BAGALA v. A1 COLLECTION SERVICE
MEMORANDUM OPINION. Signed by Judge Michael A. Shipp on 7/20/2016. (km)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 15-8329 (MAS) (LHG)
Al COLLECTION SERVICE,
SHIPP, District Judge
This matter arises from a single piece of correspondence that Defendant Al Collection
Service ("Defendant") sent to Plaintiff Elizabeth Bagala ("Plaintiff') regarding the collection of
$410.00 of consumer debt. In the Complaint, Plaintiff alleges that this correspondence violated
both the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (1977) ("FDCPA"), and the Truthin-Consumer Contract, Warranty and Notice Act., N.J.S.A. 56:12-14 (1981) ("NJTCCA"). (See
generally Compl., ECF No. 1-2.) This matter comes before the Court on Defendant's unopposed
motion to dismiss the Complaint pursuant to Rule 12(b)( 6) of the Federal Rules of Civil Procedure.
(ECF No. 4.) The Court has carefully considered Defendant's submission and decides the matter
without oral argument pursuant to Local Civil Rule 78.1. For the reasons stated below, the Court
grants Defendant's motion.
On March 3·1, 2014, Defendant sent Plaintiff correspondence regarding a debt of $410.00
that Plaintiff owed to a third-party, Princeton Emergency Physicians. (Compl. 3 1; Def.'s Mot. to
Dismiss, Ex. 1 ("Collection Letter"), ECF No. 4-1.) The Collection Letter stated that Plaintiffhad
thirty days to dispute the validity of the debt before Defendant would presume the debt valid.
(Collection Letter.) Plaintiff initially brought suit in state court, claiming that the size and location
of the text outlining Plaintiffs rights violated the FDCPA and NJTCCA's notice requirements.
(Compl. 3-5.) Specifically, Plaintiff asserts that her rights "were outlined in such a way to not be
clear, obvious and conspicuous to [PlaintiffJ and that text containing those rights are [sic] smaller
than other text in the letter and position [sic] in such a way as to be confusing and misleading to
[PlaintiffJ." (Id. at 3.) Plaintiff also claims that by sending the Collection Letter, Defendant
violated N.J.S.A. 56:12-14 because the Collection Letter was an inaccurate and deceptive
communication from a debt collector. (Id. at 3-5.) Asserting that there is federal question
jurisdiction, on November 30, 2015, Defendant removed the case to this Court.
Removal if 5, ECF No. 1.) Thereafter, Defendant moved to dismiss the Complaint pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure.
A district court conducts a three-part analysis when considering a Rule 12(b)(6) motion.
Malleus v. George, 641 F .3d 560, 563 (3d Cir. 2011 ). "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,
Second, the court must accept as true all of a plaintiffs well-pleaded factual
Because multiple paragraphs in the Complaint have the same numbers and the Complaint does
not include page numbers, the Court will refer to the ECF page numbers.
allegations and construe the complaint in the light most favorable to the plaintiff. Fowler v. UPMC
Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).
The court, however, must disregard any
conclusory allegations proffered in the complaint. Id. Finally, once the well-pleaded facts have
been identified and the conclusory allegations ignored, a court must next "determine whether the
facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for
relief."' Id. at 211 (quoting Iqbal, 556 U.S. at 679). Notably, Rule 8(a)(2) "requires only 'a short
and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the
defendant fair notice of what the ... claim is and the grounds upon which it rests."' Bell At!. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). On a
motion to dismiss for failure to state a claim, a "defendant bears the burden of showing that no
claim has been presented." Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005).
In its motion to dismiss, Defendant argues that: ( 1) Plaintiff's FDCP A claim is barred by
the one-year statute of limitations; (2) the form of Defendant's letter did not overshadow or
contradict the text outlining Plaintiff's rights; and (3) the NJTCCA does not apply to collection
agencies such as Defendant. (Def.'s Moving Br. 8-14, ECF No. 4.)
FDCPA Claim Barred by Statute of Limitations
In the Complaint, Plaintiff asserts that Defendant violated the FDCPA by not properly
setting forth her rights in the Collection Letter. (Compl. 4.) Plaintiff, however, filed the Complaint
in the Superior Court ofNew Jersey on November 9, 2015, which was more than eighteen months
after Defendant sent the Collection Letter. (Id. at 4, 7.) Section 1692k(d) of the FDCPA states
that a claimant can bring a civil action under the Act "within one year from the date on which the
violation occurs." 15 U.S.C. § 1692k(d). The Third Circuit has held that "[w]hen reviewing a
Rule l 2(b)( 6) dismissal on statute of limitations grounds, we must determine whether 'the time
alleged in the statement of a claim shows that the cause of action has not been brought within the
statute oflimitations. "' Cito v. Bridgewater Twp. Police Dep 't, 892 F .2d 23, 25 (3d Cir. 1989)
(quoting Hanna v. U.S. Veterans' Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975) (emphasis
omitted).) Because Plaintiff alleges that she filed her Complaint more than eighteen months after
receiving the Collection Letter, Plaintiff's claim is barred by the FDCPA's one-year statute of
NJTCCA is Inapplicable to Defendant
The NJTCCA prohibits "seller[s], lessor[s], creditor[s], lender[s] [and] bailee[s]" from,
inter alia, offering consumers notices that violate the rights established for consumers under state
or federal law. N.J.S.A. 56.12-14.
Here, Plaintiff has not alleged that Defendant is a "seller,
lessor, creditor, lender or bailee" within the meaning of the NJTCCA. Id. While Plaintiff makes
the conclusory allegation that Defendant "is a Creditor as defined in the Fair Debt Collection
Practices Act ... " (Compl. 3), she has not alleged that the definition of "creditor" under the
FDCP A is the same as under the NJTCCA. Moreover, in Barrows v. Chase Manhattan Mortgage
Corp., another court in this district found that a party that merely facilitates the payment of a
consumer debt to another party is not a "creditor" under the NJTCCA. 465 F. Supp. 2d 347, 363
(D.N.J. 2006). Noting that "Black's Law Dictionary defines 'creditor' as 'one to whom a debt is
owed; one who gives credit for money or goods," the Honorable Noel L. Hillman, U.S.D.J., found
that the defendant law firm was not plaintiff's "creditor" under the NJTCCA because plaintiff did
not owe a debt directly to the defendant law firm. Id. Likewise, because Plaintiff here has not
Having found that Plaintiff's FDCPA claim is barred by the statute of limitations, the Court does
not address Defendant's additional arguments as to the merits of the FDCPA claim.
alleged that she owed a debt directly to Defendant, she has not alleged that Defendant was acting
as a "creditor" as defined by the NJTCAA.
Thus, Plaintiff has failed to state a claim for relief
under the NJTCCA.
For the reasons set forth above, Defendant's motion to dismiss is granted. An order
consistent with this Memorandum Opinion will be entered.
UNITED STATES DISTRICT JUDGE
Dated: July d~ 2016
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