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Williams v. LVNV Funding, LLC

United States District Court, D. Colorado

August 14, 2014

WADE A. WILLIAMS, Plaintiff,
LVNV FUNDING, LLC, a Delaware limited liability company, Defendant.


MICHAEL E. HEGARTY, Magistrate Judge.

Before the Court is Defendant's Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) [filed June 30, 2014; docket #15]. The motion is fully briefed, and oral argument would not materially assist the Court in its adjudication. Based on the record contained herein, the Court GRANTS IN PART AND DENIES IN PART the Defendant's motion.


I. Statement of Facts

The following are factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by the Plaintiff in his Amended Complaint and Jury Demand, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Sometime before 2012, in three financial accounts, the Plaintiff incurred amounts due and owing primarily for personal, family and household purposes to Chase Bank. The Chase accounts went into default. On June 5, 2012, Plaintiff discovered "violations" of the FDCPA, FCRA and CFDCPA by reviewing his 3-in-1 Consumer Credit Report, so on or about the following day, [1] he wrote a letter to the Defendant disputing the debts reflected in the three accounts. On June 25, 2012, Plaintiff sent Defendant a "Notice of Pending Lawsuit" in an attempt to "cure" Defendant's statutory violations. Then, on July 2, 2012, Plaintiff sent Defendant a "Notice of Intent to Sue" in a second attempt to "cure" the violations. On the same day, Plaintiff disputed (in writing) the three debts with consumer reporting agencies, Equifax Information Services, Experian, and TransUnion.

On January 16, 2014, Plaintiff obtained his consumer report from, which uses TransUnion's information to publish its consumer reports. This report reflected that the three disputed accounts had gone into collections since Plaintiff last checked his credit score on November 22, 2013. Then, on May 12, 2014, Plaintiff obtained his 3-in-1 consumer report from Experian, which reflected that Equifax, Experian, and TransUnion were all reporting the three disputed accounts. Plaintiff believes that Defendant regularly reported to the credit agencies from 2012 to 2014 that it was attempting to collect on the three accounts. However, Plaintiff contends that Defendant ignored his timely demands for validation and disputes, and failed to reinvestigate and verify the accounts and delete inaccurate information.

II. Procedural History

Plaintiff, proceeding pro se, initiated this action against the Defendant on May 15, 2014, then filed the operative Amended Complaint as a matter of course on June 18, 2014. See dockets ##1, 12. Plaintiff brings claims pursuant to the Fair Debt Collection Practices Act ("FDCPA"), the Colorado Fair Debt Collection Practices Act ("CFDCPA"), and the Fair Credit Reporting Act ("FCRA") under a theory of Respondeat Superior. Amended Complaint, docket #12. Defendant responded to Plaintiff's Amended Complaint by filing the present motion to dismiss arguing that the FDCPA and CFDCPA claims are barred by the statute of limitations, and Plaintiff fails to allege Defendant violated either statute "while collecting or attempting to collect a debt" or following "an initial communication with a consumer" or by reporting the accounts to the credit reporting agencies. Furthermore, Defendant contends Plaintiff fails to allege sufficient facts to support a FCRA claim.

Plaintiff responds that his FDCPA and CFDCPA claims are not time-barred since his allegations reflect that he learned of the Defendant's conduct in reporting disputed claims to credit agencies on January 16, 2014, after having last looked at his credit report on November 22, 2013. Plaintiff also asserts that he sufficiently alleges the elements of his FDCPA and CFDCPA claims, and sufficiently alleges that Defendant violated the statutes by making statements or conduct constituting "false and misleading representation(s) and/or mean(s)." In addition, Plaintiff contends that Defendant's reporting of the disputed claims was an "initial communication." Plaintiff further claims that "collecting a disputed debt" violates the FDCPA and "credit reporting constitutes an attempt to collect a debt"; thus, Plaintiff states he alleges a viable claim. Moreover, Plaintiff argues that he alleges no violations of FCRA section 1681s-2(a) (cited by Defendant), which contains no private right of action, but rather alleges a violation of section 1681s-2(b). Finally, Plaintiff contends that there is a factual dispute as to whether Defendant conducted a required investigation and, thus, the claim should proceed through discovery.

Defendant replies that Plaintiff's response brief simply repeats the legal elements of his claims and argues that Defendant has failed to produce evidence to support its motion, neither of which salvages the operative pleading. Further, Defendant asserts that Plaintiff failed to allege any unlawful conduct during the statutory period, since communication between a debt collector and a credit agency is not, itself, unlawful. Moreover, Defendant contends that Plaintiff's allegations are "legal conclusions couched as factual allegations, " and that Plaintiff failed to allege any specific instances of debt collection activity by Defendant nor how such activity violates the statutes. Defendant also challenges Plaintiff's failure to allege grounds for disputing the accounts, which is required for a FCRA claim. Finally, Defendant argues that neither the FDCPA nor the CFDCPA applies to any communications between the Plaintiff and credit reporting agencies; rather, a communication must be with a consumer in connection with the collection of a debt.

The Court is now fully advised and finds as follows.


I. Treatment of a Pro Se Plaintiff's Complaint

A federal court must construe a pro se plaintiff's "pleadings liberally, applying a less stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations and citations omitted). The Tenth Circuit interpreted this rule to mean, "if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, this interpretation is qualified in that it is not "the proper function of the district court to assume the role of advocate for the pro se litigant." Id .; see also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)).

II. Dismissal under Fed.R.Civ.P. 12(b)(6)

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual allegations in the complaint "must be enough to raise a right to relief above the speculative level." Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.

The Rule 12(b)(6) evaluation requires two prongs of analysis. First, the Court identifies "the allegations in the complaint that are not entitled to the assumption of truth, " that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 678-79. Second, the Court considers the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 679. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678.

The complaint must provide "more than labels and conclusions" or merely "a formulaic recitation of the elements of a cause of action, " so that "courts are not bound to accept as true a legal conclusion couched as a factual allegation.'" Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility ...

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