Whatley, III v. AHF Financial Services, LLC et al

Filing 79

ORDER adopting 45 Report and Recommendation. Ordered that Defendant's X-Ray Associates of New Mexico PC's 30 motion for judgment on the pleadings be granted in part and denied in part. Plaintiff's FDCPA claim against X-Ray is dismissed. All other claims shall remain at this time. Signed by Judge Ron Clark on 11/11/2012. (bjc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
THOMAS E. WHATLEY, III.,
Plaintiff,
V.
AHF FINANCIAL SERVICES, LLC,
ALPHINE H. FREEMAN III, and
X-RAY ASSOCIATES OF NEW
MEXICO, P.C.,
Defendants.

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CASE NO. 4:11-CV-488
Judge Clark/Judge Mazzant

ORDER ADOPTING REPORT AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action, this
matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C.
§ 636. On September 17, 2012, the report of the Magistrate Judge was entered containing proposed
findings of fact and recommendations that Defendant X-Ray Associates of New Mexico, P.C.’s
Motion for Judgment on the Pleadings [Doc. #30] be granted in part and denied in part.
On October 1, 2012, defendant X-Ray Associates of New Mexico, P.C. (“X-Ray”), filed
objections [Doc. #50]. X-Ray only objects to the failure to dismiss plaintiff’s claim under the Texas
Debt Collection Act (“TDCA”). X-Ray does not object to the dismissal of plaintiff’s Fair Debt
Collection Practices Act (“FDCPA”) claim. Plaintiff filed a response [Doc. #71].
X-Ray agrees with the Magistrate Judge’s recommendation of dismissal of plaintiff’s FDCPA
claim against X-Ray, because X-Ray, as a creditor, is not a debt collector under the FDCPA. The
Magistrate Judge also found that X-Ray could not be held vicariously liable under the FDCPA for
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the actions of defendant AHF Financial Services, LLC (“AHF”). In its objections, X-Ray generally
objects, asserting that the same logic the Magistrate Judge applied to the FDCPA claim should be
applied to the TDCA claim. The Magistrate Judge addressed this claim and found that the TDCA
definition of debt collector is broader than the definition of debt collector in the FDCPA, which
includes anyone that “indirectly engages in debt collection.” X-Ray cites no authority supporting
its notion that the TDCA would not allow such a claim. Furthermore, the Magistrate Judge was
correct in denying this motion at this stage of the proceedings.
Having received the report of the United States Magistrate Judge, and considering the
objections thereto filed by defendant [Doc. #50], this court is of the opinion that the findings and
conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge’s report as the
findings and conclusions of the court.
It is, therefore, ORDERED that Defendant’s X-Ray Associates of New Mexico, P.C.’s
Motion for Judgment on the Pleadings [Doc. #30] be granted in part and denied in part. Plaintiff’s
FDCPA claim against X-Ray is DISMISSED. All other claims shall remain at this time.

So ORDERED and SIGNED this 11 day of November, 2012.

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Ron Clark, United States District Judge

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