Bedrosian v. State Collection Service, Inc.

Filing 23

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's Motion to Dismiss Count I of Plaintiffs Complaint (ECF No. 10 ) is GRANTED. Count I is DISMISSED with prejudice. Signed by District Judge Ronnie L. White on 02/23/2016. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
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KRISTAL BEDROSIAN,
Plaintiffs,

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v.

STATE COLLECTION SERVICE, INC.,
Defendants.

No. 4:15-CV-975 RLW

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MEMORANDUM AND ORDER

This matter is before the court on Defendant's Motion to Dismiss Count I of Plaintiffs
Complaint (ECF No. 10). This matter is fully briefed and ready for disposition.
BACKGROUND 1

Plaintiff alleges that Defendant placed calls to her using an Automatic Telephone Dialing
System ("ATDS"), regarding a debt from St. Anthony's Medical Center in the amount of
$215.78. (Complaint, ECF No. 1,

~~10-11).

The amount of debt reported by Defendant on

Plaintiffs credit report in July 2014 was $187.

(Complaint,

~12).

Plaintiff believes that

Defendant is attempting to collect more money than the proper amount of the debt. (Complaint,
~~11.

In May 2015, Plaintiff received a call on her cell phone from Defendant. (Complaint,
~15).

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Plaintiff did not pick up, and Defendant left a "robo-message" on Plaintiffs voicemail.

When ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state
a claim, the Court must take as true the alleged facts and determine whether they are sufficient to
raise more than a speculative right to relief. Bell At/. Corp. v. Twombly, 550 U.S. 544, 555
(2007).

(Complaint, if16). Plaintiff did not give Defendant prior express consent to call her cell phone
with Defendant' s ATDS. (Complaint, ififl 7-19).
Plaintiff returned Defendant's telephone call in June 2015. During that call, Defendant
told Plaintiff that it was trying to collect $215.78 on behalf of St. Anthony's Medical Center.
(Complaint, if21).

Plaintiff asked if Defendant "if a garnishment could happen to her."

(Complaint, if22). Defendant responded, "I would say we can, but it would have to be above a
certain amount." (Complaint, if23). Plaintiff alleges that " [a]t no time during the phone call did
Defendant provide Plaintiff with an affirmative response as to whether or not the debt could
actually be garnished." (Complaint, if23). Plaintiff maintains that she has not had a judgment
entered against her that would give rise to garnishment proceedings. (Complaint, if25).
Plaintiff alleges claims for violation of the Fair Debt Collection Practices Act
("FDCPA"), 15 U.S.C. §1692, et seq., in Count I and for violation of the Telephone Consumer
Protection Act ("TCPA"), 47 U.S.C. §227 et seq. , in Count II. Defendant has moved to dismiss
Count I.
STANDARD FOR MOTION TO DISMISS
In ruling on a motion to dismiss, the Court must view the allegations in the complaint

liberally in the light most favorable to Plaintiff. Eckert v. Titan Tire Corp., 514 F .3d 801 , 806
(8th Cir. 2008) (citing Luney v. SGS Auto Servs., 432 F.3d 866, 867 (8th Cir. 2005)).
Additionally, the Court "must accept the allegations contained in the complaint as true and draw
all reasonable inferences in favor of the nonmoving party." Coons v. Mineta, 410 F.3d 1036,
1039 (8th Cir. 2005) (citation omitted). To survive a motion to dismiss, a complaint must
contain "enough facts to state a claim to relief that is plausible on its face. " Bell At!. Corp. v.

Twombly, 550 U.S. 544, 570 (2007) (abrogating the "no set of facts" standard for Fed. R. Civ. P.

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12(b)(6) found in Conley v. Gibson, 355 U.S. 41 , 45-46 (1957)). While a complaint attacked by
a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs
obligation to provide the grounds of his entitlement to relief "requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do."

Twombly, 550 U.S. at 555 ; Huang v. Gateway Hotel Holdings, 520 F. Supp. 2d 1137, 1140 (E.D.
Mo. 2007).

DISCUSSION
A. Section 1692d
Defendant alleges that Plaintiff fails to state a claim under the FDCPA Section 1692d.
Section 1692d of the FDCPA "prohibits certain types of collection practices, such as the use or
threat of violence, obscene language, publication of shame lists, and harassing or anonymous
telephone calls." Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051 , 1054 (8th Cir. 2002) (citing
15 U.S.C. § 1692d). Defendant argues that this Court should hold that Defendant' s statement
that it could garnish Plaintiff did not violate 1692d because it was not accompanied by
threatening, profane, or abusive language.

(ECF No. 11 at 4). Defendant contends that

"statements made by a collector which are alleged to be in violation of 1692d must at least be
' akin to profanity or obscenity."' Thomas v. LDG Fin. Servs., Inc. , 463 F. Supp. 2d 1370, 1373
(N.D. Ga. 2006) (quoting Jeter v. Credit Bureau, Inc. , 760 F.2d 1168, 1178 (11th Cir. 1985));
ECF No. 11 at 3). Since Plaintiff does not allege such abusive language, Defendant asserts there
is no Section 1692d violation as a matter of law.
In response to this (and all of the sections), Plaintiff alleges that she has properly pleaded
all of the elements of her FDCPA claim. (ECF No . 12 at 2). Plaintiff states that Defendant did
not have any authority to garnish her wages and its statements were "improper and illegal."

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Plaintiff asserts that Defendant did not have St. Anthony' s Medical Center' s permission to file a
legal action against Plaintiff to institute garnishment proceedings and that to indicate otherwise
was misleading and deceiving. (ECF No. 12 at 2).
The FDCPA "prohibits certain types of collection practices, such as the use or threat of
violence, obscene language, publication of shame lists, and harassing or anonymous telephone
calls." Peters v. Gen. Serv. Bureau, Inc. , 277 F.3d 1051 , 1054 (8th Cir. 2002)(citing 15 U.S.C. §
1692d). The Court holds that Defendant's statement that it "could" garnish Plaintiffs wages does
not state a claim under Section 1692d. The allegations before the Court indicate that Defendant
was simply responding to Plaintiff's question. The Court holds that Defendant' s response was
not obscene, threatening, shaming or harassing as a matter of law and does not state a claim
under Section 1692d.
B. Section 1692e(4)

Defendant contends that Plaintiff fails to state a claim under Section 1692e(4), which
prohibits: "The representation or implication that nonpayment of any debt will result in the arrest
or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or
wages of any person unless such action is lawful and the debt collector or creditor intends to take
such action." 15 U.S.C.A. § 1692e(4). Defendant maintains that Plaintiff cannot state a claim
under Section 1692e(4) because Defendant never threatened to garnish Plaintiff. (ECF No. 11 at
5). Defendant likens this case to Arteaga v. Asset Acceptance, LLC, 733 F. Supp. 2d 1218 (E.D.
Cal. 2010) where the plaintiff alleged that the collector "threatened her by telling her that [the
collector] ' could attach [her] bank accounts with or without' her ' sending them the
correspondence." Id. at 1223. The Arteaga court ultimately found that there was no FDCPA
claim under Section 1692e because the plaintiff:

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admits that she was never told that Asset would attach her bank account. Ms.
Arteaga further admits that she asked Ms. Plimely about whether sending the
check would allow asset to attach her bank account, and that Ms. Plimely's
statement was in response to Ms. Arteaga's direct question related to whether
Asset could attach her bank account. Ms. Arteaga admits that she was never told
that Asset would attach her bank account. Under these circumstances, in which
the consumer had initiated the phone call, raised the subject regarding the
attachment of the bank account, and asked a question about Asset's abilities to
attach her bank account, the allegedly threatening statement was a response to the
customer's direct question on the subject, and the debt collector did not make any
statements that action would be taken, the least reasonable consumer would
understand Ms. Plimely's response was informational and not a threat. See, Wade
v. Regional Credit Ass'n, 87 F.3d 1098 (9th Cir.1996) (collection agency's notice
that failure to pay amount may adversely affect debtor's credit was not a threat to
take action that could not legally be taken in violation of FDCPA). Accordingly,
this Court grants summary judgment in favor of Asset on these claims.
Id. at 1231 . Therefore, Defendant asserts that Plaintiff fails to state a claim as a matter of law.

The Court grants Defendant' s motion to dismiss this Section 1692e(4) claim. Here,
Defendant was responding to Plaintiffs question regarding whether garnishment was possible.
Defendant was not threatening or harassing Plaintiff. Plaintiff acknowledges that "[a]t no time
during the phone call did Defendant provide Plaintiff with an affirmative response as to whether
or not the debt could actually be garnished." (Complaint, i!23).
Defendant threatened Plaintiff with garnishment.

Plaintiff has not alleged that

Accordingly, the Court finds no FDCPA

violation on this basis.
C. Section 1692f
Defendant contends that Plaintiff has not alleged a violation of Section 1692f of the FDCPA.
(ECF No. 11 at 5-6). "The FDCPA also prohibits the use of ' unfair or unconscionable means' to
collect any debt." Gallagher v. Gurstel, Staloch & Chargo, P.A., 645 F. Supp. 2d 795, 799 (D.
Minn. 2009)(citing 15 U.S.C. § 1692±). Defendant notes that Plaintiff has not alleged a violation
of a specific portion of 1692f. Defendant assumes that Plaintiff's Section 1692f claim is based

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upon Defendant's statement that he "could" garnish her wages. Defendant, however, maintains
that such conjectural statement fails to state a claim under 1692f.
In determining whether a debt-collection communication was false, deceptive, misleading,
unfair, or unconscionable, the communication must be viewed through the eyes of an
unsophisticated consumer. Strand v. Diversified Collection Serv. , Inc. , 380 F.3d 316, 317-318
(8th Cir. 2004); Peters, 277 F.3d at 1055. Based upon the limited allegations in the Complaint,
the Court finds no unfair or unconscionable statements were made to Plaintiff in an attempt to
collect the debt.

Plaintiff asked a question, but Defendant never provided an "affirmative

response" (Complaint, i!23) and did not threaten Plaintiff. The Court finds no unconscionable
behavior and no FDCP A violation of Section 1692f.
Accordingly,
IT IS HEREBY ORDERED that Defendant's Motion to Dismiss Count I of Plaintiffs

Complaint (ECF No. 10) is GRANTED. Count I is DISMISSED with prejudice.

Dated this 23rd day of February, 2016.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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