Mock v. Couch, Conville, & Blitt, LLC

KATHY MOCK v. COUCH, CONVILLE, & BLITT, LLC, ET AL.

CIVIL ACTION 20-594-JWD-RLB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

February 23, 2021

NOTICE

Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.

ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

Signed in Baton Rouge, Louisiana, on February 23, 2021.

/s/_________

RICHARD L. BOURGEOIS, JR.

UNITED STATES MAGISTRATE JUDGE

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Before the Court is Defendants' Motion to Dismiss Pursuant to Rule 12(b)(6) filed on October 9, 2020. (R. Doc. 3). The motion is opposed. (R. Doc. 6).

I. Background

On September 4, 2020, Kathy Mock ("Plaintiff"), who is proceeding pro se, commenced this action with the filing of a Complaint, naming as defendants Couch, Conville, & Blitt, LLC ("CCB"), Paul S. Brennan, and Jeffrey M. Toepfer (collectively, "Defendants"). (R. Doc. 1, "Complaint"). Plaintiff seeks recovery under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"), which prohibits abusive debt collection practices by debt collectors.

In her Complaint, Plaintiff alleges that she received a collection notice from Defendants on March 11, 2020, stating that they had been engaged by Citibank, M.A. ("Citibank") to collect a balance of $4233.58 on an account with Citibank. (Compl. ¶ 10). Plaintiff alleges that she mailed a letter on March 23, 2020 "disputing the alleged debt and demanding Defendant(s) cease and desist from any further collection activities until they validated the alleged debt." (Compl. ¶ 11). Plaintiff alleges that on April 29, 2020, she then received a letter from Defendants dated April 24, 2020, along with "a package of printed statements for the alleged account," but no "response to her demand for validation." (Compl. ¶¶ 13-14). Plaintiff alleges that she mailed a second letter on May 14, 2020 disputing the debt and requesting "validation of the alleged debt," but received "no response to her demand for validation." (Compl. ¶¶ 15-17). Finally, Plaintiffalleges that on July 22, 2020, she received a court citation from Defendants, "even though they had not provided validation of the alleged debt," in violation of 15 U.S.C. § 1692g(b) of the FDCPA. (Compl. ¶¶ 18-21). Plaintiff did not attach any of the referenced correspondences to her Complaint.

On October 9, 2020, Defendants filed the instant Motion to Dismiss, which argues that Plaintiff has failed to state a claim because (1) Defendants provided Plaintiff with timely verification of her debt under § 1692g(b) in response to her first letter disputing the debt, and (2) Defendants had no duty to respond to Plaintiff's second letter disputing the debt. (R. Doc. 3). More specifically, Defendants argue that the information provided on their April 24, 2020 communication met the requirements of § 1692g(b) because it verified that the amount being demanded is what the creditor claims is owed by Plaintiff, and otherwise equipped Plaintiff with sufficient information to dispute the debt. (R. Doc. 3-1 at 8-9). Accordingly, Defendants argue that they had no duty to provide a second verification of the debt in response to Plaintiff's second letter. (R. Doc. 3-1 at 9-10).

Defendants attach a copy of their April 24, 2020 communication for the purposes of demonstrating that they properly verified the debt prior to initiating a court action. (See R. Doc. 3-2). The April 24, 2020 letter provides: CCBs internal file number; the name of the creditor (Citibank); the brand name of the debt instrument (Sears Gold Mastercard); the account holder's name (Kathy Mock); the current address on file of the account holder; the last four numbers of the account number; the current balance due ($4,233.58); the date the account was opened (August 29, 2013); and the date of the last payment made on the account (June 23, 2019). (R. Doc. 3-2 at 1-2). The attached printouts consist of account statements from December 2019 to February 2020. (R. Doc. 3-2 at 3-76).

In opposition, Plaintiff argues that the April 24, 2020 communication did not constitute a proper "validation" of the debt because it does not establish, as a matter of law, that she in fact owes the debt at issue. (R. Doc. 6 at 1).¹ Plaintiff argues that to constitute proper validation of the debt, a communication must provide the dates and nature of transactions that identifies the particular transactions and/or fees that led to the alleged debt, including all statements from the opening of the account. (R. Doc. 6 at 1-2, 18-19). Relying primarily on the Sixth Circuit's decision in Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, 758 F.3d 777 (6th Cir. 2014), Plaintiff argues that Defendants' April 24, 2020 communication failed to meet the requirements of § 1692g(b). (R. Doc. 13-19). Plaintiff also seeks leave to amend the Complaint if the Court determines that she has failed to state a claim. (R. Doc. 6 at 19).

II. Law and Analysis

1. Legal Standards for Motion to Dismiss

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the legal standard set forth in Rule 8, which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). In order to survive a Rule 12(b)(6) motion, a pleading's language, on its face, must demonstrate that there exists plausibility for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). In determining whether it is plausible that a pleader is entitled to relief, a court does not assume the truth of conclusory statements, but rather looks for facts which support the elements of the pleader's claim. Twombly, 550 U.S. at 557. Factual assertions are presumedto be true, but "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" alone are not enough to withstand a 12(b)(6) motion. Iqbal, 556 U.S. at 678.

Pro se pleadings are to be held "to less stringent standards than formal pleadings drafted by lawyers." See Haines v. Kerner, 404 U.S. 519, 520 (1972); see also SEC v. AMX, Int'l, Inc., 7 F.3d 71, 75 (5th Cir. 1993) (recognizing the established rule that this court "must construe [a pro se plaintiff's] allegations and briefs more permissively"). Furthermore, in most circumstances, a court should allow a plaintiff at least one chance to amend the complaint under Rule 15(a) before dismissing the action with prejudice. See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002) (plaintiffs are generally given one chance to amend before dismissal unless "it is clear that the defects are incurable"). However, a court should deny leave to submit futile amendments that are "insufficient to state a claim." Jamieson v Shaw, 772 F.2d 1205, 1209 (5th Cir. 1985).

2. Consideration of Matters Outside the Pleadings

In general, if the court considers "matters outside the pleadings" presented in a motion to dismiss, it must treat the motion as a motion for summary judgment under Rule 56. See Fed. R. Civ. P. 12(d). However, the Fifth Circuit has held that documents attached to a defendant's motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to the plaintiff's claim. Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000); see Dix v. Louisiana Health Servs. & Indem. Co., No. 12-319, 2013 WL 5350829, at *2 (M.D. La. Sept. 23, 2013) (considering documents outside the pleadings that were attached to the defendant's motion to dismiss, referenced in the complaint, and central to the plaintiff's claims).

Here, it is appropriate to consider Defendant's April 24, 2020 communication as part of the pleadings without converting the instant motion to dismiss into a motion for summary judgment. The April 24, 2020 communication is attached to the motion to dismiss (R. Doc. 3-2), referenced in the Complaint, and is central to Plaintiff's claim that Defendants failed to validate her debt. See Hubbard v. Midland Credit Mgmt., No. 13-112, 2013 WL 6027899 (N.D. Tex. Nov. 13, 2013) (considering verification letter attached to the debt collector's motion to dismiss).

3. Whether Plaintiff States a Claim Under the FDCPA

Congress enacted the FDCPA "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e). Debt collectors who fail to comply with the FDCPA are subject to civil liability. 15 U.S.C. § 1692k. In order to prevail in a civil action brought under the FDCPA, the plaintiff must prove 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...