Monty v. Weltman Weinberg & Reis Co., LPA
Filing
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OPINION AND ORDER denying 9 Motion to Dismiss for Failure to State a Claim. Signed by Judge Kenneth A. Marra on 12/11/2013. (ir)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-80800-CIV-MARRA/MATTHEWMAN
TIMOTHY A. MONTY,
Plaintiff,
vs.
WELTMAN WEINBERG & REIS CO., LPA,
Defendant.
____________________________________/
OPINION AND ORDER
This cause is before the Court upon Defendant’s Motion to Dismiss (DE 9). Plaintiff has
filed a response (DE 10). The Court has carefully considered the Motion and is otherwise fully
advised in the premises.
I. Background
Plaintiff Timothy A. Monty (“Plaintiff”) brings this two-count Complaint (DE 1) against
Defendant Weltman Weinberg & Reis Co., LPA (“Defendant”) for a violation of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. (count one) and the Florida
Consumer Collection Practices Act (“FCCPA”), Florida Statute § 559.55 et seq. (count two).
According to the allegations of the Complaint, Plaintiff is a consumer allegedly obligated
to pay a debt due a creditor other than Defendant. (Compl. ¶ 5.) Defendant is in the debt
collection business. (Compl. ¶ 8.)
Beginning in approximately early 2013 and continuing through at least July 2013,
Plaintiff received multiple telephone calls per week on his home telephone at phone number
(561) XXX-9658 from Defendant with regard to an alleged debt that Defendant was trying to
collect from Plaintiff. The telephone calls resulted in numerous messages being left on Plaintiff’s
home answering machine. The messages were automated, almost all materially identical, and
stated as follows:
This is a message for Timothy A. Monty. If we have reached the wrong number for this
person, please call us at 877-204-2066 to remove your phone number. If you are not Timothy
A. Monty, please hang up. If you are Timothy A. Monty, please continue to listen to this
message.
Timothy A. Monty – you should not listen to this message so that other people can here it as
it contains personal and private information.
This is Weltman Weinberg & Reis Company, LPA. This is an attempt to collect a debt by
a debt collector. Any information obtained will be used for that purpose. Please contact us
about an important business matter at 1-800-237-9822. Thank you.
(Compl. ¶ 10.)
Plaintiff estimates he received at least 200 calls from Defendant between January 2013 and
July 2013. (Compl. ¶ 11.)
During this same time period, Defendant repeatedly called an
acquaintance of Plaintiff at phone number (561) XXX-6999 (the “Third Party”), and left, on the
Third Party’s answering machine, materially identical messages to the above message, disclosing
the existence of Plaintiff’s alleged debt. The Third Party also received automated calls from
Defendant where, upon answering his phone, he was greeted with the above message, disclosing the
existence of Plaintiff’s alleged debt. (Compl. ¶ 12.) The Third Party estimates that he received at
least 15 of those calls from Defendant between approximately January 2013 and July 2013. (Compl.
¶ 13.) Defendant did not have the prior consent of Plaintiff, or the express permission of a court of
competent jurisdiction, to communicate with the Third Party concerning the alleged debt. (Compl.
¶ 14.) The Third Party was not Plaintiff’s attorney, was not a consumer reporting agency, was not
the alleged creditor, was not the attorney of the alleged creditor, and was not the attorney of
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Defendant. (Compl. ¶ 15.)
Defendant moves to dismiss the Complaint on the basis that the Complaint fails to identify
properly the Third Party or state the Third Party is an improper third party under the FDCPA. In
addition, Defendant contends the Complaint did not allege the telephone calls were harassing to
constitute a valid claim under the FCCPA.
II. Legal Standard
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Supreme Court
has held that “[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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations
omitted).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (quotations and citations omitted). "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." Id. Thus, "only a complaint that states a plausible claim for relief
survives a motion to dismiss." Id. at 1950. When considering a motion to dismiss, the Court must
accept all of the plaintiff's allegations as true in determining whether a plaintiff has stated a claim
for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
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III. Discussion
The Court begins its analysis by setting forth the elements of a prima case for a violation of
the FDCPA. In order to prevail on a FDCPA claim, a plaintiff must prove that: (1) the plaintiff has
been the object of collection activity arising from consumer debt; (2) the defendant is a debt collector
as defined by the FDCPA and (3) the defendant has engaged in an act or omission prohibited by the
FDCPA. Sans v. Fernandez, 633 F. Supp. 2d 1356, 1359 (S.D. Fla. 2009); Fuller v. Becker &
Poliakoff, P.A., 192 F. Supp. 2d 1361, 1366 (M.D. Fla. 2002). Here, the Complaint alleges Plaintiff
is a consumer who allegedly owes a consumer debt and, in the course of collecting that debt,
Defendant allegedly disclosed the existence of Plaintiff’s debt to a third-party acquaintance without
Plaintiff’s consent. (Compl. ¶ ¶ 5, 8, 12, 14.) Based on these allegations, Plaintiff has established
a valid claim under the FDCPA.
The Court rejects Defendant’s argument that Plaintiff’s failure to identify specifically the
third-party or to state that the third-party was not Plaintiff’s spouse, parent, guardian, executor or
administrator is fatal to the claim. See 15 U.S.C. § 1692c(b) and (d). At the pleading stage, it is
adequate for the Complaint to state a third-party was contacted without prior consent or express
permission. (Compl. ¶ ¶ 12, 14-15.) The cases relied upon by Defendant are unavailing because
those occurred at the summary judgment stage wherein those courts found evidence was needed to
identify which third party was contacted.1 See Jackson v. Midland Funding, LLC, No. 09–6028
(DMC–JAD), 2012 WL 2369398, at * 5 (D.N.J. June 20, 2012); Zamos v. Asset Acceptance, LLC,
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Equally unavailing is Defendant’s claim that it was not responsible for wrongdoing
because the Third-Party was told to hang up and not listen to the message. See LeBlanc v.
Unifund CCR Partners, 601 F.3d 1185, 1190 (11th Cir. 2010) (the FDCPA is “described by some
as a strict liability statute”)
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423 F. Supp. 2d 777, 782 (N.D. Ohio 2006).
Next, the Court rejects Defendant’s contention that the FCCPA claim should be dismissed
because there are no allegations that it violated the prohibition on abusive or harassing telephone
calls in violation of Florida Statute § 559.72(7). That provision states “in collecting consumer
debts, no person shall . . . [w]illfully communicate with the debtor or any member of her or his
family with such frequency as can reasonably be expected to harass the debtor or her or his family,
or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor
or any member of her or his family.” Florida Statute § 559.72(7). The Complaint alleges the
following:
By repeatedly contacting the Third Party and disclosing the existence of the debt allegedly
owed by Plaintiff, and by calling Plaintiff over 200 times during a period of approximately
seven months, including on weekends and holidays, Defendant willfully engaged in conduct
that harassed and abused Plaintiff.
(Compl. ¶ 24.)
Based on the facts pled, Plaintiff has stated a claim for relief. Indeed, at this point in the
proceedings, there is a question of fact as to whether the number of phone calls and the content of
the telephone calls would constitute harassment under the FCCPA. Ortiz v. Accounts Receivable
Management, Inc., No. 09–80124–CIV, 2010 WL 547910, at * 3 (S.D. Fla. Feb. 12, 2010) (citing
Pollock v. Bay Area Credit Svc., LLC, No. 08–61101–Civ, 2009 WL 2475167, at * 9 (S.D. Fla.
Aug.13, 2009) (factual question whether 187 telephone calls were willful and harassing); Scott v.
Florida Health Sciences Ctr., Inc., No. 8:08–cv–1270–T–24–EAJ, 2008 WL 4613083, at * 4 (M.D.
Fla. Oct.16, 2008) (nineteen attempts to collect debt could be considered harassing when the plaintiff
communicated to the defendant multiple times that the debt had been settled); Segal v. National
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Action Financial Svcs., Inc., No. 8:04 CV 2388 T 30MAP, 2006 WL 449176, at * 8 (M.D. Fla.
Feb.22, 2006) (genuine issues of material fact as to whether telephone calls were harassment based
on number and frequency of calls during year and a half period)).
For the foregoing reasons, the Court denies the motion to dismiss.
IV. Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant’s Motion to
Dismiss (DE 9) is DENIED.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida,
this 11th day of December, 2013.
______________________________________
KENNETH A. MARRA
United States District Judge
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