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Chung v. Lamb

United States District Court, D. Colorado

March 15, 2016

EMILY BOSCOE CHUNG, Plaintiff,
v.
TIMOTHY J. LAMB; TIMOTHY J. LAMB, P.C., Defendants.

ORDER ON MOTION TO DISMISS

WILEY Y. DANIEL, SENIOR UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION & BACKGROUND

This matter is before the Court on Defendant’s Motion to Dismiss (ECF No. 18), filed on August 14, 2015. The Motion is fully briefed.[1]

This is a Fair Debt Collection Practices Act (“FDCPA”) case (codified at 15 U.S.C. § 1692), wherein Plaintiff was contacted by Defendants for amounts due to a third party, Vantium Capital. Defendant Timothy J. Lamb is an attorney, and Timothy J. Lamb P.C. engages in debt collection activities. See Compl., p. 2. In an underlying state court action from December of 2012 to recover those amounts due, Plaintiff and Defendants discussed a settlement agreement via phone and email. Plaintiff communicated her understanding of the settlement agreement via email to Defendants. Defendants expressed approval of the agreement as expressed in the email. The settlement agreement did not include a provision releasing Defendants from any future claims. Subsequent to their email expressing approval, Defendants sought to add a provision releasing them from all future claims. Plaintiff refused, and asserted that a final agreement had already been reached. Further filings were made with the state court, and Plaintiff filed a motion to enforce the settlement agreement on December 12, 2013. The court granted that motion and enforced the agreement.

On November 27, 2014, Plaintiff filed the present action, asserting that Defendants violated the FDCPA in their debt collection activities with Plaintiff. The substance of the allegations against Defendants include pursuing legal action against Plaintiff even after the settlement agreement was reached; refusing to accept Plaintiff’s tendered payment in full performance of her obligations under the settlement agreement; representing to the court through a status report and their response to the motion to enforce the settlement agreement that no settlement agreement had been reached and that the debt was still owed; and failing to include in the status report that Plaintiff attempted to pay the settlement agreement amount. See Compl., ¶ 10. Plaintiff also alleges that Defendants violated the FDCPA by “falsely informing the police that Boscoe’s counsel had attempted to remove the original note from his office and falsely informing police that Boscoe had no grounds for asserting her right to retain possession” of the note. Plaintiff seeks damages, punitive damages, and attorney’s fees.

Defendants filed the present motion, arguing that Plaintiff’s claim should be dismissed as a matter of law. Defendants assert that statements made to Plaintiff’s attorney during settlement negotiations, and statements made to the court in court filings do not constitute a violation of the FDCPA because such “statements to third parties - lawyers and judges - do not constitute statements to a consumer.” Def.’s Motion, ECF No. 18, p. 2.

II. STANDARD OF REVIEW

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although this pleading standard does not require detailed factual allegations, it does require “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 678 (2007). Further, “a pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do’ . . . [n]or does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555, 557). A motion to dismiss can be granted if a complaint fails to state a claim upon which relief can be granted under Fed. R. Civ. Pro. 12(b)(6).

In order for a complaint to survive a motion to dismiss, it must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id., citing Twombly, 550 U.S. at 570. Facial plausibility is met when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id., citing Twombly, 550 U.S. at 556.

III. ANALYSIS

To assert a claim under the FDCPA, a plaintiff must show that 1) she is a consumer under the Act; 2) the debt is one for personal, family, or household purposes; 3) the defendant is a debt collector under the Act; and 4) the defendant violated a provision of the FDCPA. Defendants argue that, in order to meet the first element, Plaintiff must show that the alleged misrepresentations or threats of arrest or legal action were made to a consumer. Defendants state that since the alleged communications in this case were made to Plaintiff’s counsel, the state court judge, and to police officers, Plaintiff cannot maintain a claim against Defendants for any FDCPA violations. Accordingly, Defendants argue that the sole issue before the Court is “whether an alleged misstatement to an attorney representing a party or to the court is cognizable under the FDCPA.” Def.’s Reply, ECF No. 32, p. 1, 2.

Defendants cite to a Tenth Circuit case for support. In Dikeman v. National Educators, a debt collector did not include in communications to the consumer’s lawyer a verification disclosing that the debt collector was attempting to collect a debt and that any information obtained would be used for that purpose. The court noted in a footnote that a lawyer acting as the representative of a consumer is not a consumer under the FDCPA. Dikeman v. Nat’l Educators Inc., 81 F.3d 949, 955 n.14 (10th Cir. 1996). However, in the next footnote, the court noted that it was limiting its holding to the facts of that case and its specific application to 1692e(11), a provision which is not implicated in the present case.

A recent decision on this issue by Judge R. Brooke Jackson of this Court is more instructive here. In Schendzielos v. Silverman, a consumer brought an action against a law firm that regularly engaged in debt collection services for its clients for violations of the FDCPA. The law firm brought an action in state court for the amounts owed by the consumer. Prior to trial, the parties settled, and the consumer agreed to pay the bank a settlement amount. After the consumer allegedly failed to pay the settlement amount, the defendant filed a motion for a default judgment against him. The consumer alleged that the defendant made misrepresentations to the court in violation of the FDCPA about the status of the debt, including a failure to mention that the consumer had attempted to pay for the alleged default, and for falsely representing to the court that the consumer was in default. The state court action was ultimately resolved without further court involvement; however the plaintiff then sued the defendant for FDCPA violations. The defendant then filed a motion to dismiss on the theory that “a false statement violates the FDCPA only if it is made to the consumer . . . [and that] a false statement made to a state court judge is not actionable” under the FDCPA. Schendzielos v. Silverman, 2015 WL 5964882, at *2 (D. Colo. Oct. 14, 2015).

Judge Jackson held that the FDCPA prohibits abusive conduct in the name of debt collection, even when the audience for such conduct is someone other than the consumer. The court noted that “the express purpose of the FDCPA is very broad, ” and that “no language in [section 1692e] reserves this ban [of abusive conduct] for communications made only to consumers nor is there any express exemption of a debt collector’s communications to a judge.” Id. at *3. The court further notes that section 1692e “should be read to prohibit any ...


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