Barlow v. Safety National Casualty Corporation et al
Filing
28
ORDER AND REASONS granting in part and denying in part 25 Motion to Dismiss for Failure to State a Claim, as stated herein. The Court will permit the plaintiff to amend complaint within seven days of this Order and Reasons. Signed by Judge Martin L.C. Feldman on 3/6/2012. (tsf)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CAMILLA BARLOW, individually
and as representative of a class
CIVIL ACTION
VERSUS
NO. 11-236
SAFETY NATIONAL CASUALTY
CORPORATION, ET AL.
SECTION “F”
ORDER AND REASONS
Before the Court is the defendants’ motion to dismiss.
For
the reasons that follow, the motion is DENIED in part and GRANTED
in part.
Background
This putative class action lawsuit arises out of alleged
unlawful collection actions engaged in by the defendants in their
efforts to collect on a bail bond obligation after the bond
forfeiture judgment had been set aside.
On September 30, 2007 Camilla Barlow paid AAA Bail Services,
Inc. $475.00 for a bail premium in order to bail her son, Eric
Dougherty, out of jail.
In connection with posting the bond, and
as collateral, Barlow was required to execute a promissory note for
$3,500.00 and an indemnity agreement.
In fact, Barlow executed
various contracts, including a “Contract & Application for Bail
Bond,”
“Indemnitor
Application,”
and
“Bail
Bond
Indemnitor
Promises.” These agreements including various provisions regarding
indemnification; for example, the application provides:
1
I UNDERSTAND THAT I AM CO-SIGNING WITH AAA BAIL
SERVICES, INC. ON THE BAIL BOND THAT IS BEING POSTED WITH
THE COURT. I ALSO UNDERSTAND THAT I WILL BE FINANCIALLY
LIABLE FOR ANY LOSSES, EXPENCES [sic], OR ADDITIONAL
CHARGES THAT OCCUR AS A RESULT OF THE DEFENDANT NOT
MEETING ALL OF THE OBLIGATIONS UNDER THE BAIL BOND
CONTRACT. I ALSO UNDERSTAND THAT I AM RESPONSIBLE FOR
BRINGING THE DEFENDANT BACK TO THE BAIL BOND OFFICE SO
THAT THE PAPER WORK CAN BE COMPLETED, SIGNED AND A
PICTURE OF THE DEFENDANT CAN BE TAKEN.
The application also included this indemnity provision:
To indemnify the Company against all liability,
loss, damages, attorney fees and expenses whatsoever,
including, but not limited to returning prisoner costs,
which the Company may sustain or incur in making such
bond, prosecuting or defending any action brought in
connection therewith, and enforcing any of the agreements
herein contained, and specifically enforcing any
collateral or indemnifying agreement as well as any
expense in locating Defendant and producing him in Court.
If upon failure of the parties to comply with any of the
terms or conditions of this agreement and should it be
necessary for the Company to refer the agreement to an
Attorney for collection, the Parties agree to pay an
attorney fee of 33-1/3% whether or not such action
proceeds to judgment.
Similarly, the Bail Bond Indemnitor’s Promises contract provided:
Indemnification: I, the undersigned hereby agree to
save and hold the surety and its agents and/or assigns
from any loss whatsoever resulting from the failure of
the above named defendant to appear in court as ordered.
I, the undersigned hereby agree to pay all cost (500.00
minimum charge) associated with the failure of the above
named defendant to appear in Court as ordered, in U.S.
currency to surety, its agents and/or assigns upon the
failure of the above named defendant to appear in Court
as ordered.
A copy of a judgment of bond forfeiture
naming the above named defendant shall be prima facie
evidence of loss sustained by surety and against agents
and/or assigns.
On
February
1,
2008
Doughterty
2
failed
to
appear
for
his
arraignment; the court issued a bench warrant and an order of bond
forfeiture.
One week later, on February 8, the court executed a
judgment in favor of the State of Louisiana and against Eric
Dougherty, as principal, and Safety National Casualty Corporation,
as surety, for $3,500.00. On March 4, 2008 Eric Dougherty appeared
in court through counsel, at which time the bench warrant was
recalled and the bond forfeiture judgment was set aside.1
Barlow complains that, beginning on March 11, 2008 Singletary
& Associates, A Professional Law Corporation, initiated collection
efforts against Barlow for the bond amount of $3,500.00, including
making telephone calls to Barlow’s home in which someone pretended
to be an employee of Safety National Casualty Corporation.
Almost
two
Surety
years
later,
on
February
22,
2010,
Commercial
Consultants, LLC and Financial Recovery Agency, Inc., collection
agencies, sent a letter to Barlow, which stated:
Re: Judgment of Bond Forfeiture $3,500.00....
Dear CAMILLA BARLOW,
This account
collection.
has
been
listed
1
with
our
office
for
According to the defendants, Safety National was not
provided notice, nor was it entitled to notice under Louisiana law,
of the later appearance of the criminal defendant. And, defendants
suggest, even though the bond may have been deemed satisfied,
Safety National still had a judgment recorded against it and was
not provided with notice by the court or sheriff of its
satisfaction.
All of which this Court might consider in the
context of future motion practice, once the pleadings are complete,
that might present challenges beyond that of the technical
sufficiency of the plaintiff’s allegations.
3
You are contractually obligated to pay this account
because a judgment of bond forfeiture has been filed
against SAFETY NATIONAL CASUALTY CORP. You may have an
opportunity to reduce this debt by obtaining a
cancellation of the bond forfeiture judgment. We advise
you to seek independent legal advice to inform you of
your rights and responsibilities. If you are unable to
cancel this judgment of bond forfeiture or refuse to do
so, we shall be left with no alternative but to seek the
collection of the entire debt.
This communication is from a debt collector.
attempt to collect a debt....
This is an
Unless you notify this office within 30 days after
receiving this notice that you dispute the validity of
this debt or any portion thereof, this office will assume
this debt is valid....
And on July 7, 2010 Safety National Casualty Corporation sued
Barlow in Baton Rouge city court for breach of contract based on
the indemnity agreement; the lawsuit was drafted by Singletary &
Associates.
Six days later, the Baton Rouge city court returned
the petition because of “improper cumulation of defendants”; the
court invited counsel for Safety National to re-file its petition
for damages for breach of contract to indemnify a commercial
surety, but Safety National has yet to re-file.
On December 14, 2010 Barlow, on behalf of a putative class,
sued Safety National Casualty Corporation, Singletary & Associates,
A.P.L.C., Financial Recovery Agency, Inc., and Commercial Surety
Consultants, Inc. in the U.S. District Court for the Middle
District of Louisiana, alleging three violations of the Fair Debt
Collection Practices Act and a claim for abuse of process under
4
Louisiana law.
defendants’
In response to Barlow’s contentions that the
pursuit
of
Safety
National’s
indemnity
rights
constituted improper collection efforts, the defendants responded
with a motion to dismiss.
Almost one week before her opposition
papers were due, on March 22, 2011, Barlow filed a notice of
dismissal, and the lawsuit was dismissed without prejudice.
Just two weeks later, on April 8, 2011, Barlow re-filed her
complaint, again invoking the U.S. Middle District court’s federal
question jurisdiction under the Fair Debt Collection Practices Act,
and asserting the same claims and factual allegations.
The
plaintiff seeks to represent a class defined as:
All persons who were required to execute an indemnity
promise in connection with a Safety National Casualty
Corporation bail bond obligation and who were subject to
unlawful collection actions by the defendants even though
any underlying bench warrant(s) had been recalled and any
previously rendered Bond Forfeiture judgment(s) had been
set aside.
Barlow contends that each of the defendants were acting as agents
of Safety National Casualty Corporation in the capacity as “debt
collectors.”
This putative class action was reassigned to this Court from
the Middle District of Louisiana on August 29, 2011. On January 6,
2012 Barlow, with leave of Court, filed a first amended class
action complaint, in which she added Commercial Surety Consultants,
LLC as a defendant.
The defendants now urge the Court to dismiss the plaintiff’s
5
amended complaint; they contend that the plaintiff’s claims fall
outside the scope of the Fair Debt Collection Practices Act and
that, even if the Act applies, the plaintiff fails to state a claim
for relief under both the Act and state law principles of abuse of
process.
I.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to seek dismissal of a complaint for failure to state a
claim upon which relief may be granted.
Such a motion is rarely
granted because it is viewed with disfavor.
See Lowrey v. Tex. A
& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
In considering a Rule 12(b)(6)
motion, the Court “accepts ‘all well-pleaded facts as true, viewing
them in the light most favorable to the plaintiff.’” See Martin K.
Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464 (5th
Cir. 2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.
1999)).
But, in deciding whether dismissal is warranted, the
Court will not accept conclusory allegations in the complaint as
true.
Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards,
Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). Indeed, the Court must
first
identify
pleadings
that
are
conclusory
and,
thus,
not
entitled to the assumption of truth. Ashcroft v. Iqbal, --- U.S. --, 129 S.Ct. 1937, 1949 (2009).
A corollary: legal conclusions
6
“must be supported by factual allegations.” Id. at 1950. Assuming
the veracity of the well-pleaded factual allegations, the Court
must then determine “whether they plausibly give rise to an
entitlement to relief.” Id.
“‘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.’” Gonzalez v. Kay, 577 F.3d
600,
603
(5th
Cir.
2009)(quoting
Iqbal,
(2009))(internal quotation marks omitted).
129
S.Ct.
at
1949
“Factual allegations
must be enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).”
Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quotation marks, citations, and footnote
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.”
Iqbal, 129 S. Ct. at 1949
(“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.”).
This is a
“context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” Id. “Where a complaint
pleads
facts
that
are
merely
consistent
with
a
defendant’s
liability, it stops short of the line between possibility and
plausibility of entitlement to relief.”
7
Id. (citing Twombly, 550
U.S. at 557) (internal quotations omitted).
In deciding a motion to dismiss, the Court may consider
documents that are essentially “part of the pleadings” -- that is,
any documents attached to or incorporated in the plaintiffs’
complaint that are central to the plaintiff’s claim for relief.
Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th
Cir. 2004) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d
496, 498-99 (5th Cir. 2000)).
Also, the Court is permitted to
consider matters of public record and other matters subject to
judicial notice without converting a motion to dismiss into one for
summary judgment.
See United States ex rel. Willard v. Humana
Health Plan of Texas Inc., 336 F.3d 375, 379 (5th Cir. 2003).
The
defendants
point
out
that
the
complaint
refers
to
contracts entered into by Barlow, demands for payment, and filed
state court pleadings; because these documents are central to
Barlow’s
claims
and
are
referred
to
in
the
complaint,
the
defendants contend that consideration of them does not operate to
convert their motion to dismiss into one for summary judgment. The
Court agrees.
II.
The defendants seek dismissal of the plaintiff’s complaint on
the grounds that (1) the pursuit of indemnity does not qualify as
a
“debt”
under
the
Fair
Debt
Collection
Practices
Act
and,
therefore, her claims invoking the consumer protection statute fail
8
as a matter of law; (2) even if Barlow’s indemnity obligation meets
the definition of a “debt” and falls within the scope of the Act,
the plaintiff fails to state a plausible claim that the defendants’
collection efforts were improper; and (3) the state law abuse of
process claim fails as a matter of law in that Safety National
never sought improper relief in state court.
A.
As a threshold matter, the Court must consider the scope of
this consumer protection law, the Fair Debt Collection Practices
Act, and determine whether it applies to the practice of bail
bonding.
The Fair Debt Collection Practices Act makes it unlawful for
"debt collectors" to use abusive tactics while collecting a "debt"
for others.
Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th
Cir. 1985); 15 U.S.C. § 1692.
15 U.S.C. § 1692 (e) announces
Congress’s purpose in enacting the Fair Debt Collection Practices
Act:
It is the purpose of this subchapter 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 action to
protect consumers against debt collection abuses.
15 U.S.C. § 1692(e).
To state a claim under the FDCPA, a plaintiff’s allegations
must establish that the money being collected qualifies as a
9
“debt.”
See 15 U.S.C. § 1692a(5).
The mere obligation to pay
does not constitute a debt; rather, a “debt” is “any obligation or
alleged obligation of a consumer to pay money arising out of a
transaction in which the money, property, insurance, or services
which
are
the
subject
of
the
transaction
are
primarily
for
personal, family, or household purposes, whether or not such
obligation has been reduced to judgment.”
15 U.S.C. § 1692a(5).
Here, the defendants challenge the existence of a “debt”; they
contend that the pursuit of indemnity does not meet the FDCPA
definition.
However, the only cases invoked by defendants in
support of their position on this threshold issue
-- Nat’l Union
Fire Ins. Co. of Pittsburgh v. Hartel, 741 F. Supp. 1139 (S.D.N.Y.
1990) and Cook v. Hamrick, 278 F. Supp. 2d 1202 (D. Colo. 2003) -are distinguishable.
In Hartel, the district court determined that promissory notes
used to pay for a portion of an investor’s partnership interest in
a tax-shelter limited partnership were not a “debt” within the
meaning of the FDCPA.2
Hartel is clearly distinguishable from the
2
Most of Hartel’s $100,000 investment in a limited
partnership formed to purchase and operate hotels and motels was
paid for by promissory notes that were then negotiated to a bank to
secure a working capital loan. Hartel, 741 F. Supp. 1139, 1139.
National Union issued a bond to the partnership, guaranteeing the
bank that Hartel would make all payments under the notes. Id. at
1139-40. In return, National Union required that Hartel execute an
indemnity agreement, in which he agreed to reimburse National Union
for any payments National Union would make on his behalf to the
bank. Id. When Hartel quit paying on the notes, National Union
made the payments for him, then filed suit for reimbursement under
10
circumstances presented by Barlow’s case: debts like Hartel’s that
are incurred for purely business-related obligations clearly fall
outside the scope of the FDCPA, which by its terms protect persons
engaging in transactions for personal or family reasons that are
fundamentally distinguishable from business-related obligations.
Cook, likewise, has no persuasive force here.3
There, the
district court held that the demand for attorney’s fees in a
landlord’s eviction complaint did not constitute a communication
regarding a “debt” because any such fees would have arisen out of
the eviction proceeding and not out of any consumer transaction.
the indemnity agreement.
Id. at 1140.
When a venue question
specific to the FDCPA was raised, National Union and its counsel
sought a declaratory judgment that they had not violated the FDCPA.
Id. The district court granted National Union’s motion for summary
judgment, explaining that “[t]he promissory notes signed by Hartel
are not a ‘debt’ within the meaning of section 1692a(5) of the
FDCPA....” Id. (also concluding that the law firm representing
National Union in the reimbursement action was not a “debt
collector” within the meaning of the FDCPA).
3
Cook involved an underlying suit on behalf of a landlord
to evict a noisy tenant in county court; in the eviction complaint,
the landlord requested attorney’s fees.
278 F. Supp. 2d 1202.
After the tenant challenged the sufficiency of service, and the
complaining neighbor indicated that she would not comply with a
subpoena to testify, the landlord voluntarily dismissed the
eviction action; the tenant requested attorney’s fees but the
request was denied. Id. at 1203-04. The tenant then filed suit in
federal court under the FDCPA claiming that the landlord’s request
for attorney’s fees in its county court complaint constituted a
communication regarding a debt. Id. The district court dismissed
the FDCPA claim, noting that the obligation to pay was created by
something other than a consumer transaction and, therefore, did not
constitute a “debt” under the FDCPA, and also determining that the
lawyer was not a “debt collector” within the meaning of the Act.
Id. at 1205.
11
278 F. Supp. 2d 1202, 1205.
Barlow contends that her obligation to pay clearly constitutes
a “debt” under the FDCPA: she claims that the money sought to be
collected constitutes a “debt” because the underlying transaction
involved securing a bond to bail her son out of jail.
is
a
close
call
because
these
facts
hardly
Although it
constitute
the
quintessential consumer debt, the Court agrees.
The
U.S.
interpreted
Court
“debt”
legislatively
of
Appeals
broadly,
expressed
a
for
the
observing
strong
Fifth
that
public
Circuit
has
“Congress...has
policy
disfavoring
dishonest, abusive, and unfair consumer debt collection practices,
and clearly intended the FDCPA to have a broad remedial scope. See
Hamilton v. United Healthcare of Louisiana, Inc., 310 F.3d 385 (5th
Cir. 2002)(holding that a group health insurer’s contract-based
subrogation claim, for reimbursement of benefits which it had paid
to
an
injured
employee
after
employee
recovered
third-party
uninsured motorist benefits, was in the nature of a “debt”, the
collection of which was subject to the FDCPA requirements).
The
plaintiff
here
invokes
Hamilton,
and
says
that
her
obligation to pay falls within the scope of the Act’s definition of
“debt”; she characterizes her obligation to pay: “The purchase of
bail bond insurance by a mother for the benefit of her son was an
insurance transaction primarily for personal/family purposes....
The attempted collection of an indemnity promise by the Defendants
12
arising from bail bond insurance is an obligation which arose from
the transaction and meets the...definition.”
Acknowledging that
these facts would seem to fall within the outermost parameters of
the scope of a “debt” under the FDCPA, the Court cannot say that
the threshold definition of “debt” has not been met by these facts.
Cf. Buckman v. American Bankers Ins. Co. of Florida, 115 F.3d 892,
894-95 (11th Cir. 1997)(per curiam).4
As the Eleventh Circuit has succinctly noted, the FDCPA
applies to payment obligations of a (1) consumer arising out of a
(2)
transaction
in
which
the
money,
property,
insurance,
or
services at issue are (3) primarily for personal, family, or
household purposes.
(11th
Cir.
2010).
See Oppenheim v. I.C. System, 627 F.3d 833
Here,
Barlow
4
entered
into
a
consensual
Buckman is the most factually similar case. In Buckman,
a mother who executed a contingent note and mortgage as part of a
bail bond on her daughter’s behalf sued the bail bondsman and its
insurer, asserting claims under the Truth in Lending Act and the
FDCPA. Id. at 893. The U.S. Court of Appeals for the Eleventh
Circuit considered whether a bail bondsman’s attempt to collect on
a promissory note (as part of a bail bond transaction in which the
plaintiff executed an indemnity agreement for surety bail bond to
bail her daughter out of jail) is subject to the FDCPA. Id. It
appears that the appellate court assumed without deciding that the
bail bond transaction constituted a consumer debt because the court
decided the motion to dismiss the FDCPA issue on other grounds,
considering the scope of another defined term of the FDCPA: “debt
collector”. Instead of holding that the bail bondsman was a “debt
collector” under the Act, the Eleventh Circuit held that the bail
bond company defendant was covered by the originator exception (15
U.S.C. § 1692a(6)(F)(ii)) because the bail bondsman played a
significant role in originating the bail bonds transaction,
including the indemnification agreement and contingent note. Id.
at 895.
13
transaction for a bail bond insurance for her son: she paid AAA
Bail Services, Inc. $475.00 for a bail premium to secure her son’s
release from jail.
In connection with posting the bond, and as
collateral, Barlow executed a promissory note for $3,500.00 and an
indemnity agreement.
In exchange, her son was released; when he
failed to appear for his scheduled court date, the bond was
forfeited, and Barlow became obligated to pay.
Accordingly,
Barlow’s obligation to pay “aris[es] out of a transaction in which
the...insurance
or
services
which
are
the
subject
of
the
transaction are primarily for personal, family...purposes...” and
therefore constitutes a “debt” within the meaning of Section
1692a(5).5
Thus, to the extent the defendants ask for dismissal of
the plaintiff’s claims as a matter of law, the motion is DENIED.
B.
Having determined that the plaintiff’s claims arising out of
the FDCPA do not fail, as a matter of law, because she alleges a
“debt” within the meaning of the Act, the Court turns to the
defendants’s
challenge
to
the
sufficiency
of
the
plaintiff’s
allegations concerning the specific FDCPA violations and her state
law abuse of process claim.
5
While the defendants would have this Court define what
it means to be a consumer in a more limited fashion, such as one
who consumes produced goods, as the political significance of the
generic label might suggest, the Court notes that the Act removes
any guesswork by broadly defining the term “consumer” as “any
natural person obligated or allegedly obligated to pay any debt.”
See 15 U.S.C. § 1692a(3).
14
1.
Barlow asserts three claims under the FDCPA.
The defendants
contend that there is no discussion of the manner in which the
defendants violated each of the mentioned sections of the FDCPA
such that the defendants can determine the factual grounds for each
such claim and that, therefore, the Court should dismiss the
plaintiff’s FDCPA claims for failure to state a claim.
The Court
agrees.
As “Claim 1" in her complaint, the plaintiff contends that the
defendants violated the following subsections of the FDCPA when she
complains:
(A)
The defendants’ actions abridged the FDCPA, 15
U.S.C. § 1692(e) in the following particulars:
(2) The false representation of–
(a) The character, amount, or legal status of any
debt;
...
(5) The threat to take any action that cannot
legally be taken or that is not intended to be
taken.
And FDCPA 15 U.S.C. § 1692(f)(1)
The Collection of any amount (including any interest,
fee, charge, or expense incidental to the principal
obligation) unless amount is expressly authorized by the
agreement creating the debt or permitted by law.
These allegations, without more, fail to state a claim for relief
under
the
federal
pleading
requirements.
“[A]
plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.”
15
Twombly,
550
plaintiff’s
U.S.
at
555
allegations
(citation
concerning
omitted).
the
None
defendants’
of
the
alleged
violations of certain provisions of the FDCPA are entitled to the
assumption of truth because she merely recites the elements of the
cause of action without any factual allegation against the several
defendants named in her suit.6
Thus, the defendants are entitled
to dismissal of the plaintiff’s FDCPA claims.
2.
Finally, the defendants seek to dismiss the plaintiff’s state
law abuse of process claim.
In her complaint, the plaintiff
asserts as Claim II:
The filing of a lawsuit against the Petitioner by
defendants, Safety National Casualty Corporation and
Singletary & Associates, A.P.L.C. for a debt not owed was
abuse of process, in that the indemnity contract was
incomplete and the judgment had been satisfied by the
subsequent appearance of the bonded defendant.
The
defendant’s [sic] were attempting to obtain a result
against plaintiff not proper under the law.
The defendants contend that this allegation fails to state a claim
because the mere fact that suit was filed does not constitute an
abuse of process.
The defendants insist that their pursuit of
6
In deciding whether dismissal is warranted, the Court
will not accept conclusory allegations in the complaint as true.
Avondale Shipyards, 677 F.2d at 1050. Here, the plaintiff makes
the conclusory assertion that the defendants (collectively, without
distinguishing between the several defendants) were acting as
agents of Safety National in the capacity as “debt collectors”.
This assertion is not entitled to the assumption of truth; rather,
it must be supported by factual allegations. It is boilerplate and
unresponsive to the duty to adequately plead facts in such cases.
16
indemnity was proper, invoking Louisiana Code of Criminal Procedure
article 329: “A contract to indemnify a surety against loss on a
bail bond is valid and enforceable.”
The elements for a cause of action for abuse of process, a
compensable tort recognized under La.Civ.Code art. 2314, are (1)
the existence of an ulterior purpose; and (2) a willful act in the
use
of
the
proceeding.
process
Hebert
not
v.
in
La.
the
regular
Licensed
prosecution
Prof’l
Vocatinal
of
the
Rehab.
Counselors, 4 So.3d 1002, 1009 (La. App. 3 Cir. 2009)(citation
omitted).
Taking the plaintiff’s allegations as true, including
the allegation that Safety National and Singletary & Associates
filed an improperly cumulated lawsuit that was rejected for its
procedural defectiveness but nonetheless invoked the defective
lawsuit in attempting to collect the debt, the Court finds that the
plaintiff has stated a claim for relief that is plausible on its
face.
An inquiry into the merits of any defenses that will be
presented is not proper at this stage of the proceedings, where the
defendants
are
simply
challenging
the
sufficiency
of
the
plaintiff’s allegations.
Accordingly, the defendants’ motion to dismiss is DENIED in
part (insofar as the defendants contended that the FDCPA claims
failed as a matter of law because the pursuit of indemnity did not
constitute a debt; and insofar as the plaintiff stated a claim for
abuse of process) and GRANTED in part (insofar as the plaintiff
17
failed to state a claim for violations of the FDCPA).
In the event
that the plaintiff’s pleading deficiencies might be curable, the
Court
will
permit
the
plaintiff
to
seek
leave
to
amend
her
complaint; any such leave to amend must be filed within seven days
of this Order and Reasons.
New Orleans, Louisiana, March 6, 2012
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?