside the pleadings. Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th
Cir. 1999). However, courts may consider “some materials that are part of the public record or do
not contradict the complaint . . . as well as materials that are necessarily embraced by the
pleadings.” Id. (internal quotation marks omitted). Thus, the Court will decide the instant motion
under the Rule 12(b)(6) standard.
III. DISCUSSION
A. Whether the Complaint Fails to State a Claim Under 15 U.S.C. § 1692e(10)
Defendant first argues that it is entitled to judgment on the pleadings as to Count I of
Plaintiff’s Complaint. Count I of the Complaint alleges that Defendant violated 15 U.S.C. § 1692e,
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which prohibits debt collectors from using “any false, deceptive, or misleading representation or
means in connection with the collection of any debt.” 15 U.S.C. § 1692e. Section 1962e(10)
makes it unlawful to use “any false representation or deceptive means to collect or attempt to
collect any debt or to obtain information concerning a consumer.”
“In evaluating whether a debt collection letter is false, misleading or deceptive, the letter
must be viewed through the eyes of the unsophisticated consumer.” Duffy v. Landberg, 215 F.3d
871, 873 (8th Cir. 2000) (citation omitted). “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.” Haney v. Portfolio Recovery Assocs., L.L.C., No. 15-1932, 2016
WL 11265606, at *4 (8th Cir. Sept. 21, 2016) (citations and quotations omitted). Although the
standard “protects the uninformed or naive consumer . . . [it] also contains an objective element of
reasonableness to protect debt collectors from liability for peculiar interpretations of collection
letters.” Id. “Language in a debt-collection letter cannot be viewed in isolation; the letter must be
viewed ‘as a whole’ to determine whether it runs afoul of the FDCPA.” Hubbell v. Am. Accounts
& Advisors, Inc., No. 13-1157, 2013 U.S. Dist. LEXIS 160315, at *6 (D. Minn. Oct. 7, 2013)
(citing Adams v. J.C. Christensen & Assocs., Inc., 777 F. Supp. 2d 1193, 1196 (D. Minn. 2011)).
In the instant motion, Defendant takes the position that “no reasonable consumer could be
harassed, misled or deceived as to [its] mailing address by the contents” of the letter. ECF No. 8,
p. 7. In support of this position, Defendant points to a payment slip located at the bottom of the
letter which directs the recipient, in bold text, to “detach and return with your payment.” ECF No.
8-1. Defendant maintains further that its mailing address is also located in the top left corner of
the letter. Id. In addition, Defendant asserts that its local and toll-free telephone numbers are
printed at the top and in the body of the letter, and its web address is printed on the payment slip.
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Id. Thus, according to Defendant, a consumer could use its telephone numbers and web address
to obtain its mailing address, if necessary.
In response, Plaintiff urges the Court to deny Defendant’s motion because the letter
“conveys multiple deceptive pieces of information which convey different meanings and leave the
unsophisticated consumer to question her rights and responsibilities under the FDCPA.” ECF No.
13, p. 6. Plaintiff directs the Court’s attention to the body of the letter, which states in relevant
part:
You are directed to address all future correspondence and payments concerning this
account to the address listed below:
Sincerely,
Collections Department
(501) 268-8600 Toll Free: 866-239-6274.
ECF No. 8-1. According to Plaintiff, “this portion of the Letter is deceptive as it advises the
consumer to send disputes or payments to an address, but the address is not listed below. Rather,
it is solely a phone number.” ECF No. 13, p. 5. Plaintiff argues further that the letter lists two
different addresses, which is “deceptive” because a “consumer would have no idea which was the
correct address to contact Defendant.” Id.
Upon consideration, the Court concludes that Plaintiff has failed to state a plausible claim
for relief under § 1962e(10).
Although Defendant’s mailing address is not listed directly
underneath the directive to “address all future correspondence and payments concerning this
account to the address below,” it is listed on a payment slip attached to the bottom of the letter.
Moreover, the Court is unpersuaded by Plaintiff’s argument that the letter lists two different
addresses. The address listed in the top left corner of the letter reads as follows: P.O. Box 200,
1000 South Main St., Ste. 101, Searcy AR 72145-0200. In comparison, the address listed at the
bottom of the letter reads as follows: P.O. Box 200, Searcy AR 72145-0200. Thus, Defendant
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lists the same address in both locations, except that it included its physical address—in addition to
its post office box—in the top left corner and only listed its post office box at the bottom of the
letter. In addition, its address is set apart from any surrounding text on both locations.
In sum, viewing the letter “as a whole,” the Court is unconvinced that an unsophisticated
consumer would be confused regarding the correct address to contact Defendant. Accordingly,
the Court finds that Defendant is entitled to judgment on the pleadings with regard to Plaintiff’s
section 1692e(10) claim.
B. Whether the Complaint Fails to State a Claim Under 15 U.S.C. § 1692g
Next, Defendant argues that it is entitled to judgment on the pleadings with regard to Count
II of the Complaint, which alleges that Defendant violated 15 U.S.C. § 1692g because it fails “to
clearly display the address to send disputes as it stated it would, and only provide[s] a phone
number causing the [consumers’] rights to be limited.” ECF No. 1, ¶ 42. Section 1692g(a)
provides, in relevant part, as follows:
Within five days after the initial communication with a consumer in connection
with the collection of any debt, a debt collector shall, unless the following
information is contained in the initial communication or the consumer has paid the
debt, send the consumer a written notice containing—
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(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
assumed to be valid by the debt collector;
(4) 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 obtain verification of the debt or a copy of a judgment against the consumer
and a copy of such verification or judgment will be mailed to the consumer by the
debt collector; and
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(5) a statement that, upon the consumer’s written request within the thirty-day period, the
debt collector will provide the consumer with the name and address of the original creditor,
if different from the current creditor.
15 U.S.C. § 1692g(a).
Defendant maintains that Plaintiff’s section 1692g claim fails because its address is
displayed in two separate locations on the letter and, therefore, no consumer could be “harassed,
mislead or deceived by the contents of the letter as alleged by . . . Plaintiff in Count II” of the
Complaint. ECF No. 8, p. 7. In response, Plaintiff argues that the letter violates section
1692g(a)(3) because the letter “only lists a telephone number as [Defendant’s] sole contact
information” despite advising Plaintiff to contact Defendant in writing to dispute the alleged debt.
ECF No. 13, p. 6. Thus, according to Plaintiff, she was “led to believe that she could only
communicate via telephone to Defendant” regarding her debt. Id.
Upon consideration, the Court finds that Defendant is entitled to judgment on the pleadings
with regard to Count II of the Complaint. As stated above, Count II of the Complaint alleges that
Defendant violated section 1692g by failing “to clearly display the address to send disputes” in the
letter, “and only provide[s] a phone number causing the [consumers’] rights to be limited.” ECF
No. 1, ¶ 42. The Court has found that the letter in dispute displays Defendant’s address in two
separate locations, in addition to listing a phone number. Thus, the Court agrees with Defendant
that Plaintiff’s claim under section 1692g fails because the letter provides an address for Plaintiff
to send correspondence to dispute her alleged debt, despite Plaintiff’s allegations that the letter
lists a telephone number as Defendant’s “sole contact information.” Accordingly, the Court finds
that Defendant is entitled to judgment on the pleadings as to Count II of Plaintiff’s Complaint. 1
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Plaintiff further argues that the disputed letter violates section 1692g(a)(3) by requiring Plaintiff to dispute the alleged
debt in writing. The only allegation set forth in Plaintiff’s Complaint that directly relates to this argument is paragraph
32, which states that “the only information given below [the top paragraph] is the phone number for the collection
department, implying that the dispute process can be done completely over the phone, which would significantly limit
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IV. CONCLUSION
For the reasons explained above, the Court finds that Defendant’s Motion for Judgment on
the Pleadings (ECF No. 7) should be and hereby is GRANTED.
Accordingly, Plaintiff’s
Complaint is hereby DISMISSED WITH PREJUDICE.
IT IS SO ORDERED, this 14th day of August, 2018.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
the consumer’s dispute rights.” ECF No. 1, ¶ 32. Because Plaintiff’s argument rests on the assertion that the disputed
letter only lists Defendant’s telephone number, the Court finds that Plaintiff’s argument that the letter violates section
1692g(a)(3) likewise fails.
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