NELSON v. RECEIVABLES OUTSOURCING, LLC et al

Filing 14

OPINION. Signed by Judge Robert B. Kugler on 8/14/2018. (tf, )

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
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William A. NELSON,
Plaintiff,
v.
RECEIVABLES OUTSOURCING, LLC, et
al.,
Defendants.

Civil No. 17-11543 (RBK/AMD)
OPINION

KUGLER, United States District Judge:
This Fair Debt Collection Practices Act (“FDCPA”) and Telephone Consumer Protection
Act (“TCPA”) action now comes before the Court on Defendant’s unopposed Motion to Dismiss.
(ECF No. 7.) Defendant seeks dismissal of Plaintiff’s FDCPA claims. As explained below,
Plaintiff has not adequately pleaded violations of the FDCPA and Defendant’s motion is,
accordingly, GRANTED.
I.

BACKGROUND
Plaintiff William A. Nelson, and allegedly other individuals, received the following

voicemail:
Hello. This is a private message for (name). If you are not (name), please hang up
or disconnect. If you are (name), please continue to listen to this message. There
will be a three (3) second pause to allow you to listen to this message in private. By
continuing to listen to this private message, you acknowledge that you (name). This
call is from a debt collector. We are calling from Receivables Outsourcing, LLC.
This is an attempt to collect a debt, and any information obtained will be used for
that purpose. Please return the call to talk about a confidential business matter at
1-800-234-1357. Again, that number is 1-800-234-1357. Thank you.

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(Compl. at ¶ 19.) The Court infers that “(name)” is actually Plaintiff’s own name, though that is
not stated in the complaint.
After several pages of conclusory class allegations, some other facts emerge. Plaintiff
incurred a debt to the company Inspira, who then assigned the debt to Receivables Outsourcing,
LLC (“Defendant”), a debt collection agency based out of Maryland. (Id. at ¶¶ 45–46.) At the time
the debt was assigned to Defendant, “the debt was in default.” (Id. at ¶ 48.) Defendant then called
Plaintiff on multiple occasions, beginning in March 2017. (Id. at ¶ 49.)
Plaintiff disputed he owed the debt. (Id. at ¶ 49.) But Defendant continued to call Plaintiff’s
cell phone without sending any further documentation, and even caused his phone to ring “at
inconvenient times.” (Id. at ¶ 51.) Defendant left voice messages. (Id. at ¶ 52.) Some of these were
overheard by persons other than Plaintiff. (Id.) And some of these voice messages would
“automatically display in text form on the screen of Plaintiff’s cell phone,” with the result that
Plaintiff’s adult children and other third parties could see the message. (Id. at ¶¶ 54, 56.) Plaintiff
alleges he was charged for incoming calls. (Id. at ¶ 57.)
During this same period Plaintiff received a “written communication”—colloquially
known as a “letter”—from Defendant. (Id. at ¶ 59.) This letter was not provided to the Court.
Plaintiff called back, spoke with a representative about the unpaid debt, and told the representative
that his insurance company should have paid the bill. (Id. at ¶ 59.)
Plaintiff filed his complaint on November 12, 2017, seeking, among other things, $1,000
in statutory damages under the FDCPA, 15 U.S.C. § 1692 et seq. Defendant now seeks dismissal
of the FDCPA claims.

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II.

THE 12(b)(6) STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss an action for failure

to state a claim upon which relief can be granted. When evaluating a motion to dismiss, “courts
accept all factual allegations as true, construe the complaint in the light most favorable to the
plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may
be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d. Cir. 2008)). In other words, a complaint
survives a motion to dismiss if it contains sufficient factual matter, accepted as true, to “state a
claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). It is not for courts to decide at this point whether the non-moving party will succeed on
the merits, but “whether they should be afforded an opportunity to offer evidence in support of
their claims.” In re Rockefeller Ctr. Prop., Inc., 311 F.3d 198, 215 (3d Cir. 2002).
In making this determination, a three-part analysis is needed. Santiago v. Warminster Twp.,
629 F.3d 121, 130 (3d Cir. 2010). First, the court must “tak[e] note of the elements a plaintiff must
plead to state a claim.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Second, the court
should identify allegations that, “because they are no more than conclusions, are not entitled to the
assumption of truth.” Id. (quoting Iqbal, 556 U.S. at 679). “Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.” Id. (quoting Iqbal,
556 U.S. at 678). Finally, “when there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id.
(quoting Iqbal, 556 U.S. at 679). A complaint cannot survive a motion to dismiss where a court
can only infer that a claim is merely possible rather than plausible. Id.

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III.

DISCUSSION
To prevail on a motion to dismiss, Plaintiff must plead that (1) he is a consumer; (2)

Defendant is a debt collector; (3) Defendant’s actions were made in an attempt to collect a debt;
and (4) Defendant violated a provision of the FDCPA while attempting to collect said debt.
Douglass v. Convergent Outsourcing, 765 F.3d 299, 303 (3d Cir. 2014) (citing Piper v. Portnoff
Law Associates, 396 F.3d 227, 232 (3d Cir. 2005)). The first three elements are readily met:
Defendant is a debt collector who was attempting to collect a debt from Plaintiff, a consumer.
The primary question, then, is whether Plaintiff’s complaint, a jumble of conclusory
allegations, adequately pleads a violation of the FDCPA. Plaintiff claims violations of Title 15,
sections 1692g, 1692e(10), 1692e(5), 1692f, and 1692c(b).
1692g
The FDCPA requires a debt collector to include the following information in a debt
collection letter to a consumer:
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the
notice, disputes the validity of the debt, or any portion thereof, the debt will be
assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the
thirty-day period that the debt, or any portion thereof, is disputed, the debt
collector will obtain verification of the debt or a copy of a judgment against the
consumer and a copy of such verification or judgment will be mailed to the
consumer by the debt collector; and
(5) a statement that, upon the consumer’s written request within the thirty-day
period, the debt collector will provide the consumer with the name and address
of the original creditor, if different from the current creditor.
15 U.S.C. § 1692g(a). In turn, section 1692g(b) provides that a debt collector must “cease all
collection efforts if the consumer provides written notice that he or she disputes the debt or requests
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the name of the original creditor until the debt collector mails either the debt verification or
creditor’s name to the consumer.” Wilson v. Quadramed Corp., 225 F.3d 350, 354 (3d Cir. 2000).
Put simply, “a dispute must be in writing.” Caprio v. Healthcare Revenue Recovery Group, LLC,
709 F.3d 142, 148 (3d Cir. 2013) (quoting Graziano v. Harrison, 950 F.2d 107, 112 (3d Cir.
1991)).
Plaintiff alleges Defendants violated § 1692g “by failing to cease collection of the debt
until verification of the debt was confirmed.” (Compl. at ¶ 72.) It is not immediately apparent to
which facts Plaintiff refers. But review of the entire complaint reveals that Plaintiff has not pleaded
that he made any written request whatsoever. Thus, because Plaintiff’s dispute of his debt was
merely verbal, it did not trigger section 1692g’s verification requirement. As pleaded, Plaintiff
fails to allege a violation of section 1692g of the FDCPA.
1692e(10)
Section 1692e(10) of the FDCPA prohibits a debt collector from using “any false
representation or deceptive means to collect or attempt to collect any debt or to obtain information
concerning a consumer.” Plaintiff alleges that Defendant violated § 1692e(10) when it failed to
suspend its collection efforts or validate Plaintiff’s debt. As with the rest of the complaint, the
allegations are divorced from facts indicative of something more than “[t]hreadbare recitals of the
elements of a cause of action.” Iqbal, 556 U.S. at 678. But to the extent Plaintiff relies on
Defendant’s purported failure to comply with § 1692g as a violation of § 1692e(10)—i.e., a failure
to cease contact after an oral, rather than written, request—this Court finds that Plaintiff has failed
to state a claim. And to the extent Plaintiff relies on an alternative, unstated theory of “false
representation or deceptive means,” the Court finds that Plaintiff has failed to put Defendant on
notice as to the claims against it.

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1692e(5)
Section 1692e(5) of the FDCPA prohibits a debt collector from “threatening to take any
action that cannot legally be taken or that is not intended to be taken.” Plaintiff alleges the
following violation: “Defendants violated 15 U.S.C. § 1692e(5) by stating that Plaintiff was
required to contact the insurance company and/or creditor to prove the debt was owed. Defendants
violated 1692e(5) by failing to obtain validation of the debt and continuing to collect on the debt.”
(Compl. at 10.) Plaintiff fails to set forth a single factual allegation that Defendant made any threat,
in any matter, at any time, in its interactions with Plaintiff. Plaintiff’s two theories—namely, that
Defendant told him to contact his insurance company and that Defendant failed to validate the debt
in response to an oral communication—are not threatening. The latter, indeed, was not even an
obligation imposed by the provisions that Plaintiff has identified. The Court thus finds that Plaintiff
has failed to state a claim for a violation of 1692e(5).
1692c(b)
Finally, Plaintiff alleges that when Defendant left a voice mail message on his phone, it
violated the FDCPA, because his phone automatically displayed the voice message in a text format
that could be seen by third parties. This appears to be a novel question, but that does not make it a
difficult one.
Section 1692c(b) states that “without the prior consent of the consumer . . . a debt collector
may not communicate, in connection with the collection of any debt, with any person other than
the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the
creditor, the attorney of the creditor, or the attorney of the debt collector.” 15 U.S.C. § 1692c(b).
A communication must occur with a person other than the consumer to be prohibited by the
language of the statute. In addition to the statutory language requiring that the communication be

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“with third parties,” the statutory definition of “communication” further supports that requirement.
A “communication” is defined as “the conveying of information regarding a debt directly or
indirectly to any person through any medium.” 15 U.S.C. § 1692a(2).
While there appears to be no Third Circuit precedent regarding the use of voice-mail
messages converted into text on cell phones, the Circuit has generally declined to impose liability
where a communication is directed specifically at the debtor. See Davis v. Phelan Hallinan &
Diamond PC, 687 Fed. App’x 140, 144 (3d Cir. 2017) (holding that letter mistakenly sent to a
third party did not violate 1692c(b) because it was addressed directly to the debtor). See also
Wisdom v. Wakefield & Assocs., Inc., Civ. No. 16-0303, 2016 WL 3747586, at *3 (D. Utah July
11, 2016) (dismissing claim where debt collector sent letter to debtor at father’s address and father
opened debtor’s mail, because there was no allegation that the debt collector addressed the letter
to the father or that the two even shared the same name); Darden v. Trans Union, LLC, Civ. No.
12-297, 2013 WL 12125739, at *3 (E.D. Tex. Oct. 28, 2013) (granting summary judgment because
“though sent to an incorrect location, the letter was specifically addressed to [plaintiff] and should
not have been opened by anyone else”); Segal v. Nat’l Action Fin. Servs., Inc., Civ. No. 04-2388,
2006 WL 449176, at *7 (M.D. Fla. Feb. 22, 2006) (“The act of sending one letter addressed to a
consumer but sent to the wrong address does not alone appear to indicate a violation by Defendant
of § 1692c(b).”).
The case here is even clearer than the cases of the for-your-eyes-only letters: unlike the
delivery of letters that could be opened and read by third parties, Plaintiff controls his own cell
phone, and has not pleaded that Defendant (or anyone else) controls it instead. Whether overheard
or textualized, the voice mails on his phone are within his control. Defendant did not communicate
with a third party; it communicated with Plaintiff, whose phone—an instrumentality in his

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possession, as implicitly acknowledged by the pleadings—was used to convey the message to
other people. As such, Plaintiff fails to allege that Defendant communicated with a third party, and
his claim under § 1692b(c) is dismissed.
IV.

CONCLUSION
For the reasons set forth above, Defendant’s Motion to Dismiss is GRANTED. An order

follows.

Dated:

August 14, 2018

/s Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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