United States District Court, N.D. Alabama, Northeastern Division
ROSITA MCCAMEY, individually and on behalf of all others similarly situated, Plaintiff,
CAPITAL MANAGEMENT, SERVICES, LP, et al., Defendants.
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE.
1977, Congress found that there was “abundant evidence
of the use of abusive, deceptive, and unfair debt collection
practices by many debt collectors” and that the
“[e]xisting laws . . . [were] inadequate to protect
consumers.” 15 U.S.C. § 1692(a), (b); see
also 104 Am. Jur. Proof of Facts 3d Proof Under the
Fair Debt Collection Practices Act §1. To respond,
Congress passed the Fair Debt Collection Practices Act
“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). This law is the
centerpiece of Plaintiff Rosita McCamey's lawsuit and the
focus of today's opinion. (Doc. 1).
the Court is Defendants Capital Management Services, LP's
(“CMS”) and Jefferson Capital Systems, LLC's
(“JCS”) joint Motion To Dismiss (the
“Motion”) under Rule 12(b)(6) and 12(c). (Doc.
32). The parties have completed their briefing, and the
Motion is ripe for review. For the reasons stated in this
opinion, it is due to be DENIED.
2007 Ms. McCamey fell behind in paying some of her debts,
including one she allegedly owed for a Fingerhut
account.” (Doc. 1 at ¶7). “Sometime after
that debt became delinquent, it was allegedly
purchased/obtained by [JCS], which tried to collect upon it,
by having Defendant CMS demand payment of the debt, via
collection letters, dated February 12, 2017[, ] and May 6,
2017.” (Id.). “These letters made
‘settlement' offers of 66% and 61%.”
(Id.). They also stated:
As a result of the expiration of the statute of limitations
with respect to such debt, legal action may not be brought
against the consumer to collect such debt. Any payment by the
consumer towards the debt may cause the statute of
limitations for such debt to reset.
(Doc. 1-1 at 1-2). Ms. McCamey alleges that her debt was time
barred under Alabama law, and that these letters violated the
FDCPA. (See Doc. 1 at ¶¶8-9). She filed
her federal lawsuit on August 22, 2017, alleging two counts
for violations of §1692e and §1692f of the FDCPA.
(See Id. at pg. 4-6).
The Rule 12(b)(6) and 12(c) Standard
12(b)(6) motion attacks the legal sufficiency of the
complaint. See Fed. R. Civ. P. 12(b)(6) (“[A]
party may assert the following defenses by motion: (6)
failure to state a claim upon which relief can be
granted[.]”). The Federal Rules of Civil Procedure
require only that the complaint provide “‘a short
and plain statement of the claim' that will give the
defendant fair notice of what the plaintiff's claim is
and the grounds upon which it rests.” Conley v.
Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80
(1957) (footnote omitted) (quoting Fed.R.Civ.P. 8(a)(2)),
abrogated by Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 556, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007);
see also Fed. R. Civ. P. 8(a) (setting forth general
pleading requirements for a complaint including providing
“a short and plain statement of the claim showing that
the pleader is entitled to relief”).
plaintiff must provide the grounds of his entitlement to
relief, Rule 8 does not mandate the inclusion of
“detailed factual allegations” within a
complaint. Twombly, 550 U.S. at 555, 127 S.Ct. at
1964 (quoting Conley, 355 U.S. at 47, 78 S.Ct. at
103). However, at the same time, “it demands more than
an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
“[O]nce a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint.” Twombly, 550
U.S. at 563, 127 S.Ct. at 1969.
court considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679, 129 S.Ct. at
1950. “While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations.” Id. “When there are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give
rise to an entitlement to relief.” Id.
(emphasis added). “Under Twombly's
construction of Rule 8 . . . [a plaintiff's] complaint
[must] ‘nudge [any] claims' . . . ‘across
the line from conceivable to plausible.'
Ibid.” Iqbal, 556 U.S. at 680, 129
S.Ct. at 1950-51.
is plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. at
1949. “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. (quoting Twombly,
550 U.S. at 556, 127 S.Ct. at 1965).
12(c) of the Federal Rules of Civil Procedure provides that
“[a]fter the pleadings are closed--but early enough not
to delay trial--a party may move for judgment on the
pleadings.” Fed.R.Civ.P. 12(c). As the Eleventh Circuit
has explained the Rule 12(c) standard:
Judgment on the pleadings is appropriate when there are no
material facts in dispute, and judgment may be rendered by
considering the substance of the pleadings and any judicially
noticed facts. See Bankers Ins. Co. v. Florida
Residential Property and Cas. Joint Underwriting
Ass'n, 137 F.3d 1293, 1295 (11th Cir. 1998) (citing
Hebert Abstract Co. v. Touchstone Properties, Ltd.,
914 F.2d 74, 76 (5th Cir. 1990)); see also Rule
12(c), [Fed. R. Civ. P.] When we review a judgment on the
pleadings, therefore, we accept the facts in the complaint as
true and we view them in the light most favorable to the
nonmoving party. See Ortega, 85 F.3d at 1524 (citing
Swerdloff v. Miami Nat'l Bank, 584 F.2d 54, 57
(5th Cir. 1978)). The complaint may not be dismissed
“‘unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.'”
Slagle, 102 F.3d at 497 (quoting Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2
L.Ed.2d 80 (1957) & citing Hartford Fire Ins. Co. v.
California, 509 U.S. 764, 811, 113 S.Ct. 2891, 2916-17,
125 L.Ed.2d 612 (1993)).
Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367,
1370 (11th Cir. 1998).
“[w]hether the court examine[s] [a pleading] under Rule
12(b)(6) or Rule 12(c), the question [remains] the same:
whether the [complaint] stated a claim for relief.”
Sampson v. Washington Mut. Bank, 453 Fed.Appx. 863,
865 n.2 (11th Cir. 2011) (first alteration supplied; all
other alterations in original) (quoting Strategic
Income Fund, L.L.C. v. Spear, Leeds & Kellogg
Corp., 305 F.3d 1293, 1295 n.8 (11th Cir. 2002));
id. (applying Strategic Income and
concluding that court's error in granting a dismissal
under Rule 12(c) instead of Rule 12(b)(6) was harmless).
An Overview of the Fair Debt Collection Practices
assert a claim under the FDCPA, a plaintiff must establish
the following elements: ‘(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.'” Buckentin v. Sun
Trust Mortg. Corp., 928 F.Supp.2d 1273, 1294 (N.D. Ala.
2013) (citing sources).
FDCPA prohibits certain conduct. “Section 1692e of the
FDCPA provides that ‘[a] debt collector may not use any
false, deceptive, or misleading representation or means in
connection with the collection of any debt.'”
Crawford v. LVNV Funding, LLC, 758 F.3d 1254, 1258
(11th Cir. 2014) (quoting 15 U.S.C. § 1692e). The
statute goes on to give examples of specific conduct that
violates the act. See 15 U.S.C. § 1692e
(1)-(16). “Section 1692f states that ‘[a] debt
collector may not use unfair or unconscionable means to
collect or attempt to collect any debt.'”
Crawford, 758 F.3d at 1258 (quoting 15 U.S.C. §
1692f). Similarly, this section also gives specific examples
of conduct violating the law. See 15 U.S.C. §
1692f(1)-(8). “To enforce the FDCPA's
prohibitions, Congress equipped consumer debtors with a
private right of action, rendering ‘debt collectors who
violate the Act liable for actual damages, statutory damages
up to $1, 000, and reasonable attorney's fees and
costs.'” Crawford, 758 F.3d at 1258
understand actions under the FDCPA requires knowing the
“least sophisticated consumer.” See LeBlanc
v. Unifund CCR Partners, 601 F.3d 1185, 1193 (11th Cir.
2010). This is because “[t]he inquiry is not whether
the particular plaintiff-consumer was deceived or misled;
instead, the question is ‘whether the ‘least
sophisticated consumer' would have been deceived' by
the debt collector's conduct.” Crawford,
758 F.3d at 1258. “The ‘least-sophisticated
consumer' standard is consistent with basic
consumer-protection principles.” LeBlanc, 601
F.3d at 1194 (citing sources). “‘The least
sophisticated consumer' can be presumed to possess a
rudimentary amount of information about the world and a
willingness to read a collection notice with some
care.” Id. (quoting another source) (internal
quotation marks omitted). “However, the test has an