Smith v. Conn Credit Corporation, Inc.
Filing
13
MEMORANDUM OPINION AND ORDER denying 6 MOTION to Dismiss 1 Complaint (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BARBARA SMITH
I
Plaintiff,
v.
CONN CREDIT CORPORATION, INC.,
Defendant.
§
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§
§
§
§
§
ENTERED
April 05, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-3572
MEMORANDUM OPINION AND ORDER
Plaintiff Barbara Smith has sued Conn Credit Corporation, Inc.
("Conn Credit" or "Defendant")
Collection Act
for violations of the Texas Debt
( "TDCA") , 1 the Fair Debt Collection Practices Act
( "FDCPA") , 2 and the Telephone Consumer Protection Act
( "TCPA") . 3
Pending before the court is Defendant Conn Credit Corporation,
Inc.'s FRCP 12(b) (6) Motion to Dismiss Plaintiff Barbara Smith's
Verified Complaint ("Motion to Dismiss")
(Docket Entry No. 6) .
For
the reasons explained below, Defendant's Motion to Dismiss will be
denied.
I.
Plaintiff,
Factual Alleqations 4
Barbara Smith alleges that Defendant called her
cellular telephone 133 times from June 13, 2016, to July 10, 2016,
1
Tex. Fin. Code Ann.§ 392.304(a)
2
15 U.S.C. § 1692, et seq.
3
47
4
u.s.c.
(West).
§ 227.
See Plaintiff Barbara Smith's Verified Complaint ("Plaintiff's Complaint") , Factual Allegations, Docket Entry No. 1,
pp. 2-5.
in an attempt to collect a debt related to a
Conn's Home Plus
account. 5
At least some of the calls were made by an automatic
telephone
dialing
system
or
resulted
in
featuring an artificial or prerecorded voice.
voice-mail
messages
Plaintiff revoked,
both verbally and via facsimile, any prior express consent to be
contacted by Defendant.
She also advised Defendant that she was
represented by counsel and requested that any communication be
directed to her attorney.
Plaintiff alleges that the calls were
made for the purpose of harassment and not for any lawful purpose.
Defendant argues that Plaintiff has sued the wrong party and moves
to dismiss Plaintiff's Complaint for failure to state a claim upon
which relief may be granted.
II.
A Rule 12(b) (6)
pleadings
and
is
Standard of Review
motion tests the formal sufficiency of the
"appropriate
when
a
defendant
attacks
the
complaint because it fails to state a legally cognizable claim."
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert.
denied sub nom.
Cloud v. United States, 122 S. Ct. 2665
(2002).
The court must accept the factual allegations of the complaint as
true and view them in the light most favorable to the plaintiff.
Id. (citing Oppenheimer v. Prudential Securities Inc., 94 F.3d 189,
194 (5th Cir. 1996)).
5
See Call Log,
Entry No. 1-2.
To defeat a motion to dismiss, a plaintiff
Exhibit B to Plaintiff's Complaint,
-2-
Docket
must
plead
"enough facts
plausible on its face."
1955, 1974 (2007).
to
state
a
claim
to
relief
that
is
Bell Atlantic Corp. v. Twombly, 127 S. Ct.
The court generally is not to look beyond the
pleadings in deciding a motion to dismiss.
197 F.3d 772, 774 (5th Cir. 1999).
Spivey v. Robertson,
"Pleadings" for purposes of a
Rule 12(b) (6) motion include the complaint,
its attachments, and
documents that are referred to in the complaint and central to the
plaintiff's claims.
Collins v. Morgan Stanley Dean Witter,
224
F.3d 496, 498-99 (5th Cir. 2000).
III.
Analysis
Defendant argues that "[w]hen a plaintiff names the incorrect
party as a defendant in its lawsuit, moving to dismiss for failure
to state a claim is the appropriate remedy." 6
In support of this
proposition, Defendant cites a single unreported case:
Cunningham
v.
(BH),
Advanta
Corp.,
Civil
Action
No.
WL 290031 (N.D. Tex. Feb. 3, 2009).
3:08-CV-1794-K
2009
In Cunningham the plaintiff
sued a corporation and five of its officers for violations of the
TDCA and FDCPA. 7
After granting summary judgment in favor of the
corporate defendant, the court considered a motion to dismiss the
claims against the officers. 8
Concluding that the claims against
the officers were not viable because the corporation was not a
6
Defendant's Motion to Dismiss, Docket Entry No. 6, p. 3
7
Cunningham, 2009 WL 290031 at *6.
8
Id.
-3-
~
5.
proper party to the
suit,
and additionally that
the plaintiff
"failed to allege any facts showing how the Defendant Officers were
involved
in
any
of
the
actions
that
form
complaint," the court dismissed the claims.
Cunningham is
respects.
distinguishable
basis
of
his
9
least
two
significant
First, the court in Cunningham relied on summary judgment
evidence in reaching its decision.
have
in at
the
presented evidence
beyond
the
In the present case no parties
pleadings
and attachments . 10
Second, the court concluded that there were no factual allegations
as to how the corporate officers were involved.
Here, Plaintiff has
plainly alleged wrongful conduct by the Defendant.
The essence of Defendant's Motion to Dismiss is that this is
a case of mistaken identity.
fact.
But mistaken identity is a mistake of
Defendant argues that it is not a party to the contract
between Plaintiff and Conn Appliances,
not
allege
a
contractual
Inc. 11
relationship, 12
attempted to collect the debt.
But Plaintiff does
only
that
Defendant
The court therefore has no reason
to reject Plaintiff's factual allegations.
9
Id. at *6-7.
10
Nor would such evidence be properly before the court in a
12(b) (6) motion.
11
Defendant's Motion to Dismiss, Docket Entry No. 6, p. 4
12
~
8.
See, e.g., Torrelio v. Evergreen Shipping Agency (America)
Corp., Civil Action No. 2:10-0857-MBS, 2011 WL 675043, at *3
(D.S.C. Feb. 16, 2011) (dismissing the case upon a finding that the
plaintiff had sued the wrong party, as evidenced by the Bill of
Lading identifying the responsible party) .
-4-
Defendant also argues that Plaintiff's claims are conclusory
and consist of bare recitations of the elements.
So the court will
consider each claim and its supporting allegations in turn under
the proper 12(b) (6) standard.
A.
Count I:
Violation of the TDCA
The TDCA prohibits debt collectors from harassing a person "by
causing a telephone to ring repeatedly or continuously, or making
repeated or continuous telephone calls, with the intent to harass
a person at the called number."
(West) .
Tex. Fin. Code Ann.
§
392.302(4)
A "debt collector" is defined as "a person who directly or
indirectly engages in debt collection
Id. at
II
392.001.
§
Plaintiff alleges that Defendant called her 133 times from June 13,
2016,
to
July
10,
2016,
in
an
attempt
to
collect
a
debt. 13
Plaintiff's factual allegations support a claim for violation of
the TDCA.
B.
Count II:
Violation of the FDCPA
The FDCPA prohibits debt collectors from "communicat [ing] with
a consumer in connection with the collection of any debt
. if
the debt collector knows the consumer is represented by an attorney
with
respect
to
such
debt
attorney's name and address"
13
See Call Log,
Entry No. 1-2.
and
has
knowledge
of
such
subject to exceptions that do not
Exhibit B to Plaintiff's Complaint,
-5-
Docket
apply here.
15 U.S.C.
1692c(a) (2)
§
Plaintiff alleges that she
notified Defendant on June 29, 2016, that she had retained counsel
and provided Defendant with her attorney's contact information, 14
but that Defendant continued to communicate with her in connection
with the collection of her debt. 15
Plaintiff's factual allegations
support a claim for violation of the FDCPA.
c.
Count III:
Violation of the TCPA
The TCPA prohibits "any person within the United States" from
"initiat[ing] any telephone call to any residential telephone line
using an artificial or prerecorded voice
to deliver a
message
without the prior express consent of the called party" subject to
certain
§
exceptions
that
227 (b) (1) (A) (iii).
calls
that
do
not
apply
here.
47
u.s.c.
Plaintiff alleges that Defendant initiated
resulted
in
an
artificial
or
prerecorded
voice
delivering a message without her prior express consent or after she
revoked her consent. 16
Plaintiff's factual allegations support a
claim for violation of the FDCPA.
IV.
Conclusions and Order
For the reasons explained above,
the court concludes that
Plaintiff has pled legally cognizable causes of action accompanied
14
15
Plaintiff's Complaint, Docket Entry No. 1, p. 3
See Call Log,
Entry No. 1-2.
16
~
15.
Exhibit B to Plaintiff's Complaint,
Plaintiff's Complaint, Docket Entry No. 1, p. 4
-6-
~
25.
Docket
by alleged facts that support her claims.
Defendant Conn Credit
Corporation,
to Dismiss
Barbara
Inc.'s
Smith's
FRCP
Verified
12 (b) ( 6)
Motion
Complaint
(Docket
Entry
Plaintiff
No.
6)
is
therefore DENIED.
SIGNED at Houston, Texas, on this the 5th day of April, 2017.
SIM LAKE
UNITED STATES DISTRICT JUDGE
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