DREW v. MAMARONECK CAPITAL LLC et al

Filing 25

ORDER GRANTING in part and DENYING in part 18 Motion to Dismiss for Failure to State a Claim. The Defendants' motion as to the alleged violations of §§ 1692c(a)(1), 1692e, 1692f is DENIED. The Defendants' motion as to the alleged violation of § 1692g(b) as well as the negligence claim is GRANTED, and the negligence claim is dismissed without prejudice. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 9/12/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JUDITH DREW,
Plaintiff,
v.

MAMARONECK CAPITAL, LLC and
MCCULLOUGH PAYNE HAAN &
NADLER, LLC,
Defendants.

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CIVIL ACTION No. 5:17-CV-149 (MTT)

ORDER
Defendants Mamaroneck Capital, LLC and McCullough Payne Haan & Nadler,
LLC move to dismiss Plaintiff Judith Drew’s complaint for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6).1 Doc. 18. For the following
reasons, the Defendants’ motion is GRANTED in part and DENIED in part.

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The Defendants, in a somewhat perfunctory manner, also claim that service of process was insufficient
under Federal Rule of Civil Procedure 4(h)(1)(B) because Drew did not serve a copy of the summons and
complaint on McCullough Payne’s registered agent. Doc. 18-1 at 3-4. Rule 4(h)(1)(B) provides in
pertinent part that an unincorporated association subject to a lawsuit must be served by
delivering a copy of the summons and of the complaint to an officer, a
managing or general agent, or any other agent authorized by
appointment or by law to receive service of process and—if the agent is
one authorized by statute and the statute so requires-—by also mailing a
copy of each to the defendant.

As Drew points out, McCullough Payne’s registered agent was not available, and the process server
served Greg Haan, a named member and authorized user of McCullough Payne who filed McCullough
Payne’s most recent annual registration with Georgia’s Secretary of State. Doc. 21 at 3. Thus, Drew
complied with Rule 4(h)(1)(B). In their reply brief, the Defendants do not dispute these facts nor do they
provide further reason as to why service was insufficient. Accordingly, the Defendants’ motion to dismiss
for improper service of process is DENIED.

I. THE ALLEGATIONS
Drew alleges the following facts, which the Court must accept as true. On June
20, 2008, Drew received a letter from the law firm of Frederick J. Hanna & Associates,
P.C., which informed Drew that the firm represented Georgia Receivables, Inc., an
assignee of a bank to which Drew allegedly owed money. Docs. 14 at ¶¶ 31-32; 14-1.
Drew claims this was the first contact she had regarding the account. Id. at ¶ 33. On
July 15, 2008, Drew responded to the letter, disputing the validity of the debt and asking
Hanna & Associates to provide her more information to validate the debt. Docs. 14 at ¶
34; 14-3. On July 22, 2008, Hanna & Associates sent a response letter to inform Drew
that its “client has verified that the balance of $41,925.13 to be true, correct, and still
owing at this time.” Docs. 14 at ¶ 36; 14-3. On July 31, 2008, Drew responded to
Hanna & Associates’ letter by noting that the firm ignored her previous request to
provide additional information as to the validity of the debt. Docs. 14 at ¶ 38; 14-4. To
this point, all correspondence to Drew had been mailed to P.O. Box 396, Rochelle, GA
31079 (“the Rochelle address”).
No further action was taken by Hanna & Associates until September 29, 2008,
when Hanna & Associates filed a complaint against Drew in the Superior Court of
Wilcox County to collect the alleged debt. Docs. 14 at ¶ 40-41; 14-4. Notably, Hanna &
Associates stated in the complaint that Drew could be served at her residential address,
“3528 American Legion Road, Abbeville, Georgia” (“the Abbeville address”). Doc. 14-5
at 2.
On November 12, 2008, Drew filed her answer to the complaint, denying all
liability and providing the Rochelle address for service of future pleadings. Docs. 14 at

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¶ 44; 14-6 at 1. Hanna & Associates never replied to the answer but on February 23,
2009, the firm sent by certified mail and regular mail to the Abbeville address the
following documents: Request for Production of Documents, First Interrogatories to
Defendant, and First Request for Admissions of Fact. Doc. 14-7 at 2; see generally
Doc. 14-7. Drew claims she never received any of these documents. Doc. 14 at ¶ 48.
On March 17, 2009, a certified mailing envelope was returned to Hanna & Associates
as unclaimed, while the first class mail was not. Doc. 14-7 at 2. On April 27, 2009,
Hanna & Associates moved for summary judgment, arguing Drew had not responded to
its discovery requests. Id. On June 2, 2009, the court granted the motion and entered
a judgment against Drew in the total amount of $30,646.20. Doc. 14-8. On June 12,
2009, the clerk issued a Writ of Fieri Facias for the amount of $30,651.20 from Drew.
Doc. 14-12 at 2. Drew alleges Hanna & Associates falsely induced the Wilcox County
Superior Court to render a judgment against her based on an unserved motion for
summary judgment and unserved discovery documents. Doc. 14 at ¶ 50. She also
alleges she never received a copy of the judgment. Id. at ¶ 52.
Hanna & Associates was subsequently sued by the Consumer Financial
Protection Bureau (CFPB) for allegedly relying on deceptive court filings and faulty
evidence to churn out lawsuits in violation of the Fair Debt Collection Practices Act
(FDCPA). Id. at ¶¶ 53-54. After the CFPB obtained a stipulated final judgment and
order against Hanna & Associates, the firm ceased to exist. Id. at ¶ 57.
Drew alleges Defendants Mamaroneck and McCullough Payne are continuing
Hanna & Associates’ abusive tactics by, among other things, contacting Drew at an
address that the Defendants know or should know would be inconvenient. Id. at ¶¶ 58-

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69. On October 4, 2016, McCullough Payne, on behalf of Mamaroneck, sent a letter to
inform Drew that Mamaroneck was an assignee of Georgia Receivables’ debt in the
amount of $43,849.23. Docs. 14 at ¶ 58; 14-10. Notably, this letter was sent to a third
address: 3850 U.S. Highway 280, Pitts, Georgia 31072. Id. On November 1, 2016,
Drew responded to the letter and requested McCullough Payne to verify and validate
the debt. Docs. 14 at ¶ 60; 14-11. Drew also handwrote beneath her signature to
“[p]lease mail to P.O. Box 396, Rochelle, GA 31079.” Id. On November 7, 2016,
McCullough Payne responded with a letter that attached a copy of the fi. fa., which
shows a judgment of $30,651.20 entered against Drew. Docs. 14 at ¶ 62; 14-12. Drew
alleges that despite being informed of Drew’s preferred address, McCullough Payne still
sent the letter to the address in Pitts. Docs. 14 at ¶¶ 64-65; 14-12 at 1.
Consequently, on April 18, 2017, Drew filed this action against the Defendants.
Doc. 1. In response to the Defendants’ motion to dismiss (Doc. 7), Drew filed an
amended complaint on June 2, 2017. Doc. 14. Drew alleges the Defendants
continued the abusive debt collection practices of Hanna & Associates with regard to
the alleged account in an effort to harass Drew and otherwise treat her in an unfair
manner. Id. at ¶ 66. Based on the Defendants’ conduct, Drew claims, in Count I, the
Defendants violated multiple provisions of the FDCPA. Id. at ¶¶ 81-93. Additionally, in
Count II, Drew alleges the Defendants are liable for negligence. Id. at ¶¶ 94-98.
II. DISCUSSION
A.

Motion to Dismiss Standard
The Federal Rules of Civil Procedure require that a pleading contain a “short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.

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P. 8(a)(2). To avoid dismissal pursuant to Rule12(b)(6), a complaint must contain
sufficient factual matter to “‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “At the motion to dismiss stage, all well-pleaded facts are accepted as
true, and the reasonable inferences therefrom are construed in the light most favorable
to the plaintiff.” Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006)
(internal quotation marks and citation omitted). However, “where the well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’”
Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). “[C]onclusory allegations,
unwarranted deductions of facts or legal conclusions masquerading as facts will not
prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir.
2002) (citations omitted). The complaint must “give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (quotation
marks and citation omitted). Where there are dispositive issues of law, a court may
dismiss a claim regardless of the alleged facts. Marshall Cty. Bd. of Educ. v. Marshall
Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir.1993) (citations omitted).
B.

Fair Debt Collection Practices Act Claim
To state a claim pursuant to the FDCPA, a plaintiff must show that a debt

collector attempted to collect a consumer debt through an act or omission prohibited by
the FDCPA. See Davidson v. Capital One Bank, N.A., 797 F.3d 1309, 1313 (11th Cir.
2015). “The [FDCPA] provides a civil cause of action against any debt collector who

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fails to comply with the requirements of the Act.” Edwards v. Niagara Credit Sol. Inc.,
584 F.3d 1350, 1352 (11th Cir. 2009) (citation omitted).
In Count I, Drew claims the Defendants violated various provisions of the
FDCPA, including 15 U.S.C. §§ 1692c(a)(1), 1692g(b), 1692e, and 1692f. Doc. 14 at ¶¶
81-93. These alleged violations can be factually arranged into their respective
subsections of 15 U.S.C. § 1692.
1. Section 1692c(a)(1)
Drew alleges the Defendants violated 15 U.S.C. § 1692c(a)(1) by contacting her
at a place known to be inconvenient. Doc. 14 at ¶ 85. Under § 1692c(a)(1), “a debt
collector may not communicate with a consumer in connection with the collection of any
debt at any unusual time or place or a time or place known or which should be known to
be inconvenient to the consumer.”
Here, Drew has pleaded sufficient facts to state a plausible allegation that the
Defendants had both actual and implied knowledge that sending letters anywhere other
than to the Rochelle address was inconvenient. First, Drew expressly requested the
Defendants to send future communication to the Rochelle address, but the Defendants
ignored her request and still sent their response letter to an address in Pitts, Georgia.
Doc. 14 at ¶¶ 64-65. Clearly, the Defendants had actual knowledge of her preferred
address. The Defendants argue, however, that Drew never explained in the complaint
what the inconvenience was and that thus, Drew has failed to plead any facts that would
allow this Court to draw a reasonable inference of liability under 15 U.S.C. §
1692c(a)(1). Doc. 23 at 4. Further, the Defendants argue that Drew’s “constant
repetition of the alleged misconduct of Frank Hanna and his law firm” is irrelevant and

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that the sheer lack of factual allegations would require this Court to impermissibly
speculate as to why or how Drew was inconvenienced. Id.; id. at 4 n.1. The Court
disagrees. The alleged history of the efforts to collect the debt, including the efforts of
the Defendants’ predecessor, Hanna & Associates, suggest the consequences of the
failure to use the Rochelle address. Thus, the Court finds that Drew has alleged
sufficient facts to show a plausible claim under § 1692c(1)(a).
2. Section 1692g(b)
Drew alleges the Defendants violated 15 U.S.C. § 1692g(b) by failing to provide
sufficient proof that Georgia Receivables assigned the Defendants the right to collect
the alleged debt. Docs. 14 at ¶ 86; 21 at 9. Section 1692g(b) provides in pertinent part
the following:
If the consumer notifies the debt collector in writing within the
thirty-day period described in subsection (a) that the debt, or
any portion thereof, is disputed, or that the consumer
requests the name and address of the original creditor, the
debt collector shall cease collection of the debt, or any
disputed portion thereof, until the debt collector obtains
verification of the debt or a copy of a judgment, or the name
and address of the original creditor, and a copy of such
verification or judgment, or name and address of the original
creditor, is mailed to the consumer by the debt collector.
Here, Drew claims that the Defendants did nothing more than inform her that
Georgia Receivables had a judgment against her without providing any proof of
assignment. Doc. 21 at 9. However, the Defendants correctly note that § 1692g(b)
does not require a debt collector to “produce assignments of the debt, or any document
demonstrating that the debt collector has the right or ability to collect the debt.” Doc.
18-1 at 6. Indeed, what the statute requires the debt collector to show, among other
options, is a “copy of a judgment,” and the Defendants have met this statutory
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requirement by attaching the fi. fa. with their response letter. Docs. 14-12 at 2; 18-1 at
6. Because the facts demonstrate that the Defendants complied with all of the
requirements, Drew fails to show a plausible claim under 15 U.S.C. § 1692g(b).
3. Section 1692e
Drew alleges the Defendants violated § 1692e by misleading her into believing
that the Defendants only needed to show a copy of the judgment in order to collect an
alleged debt from her. Doc. 14 at ¶ 87. 15 U.S.C. § 1692e states that “[a] debt collector
may not use any false, deceptive, or misleading representation or means in connection
with the collection of any debt.” The Defendants argue that Drew has failed to show
how any of the communications between her and the Defendants constitute a false
statement or misrepresentation. Doc. 18-1 at 7. However, the complaint and
supporting documents suggest that the judgment was wrongfully obtained by Hanna &
Associates, the previous debt collector. Without receiving further explanation as to the
validity of the alleged debt from either Hanna & Associates or the Defendants, Drew
was left to believe, as a result of the Defendants’ communication with her, that she had
no choice but to pay the alleged debt. The Defendants also did not provide any proof
that the right to collect the alleged debt was assigned to them by Georgia Receivables,
Inc., which further calls into question whether they even have a right in the first place.
Finally, the balance of $43,849.23, which the Defendants seek in their letter dated
October 4, 2016, contradicts the amount ($30,651.20) shown on the fi. fa. Compare
Doc. 14-10, with Doc. 14-12 at 2. This could well be the result of accrued interest, but,
under the circumstances, the unexplained discrepancy is significant. Thus, the Court
finds Drew has pleaded sufficient facts to show a plausible claim under § 1692e.

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4. Section 1692f
Drew alleges the Defendants have violated § 1692f by engaging in unfair and
unconscionable means to further their attempt in collecting an alleged debt. Doc. 14 at
¶ 88. 15 U.S.C. § 1692f states in pertinent part that “[a] debt collector may not use
unfair or unconscionable means to collect or attempt to collect any debt.” The
Defendants argue that Drew has failed to allege how the Defendants’ actions were
unfair and unconscionable other than merely asserting that the actions are such. Doc.
18-1 at 8. However, Drew’s allegations are not barren recitals of the statutory elements.
Based on the pleaded facts, a reasonable inference could be drawn that the Defendants
have continued, or seek to exploit, the unfair practices of their predecessor, Hanna &
Associates. Thus, the Court finds that Drew’s Amended Complaint provides enough
material facts to raise a reasonable inference, and thus a plausible claim under § 1692f.
C.

Negligence Claim
Drew alleges in Count II that the Defendants are liable for negligence. Doc. 14 at

¶¶ 94-98. Specifically, she argues, without citation to any relevant authority, that both
the FDCPA and Georgia law place a duty on debt collectors to treat consumers fairly
and in a non-abusive manner and that the Defendants have breached this duty, causing
her damages. Id. However, this allegation clearly fails to state a plausible claim. First,
Drew fails to show how the FDCPA creates an independent cause of action under
Georgia law. Additionally, Drew fails to show any legally recognizable duty between her
and the Defendants. Thus, the negligence claim is dismissed.

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III. CONCLUSION
For the foregoing reasons, the Defendants’ motion as to the alleged violations of
§§ 1692c(a)(1), 1692e, 1692f is DENIED. The Defendants’ motion as to the alleged
violation of § 1692g(b) as well as the negligence claim is GRANTED, and the
negligence claim is dismissed without prejudice.
SO ORDERED, this 12th day of September, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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