Judd v. Credit Control LLC

Filing 19

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion for relief from order [Doc. # 16 ] is denied. Signed by District Judge Carol E. Jackson on 7/18/16. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DENISE JUDD,
on behalf of plaintiff and a class,
Plaintiff,
vs.
CREDIT CONTROL, LLC,
Defendant.

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Case No. 4:15-CV-1797 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion for relief from an order,
pursuant to Federal Rule of Civil Procedure 60(b).

Defendant has responded in

opposition. No reply was filed, and the time permitted for doing so has expired.
Plaintiff filed this action against defendant for an alleged violation of the Fair
Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692–1692p. According to the
complaint, on June 5, 2015, Professional Recovery Services, Inc. sent plaintiff a
letter attempting to collect a debt. This letter constituted an initial communication
with plaintiff and included the disclosures required by 15 U.S.C. § 1692g. It is also
alleged that defendant acquired Professional Recovery Services on July 1, 2015.
Compl. at ¶ 13 [Doc. #4]. Plaintiff alleges that defendant sent her another letter
attempting to collect the same debt on July 2, 2015,.

Plaintiff contends that

defendant violated § 1692g by sending an initial debt collection communication to
her without including the requisite disclosures.
On January 19, 2016, the Court granted defendant’s motion to dismiss the
complaint for failure to state a claim pursuant to Rule 12(b)(6). In its motion to
dismiss, defendant argued that plaintiff failed to state a claim for a violation of §

1692g, because plaintiff alleged that it had acquired Professional Recovery
Services. Based on this alleged acquisition, defendant argued that it had received
all the rights, privileges, immunities, and powers of Professional Recovery Services
under Missouri law. Mo. Rev. Stat. § 347.730(3). Accepting the allegations in the
complaint as true for purposes of a Rule 12(b)(6) motion, the Court found that
defendant was not an independent, subsequent debt collector and was entitled to
rely

upon

Professional

Recovery

Services’

compliance

with

the

disclosure

requirements of § 1692g as a post-acquisition surviving entity. As such, the July 2
letter was not an initial communication and was not required to include the
disclosures enumerated in § 1692g. Accordingly, the Court dismissed the complaint
for its failure to state a claim under the FDCPA upon which relief could be granted.
On May 2, 2016, the Court received and docketed a letter from a Florida
attorney representing a plaintiff in an unrelated case against the same defendant—
Credit Control, LLC—who stated that no merger or consolidation as defined by
Missouri law had ever occurred between defendant and Professional Recovery
Services. The attorney’s letter was based on representations defendant made in its
statement of material facts and a declaration filed as exhibits in support of a motion
for summary judgment in a case before the United States District Court for the
Southern District of Florida. Letter from Leo W. Desmond [Doc. #15]; Sanchez v.
Credit Control, LLC, Civ. Action No. 15-CV-14410.
In the instant motion, plaintiff argues that this letter constitutes newly
discovered evidence of fraud, mistake, misrepresentation or misconduct by
defendant that justifies granting her relief from the Court’s January 19 dismissal
order.

Plaintiff first asserts that the Court dismissed her complaint based on

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defendant’s representation that it was the surviving entity of a merger or
consolidation under Missouri law.

Not so.

plaintiff’s allegations in the complaint.

The Court’s ruling was based on

See Mem. & Order at *2 [Doc. #13]

(explaining that plaintiff’s factual allegations in a complaint are assumed true for
the purposes of a Rule 12(b)(6) motion); id. at *1 (“According to the complaint . . .
defendant acquired Professional Recovery Services.”); see also McCrary v. Stifel,
Nicolaus & Co., Inc., 687 F.3d 1052, 1056 (8th Cir. 2012) (stating that for purposes
of a Rule 12(b)(6) motion, the district court must accept a plaintiff’s factual
allegations as true). No judicial inadvertence thus justifies granting plaintiff relief.
See Fox v. Brewer, 620 F.2d 177, 180 (8th Cir. 1980) (“This circuit has not allowed
relief under Rule 60(b)(1) for judicial error other than for judicial inadvertence.”).
In support of its motion to dismiss, defendant did not state or represent that
it in fact acquired Professional Recovery Services, but instead attacked the
sufficiency of the complaint. See Mem. at *3 [Doc. #8] (“Taking all statements in
Plaintiff’s Petition as true for the purposes of this motion, Plaintiff alleges that ‘[o]n
or about July 1, 2015, Defendant Credit Control, LLC acquired Professional
Recovery Services, Inc.’ (Plaintiff’s Petition ¶ 13.).”); id. (“Plaintiff plainly alleges
that Credit Control, LLC acquired Professional Recovery Services, Inc.”); id.
(“Because under the facts alleged by Plaintiff, Credit Control, LLC must be deemed
as having satisfied Section 1692g by way of Professional Recovery Services, Inc.”);
Reply at *4 [Doc. #12] (“Assuming the allegations of Plaintiff’s Complaint are true,
Defendant Credit Control acquired PRS (Plaintiff’s Complaint ¶ 13) and therefore the
rights of PRS to issue subsequent correspondence to Plaintiff without issuing §
1692g disclosures.”); id. at *5 (“[A]ccording to Plaintiff’s complaint, PRS and Credit

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Control are legally the same entity under Missouri Law.”). As such, plaintiff has not
demonstrated any evidence of fraud, mistake, misrepresentation or misconduct that
justifies granting her relief under Rule 60(b).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for relief from order [Doc.
#16] is denied.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 18th day of July, 2016.

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