Carpenter v. RJM Acquisitions, LLC
Filing
25
ORDER granting 7 Motion for Judgment on the Pleadings; denying 17 Motion for Summary Judgment (Written Opinion). Signed by Senior Judge David S. Doty on 5/31/2011. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 10-4252(DSD/FLN)
Dustin Carpenter,
Plaintiff,
ORDER
v.
RJM Acquisitions, LLC,
Defendant.
Brian Chan, Esq., Sims & Chan, LLP, P.O. Box 91,
Charlottesville, VA 22902 and Brianna R. Sadler, Esq.,
Madgett Law, LLC, 3637 Togo Road, Suite 417, Wayzata, MN
55391, counsel for plaintiff.
James R. Bedell, Esq., Michael S. Poncin, Esq. and Moss
& Barnett, PA,90 South Seventh Street, Minneapolis, MN
55402, counsel for defendant.
This matter is before the court upon the motion for judgment
on the pleadings or summary judgment by defendant RJM Acquisitions,
LLC (RJM) and motion for summary judgment by plaintiff Dustin
Carpenter.
Based on a review of the file, record and proceedings
herein, the court grants RJM’s motion.
BACKGROUND
This debt-collection dispute arises from the purchase of
Carpenter’s Wells Fargo bank account by RJM.
Ex. 1, Oct. 21, 2010.
See
Greenberg Aff.
On January 20, 2009, RJM sent an initial
collection letter to Carpenter.
Id.
The first page of the letter
states that the amount of the debt is $114.08, that RJM purchased
Carpenter’s checking account from Wells Fargo and the Wells Fargo
account
number.
Id.
The
letter
lists
three
settlement
opportunities with the directive: “Please respond by March 6,
2009.”
Id.
The letter states in larger, bold-face type: “Please
see reverse side of this letter for important information regarding
your right to dispute this debt ....”
Id.
On the reverse side,
the letter states:
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. If you notify this office in writing
within 30 days of receiving this notice that
you dispute the validity of this debt or any
portion thereof, this office will obtain
verification of the debt or obtain a copy of
the judgment and mail you a copy of such
judgment or verification....
Id.
The letter further informed Carpenter of his right to request
the name and address of the original creditor, if different from
the current creditor.
Id.
Carpenter did not respond to the January 20, 2009, letter.
RJM sent five additional collection letters to Carpenter between
January 21, 2009 and August 31, 2010.
Id. ¶ 5.
On September 1,
2010, RJM sent Carpenter a seventh collection letter.
All of the
letters, including the September 1 letter, were sent to the same
address.
Greenberg Second Aff. ¶¶ 6-8, Feb. 3, 2011.
letters were returned to RJM as undeliverable.
letters were sent by first-class mail.
2
Id.
Id.
None of the
All of the
Carpenter claims that
the September 1, 2010, letter was the first that he received.
Carpenter Aff. ¶ 3.
On September 17, 2010, Carpenter filed this action, alleging
that RJM’s
September
1,
2010,
letter
violated
the
Fair
Debt
Collection Practices Act (FDCPA) 15 U.S.C. §§ 1692g, 1692e(10).
RJM timely
removed,
and
moved
for
judgment on
the pleadings
pursuant to Rule 12(c) or summary judgment pursuant to Rule 56.
On
January 27, 2011, Carpenter filed an untimely cross motion for
summary judgment. See Minn. L. R. 7.1(b) (moving party must file
and serve notice of motion and motion 42 days prior to hearing).
The court heard oral argument on February 18, 2011.
The court now
considers the motions.
DISCUSSION
I.
Standard of Review
The court applies the same standard to motions under Federal
Rules of Civil Procedure 12(c) and 12(b)(6). Ashley Cnty., Ark. v.
Pfizer,
Inc.,
552
F.3d.
659,
665
(8th
Cir.
2009)
(citation
omitted). Thus, to survive a motion for judgment on the pleadings,
“‘a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.’”
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).
“A
claim has facial plausibility when the plaintiff [has pleaded]
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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 (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 556 (2007)).
Although a complaint need not contain
detailed factual allegations, it must raise a right to relief above
the speculative level.
See Twombly, 550 U.S. at 555.
“[L]abels
and conclusions” are not sufficient, and are not entitled to an
assumption of truth.
Iqbal, 129 S. Ct. at 1949 (quotations and
citation omitted).
The court does not consider matters outside the pleadings
under Rule 12(c).
See Fed. R. Civ. P. 12(d).
The court may,
however, consider matters of public record and materials that are
“necessarily embraced by the pleadings.” See Porous Media Corp. v.
Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (citation and
internal quotation marks omitted).
The court finds that evidence
contained in RJM’s affidavits and exhibits are necessarily embraced
by the complaint.
Therefore, the court considers this information
without converting the motion to one for summary judgment.1
1
Both parties moved for summary judgment in this matter,
although Carpenter’s motion was untimely.
Although the court
decides this matter under the Rule 12(c) standard, the court notes
that Carpenter had notice and ample opportunity to respond to RJM’s
motion for summary judgment. The disposition of this matter would
not differ if the court addressed the instant motion as one for
summary judgment.
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II.
FDCPA
1.
Section 1692g
Carpenter first claims that RJM violated § 1692g by failing to
inform him of his rights under the FDCPA in the September 1, 2010,
letter.
Section
1692g(a) requires
a
debt
collector
that
is
communicating with a consumer in connection with the collection of
any debt to “send the consumer a written notice containing” certain
enumerated
information.
This
section
[n]otice be ‘sent’ by a debt collector.
“requires
only
that
a
A debt collector need not
establish actual receipt by the debtor.”
Gray v. Four Oak Court
Ass’n, Inc., 580 F. Supp. 2d 883, 889 (D. Minn. 2008) (quoting
Mahon v. Credit Bureau of Placer Cnty., 171 F.3d 1197, 1201 (9th
Cir. 1999)). Moreover, RJM mailed all seven letters, including the
September 1 letter, to the same address and none were returned as
undeliverable.
Therefore, Carpenter’s argument that the September
1, 2010, letter is the initial communication fails.
Carpenter further argues that the January 20, 2009, letter
does not contain the required information because the letter
overshadows any notice of the consumer’s rights to verification.
The letter complies with the statutory requirements of § 1692g, and
plainly states Carpenter’s right to verify the debt.
Carpenter
further argues that the statement directing Carpenter to “[p]lease
respond [to the settlement options] by March 6, 2009” is confusing.
The court disagrees.
The letter gave clear notice of the right to
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dispute the debt within 30 days, and further told Carpenter that
“[y]our acceptance of the offer(s) described on the reverse side of
this letter prior to the expiration of the 30-day period for
dispute ... will not extinguish your right to dispute all or part
of the original debt.”
Greenberg Aff. Ex. 1.
Carpenter pleads no
facts to support this argument, and, moreover, no reasonable juror
could
find
consumer.
that
the
letter
would
confuse
an
unsophisticated
Therefore, RJM did not violate § 1692g, and the court
grants RJM’s motion on this claim.
2.
Section 1692e(10)
The FDCPA prohibits a debt collector from using “any false,
deceptive, or misleading representation or means in connection with
the collection of any debt,” including “[t]he use of any false
representation or deceptive means to collect or attempt to collect
any debt or to obtain information concerning a consumer.”
15
U.S.C. § 1692e, e(10).
Carpenter alleges that the September 1, 2010 letter “implied
verification with the original creditor of the amount of the
original debt, when in fact no such verification took place, and
the debt in question was known to be fraudulent.”
Compl. ¶ 20.
Carpenter alleges no facts or basis for the allegation that the
letter implied verification, that no verification had taken place,
or that the debt was known to be fraudulent.
A plain reading of
the September 1 letter does not support any of these allegations.
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Carpenter’s conclusory allegations and unsupported assertions do
not survive a motion for judgment on the pleadings.
Moreover, Carpenter failed to follow the appropriate statutory
procedure to dispute the debt. See 15 U.S.C. § 1692g(b) (outlining
steps for consumer to dispute debt).
If the consumer does not
dispute the debt, it “will be assumed to be valid by the debt
collector.”
Id. § 1692g(a)(3).
A consumer cannot circumvent the
statute’s procedural device to dispute the validity of a debt by
filing an action pursuant to § 1692e on the sole basis that the
debt is invalid.
See Richmond v. Higgins, 435 F.3d 825, 829 (8th
Cir. 2006); Bleich v. Revenue Maximization Grp., Inc. 233 F. Supp.
2d 496, 501 (E.D.N.Y. 2002).
Carpenter failed to plead any facts
to demonstrate that RJM used false representations or deceptive
means to collect or attempt to collect any debt.
Therefore, the
court grants RJM’s motion on this claim.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that
1.
7]
is
Defendants’ motion for judgment on the pleadings [ECF No.
granted
and
plaintiff’s
prejudice.
7
complaint
is
dismissed
with
2.
Plaintiff’s cross motion for summary judgment [ECF No.
17] is denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:
May 31, 2011
s/David S. Doty
David S. Doty, Judge
United States District Court
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