Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Thurow v. Professional Finance Company, Inc.

United States District Court, D. Colorado

July 5, 2017

GARY THUROW, Plaintiff,
v.
PROFESSIONAL FINANCE COMPANY, INC., Defendant.

          ORDER

          KRISTEN L. MIX, MAGISTRATE JUDGE

         This matter is before the Court on Defendant's Motion to Dismiss Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) [#13][1] (the “Motion”). Plaintiff filed a Response [#20] in opposition to the Motion, and Defendant filed a Reply [#23]. The Court has reviewed the Motion, the entire docket, and the applicable law, and is sufficiently advised in the premises. Based on the following, IT IS HEREBY ORDERED that the Motion [#13] is GRANTED, and all claims are DISMISSED with prejudice.[2]

         I. Background

         Plaintiff is a registered sex offender who alleges that his home address is listed in Colorado's Sex Offender Registry and readily available through internet searches. Nevertheless, he alleges that in 2012, a debt collector attempted to serve a lawsuit on him at an old address and eventually obtained a default judgment against him and garnished some of his wages. When Plaintiff proved that he had not been lawfully served, the debt collector did not immediately return the garnished funds to him. Plaintiff asserts that because his address “is a matter of public knowledge” which was “easily discovered by just a simple internet search, ” the debt collector Defendant “knew or should have known” that he did not live at the service address. Am. Compl. [#10] ¶ 26. By serving him at that address, Plaintiff asserts that Defendant engaged in deceitful, unfair or unconscionable conduct. By failing to immediately return the garnished funds, Plaintiff alleges that Defendant used deceptive means to collect a debt and threatened to take action that could not legally be taken. Plaintiff asserts that these allegations state claims for violation of the Fair Debt Collection Practices Act (“FDCPA”). I disagree, as explained in more detail below.

         In the Amended Complaint, Plaintiff asserts multiple violations of the FDCPA, 15 U.S.C. §§ 1692e, 1692f, based on allegedly ineffective service of a complaint against him in a previous state court lawsuit and based on Defendant's failure to immediately offer to return the garnishment funds when the default judgment in that case was vacated. See Am. Compl. [#10] ¶¶ 49, 55, 66, 72, 79, 82. In the Motion [#13], Defendant seeks to dismiss all claims in Plaintiff's Amended Complaint [#10] pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim under the FDCPA.

         Plaintiff makes the following allegations in his first Amended Complaint: On August 16, 2012, Defendant filed a lawsuit against Plaintiff in the Douglas County Court of the State of Colorado for an alleged obligation to pay a debt owed to a third party on a Wells Fargo Bankcard account. Am. Compl. [#10] ¶¶ 9, 11. Plaintiff asserts that he was never served with Defendant's lawsuit because he no longer resided at the service address when service allegedly occurred on September, 30, 2012. Id. ¶¶ 12-14. Plaintiff has not lived at the service address since 2006. Id. ¶ 15. Based on a process server's affidavit of service, the Douglas County Court entered default judgment against Plaintiff on October 24, 2012, and issued a writ of garnishment against Plaintiff approximately three years later. Id. ¶¶ 30-31.

         Because of the ineffective service, Plaintiff did not receive notice of Defendant's lawsuit until January 15, 2016. Id. ¶¶ 27, 32. Between February 2016 and March 2016, Defendant collected a total of $713.86 from Plaintiff through wage garnishment. Id. ¶ 38. On March 28, 2016, the Douglas County Court set aside the default judgment after Plaintiff provided sufficient proof that he was not residing at the residence at which he had been purportedly served. Id. ¶ 35. Defendant did not offer to return the funds until Plaintiff's counsel threatened litigation approximately three months later. Id. ¶¶ 38, 41, 43.

         Plaintiff alleges that Defendant knew or should have known that Plaintiff is included in Colorado's Sex Offender Registry, which contains his current address and physical description. Id. ¶ 19. Plaintiff also alleges that Defendant could have found his current address by performing an internet search; therefore, Defendant knew or should have known that Plaintiff had previously but no longer resided at the service address. Id. ¶¶ 20-23, 26. Plaintiff alleges that his first communication with Defendant occurred on or about June 20, 2016, at which time Defendant acknowledged that Plaintiff was included in Colorado's Sex Offender Registry. Id. ¶¶ 41-42.

         Based on the alleged ineffective service of the complaint in the prior lawsuit and Defendant's failure to immediately offer to return the garnishment funds, Plaintiff claims that Defendant violated the FDCPA. See Id. ¶¶ 35, 39. Specifically, by failing to properly serve Plaintiff when Defendant knew or should have known Plaintiff's current address and by not immediately offering to return the garnishment funds after the Douglas County Court set aside the default judgment, Plaintiff avers that Defendant violated: (1) 15 U.S.C. § 1692e(5) “by taking or threatening to take an action that cannot be legally taken, ” id. ¶¶ 49, 55; (2) 15 U.S.C. § 1692e(10) “by using false, deceptive, or misleading representation or means, ” id. ¶¶ 66, 72; and (3) 15 U.S.C. § 1692f “by using unfair or unconscionable means, ” id. ¶¶ 75, 82.

         In the Motion [#13], Defendant does not explicitly dispute that Plaintiff is a consumer, that Defendant is a debt collector, that Defendant's legal action was taken in connection with collection of a debt in default to a third party, or that the debt was incurred primarily for personal, family, or household purposes as defined under the FDCPA. See Am. Compl. [#10] ¶¶ 5-7, 9, 11.

         II. Legal Standard

         The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon which relief can be granted”). “The court's function on a Rule 12(b)(6) motion 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.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain enough allegations of fact ‘to state a claim to relief that is plausible on its face.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations.” (quoting Twombly, 550 U.S. at 570)).

         “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. (brackets in original; internal quotation marks omitted).

         To survive a motion to dismiss pursuant to Rule 12(b)(6), 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). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” a factual allegation has been stated, “but it has not show[n] that the pleader is entitled to relief, ” as required by Rule 8(a). Iqbal, 552 U.S. at 679 (second brackets added; citation and internal quotation marks omitted).

         III. Analysis

         All of Plaintiff's claims against Defendant in this case arise pursuant to the FDCPA. See Am. Compl. [#10] ¶¶ 49, 55, 66, 72, 79, 82. Defendant argues that Plaintiff's claims should be dismissed under Fed.R.Civ.P. 12(b)(6) for failure to state a claim on which relief may be granted. Motion [#13] at 2. Specifically, Defendant asserts, as a matter of law, that serving Plaintiff at an address at which he allegedly no longer resided, and not immediately returning garnishment funds after the judgment underlying the court-issued garnishment was vacated, absent any request, demand or order to return funds, cannot establish a violation of the FDCPA. Id. at 1-2.

         The FDCPA is designed to “eliminate abusive debt collection practices by debt collectors . . . and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692. Specifically, Plaintiff alleges that Defendant's debt collection practices violated 15 U.S.C. §§ 1692e(5), 1692e(10), and 1692f. Am. Compl. [#10] ¶¶ 49, 55, 66, 72, 79, 82. Accepting the well-pled allegations of Plaintiff's Amended Complaint [#10] as true, and for the reasons stated below, the Court concludes that dismissal of all claims against Defendant for violations of 15 U.S.C. §§ 1692e(5), 1692e(10), and 1692f is appropriate. See Mobley, 40 F.3d at 340 (holding that the purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true”).

         A. Alleged ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.