Godmintz v. Monterey Financial Services

Filing 16

MEMORANDUM OPINION AND ORDER - Granting #7 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and this action will be dismissed without prejudice. (Signed by Judge Sim Lake) Parties notified.(sanderson, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
COLIN GODMINTZ,
Plaintiff,
v.
MONTEREY FINANCIAL SERVICES,
Defendant.

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March 31, 2021
Nathan Ochsner, Clerk

CIVIL ACTION NO. H-21-00514

MEMORANDUM OPINION AND ORDER

Plaintiff Colin Godmintz sued defendant, Monterey Financial
Services

("MFS" or "Defendant"), for violation of the Fair Debt

Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq., and
the Texas Finance Code ( "TFC"), in the Precinct One,

Place Two

Justice of the Peace Court of Fort Bend County, Texas, under Cause
No. 2 l-JSC12-005 90. 1 Defendant timely removed the action.2 Pending
before the court is Defendant Monterey Financial Services LLC's
Motion to Dismiss and Supporting Memorandum of Law ("Defendant's
Motion to Dismiss")
explained below,

( Docket

Entry

No.

7) .

For the

Defendant's motion will be granted,

reasons
but this

action will be dismissed without prejudice.

1See Plaintiff's Original Petition Small Claims ("Plaintiff's
Petition"), Exhibit A to Notice of Removal, Docket Entry No. 1-1,
p. 8. Page numbers for docket entries in the record refer to the
pagination inserted at the top of the page by the court's
electronic filing system.
See Defendant Monterey Financial Services' Notice of Removal,
Docket Entry No. 1.
2

I.

Factual Allegations and Procedural Background

This action was filed in Justice of the Peace Court on January
The

15, 2021, by an attorney acting on Plaintiff's behalf.

petition filed in Justice of the Peace Court alleges that Defendant
violated of the FDCPA and the TFC by �falsely reporting to the
Credit Bureaus that [he] owes $7,285.29 to the Villa Group.n 3

The

petition also alleges that
[n]othing is owed because no contract was formed, or, in
the alternative, the alleged contract is voidable.
[MFS]'s client plied Godmintz with alcohol to the point
of incapacitation to induce an agreement in an
unconscionable violation public policy.
Godmintz has
made clear to [MFS] that if a contract even exists, he
has chosen to void it due to his incapacitation.
Godmintz owed nothing in restitution, either. This is
because he never reaped the benefit of the services. 4
On February 16, 2021, Defendant removed this action, and on
February 23, 2021, Defendant filed the pending motion to dismiss.
Citing Federal Rule of Civil Procedure 12(b)(6), Defendant argues
that Plaintiff's claims are subject to dismissal for failure to
state a claim for which relief may be granted under either the
FDCPA or the TFC.

On March 25, 2021, the court entered an Order

(Docket Entry No. 10), ordering plaintiff to respond to Defendant's
Motion to Dismiss by March 29, 2021, and warning plaintiff that the
failure to respond may result in dismissal of this action.

Later

the same day, plaintiff's attorney filed a motion to with draw
3

Original Petition Small Claims, Docket Entry No. 1-1, p. 10.
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(Docket Entry No. 11), which the court struck for failure to comply
On March 29, 2021,

with Local Rule 7 (Docket Entry No. 12).
plaintiff's

attorney

filed

an

Unopposed

Motion

for

Leave

to

Withdraw as Counsel for Plaintiff Colin Godmintz ( Docket Entry
No. 13), which the court granted the same day ( Docket Entry
No. 14).

Accordingly, plaintiff is currently proceeding pro se.
II.

Standard of Review

A Rule 12(b)(6) motion tests the formal sufficiency of the
pleadings

and

is

"appropriate

when

a

defendant

attacks

the

complaint because it fails to state a legally cognizable claim."
Rammina 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, view them in a light most favorable to the plaintiff, and
draw all reasonable inferences in the plaintiff's favor.

Id.

To

defeat a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff
must plead "enough facts to state a claim to relief that is
plausible on its face."
1955, 1974 (2007).

Bell Atlantic Corp. v. Twombly, 127 S. Ct.

"A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the
reasonable

inference

misconduct alleged."

that

the

defendant

is

liable

for

the

Ashcroft v. Igbal, 129 S. Ct. 1937, 1949

(2009) (citing Twombly, 127 S. Ct. at 1965).

"The plausibility

standard is not akin to a 'probability requirement,' but it asks
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for more than a sheer possibility that a defendant has acted
unlawfully."
complaint

Id. (quoting Twombly, 127 S. Ct. at 1965) .

pleads

defendant's

facts

liability,

that
it

are

'stops

'merely
short

consistent
of

the

line

"Where a
with'

a

between

possibility and plausibility of entitlement to relief.'"

Id.

(quoting Twombly, 127 S. Ct. at 1966).
III.

1Ulalysis

Defendant argues that Plaintiff has failed to state a claim
for which relief may be granted under either the FDCPA or the TFC
because he has failed to allege facts capable of establishing that
he is a "consumer" or that the debt at issue is a "consumer debt."
Defendant also argues that Plaintiff's claims should be dismissed
because Plaintiff has failed to identify the subsections of the
statutes that he

claims

have

been

violated,

thereby

leaving

Defendant with no idea which provisions of the applicable laws it
must defend against.
A.

Plaintiff's FDCPA Allegations Fa.il to State a Claim

The FDCPA applies only to debts as they are defined in the
statute.

The FDCPA defines a "debt" as

an y obligation or alleged obligation of a consumer to pay
money arising out of a transaction in which the money,
property, insurance, or services which are the subject of
the transaction are primarily for personal, family, or
household purposes, whether or not such obligation has
been reduced to judgment.
-4-

15 U.S.C. § 1692(a)(5).

A "consumer" is defined as "any natural

person obligated or allegedly obligated to pay any debt."
U.S.C. §

1692(a)(3).

If the debt arises from

transaction, the FDCPA is not applicable.

15

a commercial

See Hamilton v. United

Healthcare of Louisiana, Inc., 310 F.3d 385, 388 (5th Cir. 2002).
Plaintiff's petition alleges that Defendant wrongfully reported to
Credit Bureaus a debt that he does not owe,

but the petition

neither states what item or service was allegedly purchased, nor
explains

how the item or service was intended for personal or

family use. Because Plaintiff's petition fails to state any facts
to

suggest

that

his

debt

was

incurred

through

a

consumer

transaction, Plaintiff's factual allegations are not sufficient to
support a claim for violation of the FDCPA. See Garcia v. Jenkins
Babb, L.L.P., 569 F. App'x 274, 276 (5th Cir. 2014) (per curiam).

B.

Plaintiff's TFC Allegations Fail to State a Claim

The Texas counterpart to the FDCPA similarly defines consumer
debt as "an obligation, or an alleged obligation, primarily for
personal,

family,

or

household

purposes

transaction or alleged transaction."
See also Garcia,

and

arising

from

a

Tex. Fin. Code§ 392.001(2).

569 F. App'x at 276 (citing Guajardo v. GC

Services, LP, 498 F. App'x 379, 382 (5th Cir. 2012) (per curiam)).
"For a collection practice to be actionable under the [Texas Debt
Collection Practices Act], the debt at issue must arise out of a
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consumer

transaction.

Tex.

Fin.

code

aintiff's state law claim fails for

§

392.001(2).

same reason as his

Garcia, 56 9 F. App'x at 277.

federal law

IV.

Conclusions and Order

For the reasons explained above, the court concludes that
Plaintiff
which

failed to plead facts sufficient to state a claim
ief

may be granted

counterpart

under either

the Texas Finance Code.

Monterey Financial Services LLC's Mot

the

FDCPA

Accordingly,
to Di

or

its

Defendant

ss and Support

Memorandum of Law, Docket Entry No. 7, is GRANTED, and this action
will

dismiss

without prejudice.

SIGNED at Houston, Texas, on this 31st day of March, 2021.

SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE

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