Nelson v. Midland Credit Management, Inc.

Filing 17

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that Defendant Midland Credit Management, Inc.'s Motion to Dismiss Plaintiff's Complaint [ECF No. 9 ] is GRANTED. IT IS FURTHER ORDERED that this matter is DISMISSED. Signed by District Judge E. Richard Webber on 8/28/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DOMICK NELSON
Plaintiff,
v.
MIDLAND CREDIT MANAGEMENT,
INC.
Defendant.

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CASE NO.: 4:15-CV-00816-ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Defendant Midland Credit Management, Inc.’s
Motion to Dismiss Plaintiff’s Complaint [ECF No. 9].
I.

BACKGROUND
On or about April 23, 2015, Plaintiff initiated this lawsuit by filing his Petition (hereafter

“Complaint”) in the Circuit Court of St. Louis County, Missouri [See ECF Nos. 1, 4]. Plaintiff
alleges Defendant violated the Fair Debt Collection Practices Act (“FDCPA”) by filing a proof
of claim in Plaintiff’s bankruptcy proceedings on an alleged debt which was time-barred by the
applicable statute of limitations. According to the Complaint, Plaintiff filed an Objection to
Claim against Defendant in the bankruptcy proceedings, and the bankruptcy court sustained
Plaintiff’s Objection, ordering Defendant’s claim disallowed in its entirety.
Plaintiff alleges Defendant, through filing a proof of claim on a stale debt in Plaintiff’s
bankruptcy proceedings, violated various provisions of the FDCPA.

Specifically, Plaintiff

alleges Defendant violated: (1) 15 U.S.C. § 1692d-f, by “[t]hreatening action Defendant had no
authority or intention of taking, including misrepresenting that it possessed a legal right to

enforce payment on Plaintiff’s alleged debt”; (2) § 1692e, by “[f]alsely representing the legal
status of a debt”; (3) § 1692e-f, by “[f]iling a proof of claim on an alleged debt when the last
alleged payment on the debt was older than the applicable statute of limitation”; (4) § 1692e, by
“[u]sing false, deceptive[,] and misleading tactics in order to collect the debt; and (5) § 1692d-f,
by “[e]ngaging in harassing, abuse, unfair, and unconscionable conduct in the collection of a
debt” [ECF No. 4 at ¶ 24].
On May 21, 2015, Defendant filed its Notice of Removal with this Court, pursuant to 28
U.S.C. §§ 1441(a), 1331, and 1446(b) [ECF No. 1]. On June 18, 2015, Defendant filed the
pending Motion to Dismiss, pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(6).
II.

STANDARD
Under FRCP 12(b)(6), a party may move to dismiss a claim for “failure to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The notice pleading standard of
FRCP 8(a)(2) requires a plaintiff to give “a short and plain statement showing that the pleader is
entitled to relief.” To meet this standard and to survive a Rule 12(b)(6) 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and
citation 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.” Id. A court accepts “as true all of the factual allegations contained in the complaint,”
and affords the non-moving party “all reasonable inferences that can be drawn from those
allegations” when considering a motion to dismiss. Jackson v. Nixon, 747 F.3d 537, 540-41 (8th
Cir. 2014) (internal quotations and citation omitted). However, the Court is “not bound to accept
as true a legal conclusion couched as a factual allegation.” Carton v. Gen. Motor Acceptance

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Corp., 611 F.3d 451, 454 (8th Cir. 2010) (internal citation omitted). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678 (internal citation omitted). Additionally, “some factual allegations may be so
indeterminate that they require further factual enhancement in order to state a claim.” Braden v.
Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).
A well-pleaded complaint may not be dismissed even if it appears proving the claim is
unlikely and if the chance of recovery is remote. Bell Atlantic v. Twombly, 550 U.S. 544, 556
(2007). However, where the allegations on the face of the complaint show “there is some
insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate.” Young v. St. John’s
Mercy Health Sys., No. 10-824, 2011 WL 9155, at *4 (E.D. Mo. Jan. 3, 2011) (internal citation
omitted). Further, if a claim fails to allege one of the elements necessary to recovery on a legal
theory, that claim must be dismissed for failure to state a claim upon which relief can be granted.
Crest Constr. II, Inc. v. Doe, 660 F.3d 346, 355 (8th Cir. 2011). Bare assertions constituting
merely conclusory allegations failing to establish elements necessary for recovery will not
suffice. See id. (“Plaintiffs, relying on facts not in the complaint, make bare assertions that
[defendants] were not just lenders, but owners that controlled the RICO enterprise . . . these
assertions are more of the same conclusory allegation . . . ”). Courts must assess the plausibility
of a given claim with reference to the plaintiff’s allegations as a whole, not in terms of the
plausibility of each individual allegation. Zoltek Corp. v. Structural Polymer Grp., 592 F.3d
893, 896 n.4 (8th Cir. 2010) (internal citation omitted). This inquiry is “a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal,
556 U.S. at 679.
III.

DISCUSSION

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In moving for dismissal, Defendant argues Plaintiff’s claims fail as a matter of law
because “an FDCPA claim cannot be predicated on a creditor’s filing of a proof of claim” [ECF
No. 10 at 1 (internal quotations omitted)]. Thus, Defendant contends, filing a proof of claim
which is “subject to a limitations defense does not violate the FDCPA,” adding, “[C]reditors
such as [Midland] are entitled to file proofs of claim even for stale debts” [ECF No. 10 at 1
(internal quotations omitted)].

Defendant concludes, “[B]ecause the FDCPA provides no

remedy . . . for [Defendant’s] allegedly wrongful proof of claim, [Plaintiff’s] Complaint should
be dismissed” [ECF No. 10 at 1 (internal quotations omitted)]. In support of its argument,
Defendant relies on various bankruptcy district court cases within the Eighth Circuit, a case from
the District of Minnesota, and district court cases from other circuits which have come to the
same or similar conclusions. In his Response, Plaintiff relies on Crawford v. LVNV Funding,
LLC, an Eleventh Circuit case which found the defendant’s “filing of a time-barred proof of
claim against [the plaintiff] in bankruptcy was ‘unfair,’ ‘unconscionable,’ ‘deceptive,’ and
‘misleading’ within the broad scope of” the FDCPA. 758 F.3d 1254, 1261 (11th Cir. 2014).
This Court recently resolved this exact same issue in evaluating a Motion to Dismiss in
Ward v. Midland Credit Management, Inc., 4:15CV00814 HEA, 2015 WL 4876221 (E.D. Mo.
Aug. 14, 2015). In addition to presenting the same issue, the Ward case involved the same
Defendant, the same attorneys on both sides, a nearly identical Complaint, and nearly identical
briefs for the Motion to Dismiss. In that case, the Court adopted and applied the analysis from In
re Broadrick, 532 B.R. 60 (Bankr. M.D. Tenn. 2015).1 The Broadrick decision states:

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In choosing to “adopt and apply the Broadrick analysis,” the Court cited the following
considerations: (1) “the imbalance in the case law, with scales tipped in favor of Defendant’s
position”; (2) a recent holding from the United States Bankruptcy Appellate Panel for the Eighth
Circuit, In re Gatewood, 2015 WL 4496051 (B.A.P. 8th Cir. July 10, 2015), which “found
compelling” the reasoning in Broadrick; and (3) “the vast differences between lawsuits filed
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The FDCPA should not be implicated with regard to stale debts when a creditor
merely (a) files an accurate proof of claim in a bankruptcy case, (b) when the
proof of claim includes all the required information including the timing of the
debt, (c) the applicable statute of limitations is one that does not extinguish the
right to collect the debt but merely limits the remedies, and (d) no legal
impediment to collection or factual circumstances exist that would invoke the
FDCPA other than merely the applicability of a statute of limitations.
Broadrick, 532 B.R. at 75. Applying Broadrick to the situation in Ward, this Court determined
the FDCPA should not be implicated, and granted Defendant’s Motion, dismissing the case.
Here, as in Ward,2 the parties do not dispute the following: Defendant filed an accurate proof of
claim in Plaintiff’s bankruptcy proceedings; the proof of claim included all of the required
information, including the timing of the debt; the applicable statute of limitations is one that does
not extinguish the right to collect the debt, but merely limits the remedies;3 and no legal
impediment to collection or factual circumstances exist which would invoke the FDCPA other
than merely the applicability of the applicable statute of limitations. See id.; Ward, 2015 WL
4876221, at *3.
Therefore, the Court finds the FDCPA should not be implicated here. Thus, the Court
will grant Defendant’s Motion and dismiss Plaintiff’s claims.
Accordingly,

against individuals and to collect on debts versus proofs of claims filed in bankruptcy cases.”
Ward, 2015 WL 4876221, at *3.
2
Again, the allegations, arguments, and briefs in the present case are nearly identical to those in
Ward.
3
In Missouri, “statutes of limitations ‘merely suspend the remedy without extinguishing the
right.’” Discovery Grp. LLC v. Chapel Dev., LLC, 574 F.3d 986, 990 (8th Cir. 2009) (quoting
Rincon v. Rincon, 571 S.W.2d 475, 476 (Mo. Ct. App. 1978)).
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IT IS HEREBY ORDERED that Defendant Midland Credit Management, Inc.’s Motion
to Dismiss Plaintiff’s Complaint [ECF No. 9] is GRANTED.
IT IS FURTHER ORDERED that this matter is DISMISSED.
Dated this 28th Day of August, 2015.

_______________________________________
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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