Shipley v. Buffaloe & Associates, PLC et al

Filing 29

ORDER granting 8 the Motion for Partial Dismissal filed by Defendant Buffaloe & Associates, PLC; all of the Plaintiff's claims against Buffaloe under the Truth in Lending Act, 15 U.S.C. § 1601 et seq. are DISMISSED; and the Plaintiff's claim set forth in paragraph 43 of the Complaint that the Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq., by failing to comply with TILA is DISMISSED. Signed by District Judge Karen K Caldwell on August 21, 2013. (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
DENISE E. SHIPLEY,
Plaintiff,
v.
BUFFALOE & ASSOCIATES, PLC
and
CAPITAL ONE BANK (USA), N.A.
Defendants

)
)
) CASE NO. 3:12-450
)
)
) ORDER
)
)

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This matter is before the Court on the Motion for Partial Dismissal (DE 8) filed by the
Defendant Buffaloe & Associates, PLC. For the following reasons, the Court will GRANT the
motion.
With her Complaint, the Plaintiff alleges that the Defendant Capital One Bank (USA),
N.A. issued a credit card to her and that she incurred debt on the card. (DE 1, Complaint, ¶ 7.)
She concedes that she defaulted on the debt. (DE 1, Complaint, ¶ 7.) She alleges that Buffaloe
is a debt collector (DE 1, Complaint, ¶ 5) and that, after she defaulted on the debt, Capital One
sold the debt to Buffaloe for collection. (DE 1, Complaint, ¶ 8.) She alleges that, on October 3,
2011, Buffalo and Capital One filed a collection action against her in state court.
She alleges that, with these actions, the Defendants violated various provisions of the Fair
Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. and the Truth in Lending Act, 15
U.S.C. §§ 1601 et seq.
The Plaintiff asserts that Buffaloe violated the following nine provisions of the FDCPA:
15 U.S.C. §§ 1692e, 1692e(2)(A), 1692e(2)(B), 1692e(8), 1692e(10), 1692e(11), 1692f,
1692f(1), and 1692i(a)(2). The Plaintiff’s FCDPA claims are largely based on her allegations

that the Defendants misrepresented the amount of her debt in the state-court complaint and
summons and that Buffaloe failed to disclose in the complaint or summons that it was a debt
collector.
The Plaintiff also alleges that both Defendants violated the following 11 provisions of
TILA: 15 U .S.C. §§ 1637(b)(4), 1637(b)(5), 1637(b)(6), 1637(b)(7), 1637(b)(8), 1637(b)(9),
1637(b)(10), 1637(b)(11)(A), 1637(b)(11)(B), 1637(b)(12)(A), and 1637(b)(12)(B). The
Plaintiff’s TILA claims are largely based on her allegations that Buffalo and Capital One failed
to send her a periodic statement in the months of August 2011 and September 2011.
With its Motion for Partial Dismissal (DE 8), Buffaloe moves the Court to dismiss all of
the TILA claims against it, arguing that it is not a “creditor” or a creditor’s “agent” for purposes
of TILA and that only creditors and their agents are required to send periodic statements under
the Act. Buffaloe also moves to dismiss the FDCPA claims contained in paragraph 43 of the
Complaint because they are predicated on the TILA violations.
The Plaintiff has not responded to Buffaloe’s Motion for Partial Dismissal. Further, the
Court agrees with the analysis in the motion. Accordingly, the Court hereby ORDERS as
follows:
1) the Motion for Partial Dismissal filed by Defendant Buffaloe & Associates, PLC (DE
8) is GRANTED;
2)

all of the Plaintiff’s claims against Buffaloe under the Truth in Lending Act, 15

U.S.C. § 1601 et seq. are DISMISSED; and

2

3)

the Plaintiff’s claim set forth in paragraph 43 of the Complaint that the

Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq., by failing
to comply with TILA is DISMISSED.
Dated this 21st day of August, 2013.

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