Vazzano v. Receivable Mgmt. Servs., LLC

599 F.Supp.3d 463

Aprile VAZZANO, Plaintiff,

v.RECEIVABLE MANAGEMENT SERVICES, LLC, and RLI Insurance Company, Defendants.

Civil Action No. 3:21-CV-0825-D

United States District Court, N.D. Texas, Dallas Division.

Signed November 10, 2021

Anthony Patrick Chester, Kazerouni Law Group APC, Bloomington, MN, Ramona V. Ladwig, McCarthy & Holthus LLP, Plano, TX, Seyed Abbas Kazerounian, Kazerouni Law Group APC, Costa Mesa, CA, for Plaintiff.

Brendan Hoffman Little, Lippes Mathias Wexler Friedman LLP, Buffalo, NY, Eugene Xerxes Martin, IV, Malone Frost Martin PLLC, Dallas, TX, for Defendant Receivable Management Services LLC.

Brendan Hoffman Little, Lippes Mathias Wexler Friedman LLP, Buffalo, NY, for Defendant RLI Insurance Company.

MEMORANDUM OPINION AND ORDER

SIDNEY A. FITZWATER, SENIOR JUDGE

In this action by plaintiff Aprile Vazzano ("Vazzano") asserting claims for violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), and the Texas Debt Collection Practices Act, Tex. Fin. Code Ann. § 392.001 et. seq. (West 2016) ("TDCPA"), defendant Receivable Management Services, LLC ("RMS") moves under Fed. R. Civ. P. 12(b)(6) for partial dismissal. For the following reasons, the court denies the motion.

I

This lawsuit arises out of a prepaid automobile insurance policy that Vazzano obtained from Progressive Advanced Insurance Company ("Progressive").¹ According to Vazzano's first amended complaint ("amended complaint"), for her insurance policy with Progressive to take effect, she was required to make advance premium payments. Vazzano later switched insurance companies and canceled her prepaid policy with Progressive. Unbeknownst to Vazzano, however, when she canceled the account Progressive generated a debt on her account that was not authorized by the agreement underlying the debt or the State of Texas. Progressive then transferred the debt to defendant RMS for collection.²

Shortly thereafter, RMS contacted Vazzano regarding the debt via numerous telephone calls and collection letters. Vazzano contacted Progressive about the debt to seek a resolution. She also notified RMS of her efforts to resolve the debt with Progressive. RMS, however, continued the telephone calls and collection letters.

In response, Vazzano sent the following letter to RMS, by certified mail, return receipt requested, dated March 5, 2020:

Re: Reference No. [redacted]00 (Progressive Insurance)

To whom this may concern,

This letter is in response to the collection notice I received from your agency in regard to the above referenced matter.

Please be advised that alleged debt is hereby being disputed, your client is fully aware that no such funds are owed to them, thus I refuse to pay.

I have been in direct contact with your client concerning this issue and expect it to be fully resolved within the next few weeks. Formal notice is hereby given to you that all further communication shall be in writing only so that no facts are misconstrued.

Respectfully,

Aprile Vazzano

ECF 23-1.³

On March 9, 2020 RMS received the letter. On November 19, 2020 RMS sent Vazzano a letter regarding the Progressive debt (the "November Letter"). RMS's letter stated the debt owed and offered methods of payment.

Vazzano responded a few months later by filing this lawsuit, alleging claims against RMS for violating the FDCPA and TDCPA. Her original complaint⁴ alleged that RMS's November Letter violated §§ 1692c(c), 1692d, and 1692f of the FDCPA and unspecified sections of the TDCPA.

RMS filed a motion for judgment on the pleadings, which the court granted with leave to replead. Vazzano v. Receivable Mgmt. Servs., LLC , 2021 WL 3742618, at *6 (N.D. Tex. Aug. 24, 2021) (Fitzwater, J.). Vazzano then filed the instant amended complaint, adding RLI Insurance Company as a defendant and asserting many of the same claims she asserted in her original complaint.

RMS now moves under Rule 12(b)(6) for partial dismissal of Vazzano's claim under § 1692c(c) of the FDCPA. Vazzano opposes the motion. The court is deciding the motion on the briefs.

II

"In deciding a Rule 12(b)(6) motion to dismiss, the court evaluates the sufficiency of plaintiff's amended complaint by ‘accept[ing] all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’ " Bramlett v. Med. Protective Co. of Fort Wayne, Ind. , 855 F.Supp.2d 615, 618 (N.D. Tex. 2012) (Fitzwater, C.J.) (alteration in original) (internal quotation marks omitted) (quoting In re Katrina Canal Breaches Litig. , 495 F.3d 191, 205 (5th Cir. 2007) ). To survive RMS's partial motion to dismiss under Rule 12(b)(6), Maiden must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. ; see also Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ("Factual allegations must be enough to raise a right to relief above the speculative level[.]"). "[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 (quoting Rule 8(a)(2)) (alteration omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678, 129 S.Ct. 1937 (citation omitted).

III

A

RMS contends that Vazzano's claim under § 1692c(c) of the FDCPA must be dismissed because Vazzano waived her protection under the statute by asking for further communication to be in writing. RMS posits that Vazzano's request "that all further communication shall be in writing only so that no facts are misconstrued" was a request for further communication.⁵

Vazzano responds that her request for further communication to be in writing was not a waiver because she was not clearly requesting a communication from RMS, and, even if her request was a waiver of protection and did ask for further communication, it requested only authorized communication and did not request the contents of RMS's November Letter.

B

RMS has failed to establish under the Rule 12(b)(6) standard that Vazzano waived her right to protection under § 1692c(c).⁶

As a threshold matter, the court notes that, although courts appear to be reaching a consensus that it is possible for a debtor to waive protections under § 1692c(c), the question is unsettled. The FDCPA does not address waiver of rights. See generally 15 U.S.C. § 1692c(c) ; Clark v. Capital Credit & Collection Servs. , 460 F.3d 1162, 1169 (9th Cir. 2006) ("None of those exceptions [in § 1692c(c) ] provide that a debt collector may contact a consumer at the consumer's request, nor does the plain language of § 1692c(c) contemplate waiver."). Several district courts—and two circuit courts—have held that a debtor can waive protection from further communication under § 1692c(c). See, e.g., Scheffler v. Gurstel Chargo, P.A. , 902 F.3d 757, 763 (8th Cir. 2018) ; Clark , 460 F.3d at 1170 ; Bender v. Elmore & Throop, P.C. , 530 F.Supp.3d 566, –––– (D. Md. 2021) ; Lupia v. Medicredit, Inc. , 445 F.Supp.3d 1271, 1282 (D. Colo. 2020), aff'd , 8 F.4th 1184 (10th Cir. 2021) ; see also Van Alstyne v. Gc Servs. , 2009 WL 10695068, at *12-13 (S.D. Tex. Dec. 11, 2009) (assuming, without deciding, that waiver is possible). It does not appear, however, that the Fifth Circuit has addressed this issue. See id. ("The Fifth Circuit has not addressed the issue of whether a debtor may waive his rights under section 1692c(c) of the FDCPA.").

Considering the current unsettled state of the law and the fact that RMS's motion to dismiss still fails, the court will assume arguendo that a debtor can waive her protection from a debt collector's communications under § 1692c(c).⁷ Vazzano's request for communication to be in writing was not an explicit request for information. The original reasoning for allowing a waiver under § 1692c(c) (despite the lack of a textual hook for such a waiver) was to permit a debt collector to "return [a] telephone call." See Clark , 460 F.3d at 1170. To "hold that a debt collector may not respond to a debtor's telephone call regarding his or her debt would, in many cases, ‘force honest debt collectors seeking a peaceful resolution of the debt to file suit in order to resolve the debt—something that is clearly at odds with the language and purpose of the FDCPA.’ " Id. (internal quotation marks omitted). As the Eighth Circuit has said, " § 1692c(c) does not prevent a debt collector from responding to a debtor's post-cease letter inquiry regarding a debt." Scheffler , 902 F.3d at 763 (citing Clark , 460 F.3d at 1170 ).

Consistent with this reasoning, however, where courts have allowed a waiver, there was an explicit request to the debt collector for information. E.g., id. at 760, 763 (discussing debtor who sent cease-and-desist letter but then called debt collector and asked a question about the debt); Clark , 460 F.3d at 1167, 1172 (discussing debtor who called collector after sending cease-and-desist letter and received a return call from debt collector); Lupia , 445 F.Supp.3d at 1282 (discussing debtor who asked for written confirmation of debt collector's actions); Hochroth v. Ally Bank , 461 F.Supp.3d 986, 1006 (D. Haw. 2020) ("Plaintiff initiated all calls with Cenlar—a total of 12—to ask a wide range of questions regarding the reinstatement of his mortgage."); Van Alstyne , 2009 WL 10695068, at *12-13 (discussing debtor who sent cease-and-desist letter but requested specific...