Kalebaugh v. Cohen McNeile & Pappas, PC

Filing 19

MEMORANDUM AND ORDER granting in part and denying in part 6 defendant's Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge J. Thomas Marten on 1/5/15. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MATTHEW KALEBAUGH,
Plaintiff,
v.

Case No. 2:14-CV-2238-JTM-GLR

COHEN, McNEILE & PAPPAS, P.C.,
Defendant.

MEMORANDUM AND ORDER
Plaintiff Matthew Kalebaugh seeks damages against defendant Cohen, McNeile &
Pappas, P.C. (“defendant”) for alleged violations of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq., and the Kansas Consumer Protection Act (“KCPA”),
K.S.A. § 50-623 et seq. This matter is before the court on defendant’s Motion to Dismiss (Dkt.
6). For the reasons stated below, defendant’s motion is granted in part and denied in part.
I.

Factual and Procedural Background

This case arises out of defendant’s attempt to collect a credit card debt allegedly owed by
plaintiff to Discover Bank. On June 7, 2013, defendant mailed plaintiff a debt collection letter
which read, in pertinent part, as follows:
This is to notify you that Discover Bank has retained this firm to collect its claim
against you for the balance owing on your Discover Card account. We are hereby
making demand upon you to contact us for payment of this debt. If you are on
active duty in the military, please provide us with written documentation to that
effect.
This communication is from a debt collector and is an attempt to collect a debt.
Any information obtained will be used for that purpose. Unless you notify us
within thirty (30) days after receipt of this letter that the validity of this debt, or

any portion of it, is disputed, we will assume that the debt is valid. If you do
notify us of a dispute, we will obtain verification of the debt and mail it to you.
Further, upon your written request within thirty (30) days, we will provide you
with the name and address of the original creditor if different from the current
creditor. We may proceed with suit against you without waiting the 30 days if so
requested by our client.
Dkt. 1-1, at 9 (emphasis in original).
Plaintiff filed suit against defendant in the District Court of Wyandotte County, Kansas,
on May 1, 2014, case number 14LM2209, for alleged violations of the FDCPA and the KCPA
(Dkt. 1-1). On May 22, 2014, defendant removed this case to the United States District Court for
the District of Kansas (Dkt. 1).1 On June 20, 2014, defendant filed a Motion to Dismiss
plaintiff’s claims in their entirety (Dkt. 6).
II.

Legal Standard

Under Rule 12(b)(6), a defendant may move for dismissal of any claim for which the
plaintiff has failed to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6).
Upon such motion, the court must decide “whether the complaint contains ‘enough facts to state
a claim to relief that is plausible on its face.’” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d
1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007));
see also Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009). A claim is facially plausible if the plaintiff
pleads facts sufficient for the court to reasonably infer that the defendant is liable for the alleged
misconduct. Iqbal, 566 U.S. at 678 (citing Twombly, 550 U.S. at 556). The plausibility standard
reflects the requirement in Rule 8 that pleadings provide defendants with fair notice of the nature
of the claims as well as the grounds upon which each claim rests. See Robbins v. Okla., 519 F.3d
1242, 1248 (10th Cir. 2008) (internal citations omitted); see also FED. R. CIV. P. 8(a)(2) (“A
pleading that states a claim for relief must contain a short and plain statement of the claim
1

Defendant filed an Amended Notice of Removal on May 30, 2014, to correct certain dates (Dkt. 4).

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showing that the pleader is entitled to relief.”). Under Rule 12(b)(6), the court must accept as
true all factual allegations in the complaint, but need not afford such a presumption to legal
conclusions. Iqbal, 556 U.S. at 678-79. Viewing the complaint in this manner, the court must
decide whether the plaintiff’s allegations give rise to more than speculative possibilities. See id.
at 678. (“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.”).

If the allegations in the

complaint are “so general that they encompass a wide swath of conduct, much of it innocent,
then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’”
Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 570).
III.

Discussion

A. FDCPA Violation
The FDCPA, designed in part to “eliminate abusive debt collection practices by debt
collectors,” “establishes certain rights for consumers whose debts are placed in the hands of
professional debt collectors for collection, and requires that such debt collectors advise the
consumers whose debts they seek to collect of specified rights.” 15 U.S.C. § 1692(e); Kalebaugh
v. Berman & Rabin, P.A., 2014 U.S. Dist. LEXIS 119807, at *7-8 (D. Kan. Aug. 28, 2014)
(quoting DeSantis v. Computer Credit, Inc. 269 F.3d 159, 161 (2d Cir. 2001)).

The Act

“generally prohibits debt collectors from engaging in harassing and abusive conduct; using false,
deceptive, and misleading representations; and using unfair or unconscionable means to collect
debts.” Martin v. Kan. Counselors, Inc., 2014 U.S. Dist. LEXIS 66199, at *15-16 (D. Kan. May
13, 2014) (citing Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir. 2002)).
In Count I of his Complaint, plaintiff alleges that the collection letter sent by defendant
violates the FDCPA, namely § 1692g, because it contradicts and/or overshadows the validation

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rights notice required by the Act. Specifically, plaintiff takes issue with the last sentence of the
letter, which states, “[w]e may proceed with suit against you without waiting the 30 days if so
requested by our client.” Dkt. 1-1, at 9.
1. Matter of Law
The Tenth Circuit has never directly addressed whether the contradiction/overshadowing
question is one of law that may be addressed in a motion to dismiss, or fact that is reserved for
the jury. However, the majority of circuits that have ruled on the issue view it as a question of
law. See, e.g., Fed. Home Loan Mortg. Corp. v. Lamar, 503 F.3d 504, 508 n.2 (6th Cir. 2007);
Wilson v. Quadramed Corp., 225 F.3d 350, 353 n.2 (3d Cir. 2000); Terran v. Kaplan, 109 F.3d
1428, 1432-33 (9th Cir. 1997); Garcia-Contreras v. Brock & Scott, PLLC, 775 F. Supp. 2d 808,
817 (M.D.N.C. 2011); see also Owens v. Hellmuth & Johnson, PLLC, 550 F. Supp. 2d 1060,
1065 (D. Minn. 2008); In re Martinez, 266 B.R. 523, 533 (Bankr. S.D. Fla. 2001).2 At least one
court in the District of Kansas has previously determined that the issue of whether collection
letters satisfy the requirements of § 1692g is a question of law that may be resolved on summary
judgment. Rachoza v. Gallas & Schultz, 1998 U.S. Dist. LEXIS 5018, at *11 (D. Kan. Mar. 23,
1998) (citing Terran, 109 F.3d at 1432). Indeed, in a recent decision by Judge Crabtree, (which
involves, interestingly enough, the same plaintiff now before this court), the court held that its
“best judgment is that the Tenth Circuit would agree with the majority view and hold that the
Court should decide as a matter of law . . . .” the contradiction/overshadowing question under §
1692g. Kalebaugh, 2014 U.S. Dist. LEXIS 119807, at *15.

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In contrast, the Seventh Circuit has held that the question of whether a debt collector violates § 1692g is
an issue of fact for the jury to decide. See Walker v. Nat’l Recovery, Inc., 200 F.3d 500, 503 (7th Cir. 1999). But
see Zemeckis v. Global Credit & Collection Corp., 679 F.3d 632, 636 (7th Cir. 2012) (holding that, while the
confusing nature of a collection letter is generally considered a question of fact, “a plaintiff fails to state a claim and
dismissal is appropriate as a matter of law when it is apparent from a reading of the letter that not even a significant
fraction of the population would be misled by it.”) (internal citations omitted)).

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Even though Rachoza and Kalebaugh both involved summary judgment rulings, the
analysis in each case focused solely on the contents of the collection letter without regard to any
extrinsic evidence. See Rachoza, 1998 U.S. Dist. LEXIS 5018, at *14 (stating that “[t]he test is
whether the March 4 letter provided for contradictory deadlines which overshadowed the notice
of the statutory thirty-day validation period viewed from the perspective of the least
sophisticated consumer.”), Kalebaugh, 2014 U.S. Dist. LEXIS 119807, at *29 (finding a § 1692g
violation as a matter of law because the defendant failed to include the amount of the debt in the
letter as required by the statute). The court therefore concludes that the motion to dismiss stage
is appropriate to address the contradiction/overshadowing issue.
2. Section 1692g Contradiction/Overshadowing
Having so decided, the court must now determine whether defendant’s collection letter,
and, more specifically, the sentence that informed plaintiff that defendant could file suit within
the thirty-day validation period, contradicted and/or overshadowed plaintiff’s § 1692g validation
rights.
The FDCPA requires a debt collector, within five days of its initial communication with a
consumer, to send the consumer a written notice containing the following:
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the
notice, disputes the validity of the debt, or any portion thereof, the debt will be
assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within
the thirty-day period that the debt, or any portion thereof, is disputed, the debt
collector will obtain verification of the debt or a copy of a judgment against
the consumer and a copy of such verification of judgment will be mailed to
the consumer by the debt collector; and

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(5) a statement that, upon the consumer’s written request within the thirty-day
period, the debt collector will provide the consumer with the name and
address of the original creditor, if different from the current creditor.
15 U.S.C. §1692g(a).
Many circuits, in determining whether a validation rights notice is adequate, have
adopted the “least sophisticated consumer” standard.

See, e.g., LeBlanc v. Unifund CCR

Partners, 601 F.3d 1185, 1194 (11th Cir. 2010); Clomon v. Jackson, 988 F.2d 1314, 1318 (2d
Cir. 1993); Smith v. Transworld Sys., Inc., 953 F.2d 1025, 1028 (6th Cir. 1992); Graziano v.
Harrison, 950 F.2d 107, 111 (3d Cir. 1991); Baker v. G.C. Servs. Corp., 677 F.2d 775, 778 (9th
Cir. 1982); see also Kvassay v. Hasty, 236 F. Supp. 2d 1240, 1267 (D. Kan. 2002) (noting that
“when analyzing notices or communications under the FDCPA, the court should operate from
the perspective of the least sophisticated consumer.”) (internal citations omitted).3 Under this
objective standard, “the courts consider ‘how the least sophisticated consumer—one not having
the astuteness of a ‘Philadelphia lawyer’ or even the sophistication of the average, everyday,
common consumer—understands the notice he or she receives’” Kalebaugh, 2014 U.S. Dist.
LEXIS 119807, at *9-10 (quoting Ferree v. Marianos, 1997 U.S. App. LEXIS 30361, at *5 (10th
Cir. Nov. 3, 1997)). “The hypothetical least sophisticated consumer, however, ‘can be presumed
to possess a rudimentary amount of information about the world and a willingness to read a

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The standard is also referred to, in some circuits, as the “unsophisticated consumer test.” See, e.g., Veach
v. Sheeks, 316 F.3d 690, 692-93 (7th Cir. 2003) (“When reviewing documents for compliance with the FDCPA, . . .
[the Seventh Circuit] use[s] the ‘unsophisticated debtor’ standard.”); Duffy v. Landberg, 215 F.3d 871, 874-75 (8th
Cir. 2000) (the unsophisticated consumer standard “protects the uninformed or naïve consumer, yet also contains an
objective element of reasonableness to protect debt collectors from liability for peculiar interpretations of collections
letters.”); see also Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1061 n.2 (9th Cir. 2011) (noting that the
unsophisticated consumer standard “appears to differ from the majority test only in semantics”); Taylor v. Perrin,
Landry, deLaunay & Durand, 103 F.3d 1232, 1236 (5th Cir. 1997) (“The most widely accepted tests for determining
whether a collection letter contains false, deceptive, or misleading representations are objective standards based on
the concepts of the ‘least sophisticated consumer’ or the ‘unsophisticated consumer.’”).

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collection notice with some care.’” Rachoza, 1998 U.S. Dist. LEXIS 5018, at *10-11 (citing
Ferree, 1997 U.S. App. LEXIS 30361, at *5).
Although the Tenth Circuit has yet to adopt this standard, there is at least some indication
that it would be inclined to do so. In Ferree v. Marianos, the Circuit noted that “[f]or claims
under the FDCPA, other circuit courts of appeal have applied an objective standard, ‘measured
by how the ‘least sophisticated consumer’ would interpret the notice received from the debt
collector.’” 1997 U.S. App. LEXIS 30361, at *5 (citing Russell v. Equifax A.R.S., 74 F.3d 30, 34
(2d Cir. 1996)). Based on this decision, district courts in this circuit have likewise applied the
standard to FDCPA claims. See Rachoza, 1998 U.S. Dist. LEXIS 5018, at *10; Kalebaugh, 2014
U.S. Dist. LEXIS 119807, at *13. This court therefore applies the least sophisticated consumer
standard.
There is no dispute that defendant’s collection letter satisfies the five notice requirements
set forth in § 1692g. Plaintiff’s allegation, rather, is that the last sentence of the letter, “[w]e may
proceed with suit against you without waiting the 30 days if so requested by our client,”
contradicts and/or overshadows these notice requirements.
Under §1692g(b),
If the consumer notifies the debt collector in writing within the thirty-day period .
. . 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.
Collection activities and communications that do not otherwise violate this title
may continue during the 30-day period . . . unless the consumer has notified the
debt collector in writing that the debt, or any portion of the debt, is disputed or
that the consumer requests the name and address of the original creditor. Any
collection activities and communication during the 30-day period may not
overshadow or be inconsistent with the disclosure of the consumer’s right to
dispute the debt or request the name and address of the original creditor.
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15 U.S.C. § 1692g(b) (emphasis added). Plaintiff argues that the language used in defendant’s
notice letter has “been classic overshadowing for decades” and urges this court to adopt the
standard set forth by the Seventh Circuit in Bartlett v. Heibl, 128 F.3d 497 (7th Cir. 1997).
In Bartlett, the defendant debt collector sent the plaintiff consumer a validation letter
which stated, among other things, that if he “wish[ed] to resolve this matter before legal action is
commenced, [he] must do one of two things within one week of the date of this letter: pay $316
toward the satisfaction of the debt, or get in touch with Micard (the creditor) and make suitable
arrangements for payment.” 128 F.3d at 499 (emphasis added). The Seventh Circuit determined
that inclusion of the one-week time frame was indeed confusing and overshadowed the required
notice. Id. at 501. The court noted:
On the one hand, Heibl’s letter tells the debtor that if he doesn’t pay within a
week he’s going to be sued. On the other hand, it tells him that he can contest the
debt within thirty days. This leaves up in the air what happens if he is sued on the
eighth day, say, and disputes the debt on the tenth day. He might well wonder
what good it would do him to dispute the debt if he can’t stave off a lawsuit. The
net effect of the juxtaposition of the one-week and thirty-day crucial periods is to
turn the required disclosure into legal gibberish. That’s as bad as an outright
contradiction.
Id. The court offered an “improved” version of the debt collector’s letter to be used as a guide in
the future. Id. at 501-02.
It is understandable that the plaintiff in Bartlett could become confused based on the
contents of his letter: the same letter told him that he had both thirty days and one week to sort
out the debt.

Indeed, plaintiff is correct that courts have consistently found this type of

conflicting information to be a violation of § 1692g. In a District of Kansas case somewhat
similar to the case at hand, the plaintiff received a letter from the debt collector defendant that
stated, in addition to the required § 1692g notice,

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If we do not hear from you and the sum of $11,683.66 is not paid to our office
within 10 days, we will take whatever legal steps are necessary to protect our
client’s interest without further notice to you, which may include placing the
claim with an attorney in your locale for suit. Additionally, we may proceed with
suit without waiting 30 days if so requested by our client.
Rachoza, 1998 U.S. Dist. LEXIS 5018, at *3 (emphasis added). Because the defendant’s letter,
in addition to notifying the plaintiff of his thirty-day validation period, also stated that he only
had ten days to pay the outstanding balance, the court held that the defendant violated § 1692g as
a matter of law. Id. at *15.
Courts outside of this circuit have reached similar conclusions. In Zemeckis v. Global
Credit & Collection Corporation, the defendant debt collector sent the plaintiff consumer a letter
that included, in addition to the required thirty-day validation notice, phrases such as “take action
now,” and “call today.” 679 F.3d 632, 634-36 (7th Cir. 2012). In its decision, the Seventh
Circuit compared this factual situation to that contained in Bartlett and distinguished the two,
finding that the “urgings” in Zemeckis were merely puffery, “rhetoric designed to create a mood
rather than to convey concrete information or misinformation,” and did not impose a deadline
that contradicted the plaintiff’s right to a thirty-day validation period. Id. at 636.4
A court in the Northern District of Illinois recently held that a defendant debt collector
did not violate § 1692g when it instructed the plaintiff, in its collection letter, to contact another
party regarding any credit report disputes. Friedman v. Leading Edge Recovery Solutions, LLC,
2014 U.S. Dist. LEXIS 58694 (N.D. Ill. Apr. 28, 2014). In so holding, the court noted that
“[o]vershadowing generally occurs when the debt collector indicates that the time for disputing

4

Although merely dicta, the court went on to say that the defendant “did not go so far as to mention that it
had the right, as do all creditors, to initiate suit during the validation period. That information, if included, would
have rendered the letter even more threatening and would still not have risen to a violation of Section 1692g(b).”
Zemeckis, 679 F.3d at 636-37 (emphasis added).

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the debt has passed or when the statements by the debt collector misrepresent or cloud the
amount of time remaining to dispute the debt.” Id. at *7 (internal citations omitted).
In McCormick v. Wells Fargo Bank, the defendant debt collector sent the plaintiff debtor
a letter with nearly identical language to that sent in the case now before this court. 640 F. Supp.
2d 795 (S.D.W.Va. 2009). Like plaintiff’s letter, the letter in McCormick concluded with the
following sentence: “[p]lease be advised that during the thirty (30) day period, this firm will not
delay or cease with its collection of the debt.” Id. at 797. In granting the defendant’s motion to
dismiss, the court held that a violation is typically found where the letter contains some type of
contradiction between the thirty-day validation period and “the call for some type of ‘immediate’
or earlier payment . . . . ,” not where the letter simply fails to alert the consumer that the
collection process will temporarily stop if the consumer exercises his § 1692g(a) right to
verification. Id. at 799-800.
Here, defendant’s letter is more akin to those found in Zemeckis, Friedman, and
McCormick rather than those found in Bartlett and Rachoza. Plaintiff was advised that he had
thirty days in which to contest the validity of the debt and to request the name and address of the
original creditor if different from the current creditor. Dkt. 1-1, at 9. Unlike the situations in
Bartlett and Rachoza, plaintiff was never told that he was required to pay the debt within a
specified time that was less than the thirty days. Defendant did not misrepresent the amount of
time remaining that plaintiff had to dispute the debt, nor did it indicate that the time for disputing
the debt had passed. The collection letter did not include any threats that plaintiff pay the debt
within a shortened period of time “or else.”

Rather, defendant’s letter merely encouraged

plaintiff to pay his debt by informing him of the possible consequences of failing to do so.

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It is important to note that the “validation period . . . is not a grace period: a debt collector
is ‘perfectly free’ to demand payment and pursue collection efforts, including an appropriate
lawsuit against the debtor, within the validation period.” Durkin v. Equifax Check Servs., Inc.,
406 F.3d 410, 416 (7th Cir. 2005) (citing Bartlett, 128 F.3d at 500-01) (emphasis added). As
prescribed by the statute, “during the validation period, the debtor’s right to dispute coexists with
the debt collector’s right to collect.” Id. Here, defendant was simply advising plaintiff of its
options as a debt collector; options specifically bestowed upon defendant by the language of the
FDCPA itself. When all of these factors are considered together, it becomes apparent that
defendant’s collection letter did not violate § 1692g because it did not contradict or overshadow
plaintiff’s validation rights. As such, defendant’s motion to dismiss is granted as to plaintiff’s
FDCPA claim (Count I).
B.

KCPA Violation
Plaintiff’s second claim asserts a violation of the KCPA. The KCPA prohibits deceptive

or unconscionable acts and practices in connection with a “consumer transaction.” Under the
Act, a consumer transaction is defined as “a sale, lease, assignment or other disposition for value
of property or services within this state . . . to a consumer; or a solicitation by a supplier with
respect to any of these dispositions.” K.S.A. § 50-624(c).
The Kansas Supreme Court has previously held that an independent debt collection
agency may be a “supplier” for purposes of the KCPA only under certain conditions:
(1) The debt sought to be enforced came into being as a result of a consumer
transaction;
(2) The parties to the original consumer transaction were a “supplier” and a
“consumer” as defined in the act; and

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(3) The conduct complained of, either deceptive or unconscionable, occurred
during the collection of, or an attempt to collect, a debt which arose from the
consumer transaction and was owed by the consumer to the original supplier.
State ex rel. Miller v. Midwest Serv. Bureau of Topeka, Inc., 229 Kan. 322, 623 P.2d 1343, 1349
(Kan. 1981) (emphasis added). Our court has applied the Miller test to a law firm engaged in
collection activities and found that the debt collector met the definition of a “supplier.” See
Rachoza, 1998 U.S. Dist. LEXIS 5018, at *18. Therefore, this court looks to the Miller test to
determine if defendant is a “supplier” under the KCPA and, as such, is subject to the
requirements of the act.
Defendant concedes, for purposes of this motion, that the first element of Miller is
satisfied – that the debt sought to be enforced came into being as a result of a consumer
transaction. Dkt. 7, at 16. However, defendant contests the second element of the test – that the
parties to the original consumer transaction were a “supplier” and a “consumer,” as those terms
are defined in the Act. More specifically, defendant argues that the alleged supplier, Discover
Bank, cannot be deemed as such under the KCPA’s own definition of that term.
The KCPA defines “supplier” as
a manufacturer, distributor, dealer, seller, lessor, assignor, or other person who, in
the ordinary course of business, solicits, engages in or enforces consumer
transactions, whether or not dealing directly with the consumer. Supplier does not
include any bank, trust company or lending institution which is subject to state or
federal regulation with regard to disposition of repossessed collateral by such
bank, trust company or lending institution.
K.S.A. § 50-624(l) (emphasis added). At least one court in this district has construed the KCPA
to exclude banks and lending institutions entirely from the definition of “supplier” if they are
subject to state and federal regulations. See Kastner v. Intrust Bank, 2011 U.S. Dist. LEXIS
17364, at *7 n.3 (D. Kan. Feb. 22, 2011) (“K.S.A. § 50-624(l) appears to exclude banks and
lending institutions that are subject to state and federal regulation from the definition of
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‘supplier’ and the court assumes that defendant Intrust Bank satisfies this exception.”); see also
Briscoe v. Cohen, 2014 U.S. Dist. LEXIS 139786, at *30-31 (D. Kan. Oct. 1, 2014) (holding that
a bank was not a supplier under the KCPA “if it is subject to state or federal regulation.”)5
Plaintiff disagrees with this interpretation of the definition of “supplier” and instead
argues that the KCPA only excludes banks, trust companies, and lending institutions when the
issue at hand is the “disposition of repossessed collateral.” Ergo, since the issue before the court
deals only with the alleged outstanding balance on a credit card and not the disposition of
repossessed collateral, Discover Bank is a supplier under the KCPA. The court disagrees.
Plaintiff offers absolutely no support, statutory or otherwise, for this distinction. Nor did the
court find, during its own review of the law, any such support for this interpretation.
Furthermore, the court cannot extrapolate this meaning from the plain language of the statute.
The court therefore concludes that Discover Bank is not a supplier under the KCPA if it is
subject to state or federal regulation.
While the court can certainly infer, based on its own general knowledge, that Discover
Bank is, in fact, subject to state and/or federal regulation, the record currently does not include
any evidence to suggest one way or the other as to Discover Bank’s regulatory status. If it did,
the court may be inclined to convert this issue to summary judgment, pursuant to Federal Rule of
Civil Procedure 12(d). However, absent any such evidence, the court’s hands are tied and, as

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Although presented with an affidavit from the Executive Vice President of the original bank stating that
the bank was a “bank, trust company, or lending institution which is subject to state or federal regulation . . . . ,” the
Briscoe court declined to convert the defendant’s motion to dismiss into a summary judgment motion without giving
the plaintiff an opportunity to present material. Briscoe, 2014 U.S. Dist. LEXIS 139786, at *32-33. It therefore
ordered that all issues in the case be stayed so that the parties might conduct limited discovery on whether the bank
was governed by state or federal regulation and subsequently submit a motion for summary judgment. Id.

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such, it has no choice but to deny defendant’s motion to dismiss plaintiff’s KCPA claim (Count
II).6
IT IS THEREFORE ORDERED this 5th day of January, 2015, that defendant’s Motion
to Dismiss (Dkt. 6) is here by granted in part and denied in part.

s/J. Thomas Marten
J. THOMAS MARTEN,
CHIEF JUDGE

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As noted above, the court is aware that, in Judge Crabtree’s Briscoe decision, he stayed his decision on
defendant’s motion to dismiss so that the parties could conduct limited discovery as to whether the original supplier,
a bank, was subject to state or federal regulation. The court finds such procedure to be unnecessary in the case at
hand.

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