Nichols v. Roosen Varchetti & Olivier, PLLC
Filing
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OPINION AND ORDER granting 7 Motion to Dismiss; denying 11 Motion for Sanctions. Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RITA MICHELL NICHOLS,
Plaintiff,
Case No. 15-10792
v.
Hon. John Corbett O’Meara
ROOSEN, VARCHETTI & OLIVER, P.C.
Defendant.
_____________________________________/
OPINION AND ORDER GRANTING
DEFENDANT’S MOTION TO DISMISS AND
DENYING DEFENDANT’S MOTION FOR SANCTIONS
Before the court are Defendant’s motions to dismiss and for sanctions,
which have been fully briefed. The court heard oral argument on October 8, 2015.
For the reasons explained below, Defendant’s motion to dismiss is granted and
motion for sanctions is denied.
BACKGROUND FACTS
Plaintiff Rita Nichols brought this action under the Fair Debt Collection
Practices Act, Michigan Collection Practices Act, Michigan Occupational Code,
and 11 U.S.C. § 524, alleging that Defendant attempted to collect a discharged debt
by garnishing Plaintiff’s wages after she filed for bankruptcy.
Defendant Roosen, Varchetti & Oliver, P.C. (“RVO”) is a law firm that
attempted to collect a debt from Plaintiff. In doing so, RVO served Plaintiff’s
employer, Levy Restaurant, with a writ for garnishment that was issued on March
6, 2012. The writ expired on June 5, 2012. See Def.’s Ex. 1. RVO did not renew
the writ or apply for a new one. Def.’s Ex. 2.
Plaintiff filed for Chapter 7 bankruptcy on March 19, 2013, and received a
discharge on June 25, 2013. Nonetheless, Plaintiff’s employer garnished her
wages in December 2013 and January 2014. When informed of the error,
Defendant returned the money to Plaintiff by checks dated January 9, 2014, and
February 4, 2014.
Plaintiff’s employer again garnished her wages on November 20, 2014.
Plaintiff claims that her employer did so pursuant to a writ that referred to a
different person with a name similar to hers (Michelle Nichols). See Pl.’s Ex. A.
Although requested by RVO on behalf of a different client, the writ was addressed
to Android Industries, not Levy Restaurant. Id. Defendant again returned the
garnished amount to Plaintiff. On January 28, 2015, RVO filed a garnishment
release for Levy Restaurant. Plaintiff filed this action on March 4, 2015.
LAW AND ANALYSIS
Defendant seeks dismissal of Plaintiff’s federal claims pursuant to Federal
Rule of Civil Procedure 12(b)(6). Defendant also requests that the court decline to
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exercise supplemental jurisdiction over Plaintiff’s state claims.
I.
Standard of Review
To survive a motion to dismiss pursuant to Rule 12(b)(6), the plaintiff must
allege facts that, if accepted as true, are sufficient “to raise a right to relief above
the speculative level” and to “state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). See also Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949-50 (2009). “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.” Id. at 1949. See
also Hensley Manuf. v. Propride, Inc., 579 F.3d 603, 609 (6th Cir. 2009).
II.
Fair Debt Collection Practices Act
Plaintiff alleges that Defendant violated sections 1692e and 1692f of
FDCPA. Section 1692e provides that a “debt collector may not use any false,
deceptive, or misleading representation or means in connection with the collection
of any debt.” 15 U.S.C.A. § 1692e. Section 1692f provides that a “debt collector
may not use unfair or unconscionable means to collect or attempt to collect any
debt.” 15 U.S.C. § 1692f.
Plaintiff contends that Defendant violated the FDCPA by failing to file a
release of garnishment and by sending the Michelle Nichols/Android Industries
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writ of garnishment to Plaintiff’s employer, causing confusion. At the time
Plaintiff’s employer garnished her wages, however, the writ of garnishment had
been expired for over a year. Defendant did not take action to garnish Plaintiff’s
wages at any time after June 5, 2012. Rather, Plaintiff’s employer apparently
relied incorrectly upon the expired writ. Plaintiff has not cited authority for the
proposition that Defendant’s failure to file a release of garnishment under these
circumstances violates the FDCPA.1
Plaintiff also claims that her employer garnished her wages in response to
another writ issued on November 20, 2014. Pl’s Ex. A. This writ identified the
defendant as Michelle Nichols, the plaintiff as Main Street Acquisition Corp., and
the garnishee as Android Industries L.L.C. (the “Android writ”). Although the
defendant’s name is similar to Plaintiff’s, none of the other identifying information
(including social security number) in the Android writ is similar to the original writ
RVO served on Levy Restaurant in an attempt to collect Plaintiff’s debt.
Defendant contends that the Android writ was served on Android, not Levy. Even
if the Android writ was mistakenly served on Levy Restaurant, it is not plausible
1
Plaintiff’s authority stands for the proposition that a failure to halt an active
garnishment or collection proceeding after bankruptcy has been filed is a violation of the
automatic stay. See, e.g., In re Banks, 253 B.R. 25, 30 (E.D. Mich. 2000) (writ of
restitution); In re Daniels, 206 B.R. 444, 445 (Bankr. E.D. Mich. 1997) (failure to stop
payroll deductions). Plaintiff’s case law does not address the FDCPA.
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that it was an attempt by RVO to collect Plaintiff’s debt. Nor is it reasonable for
Plaintiff’s employer to be confused or misled by the Android writ, which does not
refer to Plaintiff in any way.
Plaintiff has not set forth plausible claim for relief against Defendant under
the FDCPA. The court will dismiss Plaintiff’s FDCPA claim.
III.
Violation of 11 U.S.C. § 524
Plaintiff also claims that by allegedly attempting to collect a discharged debt,
Defendant violated the bankruptcy discharge injunction. See 11 U.S.C. §524(a).
The Sixth Circuit does not recognize a private cause of action based upon alleged
violations of § 524. Pertuso v. Ford Motor Credit Co., 233 F.3d 417, 421 (6th Cir.
2000) (“The obvious purpose is to enjoin the proscribed conduct – and the
traditional remedy for violation of an injunction lies in contempt proceedings, not
in a lawsuit such as this one.”). Accordingly, the court will dismiss Plaintiff’s §
524 claim.
IV.
State Claims
The court will decline to exercise jurisdiction over Plaintiff’s remaining
claims, which arise under state law. See 28 U.S.C. § 1367(c)(3); Taylor v. First of
America Bank – Wayne, 973 F.2d 1284, 1287 (6th Cir. 1992) (“Generally, ‘if the
federal claims are dismissed before trial, . . . the state claims should be dismissed
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as well.’”).
V.
Sanctions
Defendant seeks sanctions pursuant to Federal Rule of Civil Procedure 11.
Although Plaintiff’s claims are without merit, they do not rise to the level of
frivolousness. Further, the court is disinclined to impose sanctions without ruling
on the merits of all of Plaintiff’s claims.
ORDER
IT IS HEREBY ORDERED that Defendant’s motion to dismiss is
GRANTED and Defendant’s motion for sanctions is DENIED.
s/John Corbett O’Meara
United States District Judge
Date: October 13, 2015
I hereby certify that a copy of the foregoing document was served upon
counsel of record on this date, October 13, 2015, using the ECF system.
s/William Barkholz
Case Manager
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