Williams et al v. McCalla Raymer, LLC

Filing 6

ORDER adopting 2 Final Report and Recommendation. Accordingly, the Complaint is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii). The Clerk shall close the case. Signed by Judge Richard W. Story on 12/1/11. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TYRONE WILLIAMS and
KELLY WILLIAMS,
Plaintiff,
v.
McCALLA RAYMER, LLC,
Defendant.

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CIVIL ACTION NO.
1:11-CV-3664-RWS

ORDER
This case is before the Court for consideration of the Final Report and
Recommendation [2] of Magistrate Judge Linda T. Walker. After reviewing the
Report and Recommendation and Plaintiffs’ Objections [5] thereto, the Court
enters the following Order.
Magistrate Judge Walker recommended dismissal of this action pursuant
to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii). She concluded that Plaintiffs failed to
allege any facts showing that Defendant meets the definition of “debt collector”
under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et
seq. Also, she found that Plaintiffs failed to set forth any facts to show that

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Defendant owed them a legal duty to stop the foreclosure proceedings. In their
Objections, Plaintiffs assert that the communications sent to them by Defendant
state: “This is an attempt to collect a debt.” Thus, Plaintiffs argue that it is
obvious that Defendant was trying to collect a debt.
A complete reading of Defendant’s letter shows that Defendant was
seeking to enforce a security interest through the foreclosure process. “The
FDCPA defines ‘debt collector’ as a person who uses an instrumentality of
interstate commerce or the mails in a business which has the principal purpose
of collecting debts, or who regularly collects debts owed to another.” Warren v.
Countrywide Home Loans, Inc., 342 Fed. App. 458, 460 (11th Cir. 2009).
“[T]he FDCPA does not define ‘debt collection.’ However, the plain language
of the FDCPA supports the . . . conclusion that foreclosing on a security interest
is not debt collection activity for purposes of” the FDCPA generally, but is for
purposes of § 1692f(6). Id. Under Section 1692f(6), a debt collector may not
take or threaten to take a non-judicial action to effect dispossession of property
if “(A) there is no present right to possession of the property claimed as
collateral through an enforceable security interest; (B) there is not present
intention to take possession of the property; or (C) the property is exempt by
law from such dispossession or disablement.” 15 U.S.C. § 1692f(6). Plaintiffs
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have failed to allege facts that would support a finding that Defendant violated
any of these provisions. Thus, as Judge Walker concluded, Plaintiffs failed to
set forth facts to show why Defendant owed them a legal duty to stop
foreclosure proceedings.
Based on the foregoing, even if Defendant is deemed to be a debt
collector for purposes of § 1692f(6), Plaintiffs have failed to state a cause of
action pursuant to the FDCPA. Accordingly, the Complaint is DISMISSED
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii). The Clerk shall close the case.
SO ORDERED, this 1st day of December, 2011.

_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE

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