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Cooper v. Borenstein & Associates, LLC

United States District Court, D. Colorado

October 27, 2015

ANDREW COOPER, Plaintiff,
v.
BORENSTEIN & ASSOCIATES, LLC, Defendant.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

MICHAEL E. HEGARTY, Magistrate Judge.

Before the Court is Defendant's Motion to Dismiss Plaintiff's First Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) [filed August 31, 2015; docket #16]. Pursuant to 28 U.S.C. § 636(b)(1)(B) and D.C. Colo. LCivR 72.1(c), the matter is referred to this Court for recommendation [docket #17]. The motion is fully briefed, and oral argument would not materially assist the Court in its adjudication. For the reasons that follow, the Court respectfully recommends that the motion be granted in part and denied in part.[1]

BACKGROUND

On June 18, 2015, the Plaintiff initiated this action under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692(e)(2)(a) against the Defendant. The present motion seeks dismissal of the entire lawsuit.

I. Facts

The following are factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by Plaintiff in the operative First Amended Complaint (FAC) and pertinent to the present motion, 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), along with quotations from pleadings filed in state court.

Plaintiff had an alleged delinquent financial obligation (credit card debt) owed to First National Bank of Omaha. The bank engaged the Defendant for purposes of collecting the debt. Defendant filed a lawsuit on behalf of the bank against Plaintiff in Adams County, Colorado district court to collect on the debt. The state court complaint included in its body (paragraph 4) a request for attorney's fees ("The amount claimed from Andrew Cooper... is $4, 426.71... together with proper interest, costs, attorney fees, and any other items allowable by statute or specific agreement."). During the pendency of the case, the Defendant submitted a motion "for an order permitting its witness to testify by telephone pursuant to [Colo. R. Civ. P.] 343(h)(1)." The motion represented that "Joseph Guenther or another representative for First National Bank of Omaha, who has relevant information and first hand knowledge regarding all aspects of this matter, is needed to testify at trial." Because the proposed witnesses were located in Omaha, Nebraska, defense counsel sought to have their testimony received via telephone in order to save money.

II. Procedural History

Plaintiff filed the FAC on August 17, 2015. Defendant filed its Motion to Dismiss on August 31, 2015. Plaintiff contends and, for purposes of this motion only, Defendant concedes that there is no legal basis for Defendant to be awarded attorney's fees and, further, that the bank's representatives (Joseph Guenther or other) may not have personal knowledge of all aspects of the matter. On these bases and Defendant's role as counsel for the bank, Plaintiff contends that Defendant is a debt collector under the FDCPA and has made these two false statements in violation of Section 1692(e)(2) of that statute:

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(1) The false representation or implication that the debt collector is vouched for, bonded by, or affiliated with the United States or any State, including the use of any badge, uniform, or facsimile thereof.
(2) The false representation of-
(A) the character, amount, or legal status of any debt; or
(B) any services rendered or compensation which may be lawfully received by any debt collector for ...

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