OPINION
NOEL L. HILLMAN, District Judge.
Presently before the Court is Navient Solutions, Inc.'s ("Navient")1 motion to dismiss Robert Caione's Complaint regarding student loan debt.2 Plaintiff, Caione, did not file a brief in opposition to Defendant's motion. For the reasons expressed below, Defendant's Motion to Dismiss will be granted.
JURISDICTION
Plaintiff brought this action pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. This Court exercises federal question subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
BACKGROUND
Plaintiff Robert Caione received from Navient a loan statement for the period of December 14, 2014, to January 13, 2015, for the purported student loan debt of Alexandra F. Neubaum. (Docket No. 1 at 2.) In an April 2, 2015, letter to Navient,3 Caione wrote that Navient had harassed him for a debt for which he was not responsible; he did not know and never had met Alexandra Neubaum; he had advised Navient of this on numerous occasions; someone had stolen his personal information and he had never signed or agreed to the loan with Navient. (Id.) Caione asked Navient to cease and desist as to further phone calls, bills and mailings. (Docket No. 1-3 at 14.)
Plaintiff contends in his Complaint that on January 23, 2015, he informed a Navient representative that he did not wish to receive any further calls or correspondence regarding Neubaum's debt. (Docket No. 1 at 2.) Navient continued to call and correspond with Caione. Caione says his credit score decreased significantly from over 800 to the 600's due to Navient's wrongful reporting. (Id.)
In his five-count Complaint, Caione charges that Navient's calls and correspondence were in violation of the Fair Debt Collections Practices Act (FDCPA) 15 U.S.C. § 1692 et seq. (Docket No. 1 at 2.) Plaintiff says Navient: (1) violated § 1692c(a) of the FDCPA which places restrictions on the times a debt collector may communicate with a consumer (Id.); (2) harassed and abused him in collecting the debt in violation of § 1692d of the FDCPA (Docket No. 1 at 4.); (3) engaged in false and misleading and deceptive means to collect the debt, violating 1692e of the FDCPA (Docket No. 1 at 5.); (4) used "unfair and unconscionable means" to collect debt in violation of § 1692f of the Act (Id.); and (5) failed to validate the alleged debt, thus violating § 1692g of the Act. (Docket No. 1 at 6.) Caione seeks to recover actual damages, statutory damages and reasonable attorney fees under 15 U.S.C. § 1692k(a). (Docket No. 1 at 6-7.)
Pursuant to the Federal Rule of Civil Procedure 12(b)(6), Navient has moved to dismiss Plaintiff's claims against it, arguing all the claims fail as a matter of law.4 (Docket No. 8 at 10, 11.) Caione did not file a brief in opposition to Navient's motion.
STANDARD FOR MOTION TO DISMISS, RULE 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." The Federal Rules of Civil Procedure require that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L. Ed. 2d 929 (2007) (internal quotations omitted.) A complaint must be dismissed for failure to state a claim if it does not have "enough facts to state a claim that is plausible on its face." Twombly, 550 U.S. 544, 570 (1970). Plaintiff must furnish "more than labels and conclusions or a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555-56.
When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L. Ed. 2d 868 (2009); Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). A district court, in weighing a motion to dismiss, asks "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007) (citation and quotation omitted).
Following the Twombly/Iqbal standard, the Third Circuit set out a two-part analysis for reviewing a complaint under Rule 12(b)(6):
First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (citing Iqbal, 129 S. Ct. at 1950) (internal quotation and citation omitted.)
THE FAIR DEBT COLLECTION PRACTICES ACT
The FDCPA prohibits the use of abusive, deceptive and unfair debt collection practices by debt collectors. 15 U.S.C. § 1692, et seq. The Third Circuit set out four elements to prove an FDCPA claim:
To prevail on an FDCPA claim, a plaintiff must prove that (1) she is a consumer, (2) the defendant is a debt collector, (3) the defendant's challenged practice involves an attempt to collect a "debt" as the Act defines it, and (4) the defendant has violated a provision of the FDCPA in attempting to collect the debt.
Douglass v. Convergent Outsourcing, 765 F.3d 299, 303 (3d Cir. 2014)(citing Piper v. Portnoff Law Assocs., Ltd., 396 F.3d 227, 232 (3d Cir. 2005)).
The second element of the FDCPA claim — that plaintiff must show defendant is a "debt collector" — is at issue in this motion. Under 15 U.S.C. § 1692a(6), a "debt collector" includes "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another."5 A "debt collector" does not include "any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity . . . concerns a debt which was originated by such person . . . and concerns a debt not in default at the time it was obtained by such person[.]" 15 U.S.C. § 1692a(6)(F)(iii).
ANALYSIS
In order for Caione to survive a 12(b)(6) motion to dismiss, he must aver "enough facts to state a claim that is plausible on its face." See Twombly, 550 U.S. 544, 570 (2007). Caione says he is a natural person and a consumer, satisfying the first element of the claim, and he avers Navient is attempting to collect a debt, the third element of the claim. (Docket No. 1 at 1.) Caione describes Navient's conduct and alleges the conduct violated various sections of the Act, in apparent satisfaction of the fourth element. (Docket No. 1 at 3-6.)
However, Caione fails entirely to aver and factually support the second element of the claim, that Navient is a "debt collector" as defined by the Act. In considering this Motion to Dismiss, the Court looks upon the allegations of Caione in the light most favorable to him. See Ashcroft v. Iqbal, 556 U.S. 662, 678; see Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). While Navient repeatedly says it collects debts,6 the threshold question is whether Caione is a "debt collector" as defined by the FDCPA. Caione does not aver that Navient was a debt collector by alleging, for example, that: (1) Navient's principal purpose was to collect debts;7 (2) Navient regularly collected or attempted to collect debts owed to another;8 (3) the debt was not originated by Navient;9 or (4) the debt was in default at the time it was obtained by Navient.10 Plaintiff's cupboard, as it relates to the second element, is factually bare.
Plaintiff's FDCPA claims are not only deficient but also inconsistent with the facts that are alleged in the Complaint or are incorporated within through the attachments. The attachments establish that Navient11 began servicing the loans before any loan default.12 Therefore, on the facts alleged, Navient is not a debt collector as defined by the statute. As this Court noted in Spyer v. Navient:
Navient is not a "debt collector" under the FDCPA under these circumstances because it became the loan servicer (first as Sallie Mae before it changed its name) while plaintiff's loan [sic] were not in default. Therefore, the FDCPA is inapplicable to Navient's relationship with plaintiff as a servicer of plaintiff's federal student loans. See Pollice v. Nat'l Tax Funding, L.P., 225 F.3d 379, 403 (3d Cir. 2000) ("[T]he FDCPA's provisions generally apply only to "debt collectors." Creditors—as opposed to "debt collectors"— generally are not subject to the FDCPA."); id. ("Courts have indicated that an assignee of an obligation is not a `debt collector' if the obligation is not in default at the time of the assignment).
Spyer v. Navient, 15-3814, 2016 WL 1046789, at *3 (Mar. 15, 2016)(some citations and quotations omitted); see also Haysbert v. Navient Sols., Inc., 15-4144 PSG, 2016 WL 890297, at *11 (C.D. Cal. Mar. 8, 2016)(explaining that numerous courts have found that student loan servicers that begin servicing prior to default are not debt collectors under the FDCPA).
Here, the facts pled indicate Navient (as corporate successor to Sally Mae) was the loan originator. By definition, then, Navient began servicing the loans prior to any default. Plaintiff has failed to allege any facts to support an allegation that Navient was a debt collector and the facts that are alleged suggest otherwise. Because Plaintiff has failed to state a valid claim under Rule 8(a) and Twombly/Iqbal, his Complaint will be dismissed.
CONCLUSION
Navient's Motion to Dismiss Caione's Complaint for failure to state a claim under the FDCPA will be granted. The Clerk will also correct Defendant's name, noting that it is Navient Solutions, Inc., not Navient Corporation. An appropriate Order will be entered.
