Montoya v. O'Friel et al
MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker granting Defendants' 9 MOTION to Dismiss . (bap)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DENNIS W. MONTOYA,
No. 17 CV 693 JAP/JHR
DANIEL J. O’FRIEL and
O’FRIEL & LEVY, P.C.,
MEMORANDUM OPINION AND ORDER
In DEFENDANTS’ MOTION TO DISMISS (Doc. No. 9) (Motion),1 Defendants Daniel
J. O’Friel (O’Friel), an attorney, and the law firm of O’Friel & Levy, P.C., (together Defendants)
ask the Court to dismiss the claim brought by Plaintiff Dennis W. Montoya (Montoya) for
violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. See
COMPLAINT FOR VIOLATION OF THE FAIR DEBT COLLECTION PRACTICES ACT
(Doc. No. 1) (Complaint). Defendants argue they are not subject to the FDCPA because they are
not “debt collectors” as defined under the FDCPA. Alternatively, Defendants contend that when
Montoya filed Chapter 7 bankruptcy, his claim became property of his bankruptcy estate, and
Montoya has no standing to bring this claim. Defendants maintain that under the Bankruptcy
Code and the Federal Rules, the Chapter 7 Trustee must prosecute this claim.
After carefully considering all arguments, the Court finds that the Complaint fails to
sufficiently allege that Defendants were debt collectors within the meaning of the FDCPA.
Consequently, the Court will dismiss the Complaint with prejudice. Since the claim fails as a
The Motion is fully briefed. See RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
(Doc. No. 13) (Response) and DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO DISMISS (Doc.
No. 14) (Reply).
matter of law, the Court will not address the substitution of the Chapter 7 trustee as the real party
in interest under Fed. R. Civ. P. 17(a)(3).
STANDARD OF REVIEW
Under Rule 12(b)(6) a court may dismiss a claim “for failure to state a claim upon which
relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). “The court’s function on a Rule 12(b)(6)
motion is . . . to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim
for which relief may be granted.” Brokers’ Choice of America, Inc. v. NBC Universal, Inc., 757
F.3d 1125, 1135 (10th Cir. 2014) (citing Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991)).
In evaluating a Rule 12(b)(6) motion, the court must “accept as true all well-pleaded facts, as
distinguished from conclusory allegations, and view the facts in the light most favorable to the
nonmoving party.” Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998). Even
though the court must accept as true all well-pleaded facts in the complaint, the court is under no
obligation to accept bare conclusory allegations. Hall v. Belmon, 935 F.2d 1106, 1110 (10th Cir.
1991). And the court is not required to accept legal conclusions without factual support. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To
summarize, a complaint must contain sufficient factual allegations “to raise a right to relief
above the speculative level, on the assumption that all the allegations in the complaint are true. . .
.” Twombly, 550 U.S. at 555.
In ruling on a motion to dismiss, a court typically considers only the well-pleaded facts
alleged in the complaint. Martin v. Central States Emblems, Inc., 150 F. App’x 852, 857 (10th
Cir. Oct. 11, 2005) (unpublished) (citing County of Santa Fe v. Pub. Serv. Co. of N.M., 311 F.3d
1031, 1035 (10th Cir. 2002)). However, a court may also consider documents referred to in a
complaint, without converting a motion to dismiss into a motion for summary judgment, if the
documents are central to the plaintiff’s claim and the parties do not dispute their authenticity.
Martin, 311 F.3d at 1035 (citing County of Santa Fe). A court may also consider documents of
which the court may take judicial notice. S.E.C. v. Goldstone, 952 F. Supp. 2d 1060, 1190
Federal Civil Rights Case No. 05 CV 1155 JB/LAM
On November 4, 2002, Dennis O’Brien (O’Brien), then a sergeant with the Santa Fe
Sheriff’s Office (SFSO), shot Walter Mitchell (Mitchell), who was allegedly intoxicated,
mentally ill, and threatening O’Brien with a sword during a domestic abuse call. In the First
Judicial District Court, Santa Fe County, New Mexico, Mitchell was found guilty but mentally ill
on the charge of assault with a deadly weapon. State v. Mitchell, D-101-CR-2002-1027.
On November 2, 2005, Montoya, then a practicing attorney, filed a civil rights lawsuit on
behalf of Mitchell against the City of Santa Fe, the Santa Fe Police Department, and “Dennis
O’Brian [sic].” Mitchell v. City of Santa Fe and Dennis O’Brien, No. 05 CV 1155 JB/LAM,
COMPLAINT FOR CIVIL RIGHTS VIOLATIONS (Doc. No. 1) (D.N.M.) (Mitchell
Complaint). Return of service for the Mitchell Complaint was executed indicating service on
O’Brien and the City of Santa Fe.
On April 20, 2006, Mitchell filed a FIRST AMENDED COMPLAINT FOR CIVIL
RIGHTS VIOLATIONS (Doc. No. 13) (Mitchell FAC) replacing Defendant City of Santa Fe
with Defendant Board of County Commissioners of the County of Santa Fe (the County);
correcting the spelling of O’Brien’s name; and identifying O’Brien as “[a] Deputy Sheriff with
the Santa Fe Sheriff’s Department.” Id. No return of service was filed for the Mitchell FAC. In
the Mitchell FAC, Mitchell alleged that O’Brien shot him from behind a total of three times. Id. ¶
Neither O’Brien nor the County responded to the Mitchell Complaint and the Mitchell
FAC. Mitchell v. City of Santa Fe and Dennis O’Brien, No. 05 CV 1155 JB/LAM,
MEMORANDUM OPINION AND ORDER (Doc. No. 60) (Relief from Default Judgment
MOO) at 2 (D.N.M. Mar. 31, 2011). On April 11, 2006, Montoya on behalf of Mitchell filed a
motion for default judgment against O’Brien asserting that O’Brien was properly served with the
Mitchell Complaint. Id. On April 12, 2006, the Clerk of the United States District Court for the
District of New Mexico docketed an entry of default against O’Brien. Id. at 2–3. On May 9,
2006, the Honorable United States District Judge James O. Browning entered an order granting
Mitchell’s application for default judgment. Id. at 3.2 A hearing on damages was scheduled for
June 16, 2006. Id. Mitchell, however, did not personally serve O’Brien with notice of the
hearing. Id. At the beginning of the scheduled hearing on damages, Montoya withdrew
Mitchell’s jury demand for purposes of the hearing. Id. However, Montoya argued that if
O’Brien made an appearance in the case, Mitchell reserved the right to renew his jury demand.
On May 9, 2007, Judge Browning ruled on two legal issues in a MEMORANDUM
OPINION AND ORDER (Doc. No. 18) (Default Judgment MOO). Id. at 4. First, Judge
Browning ruled that Mitchell was not required to serve O’Brien with notice of the hearing on
damages. Id. Second, Judge Browning ruled that under Fed. R. Civ. P. 38(d), Mitchell could not
Mitchell asserted that service on O’Brien was reliable, because O’Brien was an active duty deputy sheriff with the
Santa Fe County Sheriff’s Department and another deputy sheriff of the same department served O’Brien.
MEMORANDUM OPINION AND ORDER (Doc. No. 60) at 2 (D.N.M. Mar. 31, 2011) (citing Transcript of
Hearing on Motion to Set Aside Default Judgment).
unilaterally withdraw his jury demand; therefore, Mitchell’s damages had to be determined by a
On December 10, 2007, a jury trial on damages was held. Clerk’s Minutes (Doc. No. 46).
The jury awarded Mitchell $2.5 million in compensatory damages and $500,000 in punitive
damages. Relief from Default Judgment MOO at 4. On December 28, 2007, Montoya on behalf
of Mitchell filed a notice of voluntary dismissal under Fed. R. Civ. P. 41, and the Board of
Commissioners of the County of Santa Fe (Board) was dismissed from the case.3 Id. On
December 31, 2007, Judge Browning entered a Final Judgment against O’Brien. Id. Sometime
after the Final Judgment was entered, Mitchell died. Id.
On March 23, 2010, the Board and O’Brien filed an independent action as a motion under
Fed. R. Civ. P. 60(d)(1) seeking to vacate the $ 3 million Final Judgment.4 Mitchell v. City of
Santa Fe and Dennis O’Brien, No. 05 CV 1155 JB/LAM, Defendants’ Independent Action for
Relief from Judgment (Doc. No. 49). The Board and O’Brien asserted that service of the Mitchell
Complaint and the Mitchell FAC was deficient or non-existent; that neither the Board nor
O’Brien received notice of the lawsuit; and that the jury trial on damages and the entry of the $ 3
million Final Judgment violated the Board’s and O’Brien’s due process rights. Id. at 7–9. Judge
Browning denied that request concluding that relief could be granted only through a separate
action instead of a motion in the Mitchell case. Relief from Default Judgment MOO at 7.
On May 11, 2011, the Board and O’Brien filed an independent action against Mitchell’s
estate. See O’Brien v. David E. Mitchell, Personal Representative of the Estate of Walter
[T]he plaintiff may dismiss an action without a court order by filing . . . a notice of dismissal before the
opposing party serves either an answer or a motion for summary judgment[.] Fed. R. Civ. P. 41(a)(1)(A)(i).
“This rule does not limit the court’s power to . . . entertain an independent action to relieve a party from a
judgment, order or proceeding[.]” Fed. R. Civ. P. 60(d)(1). “If the right to make a motion is lost by the expiration of
the time limits fixed in these rules, the only other procedural remedy is by a new or independent action to set aside a
judgment upon those principles which have heretofore been applied in such an action.” Fed. R. Civ. P. 60 advisory
committee notes to the 1946 amendment.
Mitchell, Case No. 11 CV 409 JB/WDS, COMPLAINT TO SET ASIDE JUDGMENT (Doc. No.
1). The parties settled that case and agreed to vacate the Final Judgment in the Mitchell case. On
December 13, 2012, Judge Browning entered a STIPULATED ORDER VACATING FINAL
JUDGMENT AND DISSOLVING LIS PENDENS (Doc. No. 61) in Case No. 05 CV 1155
JB/LAM, and a STIPULATED ORDER VACATING FINAL JUDGMENT AND
DISSOLVING LIS PENDENS (Doc. No. 68) in Case No. 11 CV 409 JB/WDS.
Malicious Abuse of Process Case in New Mexico State Court
On December 22, 2011, O’Brien, represented by O’Friel and O’Friel & Levy, filed a
claim against Montoya for malicious abuse of process in the First Judicial District Court, Santa
Fe County, New Mexico. O’Brien alleged that Montoya violated O’Brien’s due process rights in
the Mitchell case by purposefully failing to properly serve O’Brien; obtaining a default
judgment; and acquiring a jury award of damages in the amount of $3 million. O’Brien v.
The parties filed cross motions for summary judgment. Montoya argued on summary
judgment that O’Brien’s claim was barred under the four-year statute of limitations. On July 31,
2014, the court denied that motion finding that O’Brien’s cause of action accrued when O’Brien
allegedly first learned about the default judgment on February 22, 2011. O’Brien moved for
summary judgment on the merits. The district court granted O’Brien’s motion for summary
judgment and awarded judgment in favor of O’Brien in the amount of $500,000.5 Montoya
appealed that ruling to the New Mexico Court of Appeals.
On October 22, 2014, O’Friel, and O’Friel & Levy, on behalf of O’Brien, filed a
Transcript of Judgment in Sandoval County, New Mexico, where Montoya resided. O’Friel, on
behalf of O’Brien, initiated garnishment proceedings against Montoya, and Montoya paid a total
The court awarded actual damages of $192,000.00 and punitive damages of $384,000.00.
of $7,000 toward the $500,000 judgment in monthly increments. The $7,000 is deposited in the
O’Friel & Levy trust account.
New Mexico Court of Appeals
On July 5, 2016, the New Mexico Court of Appeals reversed the district court’s summary
judgment rulings. The Court of Appeals held that there was conflicting evidence regarding when
O’Brien first learned about the Mitchell case, due to a press report, which would have been the
triggering event to start the limitations clock for O’Brien’s malicious abuse of process claim
against Montoya. The court concluded that if O’Brien knew, or should have known, about the
civil rights lawsuit earlier than he claimed to have learned about it, the claim would be barred.
See O’Brien v. Montoya, No. 34,287, MEMORANDUM OPINION, 2016 WL 4368536 (N.M.
Ct. App. July 5, 2016) (unpublished) (Mot. Ex. A). The Court of Appeals remanded the case
back to the First Judicial District Court.
Chapter 7 Bankruptcy
On remand, the First Judicial District Court set the case for bench trial on July 24, 2017.
However, on July 17, 2017, Montoya and his wife filed a Chapter 7 Bankruptcy petition in the
Bankruptcy Court for the District of New Mexico. In re Montoya, Bankr. No. 17-11823-t7
(Bankr. D.N.M.). Consequently, all proceedings in the malicious abuse of process case were
stayed. In Bankruptcy Court, O’Brien filed a motion to lift the automatic bankruptcy stay, and
the Bankruptcy Court held a final hearing on that motion on October 27, 2017.
On October 10, 2017, the Chapter 7 Trustee, Edward Mazel, entered a Report of No
Distribution stating that “there is no property available for distribution from the estate over and
above that exempted by law. Pursuant to [Fed. R. Bankr. P.] 5009, I hereby certify that the estate
of the above-named debtor(s) has been fully administered. I request that I be discharged from
any further duties as trustee.” In re Montoya, Bankr. No. 17-11823-t7 Chapter 7 Trustee’s Report
of No Distribution (Doc. No. 41). Montoya listed this FDCPA claim as an asset of his
bankruptcy estate. See Schedule A/B Property (Doc. No. 26) at p. 7.6
On October 13, 2017, O’Brien filed an adversary proceeding in the Bankruptcy Court.
See O’Brien v. Montoya (In re Montoya), No. 17-1080-t, COMPLAINT TO DETERMINE
DISCHARGEABILITY OF A DEBT (Doc. No. 1) arguing that any judgment for damages
entered in the malicious abuse of process case would be non-dischargeable in Montoya’s
bankruptcy. 11 U.S.C. § 523(a).
On November 21, 2017, Bankruptcy Judge David Thuma denied O’Brien’s motion for
relief from stay. In re Montoya, No. 17-11823-t7, OPINION (Doc. No. 53). Judge Thuma found
that the malicious abuse of process claim was “connected to the bankruptcy case because it
would liquidate a claim of the only interested creditor [O’Brien].” Id. at 5. Judge Thuma ruled
that the bankruptcy court would not only determine the merits of O’Brien’s claim, it would also
determine if O’Brien’s judgment debt was non-dischargeable in the bankruptcy case,7 an issue
that could not be decided by the state court. Id. at 5–9. Judge Thuma concluded that “keeping the
stay in place, the Court can determine all issues, including the statute of limitations, liability,
damages, and dischargeability. No significant delay should result.” Id. at 10.
Because Montoya is now in bankruptcy, even if Montoya had a valid claim under the FDCPA, the claim is an asset
of Montoya’s Chapter 7 bankruptcy estate. In re DC Energy, LLC, 555 B.R. 786, 790 (Bankr. D.N.M. 2016). Once a
bankruptcy estate is established, “the bankruptcy trustee becomes the representative of the estate and has the
capacity to sue and be sued on behalf of the estate.” In re Cook, 520 Fed. App’x 697, 701–02 (10th Cir. 2013). Thus,
Montoya would have no standing to pursue the claim unless and until the Chapter 7 Trustee abandons the claim. See
Cohen v. Property Owners Comm. of Rio Rancho Valley Estates (In re Cohen), No. 7-10-15616 JR, Adv. No. 111198 J, 2012 WL 1192779, at *3 (Bankr. D.N.M. Apr. 10, 2012) (dismissing tort and civil rights claims for lack of
subject matter jurisdiction, but staying the ruling to give the Chapter 7 trustee time to decide whether to be
substituted as real party in interest). Since the Court is dismissing the FDCPA claim under Rule 12(b)(6), the
substitution of the Chapter 7 trustee as the real party in interest becomes moot.
O’Brien’s adversary proceeding was premised on the argument that any judgment against Montoya was nondischargeable under 11 U.S.C. § 523 (a)(2)(A) (money obtained by actual fraud); or § 523(a)(6) (debtor caused
injury to creditor through willful or malicious actions).
Disgorgement Action in New Mexico Thirteenth Judicial District Court
On June 26, 2017, prior to the Court of Appeals opinion, Montoya filed a disgorgement
action against O’Friel and his firm for return of the $7,000. No. D-1329-CV-2017–1310.
The Current FDCPA Claim in this Court
On July 1, 2017, Montoya filed his Complaint claiming that after the Court of Appeals
reversed summary judgment in favor of O’Brien and against Montoya, O’Friel and his law firm
violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (FDCPA) by refusing
Montoya’a demand to return the $7,000 held in the O’Friel & Levy trust account. FDCPA
Complaint ¶¶ 17–28. Montoya also claims that O’Friel and his firm violated the FDCPA by
refusing the demand to remove the Transcript of Judgment filed in the court records of Sandoval
On July 20, 2017, Defendants filed the Motion making several arguments for dismissal of
the Complaint; however, in the Reply brief, Defendants pared their arguments down to just two.
First, Defendants argue that Montoya failed to properly allege facts to support a plausible claim
under the FDCPA, which only allows claims against “debt collectors” as defined in the statute.
Alternatively, Defendants contend that since Montoya filed Chapter 7 bankruptcy, he cannot
prosecute this lawsuit as the real party in interest; and the Chapter 7 trustee must be given a
reasonable time to “ratify, join, or be substituted into an action.” Fed. R. Civ. P. 17(a)(3). Since
the Court will grant the Motion on the first basis, the Court will not address the second.
Montoya has failed to plead a legally plausible FDCPA claim.
Congress enacted the FDCPA in 1977 to counter the abusive, deceptive and unfair debt
collection practices sometimes used by debt collectors against consumers. 15 U.S.C. § 1692. The
Act allows an aggrieved party to recover damages, attorney’s fees and costs. 15 U.S.C. §
1692k(a). However, a plaintiff need not show any actual damage to be entitled to statutory
damages up to $1,000 plus costs and attorney’s fees. Id.
Defendants argue that Montoya did not plead facts that would allow an inference that
Defendants are “debt collectors” under the FDCPA. A “debt collector” is defined as,
any person who uses any instrumentality of interstate commerce or the mails in
any business the principal purpose of which is the collection of any debts, or who
regularly collects or attempts to collect, directly or indirectly, debts owed or due
or asserted to be owed or due another.
15 U.S.C. § 1692a(6) (emphasis added). The FDCPA applies to lawyers and law firms that
regularly engage in debt-collection activity, “even when that activity involves litigation[.]”
Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291, 1297 (11th Cir. 2015); see also James v.
Wadas, 724 F.3d 1312, 1316 (10th Cir. 2013) (affirming summary judgment in favor of lawyer
because facts did not show that lawyer regularly engaged in collections actions on behalf of
clients). Both Montoya and Defendants agree that the principal purpose of Defendants’ business
is not debt collection. Thus, to avoid dismissal, Montoya must adequately allege facts to show
that Defendants regularly engage in collections activities for clients. See Heintz v. Jenkins, 514
U.S. 291, 299 (1995) (holding that an attorney regularly engaged in litigation to recover balances
due on defaulted car loans was a “debt collector” under 15 U.S.C. § 1692a(6)).
In the Complaint, Montoya alleges that Defendants were “debt collector[s] as defined by
15 U.S.C. § 1692a(6).” (Compl. ¶¶ 5–6.) Montoya also alleges that during the appeal to the New
Mexico Court of Appeals, Defendants “acted as debt collectors for their client, Dennis
O’Brien” (Compl. ¶ 12.) And, Montoya asserts that “in their capacity as debt collectors,
Defendants filed a Transcript of Judgment with the Clerk of Plaintiff Montoya’s home county”
(Id. ¶ 13); and “in their capacity as debt collectors, Defendants filed garnishment pleadings and
entered into an agreement to accept Seven Thousand Dollars ($7,000.00) in payments from
Plaintiff Montoya toward the aforementioned judgment.” (Id. ¶ 14.)8 These are the only
allegations in the Complaint related to Defendants’ status as debt collectors under the FDCPA.
As Defendants point out, courts have dismissed complaints containing similar conclusory
allegations that defendants were “debt collectors” along with mere recitations of the statutory
definition. For example, in Cook v. Hamrick, the United States District Court in Colorado
dismissed an FDCPA claim against the defendant lawyers because the plaintiff “merely parrot
[ed] the language of § 1692a(6) to assert [defendant] is a ‘debt collector’ within the meaning of
the Act . . . and offer[ed] no factual basis to conclude that [defendant] regularly represent[ed]
creditors in consumer or any other debt collection activities.” 278 F.Supp.2d 1202, 1205 (D.
Colo. 2003) (internal citations omitted). See also Alleyne v. Midland Mortg. Co., No. Civ. A. 05CV-02412 PS, 2006 WL 2860811, at ** 2–3, * 11 (D. Colo. Sept. 12, 2006) (unpublished)
(granting motion to dismiss FDCPA claim because plaintiff failed to provide a factual basis in
the complaint for a finding that law firm “regularly engaged in consumer debt-collection
Montoya further alleges that by refusing to return the $7,000 collected from Montoya and by refusing to remove
the lis pendens filed in Sandoval County, Defendants have violated the FDCPA §§ 1692e, 1692e(2)(A),
1692e(2)(B), 1692e(8), and 1692e(10). (Compl. ¶¶ 28–29.) Section 1692e(2)(A) provides that a debt collector may
not use “false, deceptive, or misleading representation or means in connection with the collection of any debt. . . .
through the false representation of the character, amount, or legal status of any debt.” 15 U.S.C. § 1692e(2)(A).
Subsection (2)(B) prohibits a debt collector from making a false representation of “any services rendered or
compensation which may be lawfully received by any debt collector for the collection of a debt.” 15 U.S.C. §
1692e(2)(B). Subsection (8) prohibits “[c]ommunicating or threatening to communicate to any person credit
information which is known or which should be known to be false, including the failure to communicate that a
disputed debt is disputed.” 15 U.S.C. § 1692e(8). Subsection (10) prohibits “[t]he use of any false representation or
deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.” 15 U.S.C.
litigation on behalf of creditor clients.”). Therefore, quotations from the statutory definition are
insufficient to satisfy the pleading requirement for FDCPA claims. See Bilal v. Chase Manhattan
Mortgage Corp., No. 05 C 7120, 2006 WL 1650008, at *3 (N.D. Ill. June 13, 2006)
(unpublished) (dismissing an FDCPA complaint that simply stated that the defendants were debt
collectors as defined in the statute without any “factual basis that any of the Defendants are debt
collectors as defined by the FDCPA.”).
In addition, specific allegations about debt collection activities in a certain case are
insufficient to meet the pleading standard. As stated by the Fifth Circuit Court of Appeals in
Kaltenbach v. Richards, “[u]nder [15 U.S.C. § 1692a(6)], a party’s general, not specific, debt
collection activities are determinative of whether they meet the statutory definition of a debt
collector. Whether a debt collector’s specific action qualifies as the collection of a debt may or
may not be relevant when determining whether the party must comply with other, specific
substantive requirements of the FDCPA, but that is a separate inquiry from whether the party
meets the general statutory definition of a debt collector.” 464 F.3d 524, 529 (5th Cir. 2006).
Therefore, Montoya’s allegations that Defendants engaged in collection activities in this case
have very limited significance when determining the validity of the FDCPA claim. Id.
In contrast, the Eleventh Circuit Court of Appeals in Reese v. Ellis reversed a decision
dismissing claims by a plaintiff who alleged that, based on public records, a law firm defendant
had sent collection letters to more than 500 people in the previous year. 678 F.3d 1211, 1218
(11th Cir. 2012) (finding that complaint plausibly alleged that law firm was a “debt collector”
under FDCPA). See also Haynes v. McCalla Raymer, LLC, 2013 WL 2452241, at * 3 (N.D. Ga.
June 5, 2013) (finding sufficient allegations to support claim against law firm that advertised
itself as “a leading provider of legal services to the mortgage banking industry” and as a “leader
in the residential mortgage default industry.”); but see Beckles v. Aldridge Connors, LLP, 1:12CV-03377-JEC, 2013 WL 5355481, at *5 (N.D. Ga. Feb. 27, 2013), report and recommendation
adopted sub nom. Beckles v. Aldridge & Connors, LLP, 1:12-CV-3377-JEC-WEJ, 2013 WL
5354240 (N.D. Ga. Sept. 24, 2013) (discussing Reese) (“Although the instant Complaint, like the
one in Reese, alleges that the law firm is engaged in the business of collecting debts, it does not
make any additional allegations showing regular debt collection by [the law firm].”).
In the Complaint, Montoya alleges no facts from which the Court could reasonably infer
that Defendants regularly attempt to collect debts on behalf of clients other than O’Brien.
Therefore, under the plain language of § 1692a(6) and the case law, the Court will dismiss the
Montoya’s Proposed Amended Complaint would be subject to dismissal.
In his Response, Montoya asks in the alternative that the Court allow him to file a
proposed First Amended Complaint (Amended Complaint) attached to the Response as Exhibit
A. In the Amended Complaint, Montoya adds no facts, but repeats and expands quotations of the
statutory language. Montoya alleges that “[u]pon information and belief, Defendant O’Friel
‘regularly attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or
due to another.’ 15 U.S.C. § 1692a(6).” (Am. Compl. ¶ 6.) Montoya further alleges that “[u]pon
information and belief, Defendant O’Friel’s collections activities include filing wage
garnishment actions and filing Transcripts of Judgment with various County Clerks in the State
of New Mexico.” (Id. ¶ 7.) In the Amended Complaint, Montoya uses the same language to
allege that Defendant O’Friel & Levy ‘“regularly attempts to collect, directly or indirectly, debts
owed or due or asserted to be owed or due to another.’ 15 U.S.C. § 1692a(6).” (Id. ¶ 9.) And,
Montoya asserts that Defendant O’Friel & Levy’s “collections activities include filing wage
garnishment actions and filing Transcripts of Judgment with various County Clerks in the State
of New Mexico.” (Id. ¶ 10.)
Without specific factual support, these allegations, based on information and belief, are
insufficient to avoid dismissal of his FDCPA claim. See Beepot v. J.P. Morgan Chase National
Corporate Services, Inc., 57 F.Supp.3d 1358, 1375–76 (M.D. Fla. 2015) (dismissing FDCPA
claim against lawyers because plaintiffs asserted in a conclusory manner that “on information
and belief” Chase National was a debt collector within the meaning of the statute because it
“regularly collects debt owed to another person.”). See also Barber v. Lublin, No. 1:13-CV-975TWT, 2013 WL 6795158, * 9 (N.D. Ga. Dec. 20, 2013) (unpublished) (stating that merely
quoting the statutory definition of debt collector was insufficient to state an FDCPA claim
because “[s]uch an assertion is not only void of factual content but also a legal conclusion that
the Court cannot consider.”). In sum, Montoya’s Complaint and Amended Complaint fail to
plead specific facts that allow the Court to infer that Defendants are “debt collectors” within the
meaning of the FDCPA. Hence, the Complaint will be dismissed without leave to amend. See
Foman v. Davis, 371 U.S. 178, 182 (1962) (holding that leave to amend complaint may be
denied when amendment would be futile because amended complaint would be subject to
dismissal); Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007) (stating that a district may
deny leave to amend a complaint if it would be futile and that a proposed amendment is futile if
subject to dismissal).
IT IS ORDERED that the DEFENDANTS’ MOTION TO DISMISS (Doc. No. 9) is
granted, and the COMPLAINT FOR VIOLATION OF THE FAIR DEBT COLLECTION
PRACTICES ACT (Doc. No. 1) will be dismissed with prejudice.
SENIOR UNITED STATES DISTRICT JUDGE
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