SLOMSKY, District Judge.
This case arises out of Defendant Northland Group, Inc.'s attempt to collect on a debt Plaintiff Gayle J. Johns owed to Bloomingdale's and Macy's. Plaintiff contends that collection of the debt was time-barred under the relevant statute of limitations. In addition, Plaintiff alleges that Defendant's communications with Plaintiff regarding the debt violated provisions of the Fair Debt Collection Practices Act (FDCPA).
Plaintiff's Complaint was originally filed in state court and was removed by Defendant to this Court on May 23, 2014. (Doc. No. 1.) On July 2, 2014, Defendant filed a Motion to Dismiss. (Doc. No. 6.) Plaintiff Responded to the Motion on July 17, 2014. (Doc. No. 7.) For reasons that follow, the Court will dismiss the Complaint.
On June 7, 2013, Plaintiff received a letter from Defendant, a company that handles debt collection matters. (Doc. No. 1, Ex. A, ¶¶ 2, 14). The letter was sent in regard to Plaintiff's account with Bloomingdale's. (Id. at 13.) The top right corner of the letter stated:
(Id.) The letter stated in the middle of the page:
(Id.) The content of the letter reads as follows:
(Id.)
On December 10, 2013, Plaintiff received another letter from Defendant in reference to her account with Macy's. Like the June 7, 2013 letter, the top right corner provided the following information:
(Doc No. 1, Ex. A, at 12.) The letter stated in the middle of the page:
The balance of the letter reads as follows:
(Doc. No. 1, Ex. A, at 12.)
In addition to receiving these letters, Plaintiff alleges that Defendant made "numerous, offensive phone calls" attempting to collect on the debt, including "calling [her] friends and family members to discuss the alleged debt and improperly seeking information regarding the alleged debt." (Doc. No. 1, Ex. A, ¶ 18.)
After receiving the two letters and phone calls, Plaintiff filed an action against Defendant alleging that collection on the debt was time-barred under Pennsylvania law, 42 Pa.C.S.A. § 5525(a), and that Defendant's collection attempts violated provisions of the FDCPA, 15 U.S.C. § 1692. As evidence of the FDCPA violations, Plaintiff argues that Defendant did not clearly identify the creditor in the two letters and made misrepresentations about the legal status of the debt. Plaintiff also states that "Defendant provide[d] no information... as to how it would redeem Plaintiff's credit or what changes it would make with the credit reporting agencies." (Doc. No. 1, Ex. A, ¶ 16.) Finally, Plaintiff argues that the phone calls she received from Defendant were improper and violated the FDCPA.
The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) is set forth in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). After Iqbal it is clear that "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice" to defeat a Rule 12(b)(6) motion to dismiss. Id. at 663, 129 S.Ct. 1937; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "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." Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223, 231 n. 14 (3d Cir.2013) (citing Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n. 27 (3d Cir. 2010)). "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." Id. Applying the principles of Iqbal and Twombly, the Third Circuit in Santiago v. Warminster Twp., 629 F.3d 121 (3d Cir.2010), set forth a three-part analysis that a district court in this Circuit must conduct in evaluating whether allegations in a complaint survive a 12(b)(6) motion to dismiss:
Id. at 130 (quoting Iqbal, 556 U.S. at 675, 679, 129 S.Ct. 1937). "This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir.2011).
A complaint must do more than allege a plaintiff's entitlement to relief, it must "show" such an entitlement with its facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.2009) (citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir.2008)). "[W]here 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.'" Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. The "plausibility" determination is a "context-specific task that requires the reviewing
In her Complaint, Plaintiff's claims fall into two categories — first, that collection on the debt was time-barred under 42 Pa.C.S.A. § 5525(a), and second, that Defendant's collection attempts violated sections of the FDCPA.
In her Complaint, Plaintiff asserts that Defendant's attempt to collect on the debt was "time-barred by the statute of limitations as imposed by 42 Pa.C.S. [sic] 5525(a)." (Doc. No. 1, Ex. A, at 7.) The state where the debt arose provides the applicable statute of limitations for purposes of determining whether the obligation is time-barred. Martsolf v. JBC Legal Grp., P.C., 1:04-CV-1346, 2008 WL 275719, at *4 (M.D.Pa. Jan. 30, 2008). Since the debts here were incurred in Pennsylvania, 42 Pa.C.S.A. 5525(a) applies and sets a four-year period of limitations for actions arising in contract.
Plaintiff's statute of limitations claim fails, however, for two reasons. First, Plaintiff has not set forth in her Complaint sufficient factual information to show how the debt was time-barred. The starting and ending date of the statute of limitations are not alleged, and Plaintiff's claim that the debt is time-barred is a mere legal conclusion that the Court will disregard.
Second, even if Plaintiff provided sufficient facts to establish that the debt was time-barred, Defendant was still permitted to seek voluntary repayment of the debt. Under Pennsylvania law, the expiration of the statute of limitations does not invalidate the debt, but "merely prevents judicial enforcement" of it. Martsolf, 2008 WL 275719, at *4. Pursuant to the FDCPA, a debt collector may seek voluntary repayment of the time-barred debt, so long as the debt collector does not initiate or threaten legal action in connection with the collection efforts. Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 32-33 (3d Cir. 2011). Whether a debt collector's attempt
In Huertas v. Galaxy Asset Management, the Third Circuit considered whether a debt collector's letter contained language that threatened litigation from the viewpoint of the least sophisticated debtor. 641 F.3d 28 (3d Cir.2011). In the letter, the collector noted that plaintiff's account had been reassigned and in bold capital letters stated,
Here, the two collection letters did not contain any language that indicated that legal action was initiated or threatened. Defendant, therefore, could seek from Plaintiff voluntary repayment of the debt even if the statute of limitations had expired.
In addition, Plaintiff did not address Defendant's argument that the FDCPA permits voluntary repayment of a time-barred debt in her Response to Defendant's Motion to Dismiss. Thus, the Court may consider this argument unopposed.
The balance of Plaintiff's claims involve alleged violations of the FDCPA. To state a claim under the FDCPA, a plaintiff must establish that: (1) he or she is a consumer who was harmed by violations of the FDCPA; (2) that the "debt" arose out of a transaction entered into primarily for personal, family, or household purposes; (3) that the defendant collecting the debt is a "debt collector;" and (4) that the defendant violated, by act or omission, a provision of the FDCPA. Donohue v. Reg'l Adjustment Bureau, Inc., 12-cv-1460, 2013 WL 1285469, at *3 (E.D.Pa. Mar 28, 2013) (citing 15 U.S.C. § 1692a-o).
At the outset, Defendant submits that Plaintiff has failed to plausibly allege that the "debt" arose out of a transaction entered into for personal, family, or household purposes. In addition, Defendant argues that Plaintiff has not plausibly stated that the content of the letters and the frequency and substance of the phone calls violated the FDCPA. For reasons that follow, the Court will dismiss Plaintiff's FDCPA claims against Defendant alleged in Count I.
Defendant submits that the Complaint should be dismissed because Plaintiff has failed to plead that the type of debt Defendant sought to collect was one that is subject to the FDCPA. The FDCPA prohibits certain practices of a debt collector while attempting to collect a "debt" as defined in § 1692a(5). Zimmerman v. HBO Affiliate Grp., 834 F.2d 1163, 1167 (3d Cir.1987). Section 1692a(5) of the FDCPA defines debt as "any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which
In Vaquero v. Frederick J. Hanna & Assocs., the court considered at the motion to dismiss stage whether plaintiff had plausibly stated that the debt at issue was of the type described in § 1692a(5). 2:13-cv-0641, 2013 WL 5947011, at *2 (D.N.J. Nov. 6, 2013). In Vaquero, plaintiff stated in the complaint that "[d]efendant sought to collect from [p]laintiff a debt ... arising from transactions incurred for personal, family, or household purposes." Id. The court dismissed the complaint because this allegation did not allege sufficiently that the debt at issue was a "debt" as defined in the FDCPA. The court found that plaintiff's language was a legal conclusion and the type of "threadbare recital" forbidden by Iqbal and Twombly. Id.; see Nicholas v. CMRE Fin. Servs., Inc., 08-cv-4857, 2009 WL 1652275, at *2 (D.N.J. June 11, 2009) ("By limiting itself to the language of the [FDCPA] and failing to provide any facts specific to [plaintiff], the [c]omplaint, as currently constituted cannot meet the requirements of ... Iqbal.")
Here, Plaintiff alleges in her Complaint the following with regard to the nature of the debt: "Defendant is a debt collector as that term is defined by 15 U.S.C. § 1692a(6), and sought to collect a consumer debt from Plaintiff." (Doc. No. 1, Ex. A, ¶ 11.) This description of the debt is even less descriptive than the debt described in Vaquero. Plaintiff does not even allege that the debt arises from transactions made for personal, family, or household use. Rather, she uses a legal conclusion that the Court may disregard. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009) (stating that a district court must accept as true all of the complaint's well-pleaded facts, but may "disregard any legal conclusions"). Because Plaintiff has failed to plausibly allege that the debts at issue here are covered debts as defined in § 1692a(5) of the FDCPA, her FDCPA claims alleged in Count I will be dismissed.
Even if Plaintiff had sufficiently alleged that Defendants were attempting to collect a "debt" as defined under the FDCPA, Plaintiff's FDCPA claims would still fail because her arguments regarding the content of the letters are without merit. Plaintiff contends that the letters violated the FDCPA in several ways. First, the letters "creat[ed] ambiguity as to the source and affiliation of the alleged debt." (Doc. No. 1, Ex. A, ¶ 14.) Second, Defendant's use of the term "settlement offer" implied that "litigation was imminent and misrepresent[ed] the nature and legal status of the alleged debt." (Doc. No. 1, Ex. A, ¶ 15.) Third, in the letters, Defendant did not provide information regarding "how it would redeem Plaintiff's credit or what changes it would make with the credit reporting agencies." (Id. ¶ 16.) These arguments are not at all persuasive.
With regard to the content of the June and December letters, Plaintiff's first claim is that the letters "creat[ed] ambiguity as to the source and affiliation of the alleged debt" by stating "Creditor: Department Stores National Bank," and then noting "Store Name: Bloomingdale's" and "Store Name: Macy's." (Doc. No. 1, Ex. A, ¶ 14.) Plaintiff does not pinpoint in the Complaint which provision of the FDCPA that this claim violates. The Court will
In analyzing communications from lenders to debtors, the Third Circuit, as noted above, applies the "least sophisticated debtor" standard. Brown v. Card Serv. Ctr., 464 F.3d 450, 453 (3d Cir.2006). Though the least sophisticated debtor standard protects naïve consumers, "it also prevents liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness...." Id. at 454. Even the least sophisticated debtor is presumed to have a "basic level of understanding and willingness to read with care." Id. Moreover, "the standard does not go so far as to provide solace to the willfully blind or non-observant. Even the least sophisticated debtor is bound to read collection notices in their entirety." Campuzano-Burgos v. Midland Credit Mgmt., 550 F.3d 294, 299 (3d Cir.2008).
In Hammett v. AllianceOne Receivables Management, Inc., the court examined whether describing the creditor as "Client: PNC Bank" sufficiently identified the creditor. 11-cv-3172, 2011 WL 3819848, at *4 (E.D.Pa. Aug. 30, 2011). Plaintiff argued that the words "creditor" and "client" are not interchangeable, so the description of PNC Bank as the "client" was misleading. Id. The court disagreed, finding that although the "identity of the creditor could have been more precise," the language was not false, misleading, or deceptive under the FDCPA. Id.
Here, Defendant identifies the creditor by using the term "Creditor" in both the June and December letters as Department Stores National Bank. The word "client" is not used in either letter. The letters further note the name of the store where the debt was incurred and even provides the account number from which the debt emanates. Even an unsophisticated debtor could plainly see that Department Stores National Bank is the creditor who was attempting to collect on Plaintiff's accounts with Bloomingdale's and Macy's. There is no ambiguity here as to the source and affiliation of these debts.
Plaintiff also contends that the use of the term "settlement offer" in the letters imply that "litigation was imminent and misrepresent[ed] the nature and legal status of the alleged debt." (Doc. No. 1, Ex. A, ¶ 15.) In the June letter, Plaintiff is referring to the following language:
(Doc. No. 1, Ex. A, at 13.) In the December letter, Plaintiff is referring to the following:
(Id. at 12.)
It is well established that "[t]here is nothing improper about making a settlement offer" in communications between a collector and a debtor. Campuzano-Burgos, 550 F.3d at 299 (citing Evory v. RJM Acquisitions Funding L.L.C., 505 F.3d 769, 775 (7th Cir.2007)). Forbidding them "would force honest debt collectors seeking a peaceful resolution of the debt to file suit in order to advance efforts to resolve the debt — something that is clearly at odds with the language and purpose of the [FDCPA]." Id. (citing Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 399 (6th Cir. 1998)). Moreover, "[p]ermitting the use of settlement letters may allow resolution of a claim without the `needless cost and delay of litigation ... [and] is certainly less coercive and more protective of the interests of the debtor.'" Campuzano-Burgos, 550 F.3d at 299 (quoting Lewis, 135 F.3d at 399).
Here, Plaintiff claims that Defendant's use of the term "settlement offer" misrepresented the legal status of the debt or implied that litigation is imminent. This argument is unconvincing. See Campuzano-Burgos, 550 F.3d at 299 ("There is nothing improper about making a settlement offer."); Kryluk v. Northland Grp., Inc., No. 14-cv-3198, 2014 WL 6676728, at *5 (E.D.Pa. Nov. 25, 2014) (holding that "the mere use of the term `settlement offer' is permissible and, indeed, desirable in the course of resolving debts."). Thus, Plaintiff has failed to plausibly allege that the use of this term violated the FDCPA.
Plaintiff also claims in her Complaint that "Defendant provide[d] no information in either letter as to how it would redeem Plaintiff's credit or what changes it would make with the credit reporting agencies." (Doc. No. 1, Ex. A, ¶ 16.) Again, Plaintiff does not connect this allegation to any specific provision of the FDPCA. Moreover, Plaintiff does not cite any legal authority to support her claim that Defendant had some affirmative obligation to inform Plaintiff about her credit standing.
In addition, as noted by Defendant in its Motion to Dismiss, "there is nothing in the letters suggesting, and Plaintiff does not allege, that (1) Defendant was reporting Plaintiff's account to any credit reporting agencies; (2) non-payment of the account was somehow affecting Plaintiff's credit; or (3) Defendant would cause any changes with respect to Plaintiff's credit." (Doc. No. 6 at 13.) Defendant had no affirmative obligation under the FDCPA to advise Plaintiff of the consequences of her failure to pay, or what changes it would make with the credit reporting agencies, nor does Plaintiff state as much in her Complaint. Moreover, Plaintiff failed to address this argument in her Response to Defendant's Motion to Dismiss, and therefore it is perforce unopposed. Thus, this claim is also without merit.
Finally, Plaintiff submits that "Defendant made or caused to be made numerous, offensive phone calls to Plaintiff
Although Plaintiff has again failed in the Complaint to connect these facts to a specific provision of the FDCPA, the Court will assume that Plaintiff is alleging that these phone calls violated § 1692d of the FDCPA. This section forbids "any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." 15 U.S.C. § 1692d. The statute lists examples of what constitutes harassing conduct, including "[c]ausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number." Id. For the purpose of the FDCPA, "continuously" means "making a series of telephone calls, one right after the other," and repeatedly means "calling with excessive frequency under the circumstances." Kromelbein v. Envision Payment Solutions, Inc., 3:11-cv-1598, 2013 WL 3947109, at *4 (M.D.Pa. Aug. 1, 2013) (internal citations omitted). In order to determine whether a debt collector acted with the requisite intent, courts look at the frequency, pattern, and substance of the calls. Nyce v. Sterling Credit Corp., 11-cv-5066, 2013 WL 1388051, *4 (E.D.Pa. April 3, 2013).
In Carr v. NCO Financial Systems, Inc., the court examined plaintiff's claim under § 1692d based on phone calls that plaintiff received from defendant, a collections agency. 11-cv-2050, 2011 WL 6371899, at *1 (E.D.Pa. Dec. 20, 2011). In the complaint, she described receiving "constant" and "continuous" calls "once every two, three, four, or five days" over an estimated period of thirty days. Id. Plaintiff also identified nine calls in her complaint by date and time that occurred during the thirty day period. Id. The court denied defendant's motion to dismiss this claim and found that plaintiff had pled enough facts to plausibly show that defendant caused the telephone to ring with an intent to annoy or abuse. Id.
In Sussman v. I.C. System, Inc., plaintiff alleged in his complaint that he had received over fifty calls from the debt collector defendant over a three month period. 928 F.Supp.2d 784, 793-94 (S.D.N.Y. 2013). In addition, defendant would hang up shortly after plaintiff or a member of his family would answer the phone. Id. at 794. Plaintiff also alleged that the calls persisted even after plaintiff contacted defendant in writing to stop calling him. Id. The court found that the allegations in the complaint plausibly established that defendant had called plaintiff with intent to harass, and accordingly denied defendant's motion to dismiss. Id.
Here, Plaintiff has failed to plausibly show that Defendants called Plaintiff with intent to harass, annoy, or abuse her. The Complaint simply states that Defendant called Plaintiff "numerous" times, called "friends and family members" and "improperly [sought] information regarding the alleged debt." (Doc. No. 1, Ex. A, ¶ 18.) Unlike the plaintiff in Carr, Plaintiff here has not described with particularity a single phone call she received. Neither the content nor date and time were provided. She did not list how many phone calls she received during the day, or over a week or a month. While Plaintiff claims that her friends and family members received calls from Defendant, she does not identify any of these friends or family members. Also, unlike the plaintiff in Sussman, Plaintiff here does not claim to have asked Defendant to stop calling, nor does she state facts plausibly showing
Based upon the foregoing, the Court will grant the Motion to Dismiss the Complaint (Doc. No. 6). The Court, however, will grant Plaintiff leave to file an amended Complaint in order to provide additional facts regarding the nature of the debts at issue here. The Court will also grant Plaintiff leave to amend the Complaint in order to provide more facts regarding the nature of the offensive phone calls. Leave to amend the Complaint will not be granted on any claim involving the statute of limitations or the content of the letters. It would be futile to permit Plaintiff to amend these claims because they rely exclusively on letters that the Court has already upheld as proper in this Opinion.
An appropriate Order follows.
In addition, the other cases Plaintiff cites also do not stand for the proposition that attempting to collect a time-barred debt without disclosing the fact that the debt is time-barred is a violation of the FDCPA. Rather, the cases Plaintiff cites either correctly state that a collector may not initiate or threaten litigation in attempting to collect a time-barred debt, or do not directly deal with the issue of a collector's responsibility to disclose that it is attempting to collect a time-barred debt. See Wright v. Asset Acceptance Corp., C-3-97-375, 2000 WL 33216031, at *3 (S.D.Ohio Jan. 3, 2000) (finding that plaintiff had not alleged that his debt was time-barred, and therefore, plaintiff could not argue that he had been deceived into relinquishing a statute of limitations defense); Taylor v. Unifund Corp., 98 C 5921, 1999 WL 33545372, at *2 (N.D.Ill. May 3, 1999) (finding that a debt collector's representation that it could legally prevail in a lawsuit to collect a time-barred debt was a misrepresentation of the status of the debt); Simmons v. Miller, 970 F.Supp. 661, 665 (S.D.Ind.1997) (analyzing whether defendant's debt-collection action was time-barred and thus in violation of the FDCPA); Stepney v. Outsourcing Solutions, Inc., 97 C 5288, 1997 WL 722972, at *5 (N.D.Ill. Nov. 13, 1997) (finding that defendant's collection of a time-barred debt violated the FDCPA because defendant threatened "further collection action"); Lindbergh v. Transworld Sys., Inc., 846 F.Supp. 175, 179 (D.Conn.1994) (granting defendant's motion for summary judgment because plaintiff failed to raise a genuine issue of material fact showing that defendant knew that it was attempting to collect a time-barred debt); Martinez v. Albuquerque Collection Serv., Inc., 867 F.Supp. 1495, 1506 (D.N.M.1994) (denying summary judgment motion regarding plaintiff's claim that defendant attempted to collect on a time-barred account because genuine issue of material fact existed as to whether defendant contacted plaintiff about time-barred debt); Beattie v. D.M. Collections, Inc., 754 F.Supp. 383, 393 (D.Del.1991) (explaining that "threatening ... a lawsuit which the debt collector knows or should know is unavailable... by reason of a legal bar such as the statute of limitations is the kind of abusive practice the FDCPA was intending to eliminate"); Kimber v. Fed. Fin. Corp., 668 F.Supp. 1480 (M.D.Ala.1987) (holding that a "debt collector's filing of a lawsuit on a debt that appears to be time-barred ... is an unfair and unconscionable means of collecting the debt").