McNamee v. Debski & Associates, P.A.
Filing
13
ORDER: Defendant Debski & Associates, P.A.'s Motion to Dismiss(Doc. # 6 ) is denied. Signed by Judge Virginia M. Hernandez Covington on 9/27/2016. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JACOB MCNAMEE,
Plaintiff,
v.
Case No. 8:16-cv-2272-T-33TBM
DEBSKI & ASSOCIATES, P.A.,
Defendant.
_____________________________/
ORDER
This matter comes before the Court upon consideration of
Defendant Debski & Associates, P.A.’s Motion to Dismiss (Doc.
# 6), filed on August 26, 2016. Plaintiff Jacob McNamee filed
a response in opposition on September 19, 2016. (Doc. # 12).
For the reasons that follow, the Motion is denied.
I.
Background
The present action arises from unpaid credit card debt.
(Doc. # 1 at ¶ 9). On May 13, 2009, Capital One, a non-party
to this action and the creditor that issued McNamee his credit
card, obtained a stipulated judgment against McNamee in the
amount of $2,171.57, plus interest at the rate set by Florida
Statute Section 55.03. (Id. at ¶¶ 11-13; Doc. 1-1). Although
the Complaint alleges Debski obtained the judgment in its
favor (Doc. # 1 at ¶ 11), the attached judgment actually
states that Capital One obtained the judgment in its favor
(Doc. # 1-1). “[A]nd if the allegations of the complaint about
a particular exhibit conflict with the contents of the exhibit
itself, the exhibit controls.” Hoefling v. City of Miami, 811
F.3d 1271, 1278 (11th Cir. 2016) (citations omitted).
Thereafter, Debski sent McNamee a letter dated January
8, 2016, which stated, “[t]his communication is from a debt
collector. This letter is an attempt to collect a debt . . .
.” (Doc. # 1-2). The letter also informed McNamee that his
deposition had been scheduled in an action then pending and
stated his balance due as $3,129.05. (Id.). Debski sent
another letter to McNamee on March 31, 2016, this time in
response to a request from McNamee for documentation. (Doc.
# 1-3) (stating, “[e]nclosed please find the documentation
you requested.”). The March 31, 2016, letter again informed
McNamee that it was from a debt collector and listed his
balance due as $3,129.05. (Id.). Although the amount due did
not change between the January 8, 2016, and March 31, 2016,
letters, Debski had previously “elected to collect postjudgment interest as the balance increased by $957.48 since
the May 13, 2009 judgment.” (Doc. # 1 at ¶ 22).
Then, on May 10, 2016, counsel for Debski sent counsel
for McNamee a letter in response to the latter’s letter to
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Debski sent April 29, 2016. (Doc. # 1-4). In his May 10, 2016,
letter, counsel for Debski stated, in relevant part, “[m]y
client’s initial demand letter that included required FDCPA
disclosures was sent on September 8, 2008. . . . [And,] the
reason why the balance did not increase is that my client has
been instructed by Capital One to cease collecting postjudgment interest on this account.” (Id.). McNamee’s counsel
“asked Defendant to provide an affidavit or other express
evidence to show the creditor’s agreement to cease collecting
interest. However, Defendant refused to provide the same.”
(Doc. # 1 at ¶¶ 32-33). Furthermore, prior to receiving the
January 8, 2016, and March 31, 2016, letters, McNamee had not
been informed that Debski or Capital One ceased collecting
“the court mandated post-judgment interest.” (Id. at ¶ 30).
McNamee subsequently filed suit against Debski in this
Court on August 9, 2016. (Id.). The Complaint brings three
Counts under the Fair Debt Collection Practices Act, 15 U.S.C.
§ 1692 et seq.; namely, violation of 15 U.S.C. § 1692e(2)(A)
(Count I); violation of 15 U.S.C. § 1692e(10) (Count II); and
violation of 15 U.S.C. § 1692f (Count III). Debski now moves
to dismiss the action with prejudice (Doc. # 6), to which
McNamee filed a response is opposition. The motion is ripe
for review.
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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). Further,
this
Court
favors
the
plaintiff
with
all
reasonable
inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990) (stating “[o]n a motion to dismiss, the facts
stated
in
[the]
complaint
and
all
reasonable
inferences
therefrom are taken as true”). However:
[w]hile 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). 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). Furthermore, “[t]he scope
of
review
must
be
limited
to
the
four
corners
of
the
complaint.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337
(11th Cir. 2002).
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III. Analysis
“Congress passed the FDCPA to protect consumers from
debt collectors’ abusive debt collection practices.” Fuller
v. Becker & Poliakoff, P.A., 192 F. Supp. 2d 1361, 1366 (M.D.
Fla. 2002) (citing Hawthorne v. Mac Adjustment, Inc., 140
F.3d 1367 (11th Cir. 1998)). “[T]he FDCPA prohibits debt
collectors from using ‘any false, deceptive, or misleading
representation or means in connection with the collection of
any debt’ as well as the use of ‘unfair or unconscionable’
means of collection.” LeBlanc v. Unifund CCR Partners, 601
F.3d 1185, 1190 (11th Cir. 2010) (citations omitted). “The
plain
meaning
of
‘unfair’
is
‘marked
by
injustice,
partiality, or deception.’ Significantly, . . . ‘[a]n act or
practice is deceptive or unfair . . . if it has the tendency
or capacity to deceive.’” Id. at 1200 (citations and footnote
omitted). For its part, “[t]he term ‘unconscionable’ means
‘having no conscience’; ‘unscrupulous’; ‘showing no regard
for conscience’; ‘affronting the sense of justice, decency,
or reasonableness.’” Id. (citations omitted).
“The
FDCPA
does
not
ordinarily
require
proof
of
intentional violation and, as a result, is described by some
as
a
strict
liability
statute.”
omitted).
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Id.
at
1190
(citation
In order to prevail on an FDCPA claim, a plaintiff
must plead and prove three elements. First, the
plaintiff must have been the object of a collection
activity arising from consumer debt. . . . Second,
the defendant must be a debt collector as defined
by the FDCPA. . . . Third, the defendant must have
engaged in an act or omission prohibited by the
FDCPA.
Erickson v. Gen. Elec. Co., 854 F. Supp. 2d 1178, 1182 (M.D.
Fla. 2012) (citations omitted).
In deciding FDCPA actions brought under §§ 1692e and
1296f, as is the case here, the Eleventh Circuit applies the
least-sophisticated consumer standard. LeBlanc, 601 F.3d at
1201.
“‘The least sophisticated consumer’ can be presumed
to possess a rudimentary amount of information
about the world and a willingness to read a
collection notice with some care.” . . . However,
the test has an objective component in that
“[w]hile protecting naive consumers, the standard
also
prevents
liability
for
bizarre
or
idiosyncratic
interpretations
of
collection
notices by preserving a quotient of reasonableness
. . . .”
Id. at 1194 (citations omitted); see also Avila v. Riexinger
& Assocs., LLC, 817 F.3d 72, 75 (2d Cir. 2016) (defining least
sophisticated consumer as “one not having the astuteness of
a ‘Philadelphia lawyer’ or even the sophistication of the
average, everyday, common consumer”).
The
parties’
contentions
center
on
whether
a
debt
collector’s failure to inform a debtor that the creditor has
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stopped collecting postjudgment interest on a judgment can
violate
the
FDCPA.
As
the
Complaint
alleges,
McNamee
stipulated to judgment in a collection case and the court
entered a judgment against McNamee in the amount of $2,171.57,
plus interest at the rate set by Florida Statute Section
55.03. (Doc. # 1 at ¶¶ 11-13; Doc. 1-1). Thereafter, McNamee
received two letters from Debski that listed his outstanding
balance as $3,129.05. (Doc. ## 1-2, 1-3). The Complaint
further alleges that Debski previously “elected to collect
post-judgment interest as the balance increased by $957.48
since the May 13, 2009 judgment.” (Doc. # 1 at ¶ 22). And,
while counsel for Debski informed McNamee’s counsel that
Capital
One
had
instructed
Debski
to
cease
collecting
postjudgment interest (Doc. # 1-4), counsel for Debski would
not provide evidence or verification of the same (Doc. # 1 at
¶¶
32-33).
listing
the
Furthermore,
balance
as
prior
to
$3,129.05,
receiving
McNamee
the
had
letters
not
been
informed that Debski or Capital One ceased collecting “the
court mandated post-judgment interest.” (Id. at ¶ 30).
After review of the Complaint, and applying the leastsophisticated consumer standard, the Court finds that the
Complaint plausibly states a claim to relief. In reaching
this conclusion the Court first notes that, although citing
7
a general standard for FDCPA cases, Debski cites no authority
specifically on point or that is persuasive in support of its
arguments. In contrast, McNamee points the Court’s attention
to Avila, 817 F.3d 72, which the Court finds persuasive.
In Avila, two debtors received collection notices from
the defendant that listed the “current balance” but did not
disclose that the balance was subject to interest and late
fees. Id. at 74. The debtors filed suit under the FDCPA,
alleging the collection notices were misleading because the
phrase “current balance” implied a static balance, rather
than one that was accruing interest. Id. The defendant moved
to dismiss, citing a line of cases that held no disclosure
about interest or fees was required. Id. at 75. On appeal,
the Second Circuit reversed, concluding that the debtorsturned-plaintiffs had plausibly stated a claim to relief
under the FDCPA. Id. at 77. In so doing, the court reasoned
that a debt collector can be subject to liability if it sends
a collection notice that does not inform the debtor that the
amount stated as owing may increase over time or “clearly
states that the holder of the debt will accept payment of the
amount set forth in full satisfaction of the debt . . . .”
Id. at 77.
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In this case, the two letters listed McNamee’s balance
as $3,129.05, which was an increase from the judgment amount.
The letters did not inform McNamee that Capital One had
instructed Debski to cease collecting postjudgment interest.
Furthermore, Debski’s counsel refused to provide written
documentation that Capital One had foregone postjudgment
interest,
i.e.,
that
Capital
One
was
willing
to
accept
$3,129.05 in full satisfaction of the debt. Because the
letters did not “clearly state[] that the holder of the debt
[would] accept payment of the amount set forth in full
satisfaction of the debt . . .,” Avila, 817 F.3d at 77,
McNamee’s Complaint plausibly states a claim to relief under
the FDCPA.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant Debski & Associates, P.A.’s Motion to Dismiss
(Doc. # 6) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
27th day of September, 2016.
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