Jennings v. Dynamic Recovery Solutions LLC

441 F.Supp.3d 106

Dawn JENNINGS on behalf of herself and all others similarly situated, Plaintiff,

v.DYNAMIC RECOVERY SOLUTIONS LLC, Defendant.

Case No.: GJH-19-1895

United States District Court, D. Maryland, Southern Division.

Signed February 27, 2020

Sergei Lemberg, Lemberg Law LLC, Wilton, CT, for Plaintiff.

Jeffrey L. Friedman, Friedman and Associates LLP, Reisterstown, MD, for Defendant.

MEMORANDUM OPINION

GEORGE J. HAZEL, United States District Judge

Plaintiff Dawn Jennings brings this consumer protection action on behalf of herself and all others similarly situated alleging that Defendant Dynamic Recovery Solutions LLC attempted to collect a debt in violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. ECF No. 5. Currently pending before the Court is Defendant's Motion to Dismiss the Amended Complaint. ECF No. 6. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). For the following reasons, Defendant's Motion to Dismiss the Amended Complaint is granted, in part, and denied, in part.

I. BACKGROUND¹

At some point prior to March 2019, Plaintiff incurred a debt (the "Debt") to FIA Card Services, NA ("FIA Card Services"). ECF No. 5 ¶ 9. The agreement that created the Debt "states that it is governed by the laws of the State of Delaware (without regard to its conflict of laws principles) and by any applicable federal laws." Id. ¶ 10. FIA Card Services subsequently sold the Debt to Defendant or otherwise enlisted Defendant to collect the Debt on its behalf. Id. ¶ 12.

By March 2019, Plaintiff had an account balance of $9,715.18, but any attempt to collect the Debt through legal action was time-barred. Id. ¶ 14; ECF No. 6-2 at 2.² Regardless, on March 7, 2019, Defendant sent Plaintiff a letter (the "Letter") in an attempt to collect the Debt, indicating that Cavalry SPV I, LLC ("Cavalry") was the current creditor. ECF No. 5 ¶ 13; ECF No. 6-2 ¶ 6-2. The Letter offered Plaintiff options to "resolve" her account by paying an amount less than the account balance. ECF No. 5 ¶ 15; ECF No. 6-2 at 2.³ Specifically, the Letter provided the following three settlement offers:

1. Our office will allow you to resolve your account for $4,371.83. Your payment is due on April 21, 2019. We are not obligated to renew this offer. Upon receipt and clearance of this payment, this account will be considered satisfied and closed. A satisfaction letter will be issued or;

2. Our office will allow you to resolve your account for $4,857.59 in 2 payments of $2,428.80 and $2,428.79. Your first payment is due on April 21, 2019. We are not obligated to renew this offer. To comply with this offer, payments should be no more than 30 days apart. Upon receipt and clearance of these two payments, this account will be considered satisfied and closed. A satisfaction letter will be issued or;

3. Our office will allow you to resolve your account for $5,343.35 in 3 payments of $1,335.84 and a final payment of $1,335.83. Your first payment is due on April 21, 2019. We are not obligated to renew this offer. To comply with this offer, payments should be no more than 30 days apart. Upon receipt and clearance of these four payments, this account will be considered satisfied and closed. A satisfaction letter will be issued[.]

ECF No. 5 ¶ 15; ECF No. 6-2 at 2. The Letter separately stated, "The law limits how long [Plaintiff] can be sued on a debt. Because of the age of [Plaintiff's] debt, Cavalry and [Defendant] cannot sue you for it and Cavalry and [Defendant] cannot report it to any credit reporting agency." ECF No. 5 ¶ 16; ECF No. 6-2 at 2.

After receiving this letter, Plaintiff filed a Complaint against Defendant in this Court on June 27, 2019 on behalf of herself and a purported class of similarly situated individuals.⁴ ECF No. 1. Plaintiff later amended the Complaint on September 10, 2019. ECF No. 5. Plaintiff alleges that the Letter violates §§ 1692d, 1692e, 1692e(2), 1692e(10), and 1692f of the FDCPA because it attempts to collect a time-barred debt without "disclos[ing] or warn[ing] consumers that by agreeing to the settlement offers, or by making a partial payment, they would be removing the statute of limitations bar on the debts and would effectively be granting [Defendant] the ability to sue to collect the debts." Id. ¶ 3. On September 23, 2019, Defendant filed a Motion to Dismiss the Amended Complaint. ECF No. 6.⁵ Plaintiff filed an opposition on October 7, 2019, ECF No. 7, and Defendant filed a reply on October 14, 2019, ECF No. 8.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Hall v. DIRECTV, LLC , 846 F.3d 757, 765 (4th Cir. 2017). However, Federal Rule of Civil Procedure 12(b)(6) provides for "the dismissal of a complaint if it fails to state a claim upon which relief can be granted." Velencia v. Drezhlo , Case No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). A motion to dismiss under 12(b)(6) "test[s] the adequacy of a complaint." Prelich v. Med. Res., Inc. , 813 F. Supp. 2d 654, 660 (D. Md. 2011) (citing German v. Fox , 267 F. App'x 231, 233 (4th Cir. 2008) ). Motions to dismiss for failure to state a claim do "not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Id. (citing Edwards v. City of Goldsboro , 178 F.3d 231, 243 (4th Cir. 1999) ). To overcome a Rule 12(b)(6) motion, a complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim is plausible 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.

In evaluating the sufficiency of the plaintiff's claims, the Court accepts factual allegations in the complaint as true and construes them in the light most favorable to the plaintiff. See Albright v. Oliver , 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) ; Lambeth v. Bd. of Comm'rs of Davidson Cty. , 407 F.3d 266, 268 (4th Cir. 2005). However, the complaint must contain more than "legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. , 591 F.3d 250, 255 (4th Cir. 2009). The court should not grant a motion to dismiss for failure to state a claim unless "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." GE Inv. Private Placement Partners II v. Parker , 247 F.3d 543, 548 (4th Cir. 2001) (citing H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249–50, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989) ).

III. DISCUSSION

The FDCPA seeks "to eliminate abusive debt collection practices by debt collectors." 15 U.S.C. § 1692(e). "The Act ‘is a strict liability statute and a consumer only has to prove one violation to trigger liability.’ " Long v. Pendrick Capital Partners II, LLC , 374 F. Supp. 3d 515, 531 (D. Md. 2019) (quoting Akalwadi v. Risk Mgmt. Alts., Inc. , 336 F. Supp. 2d 492, 500 (D. Md. 2004) ). "To succeed on a FDCPA claim, a plaintiff must demonstrate that ‘(1) the plaintiff has been the object of collection activity arising from consumer debt, (2) the defendant is a debt collector as defined by the FDCPA, and (3) the defendant has engaged in an act or omission prohibited by the FDCPA.’ " Id. (quoting Stewart v. Bierman , 859 F. Supp. 2d 754, 759–60 (D. Md. 2012) ). There is no dispute that the Amended Complaint alleges that Plaintiff has been the object of collection activity arising from consumer debt and that Defendant is a debt collector. Thus, the only issue is whether the Amended Complaint sufficiently alleges conduct prohibited by §§ 1692d, 1692e, 1692e(2), 1692e(10), and 1692f of the FDCPA. For the reasons that follow, the Court finds that the Amended Complaint sufficiently alleges conduct prohibited by §§ 1692e, 1692e(2), and 1692e(10), but not §§ 1692d or 1692f.

A. Section 1692d

Section 1692d of the FDCPA prohibits a "debt collector" from "engag[ing] in 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 provides a non-exhaustive list of prohibited conduct, including:

(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.

(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.

(3) The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of section 1681a(f) or 1681b(3) of [the FDCPA].

(4) The advertisement for sale of any debt to coerce payment of the debt.

(5) Causing 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.

(6) Except as provided in section 1692b of [the FDCPA], the placement of telephone calls without meaningful disclosure of the caller's identity.

Id. §§ 1692d(1)–(6).

Here, Plaintiff does not allege that Defendant used or threatened violence, used obscene or profane language, published her name, advertised for sale of the Debt, or made any telephone calls related to the Debt. Rather, she alleges only that Defendant mailed a letter offering to resolve the time-barred Debt without disclosing that certain actions by Plaintiff could potentially result in Defendant's renewed ability to sue for the Debt, and she conclusively states that this is behavior "the natural consequence of which was to harass, oppress, or abuse the Plaintiff in connection with the collection of a debt." See ECF No. 5 ¶¶ 13–17, 42. Plaintiff makes no argument, however, as to how the Letter...