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Ismail v. Ascensionpoint Recovery Services, LLC

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

November 12, 2019

SUSAN ISMAIL, Plaintiff,



         On 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.

         I. Legal Standard

         “After 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).

         Substantively, 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, the-defendant-unlawfully-harmed-me accusation.” 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).

         “To 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.

         A court 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).[2] 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.

         II. Background

         Fekry 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).

         Sometime around July 2018, APRS sent a letter (the “Letter”) to the Estate.[3] (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 more information.
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 decedent.
Very Truly Yours,
Ascension Point Recovery Services, LLC
Phone Number: (888) 806-9074
Reference No. 3290184

         (Doc. 6-1) (emphasis in original).

         III. Analysis

         Ismail's 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.

         A. Count III (FDCPA)

         A 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).

         1. Lack of Specificity

         APRS 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).

         None of 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.[4] (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 FDCPA provision.

         If the 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 ...

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