Petri v. Valarity, LLC
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that defendant's partial motion to dismiss [Doc.# 6 ] is granted with respect to Count V and denied with respect to Counts I, III, and IV.. Signed by District Judge Carol E. Jackson on 3/13/15. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
No. 4:15-CV-72 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court on defendant’s motion to dismiss Counts I,
III, IV, and V of plaintiff’s complaint, pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff has
filed a response in opposition to the motion and the issues are fully briefed.
Plaintiff Joseph Petri brings this action alleging that defendant Valarity, LLC,
violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 et seq.,
and the Telephone Consumer Protection Act (TCPA), 47 U.S.C. §§ 227 et seq., while
attempting to collect a consumer debt allegedly owed by plaintiff to a third party.
Plaintiff alleges that, on or around January 28, 2014, defendant called him on
his cell phone to collect a debt for medical services provided by Mercy Hospital.1
Complaint ¶¶ 11, 13. Defendant did not have plaintiff’s prior express written
consent to call his cell phone and failed to inform him that he had a right to dispute
the debt. ¶¶14, 17. During the initial call, plaintiff disputed the debt and asked for
verification, which he has never received. ¶¶15-16. Over the next three months,
plaintiff received further cell phone calls from defendant. ¶¶19, 21, 26-27. He
Plaintiff alleges that the debt was “ultimately found to be a mistake.” ¶13.
alleges that he expressly rescinded any consent for defendant to call his cell phone,
stated that he did not want to receive calls during the evening, and disputed the
debt, all to no effect. ¶¶18, 22, 24, 27. Some of the calls were placed using an
automatic dialing system. ¶¶19, 25.
On March 13, 2014, defendant called using
the automatic dialing system and hung up when plaintiff tried to respond. ¶20.
The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules
of Civil Procedure is to test the legal sufficiency of the complaint. The factual
allegations of a complaint are assumed true and construed in favor of the plaintiff,
“even if it strikes a savvy judge that actual proof of those facts is improbable.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 508 n.1 (2002)); Neitzke v. Williams, 490 U.S. 319,
327 (1989) (“Rule 12(b)(6) does not countenance . . . dismissals
based on a
judge’s disbelief of a complaint’s factual allegations”); Scheuer v. Rhodes, 416 U.S.
232, 236 (1974) (a well-pleaded complaint may proceed even if it appears “that a
recovery is very remote and unlikely”). The issue is not whether the plaintiff will
ultimately prevail, but whether the plaintiff is entitled to present evidence in
support of his claim. Id. A viable complaint must include “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic Corp., 550 U.S. at 570.
See also id. at 563 (“no set of facts” language in Conley v. Gibson, 355 U.S. 41, 4546 (1957), “has earned its retirement.”) “Factual allegations must be enough to
raise a right to relief above the speculative level.” Id. at 555.
“The purpose of the FDCPA is to eliminate abusive debt collection practices
by debt collectors, . . . and debt collectors are liable for failure to comply with any
provision of the Act.” Dunham v. Portfolio Recovery Assocs., LLC, 663 F.3d 997,
1000 (8th Cir. 2011). The FDCPA provides for strict liability and is to be construed
liberally to protect consumers. Hinten v. Midland Funding, LLC, No. 2:13-CV-54
(DDN), 2013 WL 5739035 at *5 (E.D. Mo. Oct. 22, 2013). In order to sustain a
claim against a debt collector under the FDCPA, a plaintiff must prove:
1) plaintiff has been the object of collection activity arising from a
consumer debt; 2) the defendant attempting to collect the debt
qualifies as a debt collector under the Act; and 3) the defendant has
engaged in a prohibited act or has failed to perform a requirement
imposed by the FDCPA.
O’Conner v. Credit Prot. Ass’n, LP, No. 4:11-CV-2187 (SNLJ), 2013 WL 5340927 at
*6 (E.D. Mo. Sept. 23, 2013). There is no dispute that plaintiff’s complaint
adequately pleads the first two elements.
Count I – Violation of 15 U.S.C. § 1692c(a)(1)
Plaintiff asserts that defendant violated § 1692c(a)(1), which provides:
Without the prior consent of the consumer given directly to the debt
collector . . . , a debt collector may not communicate with a consumer
in connection with the collection of any debt -(1) at any unusual time or place or a time or place known or
which should be known to be inconvenient to the consumer. In
the absence of knowledge of circumstances to the contrary, a
debt collector shall assume that the convenient time for
communicating with a consumer is after 8 o’clock antemeridian
and before 9 o’clock postmeridian, local time at the consumer’s
location. . .
15 U.S.C.A. § 1692c. Plaintiff claims that defendant violated this provision by
continuing to call him in the evening after he expressly requested that it not do so.
Defendant seeks dismissal because plaintiff does not allege that Valarity knew it
was calling him at an inconvenient time or place, citing Saunders v. NCO Fin. Sys.,
Inc., 910 F. Supp. 2d 464 (E.D.N.Y. 2012), in support of its argument. In Saunders,
the plaintiff argued that every call he received from the debt collector after he
demanded it to stop calling was “inconvenient.” The court rejected that argument,
noting that nothing in plaintiff’s communications to defendant complained about the
calls being received at an inconvenient time or place. “Section 1692c(a)(1) focuses
on the disregard of a known or obvious time or place restriction . . .” Id. at 470
(emphasis added). Here, plaintiff alleges that defendant continued to call him in the
evening after being asked not to do so. The court finds that plaintiff’s allegation
that defendant continued to call in the evenings after being asked not to do so
sufficiently states a claim under § 1692c(a)(1).
Count III – Violation of 15 U.S.C. § 1692g(b)
Plaintiff alleges that defendant violated § 1692g(b) by continuing to contact
him after he disputed the debt.
Within five days after an initial communication with a consumer, a debt
collector must send a validation notice.2 15 U.S.C. § 1692g(a). Among other things,
the notice must include a statement that the consumer has thirty days in which to
notify the debt collector in writing that the debt, or any portion thereof, is disputed.
Id. Subsection (b) states in relevant part:
If the consumer notifies the debt collector in writing within the thirtyday period . . . that the debt, or any portion thereof, is disputed, . . .
the debt collector shall cease collection of the debt. . . until the debt
collector obtains verification of the debt . . . and a copy of such
verification . . . is mailed to the consumer by the debt collector.
Collection activities and communications . . . may continue during the
In Count II, plaintiff alleges that defendant violated 15 U.S.C. 1692g(a) by failing
to provide the required written notice. Defendant does not seek dismissal of this
30-day period . . . unless the consumer has notified the debt collector
in writing that the debt . . . is disputed . . . 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 . . .
15 U.S.C.A. § 1692g(b) (emphasis added).
Defendant argues that plaintiff’s claim fails because he did not dispute the
debt in writing. The court disagrees, based on the plain language of the statute:
Once a consumer disputes the debt in writing, the debt collector must cease
collection efforts, and thus there is no possibility of “overshadowing.” See Read v.
Messerli & Kramer, PA, No. CIV. 11-3729 JNE/FLN, 2012 WL 1439046, at *2 (D.
Minn. Apr. 26, 2012) (in the absence of written dispute, debt collector may
continue collection activities and communications during the thirty-day period but
must not overshadow the disclosure of the consumer’s right to dispute the debt);
see also Busch v. Valarity, LLC, No. 4:12-CV-2372-JAR, 2014 WL 466221, at *4
(E.D. Mo. Feb. 5, 2014) (a majority of district courts have concluded that § 1692g
does not require a consumer to dispute a debt in writing). Defendant’s motion to
dismiss Count III will be denied.
Count IV – Violation of 15 U.S.C. § 1692d
Section 1692d prohibits “[c]ausing a telephone to ring or engaging any
person in telephone conversation repeatedly or continuously with intent to annoy,
abuse, or harass any person at the called number.” 15 U.S.C. § 1692d(5). Plaintiff
argues that defendant violated this provision by calling him repeatedly and in the
evenings after he asked it to stop doing so, using an automatic phone dialing
system, and hanging up on him when he answered. Defendant argues that
plaintiff’s claim fails because he has not alleged that the calls were made late at
night or early in the morning, contained profanity, were made frequently, or
otherwise displayed an intent to harass.
Under § 1692d, there are no bright-line rules as to what constitutes
harassment or what demonstrates intent to annoy. Davis v. Diversified Consultants,
Inc., No. CIV. 13-10875-FDS, 2014 WL 2944864 (D. Mass. June 27, 2014). In
determining whether the intent requirement is met, courts often look to the
volume, frequency, and persistence of calls, to whether defendant continued to call
after plaintiff requested it cease, and to whether plaintiff actually owed the alleged
debt. Id. (citing cases). “Intent to annoy, abuse, or harass may be inferred from
the frequency of phone calls, the substance of the phone calls, or the place to which
phone calls are made.” Kerwin v. Remittance Assistance Corp., 559 F.Supp.2d
1117, 1124 (D. Nev. 2008).
“Ordinarily, whether conduct harasses, oppresses, or abuses will be a
question for the jury.” Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1179 (11th Cir.
Whether plaintiff can demonstrate an intent to harass is an issue that
cannot be decided at this stage of the case. Pratt v. CMRE Fin. Servs., Inc., No.
4:10-CV-2332 CEJ, 2011 WL 1212221, at *2 (E.D. Mo. Mar. 30, 2011) (denying
motion to dismiss where plaintiff alleged that defendant continued to call after he
informed it that it was calling the wrong number); see also Shand-Pistilli v. Prof’l
Account Servs., Inc., No. 10-CV-1808, 2010 WL 2978029, at *5 (E.D. Pa. July 26,
2010) (denying motion to dismiss where plaintiff alleged that defendant called
“continuously”). Defendant’s motion to dismiss Count IV will be denied.
D. Count V – Violation of 15 U.S.C. § 1692f
Section 1692f prohibits “unfair or unconscionable means to collect or attempt
to collect any debt.” The statute provides a nonexclusive list of “unfair or
unconscionable” practices, including trying to collect an unauthorized debt;
accepting, soliciting or depositing postdated checks; making collect calls; and
threatening to repossess property where there is no right to do so. Section 1692f is
considered to be a catch-all provision for conduct that is unfair but is not
specifically identified in any other section of the FDCPA. Rush v. Portfolio Recovery
Associates LLC, 977 F. Supp. 2d 414, 432 (D.N.J. 2013). “Courts have therefore
determined that § 1692f cannot be the basis of a separate claim for complained of
conduct that is already explicitly addressed by other sections of the FDCPA, and
routinely dismiss § 1692f claims when a plaintiff does not identify any misconduct
beyond that which he asserts violates other provisions of the FDCPA.” Id. (internal
quotation marks, citations and alterations omitted). Here, plaintiff’s Count V does
not allege additional misconduct beyond that which forms the basis of his other
counts. Defendant’s motion to dismiss Count V will be granted.
IT IS HEREBY ORDERED that defendant’s partial motion to dismiss
[Doc.#6] is granted with respect to Count V and denied with respect to Counts I,
III, and IV.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 13th day of March, 2015.
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