Prephan v. NCO Financial Systems, Inc. et al

Filing 19

MEMORANDUM OPINION granting in part and denying in part Motion to dismiss case. (Related Doc # 6 ). Judge David A. Katz on 6/29/11.(G,C)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

PATRICIA A. PREPHAN,
Plaintiff,

Case No. 3:11 CV 434

-vsMEMORANDUM OPINION
NCO FINANCIAL SYSTEMS, INC., et al.,
Defendant.
KATZ, J.
This matter is before the Court on the motion of defendant Chase Bank (“Chase”) to
dismiss the claims against it (Doc. 6). The motion will be granted in part and denied in part as set
forth below.
I. Standard of Review
Fed.R.Civ.P. 12(b)(6) provides for dismissal of a lawsuit for “failure to state a claim upon
which relief can be granted.” Courts must accept as true all of the factual allegations contained in
the complaint when ruling on a motion to dismiss. Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Thurman v. Pfizer, Inc., 484 F.3d 855, 859 (6th Cir. 2007). To survive a motion to dismiss under
Rule 12(b)(6), “even though a complaint need not contain ‘detailed’ factual allegations, its ‘factual
allegations must be enough to raise a right to relief above the speculative level on the assumption
that all the allegations in the complaint are true.’” Ass’n of Cleveland Fire Fighters v. City of
Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)).

Conclusory allegations or legal conclusions masquerading as factual allegations will not
suffice. Twombly, 550 U.S. at 555 (stating that the complaint must contain something more than
“a formulaic recitation of the elements of a cause of action”). A complaint must state sufficient

facts to, when accepted as true, state a claim “that is plausible on its face.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009) (explaining that the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully” and requires the complaint to allow the court to
draw the reasonable inference that the defendant is liable for the alleged misconduct).
In conjunction with this standard, the Court is cognizant that Fed. R. Civ. P. 8(a)(2)
“requires only ‘a short and plain statement of the claim showing that the pleader is entitled to
relief.’ Specific facts are not necessary; the statement need only ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. at 93
(citing Twombly, 550 U.S. at 555); see also Sensations, Inc. v. City of Grand Rapids, 526 F.3d
291, 295-96 (6th Cir 2008). The Court “may consider the Complaint and any exhibits attached
thereto, public records, items appearing in the record of the case and exhibits attached to
defendant's motion to dismiss so long as they are referred to in the Complaint and are central to
the claims contained therein.” Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th
Cir. 2008).
II. Discussion
Plaintiff asserts three claims against Chase: violation of the Fair Debt Collection Practices
Act (FDCPA), 15 U.S.C. § 1682f; unfair or deceptive trade practices under Ohio Rev. Code

1345.01, the Ohio Consumer Sales Practices Act (OCSPA); and intentional infliction of emotional
distress. Chase contends that the Complaint fails to state a claim for violation of the FDCPA
because Chase is a creditor and thus not a “debt collector” within the meaning of the statute. See
Bridge v. Ocwen Federal Bank, 669 F.Supp.2d 853, 857 (N.D. Ohio 2009) (“[T]he [FDCPA] is
directed solely to the conduct of debt collectors, not creditors”). In her opposition brief (Doc. 17),

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Plaintiff does not address this argument. Therefore, Plaintiff’s claim against Chase for violation
of the FDCPA is dismissed with prejudice.
Chase also contends that Plaintiff has failed to state a claim for unfair or deceptive trade
practices under the OCSPA, because it qualifies as a “financial institution” within the meaning of
R.C. 5725.01(A)(1) and thus is exempt from the OCSPA pursuant to R.C. 1345.01(A). See Blon
v. Bank One, N.A., 35 Ohio St.3d 98, 100 n.3 (1988) (“[B]ecause Bank One is a financial
institution under R.C. 5725.01(A), the transaction at issue is excepted from application of . . . the
Ohio Consumer Sales Practices Act by R.C. 1345.01(A).”). Plaintiff also does not address this
argument in her opposition brief. Thus, Plaintiff’s claim against Chase for unfair or deceptive
trade practices is dismissed with prejudice.
Plaintiff’s final claim against Chase is for intentional infliction of emotional distress
(IIED) under Ohio common law. In the Complaint, Plaintiff alleges that the Defendants began
contacting her in 2009 “regarding a disputed debt allegedly owned [sic] to Defendant Palisades,
acting on behalf of Defendant Chase Bank.” The Complaint goes on to allege that Plaintiff’s
employer sent a letter advising Defendants that the debt was disputed, and asking Defendants to
provide the name and address of the original creditor. But, instead of complying with the request,
“Defendants have persisted in calling Plaintiff repeatedly, and on a daily basis, at her place of
employment and her home, despite repeated requests that they cease and desist.”
Chase contends that the IIED claim must be dismissed because the factual allegations of
the Complaint are insufficiently detailed to state a plausible claim. Under Ohio law, the elements
of IIED are: (1) the defendant either intended to cause emotional distress or knew or should have
known that the actions taken would result in serious emotional distress to the plaintiff; (2) the

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defendant’s conduct was so extreme and outrageous as to go “beyond all possible bounds of
decency,” such that it can be considered “utterly intolerable in a civilized community”; (3) the
defendant’s actions were the proximate cause of the plaintiff’s mental anguish; and (4) the mental
anguish suffered by the plaintiff was serious and of a nature that no reasonable person could be
expected to endure. Tschantz v. Ferguson, 97 Ohio App.3d 693, 702 (1994).
Upon review, the Court finds that the factual allegations of the Complaint, and inferences
therefrom, are sufficient to state a plausible IIED claim. See Twombly, 550 U.S. 544, 570 (
Refusing to “require heightened fact pleading of specifics”).
III. Conclusion
For the foregoing reasons, Defendant Chase Bank’s motion to dismiss (Doc. 6) is granted
as to the Fair Debt Collection Practices Act and Ohio Consumer Sales Practices Act claims and
denied as to the intentional infliction of emotional distress claim.
IT IS SO ORDERED.
s/ David A. Katz
DAVID A. KATZ
U. S. DISTRICT JUDGE

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