Davis v. J & M Securities, LLC

Filing 32

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Defendants' Motion to Dismiss Plaintiffs §1692c(a)(2), §1692d, §1692f and §1692g Claims (ECF No. 13) is GRANTED, in part. Plaintiffs §1692c(a)(2) and §1692d claims are DISMISSED. Plaintiffs claims under 15 U. S.C. § 1692e(l 0), § 1692f(l ), § 1692g remain pending. Signed by District Judge Ronnie L. White on 01/22/2016. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

GWENDOLYN DA VIS ,
Plaintiff,
v.

J&M SECURITIES, LLC,
Defendant.

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No. 4:15-CV-995 RLW

MEMORANDUM AND ORDER
This matter is before the court on Defendants' Motion to Dismiss Plaintiffs
§1692c(a)(2), §1692d, § 1692f and§ 1692g Claims (ECF No. 13). 1 This matter is fully briefed
and ready for disposition.
BACKGROUND 2
Plaintiff Gwendolyn Davis ("Davis") brought this action for statutory and actual damages
under the Fair Debt Collections Practices Act, 15 U.S.C. §§1692, et seq.

("FDCPA").

Defendants J&M Securities, LLC and Sansone Law, LLC (collectively, "Defendants") are debt
collectors who work for various property management companies. (First Amended Complaint
("FAC"), ECF No. 5, iliJ7, 8, 13). On February 5, 2015, Defendant filed a breach of contract
action against Davis in the Circuit Court for St. Louis County, Associate Division, J&M
1

Notably, Defendants did not move to dismiss Davis' claims under 15 U.S.C. §1692e(10) and
1692f(l). (ECF No. 14 at 2, n.l) . Accordingly, those claims remain pending. Although
Defendants move to dismiss Davis' § 1692f claim, no such claim was included in the First
Amended Complaint and, therefore, Defendants' argument regarding such a claim will not be
discussed.
2
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).

Securities, LLC, assignee of Taterville, LLC v. Gwendolyn Davis, case number 15 SL-AC04583
(the "St. Louis County lawsuit"). (FAC,

~14).

Davis appeared in court on June 24, 2015 and

notified counsel for Defendant J&M that she would be hiring an attorney to represent her in the
St. Louis County lawsuit. (F AC,

~~16-17).

David maintains that even though she had informed

Defendant J &M' s counsel that she was seeking legal representation, Defendants continued to
attempt to collect the debt. (FAC, ~18).
In the St. Louis County lawsuit, Defendants provided a § 1692g notice (hereinafter
"Notice") to Plaintiff that stated, in part:
Unless you, the defendant, dispute the validity of the debt within 30 days of
receipt of this notice, the debt will assume [sic] to be valid by the undersigned
attorneys. If you notify the undersigned attorney in writing within this 30 day
period that the debt or any portion thereof is disputed, the undersigned will obtain
verification of plaintiffs position and mail it to you.
(FAC, ~24) .

STANDARD OF REVIEW
In ruling on a motion to dismiss or a motion for judgment on the pleadings, 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. 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

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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. 15 U.S.C. §1692d-f
Davis purports to bring a claim under 15 U.S.C. §1692d-f for engaging m false,
deceptive, harassing, and unfair conduct in the collection of a debt. (F AC, ~40(b )).
"Impermissible practices include harassing, oppressive or abusive conduct; false,
deceptive or misleading representations; and unfair or unconscionable collection methods. "

Freyermuth v. Credit Bureau Servs., Inc., 248 F.3d 767, 771 (8th Cir. 2001) (citing 15 U .S.C.A.
§ 1692d-f). "To determine whether a debt collector's calls amount to harassment, annoyance or
abuse, the volume of calls must be examined along with the pattern in which they were made and
whether or not they were accompanied by oppressive conduct." Moore v. CCB Credit Servs.,

Inc., No . 4:11CV2132 RWS , 2013 WL 211048 , at *3 (E.D. Mo. Jan. 18, 2013) (citing Udell v.
Kansas Counselors, Inc., 313 F.Supp.2d 1135, 1143-44 (D. Kan. 2004)).
Davis does not address this claim at all in her response. Davis ' Complaint merely recites
the statutory citation, without providing any facts to support her claim that Defendants violated
15 U .S.C. § 1692d-f. Davis alleges no actions on the part of Defendants that were harassing,
oppressive or abusive. Accordingly, the Court holds that Davis fails to state a claim as a matter
of law and dismisses Davis ' 15 U.S.C. §1692d-f claim.

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B. 15 U.S.C. §1692(g)
Davis purports to bring a claim under 15 U.S.C. § l 692(g) for overshadowing Davis'
dispute rights based upon Defendants' inclusion of the Notice in the Petition filed in the St.
Louis County lawsuit. (F AC, ~40( d)) . " Section l 692g( a) requires a debt collector to send, within
five days of the initial communication with a consumer, a validation notice informing the
consumer of, inter alia, his right to dispute the debt, and to request verification of the debt and/or
the name and address of the original creditor, within 30 days of receipt of the validation notice."

Ray v. Resurgent Capital Servs., L.P., No. 4:15CV272 JCH, 2015 WL 3453467, at *3 (E.D. Mo.
May 29, 2015). "Overshadowing or inconsistency occurs when a debt-collection letter conveys
information in a confusing or contradictory fashion so as to cloud the required message with
uncertainty ." Faunie v. Midland Credit Mgmt., Inc., No . 4:14CV816 RWS, 2014 WL 6607197,
at *3 (E.D. Mo. Nov. 19, 2014) (citing Owens v. Hellmuth & Johnson, PLLC, 550 F.Supp.2d
1060, 1064 (D. Minn. 2008)).
In her First Amended Complaint, Davis alleges that overshadowing occurred because
Defendants included a § l 692g Notice in the Petition.

Davis notes that the "Notice is not

required" because a petition is not considered an "initial communication" for purposes of§ l 692g
of the FDCP A. (F AC,

~25).

Davis cites to a litany of cases out of the Southern District of

Florida to support her claim that inclusion of the Notice in a petition constitutes a violation of the
FDCPA. (FAC,

~28;

ECF No . 25 at 3). For example, one case from the Southern District of

Florida states :
An FDCP A notice incorporated into a mortgage foreclosure summons and
complaint does not necessarily effectively convey notice of the rights to the "least
sophisticated consumer." The " least sophisticated consumer" could be deceived or
confused when the summons sets out a 20-day deadline to respond to the lawsuit
and the attached notice provides for a 30-day deadline to request validation of the
debt. In re Martinez, 266 B.R. 523 (S.D.Fla.2001). The fact that Defendants "used

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an approved form summons did not affect the court's determination that
summons, coupled with validation notice, was confusing." Id. at 523. This Court
finds that Plaintiff has sufficiently pied that Defendants engaged in an act or
omission prohibited by the FDCP A.
Battle v. Gladstone Law Grp., P.A., 951 F. Supp. 2d 1310, 1315 (S.D. Fla. 2013). Davis
maintains that Defendants included in the St. Louis County Petition an "unnecessary Notice,
which goes on to explain a consumer' s rights to dispute and seek validation of an alleged debt
even though those rights could not have been triggered, could serve no other possible purpose
but to deceive the least sophisticated consumer with respect to their rights under the FDCP A
and/or how or when to dispute the debt." (ECF No. 25 at 4).
In response, Defendants maintain that Davis cannot state a claim under § l 692g because it
is undisputed that the St. Louis County Petition did not constitute an "initial communication"
under the FDCPA and, therefore, could not trigger any dispute rights. (ECF No. 28 at 4-5 (citing
15 U.S.C. §1692g(d) (formal pleading in a civil action "shall not be treated as an initial
communication").
At this stage of the litigation and based upon the limited law on this topic, the Court
declines to find as a matter of law that the inclusion of the§ 1692g Notice in the St. Louis County
Petition was not a violation of the FDCP A. None of the case law cited by Defendants is directly
on point. On the other hand, Davis has provided persuasive, although not binding, case law to
support a FDCP A violation under these circumstances. The Court, therefore, denies, the Motion
to Dismiss the § 1692g, without prejudice.

C. 15 U.S.C. §1692c(a)(2)
Davis purports to bring a claim under 15 U.S .C. §1692c(a)(2) for communicating with a
consumer whom Defendants know to be represented by counsel.

(FAC,

~40(e)).

Section

1692c(a)(2) forbids a debt collector from communicating directly with a consumer if "the debt

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collector knows the consumer is represented by an attorney with respect to such debt ...." 15
U. S.C. § 1692c(a)(2)(emphasis added); Backlund v. Messerli & Kramer, P.A., 964 F. Supp. 2d
1010, 1016, n. 6 (D. Minn. 2013) ("§1692c(a)(2) addresses when a debt collector may
communicate with a consumer who is represented by an attorney").
Defendants contend that Davis fails to state a claim under § 1692c(a)(2) because her First
Amended Complaint does not allege that Davis actually was represented by an attorney, rather
that Davis was seeking representation. (ECF No. 14 at 4). In fact, Defendants note that Davis
never obtained counsel in the St. Louis County Lawsuit.

(ECF No. 14-1).

As a result,

Defendants claim that it was "impossible" for Defendants to have actual knowledge that she was
represented by counsel in the St. Louis County lawsuit.
Davis provides no support for her position that communicating with a debtor who was
seeking, but had not obtained, counsel triggers the protections of § 1692c(a)(2). Davis' claim is
particularly dubious given that counsel never entered on her behalf in the St. Louis County
lawsuit. The Court will not read such a requirement into the FDCP A where none exists. The
Court grants Defendants' Motion to Dismiss Davis' §1692c(a)(2) claim because she did not have
counsel in the St. Louis County lawsuit, which is a predicate for such a claim.
Accordingly,
IT IS HEREBY ORDERED that Defendants' Motion to Dismiss Plaintiffs

§1692c(a)(2),

§1692d, §1692f and §1692g Claims (ECF No. 13) is GRANTED, in part.

Plaintiffs §1692c(a)(2) and

§1692d claims are DISMISSED.

U. S.C. § 1692e(l 0), § 1692f(l ), § 1692g remain pending.

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Plaintiffs claims under 15

Dated this 22nd day of January, 2016.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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