Himes v. Client Services, Inc. et al

Filing 43

///ORDER granting 31 Motion to Dismiss for Failure to State a Claim. So Ordered by Judge Paul J. Barbadoro.(jna)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Susan E. Himes
v.

Case No. 12-cv-321-PB
Opinion No. 2013 DNH 060

Client Services, Inc.

MEMORANDUM AND ORDER
This case arises from an attempt by Client Services, Inc.,
to collect a debt from Susan Himes.

Himes claims that Client

Services, a debt collection agency, violated the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq.,
and the New Hampshire Unfair, Deceptive or Unreasonable
Collection Practices Act (“UDUCPA”), N.H. Rev. Stat. Ann. § 358C:3, by sending her a misleading letter seeking to collect the
debt and then transferring her debt to another debt collector
without honoring her request for validation of the debt.

Himes

also claims that Client Services’ conduct violated the New
Hampshire Consumer Protection Act (“CPA”), N.H. Rev. Stat. Ann.
§ 358-A:2.

Presently before the court is Client Services’

motion to dismiss all claims.

I.

BACKGROUND

Himes received a notice from Client Services on March 15,
2012, seeking to collect a balance of $1,002.71 that Himes
allegedly owed on her account with Target National Bank.

The

notice identified Client Services as a debt collection agency
and stated that Target National Bank had referred her unpaid
account to Client Services for collection.

The letter noted her

Target account number and a reference number.

It also contained

the following notice:
This is an attempt to collect a debt. Any information
obtained will be used for that purpose. Unless you
notify this office within 30 days after receiving this
notice that you dispute the validity of the debt or
any portion thereof, this office will assume this debt
is valid. If you notify this office in writing within
30 days from receiving this notice, that the debt, or
any portion thereof[,] is disputed, this office will
obtain verification of the debt or obtain a copy of a
judgment and mail you a copy of such judgment or
verification. If you [make a] request [to] this
office in writing within 30 days after receiving this
notice, this office will provide you with the name and
address of the original creditor, if different from
the current creditor.
Doc. No. 31-3.

On March 29, 2012, Himes responded to Client

Services by disputing the claim and requesting validation.

Doc.

No. 31-4 (“This is NOT a request for “verification” or proof of
my mail address, but a request for VALIDATION made pursuant to
the above named Title and Section.
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I respectfully request that

your offices provide me with competent evidence that I have any
legal obligation to pay you.”) (emphasis in original).

Among

other requests, Himes asked to Client Services “[e]xplain and
show me how you specifically calculated the entire amount of
what you say I owe” and “[p]rovide me with copies of any and all
papers that show I agreed to pay what you say I owe.”

Id.

Client Services did not respond to Himes’ request for
validation of the debt.

Instead, Himes alleges that Client

Services then “sold, assigned or passed on the alleged account
to other ‘debt collectors’ without providing validation . . . .”
Doc. No. 26-1.

II.

STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff
must make factual allegations sufficient to “state a claim for
relief that is plausible on its face.”

See Ashcroft v. Iqbal,

556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 547 (2007)).

A claim is facially plausible when

“the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged. The plausibility standard is not akin to
a ‘probability requirement,’ but it asks for more than a sheer
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possibility that a defendant has acted unlawfully.”

Iqbal, 556

U.S. at 678 (citations omitted).
In deciding a motion to dismiss, I employ a two-pronged
approach.

See Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1,

12 (1st Cir. 2011).

First, I screen the complaint for

“statements . . . that merely offer legal conclusions couched as
fact or threadbare recitals of the elements of a cause of
action.”

Id. (citations, quotations, and alterations omitted).

A claim consisting of little more than “allegations that merely
parrot the elements of the cause of action” may be dismissed.
Id.

Second, I credit as true all non-conclusory factual

allegations and the reasonable inferences drawn from those
allegations, and then determine if the claim is plausible.

Id.

The plausibility requirement “simply calls for enough fact to
raise a reasonable expectation that discovery will reveal
evidence of illegal” conduct.

Twombly, 550 U.S. at 556.

The

“make-or-break standard” is that those allegations and
inferences, taken as true, “must state a plausible, not a merely
conceivable, case for relief.”

Sepúlveda–Villarini v. Dep't of

Educ., 628 F.3d 25, 29 (1st Cir. 2010); see Twombly, 550 U.S. at
555 (“Factual allegations must be enough to raise a right to
relief above the speculative level.”).
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III.
A.

ANALYSIS

Unfair Debt Collection Practice Claims
To recover under either the FDCPA or New Hampshire's

UDUCPA, plaintiff must show that: “(1) [she has] been the object
of collection activity arising from a consumer debt; (2) the
defendant attempting to collect the debt qualifies as a ‘debt
collector’ under the Act; and (3) the defendant has engaged in a
prohibited act or has failed to perform a requirement imposed by
the [Act].”

Moore v. Mortg. Elec. Registration Sys., Inc., 848

F. Supp. 2d 107, 124 (D.N.H. 2012).
Himes argues that Client Services used false
representations or deceptive means to collect or attempt to
collect her debt in violation of the FDCPA and UDUCPA.
26-1.

Doc. No.

See § 15 U.S.C. § 1692, et seq.; N.H. Rev. Stat. Ann. §

358-C.

Under New Hampshire law, “[n]o debt collector shall

collect or attempt to collect a debt in an unfair, deceptive or
unreasonable manner as defined in [RSA 358–C].”

N.H. Rev. Stat.

Ann. § 358-C:2.
In general terms, RSA 358–C prohibits certain oral or
written communications with a debtor, threats to use
force or violence, threats to take unlawful actions,
communications and threats to communicate to others
that the debt exists, direct communications with a
represented debtor, communications through simulated
forms, material false representations about the debt
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or its status in a legal proceeding, representations
that the debt may be or will be increased, collection
or attempts to collect certain charges, threats of
arrest, and threats to assign or sell an account with
certain repercussions.
Fogle v. Wilmington Fin., 08-CV-388-JD, 2011 WL 90229, at *2
(D.N.H. Jan. 11, 2011).

Himes’ specific allegations arise under

RSA 358-C:3, VII, VIII, and X, which provide that an effort to
collect a debt
shall be deemed unfair, deceptive or unreasonable if
the debt collector: . . . VII. Makes any material
false representation or implication of the character,
extent or amount of the debt, or of its status in any
legal proceeding; or VIII. Makes any representation
that an existing obligation may be increased by the
addition of attorney's fees, investigation fees,
service fees or any other fees or charges when in fact
such fees or charges may not be legally added to the
existing obligation; or . . . X. Collects or attempts
to collect any interest or other charge, fee or
expense incidental to the principal obligation unless
such interest or incidental fee, charge or expense is
expressly authorized by the agreement creating the
obligation and legally chargeable to the debtor;
provided that the foregoing shall not prohibit a debt
collector from attempting to collect court costs in a
judicial proceeding . . . .
N.H. Rev. Stat. Ann. § 358-C:3.
Himes, however, does not identify a false representation
made in the letter or explain how or why the letter’s contents
misled her.

Client Services’ letter contains the language

required by the FDCPA.

See 15 U.S.C. § 1692g(a).
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Nothing about

it was abusive, harassing, or deceptive.

Additionally, Himes

does not allege that Client Services made any false
representations about the character, extent, amount, or status
of her debt.

See Fogle, 2011 WL 90229, at *3.

Himes also fails

to allege that Client Services improperly added any fees to her
debt.

Thus, the letter was not a prohibited act or omission

under the UDUCPA.
Himes has failed to adequately demonstrate that Client
Services violated the FDCPA or UDUCPA by failing to respond to
her request to validate the debt or by transferring her debt to
another debt collector.
requirement.

The UDUCPA does not have a validation

“Section 1692g(b) [of the FDCPA] gives debt

collectors two options when they receive requests for
validation.

They may provide the requested validations and

continue their debt collecting activities, or they may cease all
collection activities.”

Jang v. A.M. Miller & Associates, 122

F.3d 480, 483 (7th Cir. 1997) (citing Smith v. Transworld Sys.,
Inc., 953 F.2d 1026, 20131 (6th Cir. 1992)).

A mere failure to

respond to a request to validate a debt, however, does not
violate the FDCPA.

See id.

Himes does not cite any case law or other authority to
support the proposition that transferring a debt constitutes
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debt collection.

Nor does she argue that Client Services is

vicariously liable for any collection actions that occurred
after it transferred the debt.

Doc. No. 26-1.

Debt collection

activities that violate the § 1692g(b) include sending a lien to
the clerk of court after a consumer disputed a debt, Loigman v.
Kings Landing Condo. Ass’n, 734 A.2d 367, 369–70 (N.J. Super.
Ct. Ch. Div. 1999), and commencing litigation to compel payment
of a debt.

Garcia-Contreras v. Brock & Scott, P.L.L.C., 775 F.

Supp. 2d 808, 825 (M.D.N.C. 2011).

Himes does not provide, and

I am unable to find, any support for the proposition that
transferring the debt is “collection of the debt.”
B.

Consumer Protection Act Claims
Himes also fails to assert a claim under the New Hampshire

CPA.

Section 358-A:2 of the CPA provides that “[i]t shall be

unlawful for any person to use any unfair method of competition
or any unfair or deceptive act or practice in the conduct of any
trade or commerce within this state.”
358–A:2.

N.H. Rev. Stat. Ann. §

The statute provides a nonexhaustive list of

prohibited acts and practices.

Id.

To determine whether

conduct not enumerated in the statute is prohibited by the CPA,
New Hampshire courts apply “the rascality test” and ask whether
the conduct “attain[s] a level of rascality that would raise an
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eyebrow of someone inured to the rough and tumble of the world
of commerce.”

State v. Sideris, 157 N.H. 258, 263 (2008).

Himes’s claims under the CPA are based on Client Services’
alleged violations of the FDCPA and UDUCPA.

Himes claims that

Client Services violated the CPA by falsely representing the
“character, extent or amount of the debt or its status” and
failing to validate the debt.

Doc. No. 26-1.

Himes does not

show how Client Services misrepresented the debt, and a failure
to validate the debt is not a violation of the CPA.

Client

Services’ conduct also does not meet the rascality test.
Sideris, 157 N.H. at 263.

See

Accordingly, Himes fails to state a

claim for violation of the CPA.
As Himes notes, “[t]here is abundant evidence of the use of
abusive, deceptive, and unfair debt collection practices by many
debt collectors.”

Doc. No. 32 (quoting 15 U.S.C. § 1692(a)).

Client Service’s conduct as alleged in Himes’s complaint,
however, does not come close to being abusive, deceptive, or
unfair.

Client Services sent one letter and allegedly

transferred the debt to another debt collector.

Himes’s

allegations are insufficient to state a claim for violation of
the FDCPA, the New Hampshire CPA, or the New Hampshire UDUCPA.

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V.

CONCLUSION

For the aforementioned reasons, I grant defendants’ motion
to dismiss (Doc. No. 31).
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
April 22, 2013
cc:

Susan E. Himes, pro se
Adam J. Chandler, Esq.
Christopher T. Vrountas, Esq.
Susan J. Stromberg, Esq.
Karen Wisniowski, Esq.

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