United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE
August 21, 2018, Plaintiff Susan Ismail (“Ismail”
or “Plaintiff), individually and in her capacity as the
personal representative of the Estate of Fekry Hassan Ismail
(“the Estate”), filed this action, alleging
Defendant Ascensionpoint Recovery Services, LLC
(“APRS” or “Defendant”) violated the
Fair Debt Collection Practices Act (“FDCPA”) and
state law in its communications with her. (Doc. 1). APRS has
moved for judgment on the pleadings. (Docs. 14 & 15).
Ismail opposes this motion, (doc. 17), and APRS has filed a
reply in support, (doc. 18). For the reasons discussed more
fully below, APRS's motion is GRANTED.
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). “Judgment on the pleadings is
appropriate where there are no material facts in dispute and
the moving party is entitled to judgment as a matter of
law.” Perez v. Wells Fargo N.A., 774 F.3d
1329, 1335 (11th Cir. 2014) (quoting Cannon v. City of W.
Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001)). The
court considers only the pleadings-the complaint, answer, and
any exhibits thereto. See Horsley v. Feldt, 304 F.3d
1125, 1134 (11th Cir. 2002).
the court applies the same principles to a motion to dismiss
under Rule 12(c) as it would to a motion to dismiss under
Rule 12(b)(6). See Strategic Income Fund, LLC v. Spear,
Leeds & Kellogg Corp., 305 F.3d 1293, 1295 n.8 (11th
Cir. 2002) (“Whether the court examine[s] [the
complaint] under Rule 12(b)(6) or Rule 12(c), the question
[is] the same: whether [it] state[s] a claim for
relief.”). Rule 12(b)(6) permits dismissal when a
complaint is deficient under Rule 8 and fails to state a
claim upon which relief can be granted. Under Rule 8(a)(2), a
pleading must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” “[T]he pleading standard Rule 8
announces does not require ‘detailed factual
allegations,' but it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 1949 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). Mere
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action” are
insufficient. Iqbal, 556 U.S. at 678, 129 S.Ct. at
1949 (citations and internal quotation marks omitted).
“Nor does a complaint suffice if it tenders
‘naked assertion[s]' devoid of ‘further
factual enhancement.'” Id. (citing
Twombly, 550 U.S. at 557, 127 S.Ct. 1955).
Additionally, “[i]n alleging fraud or mistake, a party
must state with particularity the circumstances constituting
fraud or mistake.” Fed.R.Civ.P. 9(b).
survive a motion to dismiss, 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, 129 S.Ct. at 1949 (citations
and internal quotation marks omitted). A complaint states a
facially plausible claim for relief “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citation omitted).
The complaint must establish “more than a sheer
possibility that a defendant has acted unlawfully.”
Id; see also Twombly, 550 U.S. at 555, 127 S.Ct. at
1965 (“Factual allegations must be enough to raise a
right to relief above the speculative level.”).
Ultimately, this inquiry is a “context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S.
at 679, 129 S.Ct. at 1950.
assessing whether a party is entitled to judgment on the
pleadings accepts as true all material facts alleged in the
non-moving party's pleading and views those facts in the
light most favorable to the non-moving party. See
Perez, 774 F.3d at 1335 (citing Hawthorne v. Mac
Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998));
Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231
(11th Cir. 2000). This means that, on a
“defendant's motion for judgment on the pleadings,
where no matters outside the pleadings are presented, the
fact allegations of the complaint are to be taken as true,
but those of the answer are taken as true only where and to
the extent that they have not been denied or do not conflict
with those of the complaint.” Stanton v.
Larsh, 239 F.2d 104, 106 (5th Cir. 1956). However, legal
conclusions unsupported by factual allegations are not
entitled to that assumption of truth. Iqbal, 556
U.S. at 678, 129 S.Ct. at 1950.
Hassan Ismail (“Fekry Ismail”) died on or about
September 12, 2017. (Doc. 1 at ¶ 6). Prior to his death,
Fekry Ismail had executed a will naming Plaintiff as the
personal representative of his estate. (Id. at
¶ 5). Through an attorney, Plaintiff probated the will
on October 26, 2017, in the Probate Court of Jefferson
County, Alabama. (Id. at ¶ 7). She was
appointed personal representative of the Estate and was
granted letters testamentary to administer the Estate.
(Id.). The filed documents stated Plaintiff's
attorney was Brooke A. Everley. (Id. at ¶ 8).
The Estate published a Notice to Creditors in the Alabama
Messenger on October 28, 2017, November 4, 2017, and November
11, 2017. (Id. at ¶ 9).
around July 2018, APRS sent a letter (the
“Letter”) to the Estate. (Id. at ¶ 11;
doc. 6-1). The Letter states, in its entirety:
Dear Estate of FEKRY H ISMAIL,
We would like to offer our deepest condolences during this
time of loss. Thank you in advance for attending to this
matter. This letter is to confirm or correct location
information for the person responsible for paying the
outstanding bills from the decedent's estate.
Please have the person who is responsible for paying the
outstanding bills from the decedent's estate contact our
office. We can be reached toll-free at (888) 806-9074 for
Please remember that only the decedent's estate is liable
for any outstanding bills. Persons handling the estate and
family members are not personally responsible for payment of
any outstanding bills of the estate and are not required to
pay individually or with assets owned jointly with the
Very Truly Yours,
Ascension Point Recovery Services, LLC
Phone Number: (888) 806-9074
Reference No. 3290184
6-1) (emphasis in original).
complaint contains three counts: (1) a state law negligence
count, (doc. 1 at ¶¶ 15-19); (2) a state law
recklessness and wantonness count, (id. at
¶¶ 20-24); and (3) a count alleging violations of
the FDCPA, (id. at ¶¶ 25-27). APRS seeks
judgment on the pleadings as to all three claims. Because the
disposition of the FDCPA count informs the disposition of the
other two counts, the undersigned analyzes it first.
Count III (FDCPA)
plaintiff asserting an FDCPA claim must show “(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. SunTrust Mortg. Corp., 928 F.Supp.2d 1273, 1294 (N.D.
Ala. 2013) (quoting Janke v. Wells Fargo and Co.,
805 F.Supp.2d 1278, 1281 (M.D. Ala. 2011)). At the motion to
dismiss stage, the question is whether a plaintiff has
alleged a plausible violation of the FDCPA under the
“least sophisticated consumer” standard.
Holzman v. Malcolm S. Gerald & Assocs., Inc.,
920 F.3d 1264, 1269 (11th Cir. 2019). The least sophisticated
consumer is “presumed to possess a rudimentary amount
of information about the world and a willingness to read a
collection notice with some care.” LeBlanc v.
Unifund CCR Partners, 601 F.3d 1185, 1194 (11th Cir.
2010) (citation omitted). The test is objective; “[t]he
inquiry is not whether the particular plaintiff- consumer was
deceived or misled, ” Crawford v. LVNV Funding
LLC, 758 F.3d 1254, 1258 (11th Cir. 2014). The objective
nature of the test “protect[s] naive consumers, [but
it] also prevents liability for bizarre or idiosyncratic
interpretations of collection notices by preserving a
quotient of reasonableness.” LeBlanc, 601 F.3d
at 1194 (citation omitted).
Lack of Specificity
first contends it is entitled to judgment on the pleadings
because the complaint does not identify any particular
provision of the FDCPA that APRS allegedly violated. (Doc.
15). The complaint alleges APRS engaged “in numerous
activities” that violate the FDCPA, including
“attempting to collect time barred debt, failing to
make disclosures as required by law and contacting a consumer
represented by counsel.” (Doc. 1 at ¶ 26). Ismail
contends this is adequate because she is not required to cite
a specific provision of the FDCPA. (Doc. 17 at 7).
the authority either party cites is particularly convincing
on this point. Ismail relies mostly on out-of-circuit law
that predates Iqbal and Twombly.
(See doc. 17 at 7-8) (citing Miller v. Knepper
& Moga, P.C., No. 99 C 3183, 1999 WL 977079, (N.D.
Ill. Oct. 22, 1999); Hartman v. Meridian Fin. Servs.,
Inc., 191 F.Supp.2d 1031 (W.D. Wis. 2002)). For its
part, APRS relies primarily on Birdette v. Capitol One
Bank (USA), N.A., No. 12-11640-F, 2012 WL 8319317, (11th
Cir. July 25, 2012), an unpublished Eleventh Circuit order
denying a plaintiff leave to proceed in forma
pauperis on appeal. (Doc. 15 at 6-7). In Birdette,
the Eleventh Circuit noted the plaintiff had “failed to
identify which specific provisions or subsections of the
FDCPA formed the basis for his allegations.”
Id. at *1. But the Birdette plaintiff's
complaint stated only that the defendants “engaged in
unlawful debt practices.” Id. Here, the
complaint is somewhat more specific; while it does not cite
to particular code sections, it does at least identify three
ways in which APRS allegedly violated the FDCPA. Each of
those can be traced, with varying degrees of effort, to an
complaint were in fact insufficiently specific as to which
FDCPA provisions it proceeds under, and if its only sin were
its lack of specificity, the undersigned would take Ismail up
on her invitation to dismiss the FDCPA claims with leave to
amend, (see doc. 17 at 8). See Silva v.
Bieluch, 351 F.3d 1045, 1048-49 (11th Cir. 2003) (noting
leave to amend should be granted where “a more
carefully drafted complaint might state a claim upon which
relief can be granted”). But it is unnecessary to
decide whether the complaint's references to conduct
prohibited by the FDCPA, rather than citations to specific
provisions, are sufficient; as discussed further below,
Ismail fails to support an FDCPA violation at all. Thus, the
complaint would still be ...