Godmintz v. Monterey Financial Services
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
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
MONTEREY FINANCIAL SERVICES,
March 31, 2021
Nathan Ochsner, Clerk
CIVIL ACTION NO. H-21-00514
MEMORANDUM OPINION AND ORDER
Plaintiff Colin Godmintz sued defendant, Monterey Financial
("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,
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")
Defendant's motion will be granted,
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.
Factual Allegations and Procedural Background
This action was filed in Justice of the Peace Court on January
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
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.
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.
the same day, plaintiff's attorney filed a motion to with draw
Original Petition Small Claims, Docket Entry No. 1-1, p. 10.
(Docket Entry No. 11), which the court struck for failure to comply
On March 29, 2021,
with Local Rule 7 (Docket Entry No. 12).
Withdraw as Counsel for Plaintiff Colin Godmintz ( Docket Entry
No. 13), which the court granted the same day ( Docket Entry
Accordingly, plaintiff is currently proceeding pro se.
Standard of Review
A Rule 12(b)(6) motion tests the formal sufficiency of 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.
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
Ashcroft v. Igbal, 129 S. Ct. 1937, 1949
(2009) (citing Twombly, 127 S. Ct. at 1965).
standard is not akin to a 'probability requirement,' but it asks
for more than a sheer possibility that a defendant has acted
Id. (quoting Twombly, 127 S. Ct. at 1965) .
possibility and plausibility of entitlement to relief.'"
(quoting Twombly, 127 S. Ct. at 1966).
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
Defendant with no idea which provisions of the applicable laws it
must defend against.
Plaintiff's FDCPA Allegations Fa.il to State a Claim
The FDCPA applies only to debts as they are defined in the
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.
15 U.S.C. § 1692(a)(5).
A "consumer" is defined as "any natural
person obligated or allegedly obligated to pay any debt."
If the debt arises from
transaction, the FDCPA is not applicable.
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
how the item or service was intended for personal or
family use. Because Plaintiff's petition fails to state any facts
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).
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
transaction or alleged transaction."
See also Garcia,
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
aintiff's state law claim fails for
same reason as his
Garcia, 56 9 F. App'x at 277.
Conclusions and Order
For the reasons explained above, the court concludes that
failed to plead facts sufficient to state a claim
may be granted
the Texas Finance Code.
Monterey Financial Services LLC's Mot
ss and Support
Memorandum of Law, Docket Entry No. 7, is GRANTED, and this action
SIGNED at Houston, Texas, on this 31st day of March, 2021.
SENIOR UNITED STATES DISTRICT JUDGE
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