Ayers v. Portfolio Recovery Associates

Filing 31

MEMORANDUM DECISION AND ORDER denying 28 Motion to Amend/Correct; denying 28 Motion for Leave to File Amended Complaint. Signed by Judge David Nuffer on 12/20/18 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
SARAH E. AYRES,

MEMORANDUM DECISION AND
ORDER DENYING MOTION FOR
RECONSIDERATION OR TO AMEND

Plaintiff,
v.

Case No. 2:17-cv-01088-DN

PORTFOLIO RECOVERY ASSOCIATES,
LLC,

District Judge David Nuffer

Defendant.
Plaintiff Sarah E. Ayres filed a motion (the “Motion”) 1 for clarification or reconsideration
of the Memorandum Decision and Order Granting Defendant’s Motion to Dismiss (“Dismissal
Order”) 2 or, alternatively, for leave to file an amended complaint. For the following reasons, the
Motion1 is DENIED.
DISCUSSION
The Dismissal Order was decided correctly.
Ayres argues that the Dismissal Order should be reconsidered on the grounds that “the
Court may have misapprehended one of the basis [sic] for” her Fair Debt Collection Practices
Act (“FDCPA”) claim. 3 Specifically, Ayres asserts that the court failed to consider her allegation
that Defendant Portfolio Recovery Associates LLC (“PRA”) violated the FDCPA by “falsely

1

Motion for Clarification or Reconsideration of Order Dismissing Complaint, or in the Alternative, Motion to
Amend Complaint (“Motion”), docket no. 28, filed November 28, 2018; see Defendant’s Memorandum in
Opposition to Plaintiff’s Motion for Clarification or Reconsideration of Order Dismissing Complaint, or in the
Alternative, Motion to Amend Complaint, docket no. 29, filed December 12, 2018; Reply in Support of Motion for
Clarification or Reconsideration of Order Dismissing Complaint, or in the Alternative, Motion to Amend Complaint,
docket no. 30, filed December 19, 2018.
2

Docket no. 26, filed November 8, 2018.

3

Motion, supra note 1, at 3.

represent[ing] Ayres could save money by making payments on a time-barred debt.” 4 But,
contrary to Ayres’s assertion, she did not allege in her complaint that PRA violated the FDCPA
in that manner. 5 And she cannot amend her complaint through a brief in opposition to PRA’s
motion to dismiss. 6 Therefore, the Motion will be denied to the extent it seeks reconsideration of
the Dismissal Order. 7
Ayres’s proposed amendment is futile.
Ayres argues that she should be granted leave to file an amended complaint to allege that
PRA violated the FDCPA by falsely representing that she could save money by making payments
on a time-barred debt. 8 While leave to amend pleadings should be given freely “when justice so
requires,” 9 courts enjoy broad discretion in making this determination. 10 If an amendment is
futile, leave to amend is properly denied. 11
Ayres’s proposed amendment is futile because PRA is allowed under the FDCPA to offer
to accept less than the full amount Ayres owes—resulting in a savings for Ayres. 12 Ayres’s debt

4

Id. at 1-2.

5

See Complaint, docket no. 2-2, filed September 28, 2017. Paragraphs 17, 20, 26, 27, and 34 of the complaint—to
which Ayres makes reference, see Motion, supra note 1, at 4—do not allege that PRA falsely represented that Ayres
could save money. Moreover, paragraphs 20, 26, 27, and 34 are mere legal conclusions to which no presumption of
truthfulness is given. See In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003); In re Party City
Secs. Litigation, 147 F. Supp. 2d 282, 297 (D.N.J. 2001); Kramer v. Van Dyke Pub. Schs., 918 F. Supp. 1100, 1104
(E.D. Mich. 1996).
6

Huls v. Llabona, 437 F. App’x 830, 832 n.5 (11th Cir. 2011) (citing Gilmour v. Gates, McDonald & Co., 382 F.3d
1312, 1315 (11th Cir. 2004)).
7

Because the Motion for reconsideration was served after ten days of the rendition of judgment, it falls under Fed.
R. Civ. P. 60(b)—not Fed. R. Civ. P. 59(e). See Van Skiver v. United States, 952 F.2d 1241, 1244 (10th Cir. 1991).
8

Motion, supra note 1, at 2, 5-6.

9

FED. R. CIV. P. 15(a)(2).

10

Patton v. Guyer, 443 F.2d 79, 86 (10th Cir. 1971).

11

See Foman v. Davis, 371 U.S. 178, 182 (1962).

12

See Stimpson v. Midland Credit Mgm’t, Inc., No. 1:17-cv-00431, 2018 WL 4643110, *5 (D. Idaho Sept. 27, 2018).

2

did not evaporate when the statute of limitations ran. Her debt is a valid obligation, and it will
remain so until she pays it, regardless of whether her creditor can successfully sue her. 13
Legal defenses are not moral defenses . . . . And a creditor remains free, in the
absence of a bankruptcy order or something comparable preventing it from
trying to collect the debt, to let the debtor know what the debt is and to ask her to
pay it. There thus is nothing wrong with informing debtors that a debt remains
unpaid or for that matter allowing them to satisfy the debt at a discount. For some
individuals, such letters may offer a welcome solution to an outstanding debt. 14
Because Ayres’s proposed amendment is futile, her request to amend will be denied.
ORDER
THEREFORE, IT IS HEREBY ORDERED that the Motion 15 is DENIED.
Signed December 20, 2018.
BY THE COURT:

David Nuffer
United States District Judge

13

Id. (citing Midland Funding, LLC v. Johnson, 137 S. Ct. 1407, 1411 (2017)).

14

Buchanan v. Northland Group, Inc., 766 F.3d 393, 396 (6th Cir. 2015); see also Pantoja v. Portfolio Recovery
Assocs., LLC, 852 F.3d 679, 684 (7th Cir. 2017) (“The creditor retains the legal right to appeal to the debtor to honor
the debt out of a sense of moral obligation even if the legal obligation can no longer be enforced in court.”).

15

Docket no. 28, filed November 28, 2018.

3