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Perez v. Budget Control Services, Inc.

United States District Court, D. Colorado

March 3, 2017

ASHLEY PEREZ, Plaintiff,


          PHILIP A. BRIMMER United States District Judge

         This matter is before the Court on Defendant's Motion to Dismiss [Docket No. 6]. The motion is fully briefed and ripe for disposition. Jurisdiction over this case is based on federal question jurisdiction pursuant to 28 U.S.C. § 1331.

         I. BACKGROUND [1]

         Plaintiff brings a claim under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”), alleging that defendant used unlawful practices in attempting to collect on a debt. In her complaint, plaintiff alleges that she received a letter from defendant seeking to collect an alleged debt. Docket No. 1 at 2, ¶ 9. Defendant sent the letter in a window envelope that exposed the letter's address block. Id., ¶ 10. Above plaintiff's name and address in the address block, a barcode appeared. Id., ¶ 11.[2] Below the barcode and above plaintiff's name, a number appeared, “identified in the Letter as the account number associated with the Alleged Debt.” Id., ¶ 11. The body of the letter stated “**** NOTICE OF EMPLOYMENT VERIFICATION ****” Id., ¶ 12 (emphasis original). The letter then warned, “[f]ailure to make PAYMENT will force this office to notify your creditor that you are working and have refused to pay.” Id., ¶ 13. The complaint alleges this warning is false. Id.

         On April 4, 2016, plaintiff filed her complaint. Docket No. 1. It contains a single claim for relief for violation of the FDCPA under 15 U.S.C. §§ 1692d, 1692e, 1692e(5), 1692e(10), 1692f, and 1692f(8). Id. at 3, ¶ 18.

         On June 8, 2016, defendant filed its motion to dismiss. Docket No. 6. Defendant argues that the alleged actions fail to state a claim for relief under the FDCPA and moves the Court to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). Id. at 3.


         Defendant brings its motion pursuant to Federal Rule of Civil Procedure 12(b)(6). Under Rule 12(b)(6), the “court's function . . . is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations omitted). In doing so, the Court “must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff.” Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007) (quotation marks and citation omitted). “In addition to the complaint, the district court may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002). A court, however, need not accept conclusory allegations. Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir. 2002). Generally, “[s]pecific facts are not necessary; the statement need only ‘give the defendant fair notice of what the claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (omission marks, internal quotation marks, and citation omitted). The “plausibility” standard requires that relief must plausibly follow from the facts alleged, not that the facts themselves be plausible. Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008). However, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and alteration marks omitted). Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at 1286 (quotation marks and citation omitted).

         III. ANALYSIS

         A. Violation of 15 U.S.C. § 1692d

         Section 1692d provides that a “debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” In analyzing FDCPA claims, debt collectors' communications are generally viewed from the perspective of how the least sophisticated consumer would interpret the notice received from the debt collector. Irvine v. I.C. Sys., Inc., 176 F.Supp.3d 1054, 1060 (D. Colo.), reconsideration denied, 198 F.Supp.3d 1232 (D. Colo. 2016) (citing Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993)). “The hypothetical consumer, however, ‘can be presumed to possess a rudimentary amount of information about the world and a willingness to read a collection notice with some care.'” Ferree v. Marianos, 1997 WL 687693, at *1 (10th Cir. Nov. 3, 1997) (unpublished) (quoting Clomon, 988 F.2d at 1319).

         Defendant argues that the contents of the letter could not be viewed by any reasonable consumer as harassing or oppressive and cites various cases it argues where conduct that was “considerably worse” has been found to not violate Section 1692d. Docket No. 6 at 5 (citing Wilson v. Merchants & Med. Credit Corp, Inc., 2010 WL 3488617 (E.D. Mich. Sept. 2, 2010); Unterreiner v. Stoneleigh Recovery Assoc., LLC, 2010 WL 2523257 (N.D. Ill. June 17, 2010); Smith v. Accounts Research, Inc., 2012 WL 289835 (E.D. Tenn. Jan. 31, 2012); Pearce v. Rapid Check Collection, 738 F.Supp. 334 (D.S.D. 1990).

         Plaintiff argues that the statement that the creditor will be contacted about her employment status is a “threat directed at Ms. Garcia in order to harass and oppress even if the threat is not overt.” Docket No. 7 at 5.

         The Court finds that the alleged conduct does not, as a matter of law, rise to the level of harassment, oppression, or abuse in violation of Section 1692d. The alleged conduct is unlike the listed examples of conduct that are per se violations of the section, i.e., “use of violence or other criminal means, ” “use of obscene or profane language, ” publication of debtor status, or harassing phone calls. 15 U.S.C. § 1692d(1)-(6). While some recipients might interpret the words “NOTICE OF EMPLOYMENT VERIFICATION” as a threat that their employers would be contacted, the letter goes on to state that the recipient's “creditor” will be notified. Docket No. 1 at 2, ¶¶ 12-13 (emphasis omitted). Because a least sophisticated consumer would read the letter in full and with care, Campuzano-Burgos v. Midland Credit Mgmt., Inc., 550 F.3d 294, 299 (3d Cir. 2008), any misreading of the “NOTICE” would be clarified. The Court will grant defendant's motion to dismiss with respect to plaintiff's claim under Section 1692d.

         B. Violation of 15 ...

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