Petitt v. U.S. Bank National Association

Filing 33

ORDER: Defendant U.S. Bank National Association d/b/a Elan Financial Services' Motion to Dismiss Amended Complaint with Prejudice 26 is GRANTED to the extent provided herein. Count II of the Amended Complaint is dismissed without prejudice and Count III of the Amended Complaint is dismissed with prejudice.Plaintiff Judith K. Petitt has until and including September 5, 2014, to file a Second Amended Complaint. Signed by Judge Virginia M. Hernandez Covington on 8/20/2014. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JUDITH K. PETITT,
Plaintiff,
v.

Case No. 8:14-cv-961-T-33TGW

U.S. BANK NATIONAL ASSOCIATION
D/B/A/ ELAN FINANCIAL SERVICES,
Defendant.
________________________________/
ORDER
This cause comes before the Court pursuant to Defendant
U.S. Bank National Association d/b/a Elan Financial Services’
Motion to Dismiss Amended Complaint with Prejudice1 (Doc. #
26) filed on July 30, 2014. Pro se Plaintiff Judith K. Petitt
filed a Response in Opposition to the Motion (Doc. # 30) on
August 5, 2014. For the reasons stated below, the Court grants
Elan’s Motion to the extent provided herein.
I. Background
On April 23, 2014, Petitt initiated this action against
Elan

for

alleged

violations

of

the

Telephone

Consumer

Protection Act (“TCPA”), the Fair Debt Collection Practices
Act (“FDCPA”) and the Florida Consumer Collection Practices

1
The Court notes that the present Motion seeks dismissal
of Counts II and III only.

Act (“FCCPA”) (Doc. # 1), and filed an Amended Complaint on
July 18, 2014 (Doc. # 23). From November 1, 2013, through
April

1,

2014,

Petitt

claims

that

Elan

called

Petitt’s

cellular telephone forty times, with no prior permission
given by Petitt, in an attempt to collect an alleged debt
from a past employee of Petitt. (Id. at ¶ 9). Petitt contends
that she spoke with Elan on the first call and advised Elan
that the person it was trying to reach was not at the number
called. (Id. at ¶ 14). Petitt further claims that she told
Elan two additional times that the person Elan was trying to
reach was not at the number called. (Id.).
On July 30, 2014, Elan filed the present Motion to
Dismiss seeking dismissal of Counts II and III of Petitt’s
Amended Complaint with prejudice pursuant to Fed. R. Civ. P.
12(b)(6). (Doc. # 26). Petitt filed a Response in Opposition
to the Motion on August 5, 2014. (Doc. # 30). The Court has
reviewed the Motion and the response thereto, and is otherwise
fully advised in the premises.
II. Legal Standard
On a motion to dismiss, this Court accepts as true all
the allegations in the complaint and construes them in the
light most favorable to the plaintiff. Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).

2

Further,

this

Court

favors

the

plaintiff

with

all

inferences from the allegations in the complaint.

reasonable
Stephens

v. Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990) (“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”). However, in Twombly, the Supreme Court cautioned:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted).

Further, courts are not “bound to accept

as true a legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).
In

accordance

with

Twombly,

Federal

Rule

of

Civil

Procedure 8(a) calls “for 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, 663 (2009) (quoting
Twombly, 550 U.S. at 570). A plausible claim for relief must
include “factual content [that] allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.

3

III. Analysis
A. Count II – Fair Debt Collection Practices Act
The FDCPA regulates how a debt collection agency must
conduct itself when it attempts to collect a debt from a
customer. See 15 U.S.C. § 1692. In order to prevail on an
FDCPA claim, Petitt must demonstrate by a preponderance of
the evidence that: (1) she was the object of collection
activity arising from consumer debt; (2) Elan is a “debt
collector” as defined by the FDCPA; and (3) Elan has engaged
in an act or omission prohibited by the FDCPA. McCorriston v.
L.W.T., Inc., No. 8:07-CV-160-T-27EAJ, 2008 WL 3243865, at *2
(M.D. Fla. Aug. 7, 2008).
As

stated

above,

the

FDCPA

only

regulates

“debt

collectors,” defined as:
[A]ny person who uses any instrumentality of
interstate commerce or the mails in any business
the principal purpose of which is the collection of
any debts, or who regularly collects or attempts to
collect, directly or indirectly, debts owed or due
or asserted to be owed or due another. . . . The
term does not include A. any officer or employee of a creditor while, in
the name of the creditor, collecting debts for
such creditor;
B. any person while acting as a debt collector for
another person, both of whom are related by
common ownership or affiliated by corporate
control, if the person acting as a debt collector
does so only for persons to whom it is so related

4

or affiliated and if the principal business of
such person is not the collection of debts. . .
.
15 U.S.C. § 1692a(6)(a)-(b). Elan argues that it is not a
debt collector under the FDCPA, but rather it is the creditor
to which the debt is owed. (Doc. # 26 at 5).
In an effort to establish that Elan is a debt collector,
Petitt attaches to the Amended Complaint – as Exhibit B – a
brief statement of Elan’s website, which states:
As America’s leading agent credit card issuer, Elan
serves more than 1,600 financial institutions. For
more than 47 years, Elan has offered an outsourced
partnership solution, providing institutions the
ability to earn a risk-less revenue stream with a
competitive credit card program - all at no cost.
Elan’s best-in-class card products, exceptional
service, and proven road map drive successful longterm relationships and satisfied customers.
(Doc. # 23 at 10).
Elan posits that Exhibit B is devoid of any indication
that it is a debt collector; and therefore, “the very document
[Petitt] attaches to support her position rebuts it by showing
Elan’s principal purpose is agent credit card issuing.” (Doc.
# 26 at 3). Notably, in her response, Petitt states “Plaintiff
does not allege Elan is a debt collector by definition because
they collect their own debt but because Elan performs debt
collection for [its] ‘over 1600 clients.’” (Doc. # 30 at 6).

5

Furthermore, to the extent that Petitt argues that U.S.
Bank uses another name – Elan – to attempt to collect debts
due

for

U.S.

Bank,

and

therefore

U.S.

Bank

is

a

“debt

collector,” Elan disagrees. (Doc. # 26 at 5). Specifically,
Elan argues that “A creditor does not fall within the ‘use
[a] name other than [its] own’ exception unless the creditor
actually pretends to be someone else or uses a pseudonym or
alias ‘which would indicate that a third person is collecting
or attempting to collect’ the debt.” (Id.). In the Amended
Complaint, Petitt alleges that Elan is a DBA of U.S. Bank;
however, Elan suggests that it can be assumed that Petitt
meant that U.S. Bank “does business as” Elan, which is
correct. (Id.). Accordingly, Elan contends that U.S. Bank is
using its own name to collect its own debt, not the name,
pseudonym, or alias of another. (Id. at 5-7)(citing Leasure
v. Willmark Cmtys., Inc., No. 11-CV-00443 BEN DHB, 2013 WL
6097944, at *3 (S.D. Cal. Mar. 14, 2013)(“A creditor does not
fall within the uses any name other than his own” exception
in 15 U.S.C. § 1692a(6) unless the creditor uses a pseudonym
or

alias

“which

would

indicate

that

a

third

person

is

collecting or attempting to collect” the debt. (internal
quotations omitted)).

6

Finally, Elan posits that Petitt has correctly alleged
that

U.S.

Bank

is

a

National

Association.

(Id.

at

6).

Therefore, according to Elan, U.S. Bank is governed pursuant
to the National Bank Act, and thus, as a matter of law has
the

principal

business

of

banking,

not

debt

collection.

(Id.)(citing Marketic v. U.S. Bank Nat’l Ass’n, 436 F. Supp.
2d

842,

854

(N.D.

Tex.

2006)(finding

that

“U.S.

Bank’s

principal business activity is not debt collection.”)). For
that reason, Elan alleges that the FDCPA does not apply to
Elan. (Id. at 5).
“A party qualifies as a debt collector where it operates
a business that has the principal purpose of collecting debts
or regularly attempts to collect debts that are owed to
another.” Goia v. CitiFinancial Auto, 499 F. App’x 930, 938
(11th Cir. 2012). Furthermore, “where a financial company is
‘engaged in the collection of its own debts, as opposed to
the

debts

of

another,’

it

does

‘not

qualify

as

a

debt

collector under the FDCPA.’” Berman v. Wells Fargo Bank, N.A.,
No. 6:12-cv-405-Orl-37KRS, 2013 WL 145501, at *2 (M.D. Fla.
Jan. 14, 2013)(quoting Goia, 499 F. App’x at 938).
“In

determining

whether

a

plaintiff

has

adequately

alleged that a . . . business regularly engages in debt
collection activities, or whether a business's principal

7

purpose is debt collection, courts have considered whether a
party has held itself out as a debt collector and also the
volume, frequency, pattern, and history of a party's debt
collection activity.” Sanz v. Fernandez, 633 F. Supp. 2d 1356,
1361-62 (S.D. Fla. 2009).
When construed liberally to account for Petitt’s pro se
status, the Court finds that the Amended Complaint fails to
adequately demonstrate that Elan is a debt collector; and
therefore, Petitt has failed to state a claim for relief under
the FDCPA. Specifically, Petitt does not provide sufficient
factual allegations that establish Elan operates a business
that has the principal purpose of collecting debts or that
Elan regularly attempts to collect debts that are owed to
another. See Goia, 499 F. App’x at 938. In the Amended
Complaint, the only support provided by Petitt to establish
that Elan is a debt collector is Exhibit B, which although
marginally

describes

Elan’s

business,

does

not

provide

sufficient detail to demonstrate that “U.S. Bank N.A. uses
another name ‘Elan’ to operate a business that has the
principal purpose of collecting debts and ‘Elan’ regularly
attempts to collect debts that are owed to another,” as
suggested by Petitt. (See Doc. # 26 at 5).

8

To the extent Petitt requests that this Court consider
additional arguments set forth in her response, and the
accompanying exhibit, this Court declines to do so. This Court
has previously instructed Petitt that the Court must limit
its review on a motion to dismiss to the four corners of the
complaint. (Doc. # 21 at 8). Therefore, this Court grants
Elan’s Motion as to Count II.

However, Count II is dismissed

without

Petitt

prejudice

so

that

can

have

one

final

opportunity to state a claim under the FDCPA, if possible.
B. Count III – Florida Consumer Collection Practices Act
The FCCPA provides that a debtor may bring a civil action
against a person who commits a prohibited act, as set forth
in Florida Statute § 559.72, while collecting consumer debts.
Fla. Stat. § 559.77(1). Under the FCCPA, a debtor is defined
as a natural person obligated or allegedly obligated to pay
a debt. See Fla. Stat. § 559.55(2).
In the present Motion, Elan suggests that “Nowhere [in
the Amended Complaint] does [Petitt] state she is obligated
or allegedly obligated to pay a debt. Instead, [Petitt] now
asserts she is not a ‘debtor,’ but rather the ‘previous
employer

of

the

alleged

debtor.’”

(Doc.

#

26

at

8-9).

Therefore, according to Elan, Petitt is not a debtor under

9

the FCCPA and lacks standing to pursue claims for violations
of the FCCPA. (Id. at 9).
Upon review of the Amended Complaint, this Court finds
that Petitt has failed to state a claim under the FCCPA.
According to the Amended Complaint:
[Petitt] contacted the alleged debtor and asked if
there was or is a final judgment against him or if
the alleged debtor gave Elan written permission to
contact [Petitt] and the alleged debtor denies
providing such written permission nor the existence
of a final judgment against him, therefore, Elan
communicated without obtaining a final judgment
against the alleged debtor nor has the permission
in writing to contact [Petitt].
(Doc. # 23 at 7).

Thus, Petitt admits that she is not the

debtor to the relevant debt. Furthermore, the Court notes
that

in

her

voluntarily

Response,

dismiss

Petitt

Count

III

states
of

“Plaintiff

Plaintiff’s

will

Amended

Complaint.” (Doc. # 30 at 7). Therefore, for the reasons
stated above, the Court grants Elan’s Motion, and Count III
is dismissed with prejudice.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant U.S. Bank National Association d/b/a Elan
Financial Services’ Motion to Dismiss Amended Complaint

10

with Prejudice (Doc. # 26) is GRANTED to the extent
provided herein.
(2)

Count II of the Amended Complaint is dismissed without
prejudice and Count III of the Amended Complaint is
dismissed with prejudice.

(3)

Plaintiff

Judith

K.

Petitt

has

until

and

including

September 5, 2014, to file a Second Amended Complaint.
DONE and ORDERED in Chambers, in Tampa, Florida this
20th day of August, 2014.

Copies: All Counsel and Parties of Record

11