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Patterson v. Ad Astra Recovery Service

United States District Court, N.D. Alabama, Southern Division

June 4, 2018




Plaintiff Misti Patterson originally filed this action in the Bessemer Division of the Circuit Court of Jefferson County, Alabama, against Defendants Ad Astra Recovery Services, Inc. (“Ad Astra”), and Speedy Cash, along with several unnamed defendants, alleging claims under the Fair Debt Collection Practices Act (“FDCPA”), the Fair Credit Reporting Act (“FCRA”), the Real Estate Settlement Procedures Act (“RESPA”), and state common law. (Doc. 1-1). Defendants removed the case to federal court asserting federal question jurisdiction. (Doc. 1). Defendants then filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 5). The motion has been fully briefed and is now under submission. (Docs. 5-1, 8, 14). For the following reasons, the motion is due to be granted in part and denied in part.


         Patterson alleges “[o]n dates prior hereto, ” Defendant Speedy Cash sent her a letter demanding she make payments on a loan. (Doc. 1-1 at 4). Patterson contends she did not take out a loan with Speedy Cash and communicated this fact to Speedy Cash on numerous occasions. (Id. at 4-5). She states “additional letters were written trying to resolve this issue and upon reviewing documentation presented, ” Patterson concluded the loan was a result of identity theft occurring in the State of California. (Id. at 5).

         Although Patterson notified Speedy Cash about the identity theft, “Speedy Cash continued their activities of trying to force the Plaintiff to make payments on a debt she did not incur.” (Id.). Speedy Cash then hired Ad Astra to attempt to collect the debt. (Id.). Further, despite knowing the debt was disputed and “having information before it that should have told a reasonable person that this particular Plaintiff was not the person who made this debt to Speedy Cash, ” Defendants reported the debt to credit agencies, including TransUnion and Equifax. (Id.).

         Plaintiff alleges the actions of Defendants substantially impaired her ability to borrow funds and caused her to pay higher interest rates when she did borrow money. (Id.).


         Defendants move for dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, which authorizes the dismissal of all or some of the claims in a complaint if the allegations fail to state a claim upon which relief can be granted. 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, ” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The court assumes the factual allegations in the complaint are true and gives the plaintiff the benefit of all reasonable factual inferences. Hazewood v. Foundation Financial Group, LLC, 551 F.3d 1223, 1224 (11th Cir. 2008) (per curiam). However, “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (“Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”). Nor is it proper to assume the plaintiff can prove facts he has not alleged or that the defendants have violated the law in ways that have not been alleged. Twombly, 550 U.S. at 563 n.8 (citing Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 526 (1983)).

         “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id., 550 U.S. at 555 (citations, brackets, and internal quotation marks omitted). “Factual allegations must be enough to raise a right to relief above the speculative level . . . .” Id. Thus, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (citations omitted). In other words, its “factual content . . . allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.


         In her opposition brief, Plaintiff concedes her claims under the FCRA and RESPA are due to be dismissed. (Doc. 8 at 3-4). The only remaining claims are those under the FDCPA and Plaintiff's negligence claim. The court discusses each claim separately.

         1. FDCPA

         Defendants argue Plaintiff's claim under the FDCPA is due to be dismissed for two reasons. First, Defendants contend the complaint does not specify which provisions of the FDCPA form the basis for her allegations, thus warranting dismissal. (Doc. 5-1 at 4). Second, Defendants assert Plaintiff does not allege either Defendant is a “debt collector, ” Plaintiff is a “consumer, ” or the obligation to Speedy Cash is a “debt” as those terms are defined by the FDCPA. (Id. at 5).

         Although the court agrees with Defendants that Plaintiff's complaint does not name the specific provisions of the FDCPA forming the basis of her claim, in her opposition brief, Plaintiff asserts her complaint “states [a] valid violation of § 1692g and § 1692e” of the FDCPA. (Doc. 8 at 2). Additionally, although Plaintiff essentially concedes the other deficiencies in her complaint with regard to her FDCPA claim, the court is mindful the complaint was originally filed in the Circuit Court of Jefferson County under ...

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