United States District Court, N.D. Alabama, Middle Division
ANNEMARIE CARNEY AXON, UNITED STATES DISTRICT JUDGE.
matter comes before the court on Defendants' motion to
dismiss the complaint. (Doc. 13).
John Trichell filed this putative class action suit on behalf
of himself and others similarly situated, naming as
defendants two debt collectors: Midland Credit Management,
Inc. and its sister company Midland Funding, LLC. (Doc. 1).
Mr. Trichell alleges that Defendants violated the Fair Debt
Collection Practices Act (FDCPA) by deceptive or misleading
debt collection letters seeking repayment of legally
move to dismiss the complaint for failure to state a claim.
The court WILL GRANT the motion because a
“least sophisticated consumer” would not find the
letters deceptive or misleading.
stage, the court must accept as true the factual allegations
in the complaint and construe them in the light most
favorable to the plaintiff. Butler v. Sheriff of Palm
Beach Cty., 685 F.3d 1261, 1265 (11th Cir. 2012). The
court may also consider exhibits attached to the complaint.
Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th
Cir. 2016). Mr. Trichell attaches three collection letters
that Midland Credit Management sent to him; as a result, the
court's description of the facts incorporates the content
of those letters.
Funding is a company that buys defaulted consumer debts,
which it collects through other collection agencies, such as
Midland Credit Management. (Doc. 1 at 2). Mr. Trichell
alleges that “[m]ore than 7 years” before he
filed this complaint, he “allegedly” defaulted on
an unspecified amount of credit card debt. (Id. at
3; Doc. 1-2). Consistent with its business model, Midland
Funding acquired Mr. Trichell's defaulted debt and in
2017, it had Midland Credit Management send him three
collection letters stating that he had a balance due of $42,
859.55. (Doc. 1 at 3). But, under Alabama law, by the time
Midland Credit Management sent those letters, the debt was
legally unenforceable because the statute of limitations
barred any lawsuit to recover the defaulted debt.
(Id. at 3-4); Ala. Code § 6-2-34(5).
Midland Credit Management sent the letters and requests
payment to itself, the letters list Midland Funding as the
owner of the debt. (Doc. 1-2). Each letter contains
statements like the following: “Congratulations! You
have been pre-approved for a discount program
designed to save you money. Act now to maximize your savings
and put this debt behind you . . . .” (Doc. 1-2
(emphasis in original)). The letters also list, as a
“Benefit of Paying, ” savings of over $30, 000.
(Id.). The letters offer three payment plains: (1) a
single lump-sum payment plan for “70% OFF”; (2) a
twelve-month payment plan for “50% OFF”; or (3) a
monthly payment plan for “As Low As . . . $50 per
month.” (Id.). The first two options each list
a “Payment Due Date” of about a month after the
date of each letter. (Id.).
final paragraph of each collection letter states: “The
law limits how long you can be sued on a debt and how long a
debt can appear on your credit report. Due to the age of this
debt, we will not sue you for it or report payment or
nonpayment of it to a credit bureau.” (Id.).
The court will refer to this paragraph as the
court pauses here to take judicial notice of some facts
relating to the disclaimer language. See Fed. R.
Evid. 201; U.S. ex rel. Osheroff v. Humana Inc., 776
F.3d 805, 811 (11th Cir. 2015). In 2015, Defendants and
several other debt collectors entered a consent decree with
the Consumer Financial Protection Bureau. See In re
Encore Capital Grp., Inc., no. 2015-CFPB-22,
(last visited Aug. 29, 2018). The consent decree provides:
[F]or those Consumer accounts where the Debt is Time-Barred .
. . [the debt collector] will include the following
statement: “The law limits how long you can be sued on
a debt and how long a debt can appear on your credit report.
Due to the age of this debt, we will not sue you for it or
report payment or non-payment of it to a credit
Id., available at
at 38-39 (last visited Aug. 29, 2018). The Federal Trade
Commission has also entered a consent decree with a different
debt collector, requiring similar language. See United
States v. Asset Acceptance, LLC, no. 8:12-cv-182, Doc.
5, at 13 (M.D. Fla. Jan. 31, 2012).
Trichell, on behalf of himself individually and “all
persons similarly situated in the State of Alabama, ”
asserts that Defendants' actions (1) violated 15 U.S.C.
§ 1692e by attempting to collect time-barred debts using
deceptive and misleading collection letters (Count One); and
(2) violated 15 U.S.C. § 1692f by using unfair or
unconscionable means to collect or attempt to collect a debt
(Count Two). (Doc. 1 at 5-6).