Bedrosian v. Kansas Counselors, Inc.
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's motion to dismiss Count I of Plaintiff's complaint is GRANTED. (Doc. No. 8 .) Signed by District Judge Audrey G. Fleissig on October 23, 2015. (BRP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
KANSAS COUNSELORS, INC.,
Case No. 4:15CV00942 AGF
MEMORANDUM AND ORDER
The matter is before the Court on the motion of Defendant Kansas
Counselors, Inc., to dismiss Count I of Plaintiff Theodore Bedrosian’s complaint,
in which Plaintiff alleges that Defendant violated the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., by contacting Plaintiff by
telephone after being told not to do so, and by attempting to collect a debt owed
by Plaintiff “[u]sing unconscionable means.” For the reasons set forth below, this
motion shall be granted.
Plaintiff alleges that Defendant placed calls to his cell phone using an
automatic telephone dialing system to collect a debt. He alleges that, during such
a call in July 2014, he asked that no further calls be made to him by Defendant,
but that he nonetheless received at least three calls thereafter from Defendant. In
Count I of his complaint, Plaintiff claims that the above conduct violated
§ 1692c(c) and the preface to § 1692f of the FDCPA. In Count II, Plaintiff claims
that this same conduct violated the Telephone Consumer Protection Act.
Defendant argues that Count I fails to state a claim because Plaintiff did
not allege that he made a request in writing not to receive further calls from
Defendant, an element of a claim under § 1692c(c). Defendant further argues that
Plaintiff’s claim under the § 1692f preface is too vague to state a claim, and that
to the extent it is based on the same conduct as the claimed violation of §
1692c(c), this claim must also be dismissed. Plaintiff responds that he told
Defendant that it could send him written communications, and “[n]owhere does
[the FDCPA] state that requesting only phone calls cease must be in writing.”
(Doc. No. 14 at 2.)
To survive a motion to dismiss, a complaint must contain sufficient factual
matter, which, when accepted as true, states “a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,” will not pass muster.
Id. The reviewing court must accept the plaintiff’s factual allegations as true and
construe them in the plaintiff’s favor, but is not required to accept the legal
conclusions the plaintiff draws from the facts alleged. Id.; Retro Television
Network, Inc. v. Luken Comm’cns, LLC, 696 F.3d 766, 768-69 (8th Cir. 2012).
Section 1692c(c) of the FDCPA states as follows: “If a consumer notifies a
debt collector in writing that the consumer refuses to pay a debt or that the
consumer wishes the debt collector to cease further communication with the
consumer, the debt collector shall not communicate further with the consumer
with respect to such debt . . . .”1 15 U.S.C. § 1692c(c). The preamble to § 1692f
states, “[a] debt collector may not use unfair or unconscionable means to collect
or attempt to collect any debt.” Id. § 1692f.
As Defendant argues, a pleading requirement of a § 1692c(c) violation is
that the consumer sent the collector a written cease communication request. See,
e.g., Erickson v. Messerli & Kramer P.A., Civ. No. 09-3044-DWF/JJG, 2011 WL
1869044, at *7 (D. Minn. May 16, 2011); cf. Pace v. Portfolio Recovery Assocs.,
LLC, 872 F. Supp. 2d 861, 865 (W.D. Mo. 2012) (granting a debt collector
summary judgment on a § 1692c(c), where the plaintiff failed to show that he had
sent a written cease request), aff’d, 512 F. App’x 643 (8th Cir. 2013).
The Court also agrees with Defendant that Plaintiff’s FDCPA claim under
the preamble to § 1692f fails because the claim is based on the same facts that did
not give rise to a violation of the specific section of the FDCPA that deals directly
with the conduct alleged. Although courts have held that § 1692f’s preamble –
prohibiting “unfair or unconscionable conduct” – is a catchall provision that
This prohibition on further communications is subject to certain exceptions not at
issue in this case. 15 U.S.C. § 1692c(c).
provides a cause of action standing alone, see, e.g., Okyere v. Palisades
Collection, LLC, 961 F. Supp. 2d 522, 529 (S.D.N.Y. 2013), Plaintiff has not
cited any cases, nor has the Court found any, so holding with respect to a claim
that a failure to comply with an oral request to cease communication violates
§ 1692f. Indeed, such a holding would be contrary to the plain language of the
statute. The Court thus concludes that Plaintiff’s § 1692f claim must also be
dismissed for failure to state a claim. See Erickson, 2011 WL 1869044, at *7
(“Plaintiffs have failed to put forth any basis for finding that Defendant’s failure
to heed [a] verbal demand to stop calling constitutes a violation of the FDCPA,”
including of the preamble to § 1692f).
IT IS HEREBY ORDERED that Defendant’s motion to dismiss Count I
of Plaintiff’s complaint is GRANTED. (Doc. No. 8.)
Dated this 23rd day of October, 2015.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
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