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) .
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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

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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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