Wilson v. Asset Acceptance, LLC
Filing
10
MEMORANDUM OPINION AND ORDER: Defendant's 4 Motion to Dismiss for Failure to State a Claim is GRANTED. Signed by Judge Joseph M. Hood on June 5, 2012. (AWD) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JOHN WILSON,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
ASSET ACCEPTANCE, LLC,
Defendant.
**
This
matter
is
Action No. 5:12-cv-66-JMH
MEMORANDUM OPINION AND ORDER
**
**
**
**
before
the
Court
upon
Defendant
Asset
Acceptance, LLC’s motion to dismiss, pursuant to Fed. R. Civ. P.
12(b)(6).
[DE
4].
Plaintiff
Wilson
has
responded
to
Defendant’s motion [DE 6] and Defendant has filed a reply to
Plaintiff’s response [DE 8].
The Court, having reviewed the
record and being otherwise adequately advised, is prepared to
rule
on
Defendant’s
motion.
For
the
following
reasons,
Defendant’s motion to dismiss will be granted.
I.
BACKGROUND
In April 2007, Asset Acceptance filed a debt collection
action against Plaintiff in Lincoln County, Kentucky District
Court.
In
early
2009,
the
Lincoln
District
summary judgment in favor of Asset Acceptance.
Court
granted
Subsequently,
upon Asset Acceptance’s application pursuant to KRS 425.501, the
court issued an order of wage garnishment to Wilson’s out-of-
state employer, Central Oregon Truck Company, Inc., see DE 1-1,
and an order of non-wage garnishment as to Wilson’s out-of-state
bank
account
employer
with
and
ING
ING
Direct,
refused
to
see
DE
garnish
1-2.
the
Both
funds
Wilson’s
as
ordered,
contending that the Kentucky court lacked jurisdiction over the
out-of-state wages and bank account.
In February 2012, upon
Asset Acceptance’s motion, the Lincoln District Court ordered
that
the
released.
attachment
upon
Ultimately,
Plaintiff’s
Asset
Acceptance
account
never
with
ING
garnished
be
any
funds from Plaintiff’s employer or from the ING account.
Plaintiff
brings
this
action
pursuant
to
the
Collection Practices Act (FDCPA), 15 U.S.C. § 1692.
Fair
Debt
He contends
that Defendant violated the Act by taking an unlawful action to
enforce the state court judgment against him and by attempting
to
collect
amounts
not
permitted
by
law.
The
crux
of
Plaintiff’s argument with respect to both claims is that the
Lincoln District Court did not have jurisdiction over the outof-state funds and, therefore, Defendant’s attempt to garnish
them via the Lincoln District Court garnishment proceeding was
in violation of the FDCPA.
II.
DISCUSSION
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)
tests the sufficiency of a plaintiff’s complaint.
The Court
views the complaint in the light most favorable to the plaintiff
2
and
factual
allegations
must
be
enough
to
raise
a
right
to
relief above the speculative level on the assumption that all of
the complaint’s allegations are true.
U.S.
544,
555-56
(2007).
“A
Bell Atl. v. Twombly, 550
complaint
must
contain
either
direct or inferential allegations with respect to all material
elements necessary to sustain a recovery under some viable legal
theory.”
Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir.
1997).
If
it
appears
beyond
doubt
that
the
plaintiff’s
complaint does not state facts sufficient to state a claim that
is “plausible on its face,” then the claims must be dismissed.
Twombly, 550 U.S. at 570; Weisbarth v. Geauga Park Dist., 499
F.3d 538, 541-42 (6th Cir. 2007).
A.
Plaintiff’s Claim Under 15 U.S.C. § 1692e(5)
Congress
enacted
the
FDCPA
“to
eliminate
abusive
debt
collection practices by debt collectors, to insure that those
debt collectors who refrain from using abusive debt collection
practices are not competitively disadvantaged, and to promote
consistent
State
collection
abuses.”
provides
that
action
“[a]
15
debt
to
protect
U.S.C.
§
collector
consumers
1692(e).
may
not
against
Section
use
any
debt
1692e
false,
deceptive, or misleading representation or means in connection
with the collection of any debt.”
One way in which a debt
collector can violate this provision is to “threat[en] to take
any action that cannot legally be taken or that is not intended
3
to be taken.”
§ 1692e(5).
Contrary to Plaintiff’s contention,
Defendant’s attempt to garnish his out-of-state wages and bank
account does not constitute a violation of § 1692e(5).
While
the
Court
appreciates
the
parties’
arguments
regarding the state court’s jurisdiction over the res sought to
be garnished, the proper resolution of this claim begins with a
review of the plain language of the FDCPA.
Seneca
Fin.
Corp.,
2009)(interpretation
itself).
action
in
569
606,
FDCPA
of
F.3d
begins
See Hartman v. Great
with
611
(6th
statutory
Cir.
language
Section 1692e(5) prohibits the “threat” of any illegal
connection
with
the
collection
of
a
debt.
As
Plaintiff points out, when it comes to violations of the Act,
there is often no meaningful distinction between a threat and an
action actually pursued.
See DE 6, p. 4 (“Plaintiff’s Objection
to Defendant’s Motion to Dismiss”).
In construing the Act’s
language to encompass conduct beyond mere threats, however, the
Court must keep in mind the purpose behind the provision – to
eliminate the “intimidating effect on the least sophisticated
consumer.”
See Gionis v. Javitch, Block, Rathbone, LLP, 238 F.
App’x 24, 29 (6th Cir. 2007).
Section 1692e is directed at
conduct likely to confuse consumers – that which may make them
feel pressured to pay a debt immediately, even when the validity
of the debt is disputed.
F.
Supp.
2d
856,
867
See id. (citing Gionis v. Javitch, 405
(S.D.
Ohio
4
2005)).
Examples
of
such
conduct include a debt collector’s threat to file a lawsuit when
no debt is owed, see Todd v. Capital One Fin. Corp., 3:07-cv189-S, 2007 WL 3306097, at *3 (W.D. Ky. Nov. 6, 2007), and a
debt collector’s threat (at the outset of litigation) to collect
attorneys’ fees when such fees are not recoverable under state
law, Gionis, 238 F. App’x at 29.
Rather than threatening action intended to induce payment
of a disputed debt, Defendant merely sought to enforce a final
judgment that had already been entered in its favor.
While the
procedural correctness of Defendant’s method of enforcement may
be disputed, this clearly is not the type of debt collection
activity from which the FDCPA is designed to protect consumers.
See Carlson v. First Revenue Assurance, 359 F.3d 1015, 1018 (8th
Cir. 2004)(“The FDCPA was designed to provide basic, overarching
rules
for
debt
collection
activities;
it
was
not
meant
to
convert every violation of a state debt collection law into a
federal violation.
Only those collection activities that use
‘any false, deceptive, or misleading representation or means’ .
. . will also constitute FDCPA violations.”)
state
court’s
in
rem
jurisdiction
over
Regardless of the
the
funds
to
be
garnished, there is no suggestion that Defendant’s attempt to
enforce the judgment in its favor involved any false, deceptive,
or
misleading
does
representations
constitute
a
“threat”
and,
as
5
thus,
Defendant’s
contemplated
by
conduct
the
Act.
Accordingly, Plaintiff has not stated a claim for relief under
15 U.S.C. § 1692e(5).
B.
Plaintiff’s Claim Under 15 U.S.C. § 1692f(1)
Section 1692f of the FDCPA prohibits debt collectors from
using “unfair or unconscionable means to collect or attempt to
collect
any
debt.”
Further,
this
provision
specifically
prohibits the collection of any amount that is not “expressly
authorized by the agreement creating the debt or permitted by
law.”
15 U.S.C. § 1692f(1).
Here, Plaintiff does not challenge
the amount that Defendant attempted to collect but, rather, the
sources from which Defendant attempted to collect the judgment.
Any challenge that Plaintiff may wish to make as to the judgment
itself is barred by the Rooker-Feldman doctrine.
Kovacic v.
Cuyahoga Cnty. Dep’t of Children & Family Servs., 606 F.3d 301,
309 (6th Cir. 2010)(citing
Indus.
Corp.,
doctrine
544
federal
prevents
judgments
district
U.S.
Exxon Mobil Corp. v. Saudi Basic
280,
state-court
court,
rendered
of
before
283-84
losers
“injuries
the
(2005)(Rooker-Feldman
from
complaining,
caused
district
in
by
state-court
court
proceedings
commenced and inviting district court review and rejection of
those
judgments.”).
Because
Plaintiff
does
not
allege
that
Defendant sought to collect an amount greater than that owed, he
has failed to state a claim under § 1692f(1).
See Taylor v.
Midland Credit Mgmt., Inc., No. 1:07-cv-582, 2008 WL 544548, at
6
*4
(W.D.
Mich.
Feb.
26,
2008)(“[B]y
its
terms
§
1692f(1)
addresses the abusive practice of collecting an amount greater
than
that
which
is
owing,”
thus,
“where
the
amount
being
collected by the collection agency was not different than the
amount
owed,
§
1692f(1)
was
inapplicable
to
the
plaintiff’s
that
Defendant’s
claim. . . .”).
III. CONCLUSION
Based
on
the
foregoing,
IT
IS
ORDERED
motion to dismiss for failure to state a claim [DE 4] is hereby
GRANTED.
This the 5th day of June, 2012.
7
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