CRISP V. ALLIED INTERSTATE COLLECTION AGENCY, ET AL.

Filing 55

MEMORANDUM ORDER signed by JUDGE THOMAS D. SCHROEDER on 02/29/2016; that Portfolio's motion for judgment on the pleadings (Doc. 32 ) is GRANTED and Crisp's claim against Portfolio (Count III) is DISMISSED WITHOUT PREJUDICE. FURTHER ORDER ED that Collecto's motion for judgment on the pleadings (Doc. 25 ) is GRANTED and Crisp's claim against Collecto (Count IV) is DISMISSED WITHOUT PREJUDICE. FURTHER ORDERED that Online's motion for judgment on the pleadings (Doc. 37 ) is GRANTED and Crisp's claim against Online (Count V) is DISMISSED WITHOUT PREJUDICE. As noted, in light of Crisp's pro se status, these claims are being dismissed without prejudice in the event Crisp could allege legally-sufficient claims, as set out herein. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LUSTER JAMES CRISP,
Plaintiff,
v.
ALLIED INTERSTATE COLLECTION
AGENCY; PORTFOLIO RECOVERY
ASSOCIATES, LLC d/b/a PRA,
LLC; COLLECTO INC. d/b/a EOS
CCA; and ONLINE COLLECTIONS
SERVICES,
Defendants.

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1:15cv303

MEMORANDUM ORDER
THOMAS D. SCHROEDER, District Judge.
Using what is facially apparent to be a boilerplate complaint
from a wholly different legal action in Ohio, Plaintiff Luster
James Crisp brings claims under the Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq.

Before the court are

motions for judgment on the pleadings by Defendants Portfolio
Recovery Associates, LLC (“Portfolio”) (Doc. 32), Collecto, Inc.
(“Collecto”) (Doc. 25), and Online Information Services (“Online”)
(Doc. 37).

Crisp has filed responses to Collecto’s and Online’s

motions (Docs. 30, 42) but has not responded to Portfolio’s motion.
For the reasons set forth below, the motions will be granted, and
all

claims

against

Portfolio,

Collecto,

and

Online

will

be

dismissed.1
I.

BACKGROUND
The complaint is organized as a series of counts, each

directed at a different Defendant and containing its own “Plain
Statement” of allegations.

(See Doc. 2.)

The allegations in the

claims against Portfolio (Count III), Collecto (Count IV), and
Online (Count V) are identical, except for a single sentence
identified below.

Rather than attempt to parse the complaint’s

factual allegations from its numerous legal conclusions, the court
will reproduce the “Plain Statement” portion of the relevant claims
in their entirety:
The defendant sent written communication to the
plaintiff claiming to be the creditor of the plaintiff
and demanding money in exchange for not suing the
plaintiff. The defendant mailed a series of written
communications to the plaintiff with the same message,
each of which appear [sic] to have been calculated to
coerce
the
plaintiff
into
providing
financial
disclosures and money in exchange for the promise of not
suing him or garnishing his wages.
The plaintiff responded each time with a notice of
dispute and demanding [sic] that the defendant's claims
be
validated
with
some
record
or
information
demonstrating that the defendant had the legal right to
obtain and use the plaintiff's personal information and
to collect the purported debt.
The defendant failed to answer these requests or
respond.
The defendant threatened to report unpaid amounts
1

The complaint also asserts claims against Defendant Allied Interstate
Collection Agency (“Allied”).
Allied initially filed (Doc. 23) but
subsequently withdrew (Doc. 41) a motion to dismiss the claims against
it.

2

to a third party debt collector, namely the Internal
Revenue Service, for the purpose of subjecting the
plaintiff to taxes on amounts of money falsely claimed
and reported by the defendant.
The defendant made false representations that it
had the rights [sic] to contact the plaintiff under
certain credit agreements, but when asked for validation
or verification, no response was given.
The defendant has falsely represent [sic] the
amount alleged to be owed by the plaintiff or the amount
of compensation the defendant will receive. The
plaintiff has requested that the defendant disclose its
interests.
The
defendant
requested
certain
financial
disclosures from the plaintiff claiming that the
disclosures would persuade the defendant to cease its
collection actions provided that money was paid by the
plaintiff to the defendant or its privies.
The defendant did not have the typical credit
information of the plaintiff, such as a social security
number, or date of birth or other banking information
that a creditor would normally be expected to have
already
obtained
before
a
debt
obligation
was
established.
The defendant has used a false or fictitious name
in the undertaking of its collection actions. The
plaintiff has reason to believe that a group of
individuals are using the corporate name of the
defendant to conceal their efforts and illegal actions
in order to escape liability when exposed. The defendant
has used a name other than the true name of its business,
company or organization.
After several written requests, the defendant has
refused to identify its owners, principals or interests
it claims to have against the plaintiff. Instead of
making
these
disclosures,
defendant
has
falsely
represented that it does have certain legal rights to
collect money from the plaintiff if plaintiff fails or
refuses to provide more credit, banking, financial,
personal and other identifying information along with
agreeing to making [sic] regular payments of money to
3

the defendant or its privies.
The defendant failed or refused to provide an
accounting of its claim showing any unpaid balance and
instead simply demanded money in exchange for not
collecting and has only provided copies of records that
could have been obtained from the plaintiff's credit
file, trash or other records held for the plaintiff by
other third parties.
The defendant has falsely represented the name of
the creditor to whom it alleges the debt is owed.
The defendant has threatened to undertake a
collection action against the plaintiff when it has no
such rights [sic] to do so.
The defendant falsely represented that if the
plaintiff failed or refused to cooperate by providing
financial,
banking,
credit,
personal
and
other
identifying information along with money, that it would
sue the plaintiff for money and damage his good name and
reputation and cause him to incur unnecessary legal
expenses in defending himself.
The defendant delivered to the plaintiff written
communications that were made to look like or falsely
represent documents authorized, issued, or approved by
a court, official, or agency of the United States or the
state, by using words that would give a false impression
of the document's source, authorization, or approval.
The defendant has falsely represented that the
plaintiff's credit accounts were sold to innocent
purchases [sic] for value. The defendant claims to be
representing creditors, whether or not they are
creditors of the plaintiff, these claims have never been
verified as requested by the plaintiff.
The Defendant failed to provide the Plaintiff with
validation of debt within five business days of
contacting him.
The defendant has somehow acquired the personal and
banking information of each of the plaintiff and has
used that information for their own personal gain and

4

benefit without any permissible purpose.2
(Doc. 2 at 6–8.)3
II.

ANALYSIS
A.

Failure to Properly Respond to Defendants’ Motions

As an initial matter, the court must note that Crisp failed
to properly respond to Defendants’ motions for judgment on the
pleadings.
The court issued Crisp a “Roseboro” letter for each of
Defendants’ motions (Docs. 28, 35, 40), which informed him of his
right to respond to the motions and the deadlines for doing so,
instructed him that any response should contain his reasons for
opposing the motion and citations to supporting authorities, and
warned him that, if he failed to properly respond, “it is likely
your case will be dismissed or judgment granted in favor of the
defendants.” (Id.) Despite these clear instructions and warnings,
Crisp failed to respond at all to Portfolio’s motion. When a party
fails to timely respond to a motion, “the motion will be considered
and decided as an uncontested motion, and ordinarily will be
granted without further notice.”

M.D.N.C. LR 7.3(k).

This court

2

This final sentence appears twice in Count III against Portfolio (Doc.
2 at 8), once in Count V against Online (id. at 14), and is missing
entirely from Count IV against Collecto (id. at 11).
3

For the sake of simplicity, this and all other citations to the
complaint will refer to the page numbers associated with Count III.

5

has strictly enforced Local Rule 7.3(k),4 and Crisp’s failure to
respond to Portfolio’s motion weighs in favor of dismissal.
And although Crisp filed responses to the motions by Collecto
and Online, his filings contain only conclusory assertions that
the complaint is sufficient along with promises to disclose the
factual basis for his claims “in the plaintiff’s ‘Rule 26(a)’
disclosure statement and subsequent discovery efforts.”
at 1; Doc. 42 at 1.)

(Doc. 30

Crisp fails to cite any fact to support his

claims and does not address the contentions and arguments raised
by Defendants.

His responses fail to comply with Local Rule

7.2(a), which requires response briefs to contain, at a minimum,
a concise statement of the facts (supported by reference to the
official record in the case) and legal argument (supported by
statutes,

rules,

or

other

authorities).

Crisp

cannot

avoid

dismissal by promising to disclose the basis for his claims during
discovery.
These failures provide grounds for dismissal, but the court
need not rely solely on Crisp’s deficiencies in responding because,
as noted below, his complaint otherwise fails to state a claim
upon which relief can be granted.

4

Crisp’s complaint and response briefs also fail to comply with other
local rules, particularly with regard to the formatting of documents
filed with the court. All parties, whether pro se or not, are required
to follow all of the pertinent rules, including Local Rule 7.1, before
filing any document with the court.

6

B.

Failure to State a Claim

Portfolio, Collecto, and Online move for judgment on the
pleadings under Rule 12(c) of the Federal Rules of Civil Procedure.
The standard of review is the same as that employed on motions to
dismiss under Rule 12(b)(6).
470, 474 (4th Cir. 2014).

Drager v. PLIVA USA, Inc., 741 F.3d
To survive dismissal, therefore, “a

complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is 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.”

Id.

A claim is not plausible, however,

when it contains only “‘naked assertion[s]’ devoid of ‘further
factual enhancement.’”

Id.

“Threadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do
not suffice.”

Id.

When reviewing a motion for judgment on the pleadings, the
court must accept all well-pleaded allegations in the complaint as
true and draw all reasonable factual inferences in the plaintiff’s
favor.

Massey v. Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014).

Legal conclusions are not entitled to the presumption of truth,
however.

Iqbal, 556 U.S. at 678.

The court is also not “obliged

to accept allegations that ‘represent unwarranted inferences,
7

unreasonable

conclusions,

or

arguments,’

or

that

‘contradict

matters properly subject to judicial notice or by exhibit.’”
Massey, 759 F.3d at 353 (quoting Blankenship v. Manchin, 471 F.3d
523, 529 (4th Cir. 2006)).
Crisp is proceeding pro se.
some

consideration

of

his

A pro se litigant is entitled to

non-lawyer

construes his pleadings liberally.

status,

and

the

court

See Valentine v. Potter, No.

1:09-CV-880, 2013 WL 1320474, at *2 (M.D.N.C. Mar. 20, 2013)
(citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
such

liberal

requirement

construction

that

conclusions.”

a

does

pleading

not

contain

“undermine
more

than

However,
Twombly’s

labels

and

Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th

Cir. 2008) (citations omitted).
Here, Crisp’s complaint consists of boilerplate accusations
that appear to have been copied wholesale from a different legal
action

in

Statement”

Ohio.

sections

communications
Defendants.

The

between

accusations
do

not

the

in

the

allege

parties

or

complaint’s

specific
even

“Plain

events

name

or

specific

In the absence of any specific factual allegation

about the Defendants or their conduct, the court cannot draw a
reasonable inference that the any Defendant is liable under the
FDCPA.

And although it is possible to imagine factual allegations

that are not inconsistent with the assertions and conclusions in
the complaint, the court cannot “shoulder the full burden of
8

fashioning a viable complaint for a pro se plaintiff.”

Simon v.

Shawnee Corr. Ctr., No.13-521-GPM, 2013 WL 3463595, at *1 (S.D.
Ill. July 9, 2013).
In short, the complaint tenders only “‘naked assertion[s]
devoid of ‘further factual enhancement.’”
(quoting Twombly, 550 U.S. at 557).

Iqbal, 556 U.S. at 678

Even construed liberally, and

in the absence of specific factual allegations regarding the
Defendants’ conduct, it fails to state a claim.

Accordingly, the

motion for judgment on the pleadings by Portfolio, Collecto, and
Online should be granted.
C.

Other Problems with Crisp’s Claims

Because the complaint lacks any factual detail, the court
cannot rule out the possibility that Crisp might have the potential
of stating a claim.

Under these circumstances, dismissal is

ordinarily without prejudice.

But because the documents properly

before the court5 cast serious doubt on Crisp’s claims and Crisp
is appearing pro se, the court is obliged to point out several
deficiencies that are apparent in the pleadings, as amplified by
their attachments.

5

In adjudicating a motion under Rule 12(c), the court may consider the
complaint, the answer, and any documents incorporated by reference into
these pleadings. Mendenhall v. Hanesbrands, Inc., 856 F. Supp. 2d 717,
724 (M.D.N.C. 2012). The court may also consider documents attached to
dispositive motions so long as these documents are “integral to the
complaint and authentic.”
See Sec’y of State for Defence v. Trimble
Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007) (motion to dismiss
for failure to state a claim); see also Massey, 759 F.3d at 353 (motion
for judgment on the pleadings).

9

First,

documents

before

the

court

indicate

that

the

Defendants did not violate the four specific FDCPA provisions cited
in the complaint.

(Doc. 2 at 8.)

The first two provisions

generally prohibit debt collectors from threatening to arrest the
debtor, garnish his wages, or take any other action which cannot
legally be taken.

See 15 U.S.C. §§ 1692e(4), 1692e(5).

The third

provision generally requires debt collectors to disclose certain
information about the original creditor, the debt, and the debtor’s
rights.

See

id.

§ 1692g(a).

The

final

provision

provides

generally that, if a debtor takes certain steps to dispute the
validity of the debt, the debt collector must cease all debt
collection activities until the debt is verified by the original
creditor and this information is shared with the debtor.

See id.

§ 1692g(b).
As noted above, the boilerplate accusations in the complaint
do

not

contain

allegations.

material

that

can

be

understood

as

factual

Construed liberally, the conclusory allegations

charge at best the following relevant conduct: (1) the Defendants
threatened to report Crisp’s unpaid debts to the IRS (Doc. 2 at
10); (2) the Defendants threatened to file frivolous legal actions
for the purpose of damaging Crisp’s reputation and forcing him to
incur “unnecessary legal expenses” (id. at 11); and (3) the
Defendants continued their attempts to collect the debts without
responding to Crisp’s demands for validation (see id. at 10–11).
10

The documents before the court contradict these allegations.
As part of their motions for judgment on the pleadings, Portfolio,
Collecto, and Online submitted records of their communications
with Crisp.
8.)6

(See Doc. 27 ¶¶ 3–6; Doc. 34 at 1–2; Doc. 39 ¶¶ 3–

None of these documents threatens to report Crisp to the IRS

or file litigation for an improper purpose.

(See Doc. 27-1; Doc.

34 at 4–5, 10–19, 24–41; Doc. 39-1; Doc. 39-3; 39-5.) In addition,
the initial communication from each Defendant contains all of the
information required by Section 1692g(a).
Doc. 34 at 4; Doc. 39-1 at 2.)

(See Doc. 27-1 at 2–3;

Finally, after Crisp disputed the

debts, each Defendant complied with Section 1692g(b) by either
providing validation of the disputed debt (see Doc. 34 at 10–18;
Doc. 39–3 at 2–4) or, in Collecto’s case, ceasing collection
attempts altogether (see Doc. 27 ¶¶ 3–6).

Thus, absent a dispute

about the validity of these documents or allegations that the
Defendants are omitting other communications with Crisp, there is

6

The court may consider such documents without converting the motion
into one for summary judgment where they are integral to the allegations
of the complaint and their authenticity is not disputed. See Sec’y of
State for Defence, 484 F.3d 700 at 705; see also Massey, 759 F.3d at
353.
In response to Online’s motion, Crisp claims that the “written
communications that have given rise to the complaint will be disclosed
in the plaintiff’s ‘Rule 26(a)’ disclosure statement and subsequent
discovery efforts.” (Doc. 42 at 1.) Crisp also submitted an affidavit
in response to Collecto’s motion claiming that copies of Collecto’s
collection notices were attached as exhibits to the complaint. (Doc.
30 at 3.) The complaint does not contain any attachments, however, and
Crisp’s other filings do not contain collection notices. In any event,
Crisp does not directly dispute the authenticity of the documents
submitted by Portfolio, Collecto, or Online, and he failed to respond
to Portfolio’s motion entirely.

11

no basis for believing that the Defendants violated the FDCPA
provisions cited in the complaint.
Second, the complaint fails to establish that Crisp’s debts
are covered by the FDCPA.

The FDCPA is intended “to protect

consumers against debt collection abuses.”

15 U.S.C. § 1692(e).

Consequently, it defines a “debt” as an “obligation or alleged
obligation of a consumer to pay money arising out of a transaction
in which the money, property, insurance, or services which are the
subject of the transaction are primarily for personal, family, or
household purposes.”

Id. § 1692(a)(5).

this definition is “sparse.”
F.3d 86, 88 (1994).

Case law interpreting

Mabe v. G.C. Servs. Ltd. P’ship, 32

Nevertheless, the Fourth Circuit has held

that a plaintiff’s child support obligations were not debts for
FDCPA purposes “because they were not incurred to receive consumer
goods or services.”

See id.; see also Smith v. EVB, 438 F. App’x

176, 179 (4th Cir. 2011) (holding that a loan qualified as a “debt”
when it was “personal in nature,” rather than for “commercial”
use). Here, the complaint contains no factual allegation to permit
the court to draw an inference that Portfolio, Collecto, or Online
attempted

to

collect

obligations

arising

from

money

loaned

primarily for personal, family, or household purposes (e.g., no
factual information about the underlying transaction(s), Crisp’s
original purpose in entering them, the uses to which he put the
money, or the entities from whom he borrowed).
12

Third, it appears that any claim Crisp may have had against
Collecto is barred by the FDCPA’s one-year statute of limitations.
15 U.S.C. § 1692k(d); Olson v. Midland Funding, LLC, 578 F. App’x
248,

250

(4th

Cir.

2014).

A

statute

of

limitations

is

an

affirmative defense that, while not ordinarily considered at the
pleadings stage, is an appropriate basis for decision where the
face of the complaint, in connection with properly considered
documents referenced therein, reveal its merit.

See Brooks v.

City of Winston—Salem, N.C., 85 F.3d 178, 181 (4th Cir.1996); West
v. ITT Continental Baking Co., 683 F.2d 845, 845–46 (4th Cir.
1982).

Here, there is no indication that Collecto had any contact

with Crisp after March 22, 2014, the date Collecto received Crisp’s
letter demanding validation of the debt.
27-2 at 2.)

(See Doc. 27 ¶ 5–6; Doc.

The complaint is dated March 31, 2015, and was filed

on April 8, 2015.

(Doc. 2 at 1, 19.)

If this is accurate, any

claim Crisp may have had against Collecto based on communications
that occurred prior to April 8, 2014, would be time-barred.
III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED that Portfolio’s motion for judgment
on the pleadings (Doc. 32) is GRANTED and Crisp’s claim against
Portfolio (Count III) is DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Collecto’s motion for judgment on
the pleadings (Doc. 25) is GRANTED and Crisp’s claim against
13

Collecto (Count IV) is DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Online’s motion for judgment on
the pleadings (Doc. 37) is GRANTED and Crisp’s claim against Online
(Count V) is DISMISSED WITHOUT PREJUDICE.
As noted, in light of Crisp’s pro se status, these claims are
being dismissed without prejudice in the event Crisp could allege
legally-sufficient claims.

The court expresses no opinion as the

viability of any such claim, but at a minimum any amended complaint
must address the deficiencies discussed in this Memorandum Order.
And while the court considers Crisp’s non-lawyer status, he is
cautioned that he must still abide by the legal standards, rules
of procedure, and deadlines applicable to all litigants.

See

Alston v. Becton, Dickinson & Co., No. 1:12cv452, 2014 WL 338804,
at *3 (M.D.N.C. Jan. 30, 2014).

This includes Rule 11 of the

Federal Rules of Civil Procedure, which provides that those who
sign

and

file

representing

materials

that

“the

with

the

claims,

court

are,

defenses,

and

by

doing

other

so,

legal

contentions are warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing existing law or
for establishing new law,” and that “the factual contentions have
evidentiary support or, if specifically so identified, will likely
have

evidentiary

support

after

a

further investigation or discovery.”

reasonable

opportunity

Fed. R. Civ. P. 11(b).

for
A

violation of Rule 11 is subject to sanctions, and “pro se litigants
14

are

subject

misconduct.”

to

any

or

all

appropriate

sanctions

for

their

Zaczek v. Fauquier Cty., Va., 764 F. Supp. 1071,

1077 (E.D. Va. 1991).
frivolous

and

This includes pro se litigants who file

repetitive

lawsuits.

See

id.

at

1077

n.21.

Therefore, Crisp is cautioned that he cannot rely on a boilerplate
complaint that does not support and address the specific facts and
legal theories of his situation.

/s/
Thomas D. Schroeder
United States District Judge
February 29, 2016

15