United States District Court, N.D. Alabama, Northwestern Division
MEMORANDUM OPINION
ABDUL
K. KALLON UNITED STATES DISTRICT JUDGE.
Sara
Morrow brings claims under the Fair Debt Collection Practices
Act (FDCPA), 15 U.S.C. § 1692 et seq., against
Smith Rouchon and Associates, Inc. (SRA), contending that SRA
improperly attempted to collect a debt she discharged in
bankruptcy. See doc. 1. Briefly, Morrow filed for
bankruptcy under Chapter 13 and later Chapter 7, discharging
her debts-including the debt she allegedly owed to the
Franklin County Solid Waste for garbage collection services.
Id. at 2. Morrow claims SRA violated the FDCPA when,
despite having received notice of her bankruptcy filing, SRA
sent Morrow a collection letter demanding payment of fees to
Franklin County Solid Waste. Id. at 3. Specifically,
Morrow alleges SRA violated (1) § 1692e by demanding
payment of a debt that is not owed (Count I), (2) §
1692c(c) by continuing to seek collection from Morrow after
receiving direction to cease communications, and (3) §
1692c(a)(2) by communicating with a consumer SRA knew to be
represented (Count III). Id. at 3-5. Before the
court is SRA's motion for judgment on the
pleadings.[1] Doc. 11. The motion is fully briefed, doc.
12; 19; 20, and ripe for review. Because the charges Morrow
owes to Franklin County Solid Waste are not consumer debts
within the meaning of the FDCPA, Morrow fails to state a
claim and SRA's motion for judgment on the pleadings is
due to be granted.
I.
STANDARD OF REVIEW
“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.” Cannon v. City of W. Palm
Beach, 250 F.3d 1299, 1301 (11th Cir. 2001). In ruling
on the motion, the court “must accept the facts alleged
in the complaint as true and view them in the light most
favorable to the nonmoving party.” Id. A Rule
12(c) motion for judgment on the pleadings requires the same
standard of analysis as that of a Rule 12(b)(6) motion to
dismiss. Griffin v. SunTrust Bank, Inc., 157
F.Supp.3d 1294, 1295 (N.D.Ga. 2015). As such, to survive a
motion for judgment on the pleadings, “a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation and internal quotation marks omitted); see also
Losey v. Warden, 521 Fed.Appx. 717, 719 (11th Cir. 2013)
(applying the Iqbal standard to an appeal concerning
a Rule 12(c) judgment on the pleadings). In other words, the
plaintiff must “plead[] 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 (citation omitted). The complaint must establish
“more than a sheer possibility that a defendant has
acted unlawfully.” Id. Ultimately, this
inquiry is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.” Id. at 679.
II.
RELEVANT FACTUAL AND PROCEDURAL
BACKGROUND[2]
SRA is
a debt collector. Docs. 1 at 1-2; 1-6. In February 2016,
Morrow filed for Chapter 13 bankruptcy, discharging a debt
she allegedly owed to Franklin County Solid Waste.
Id. at 2. Her petition listed SRA as a creditor,
acknowledging a debt of $200.00, see doc. 1-1, and
the bankruptcy court sent SRA a Notice of Chapter 13
Bankruptcy Case in late February, doc. 1-2 at 1. SRA
subsequently filed a claim for payment in Morrow's
bankruptcy. Doc. 1-3. Morrow converted her bankruptcy to
Chapter 7 in April 2019, doc. 1 at 2, again listing her
alleged $200.00 debt to Franklin County Solid Waste and SRA,
doc. 1-4, prompting the bankruptcy court to send SRA a Notice
of Chapter 7 Bankruptcy Case, doc. 1-5. Despite these
notices, SRA sent Morrow a collection letter in June 2019
demanding payment of an alleged $136.00 debt to Franklin
County Solid Waste. Docs. 1 at 3; 1-6.
III.
ANALYSIS
SRA
argues principally (1) that Morrow is judicially estopped or
lacks standing under FDCPA because her claim against SRA
arose before the discharge of her Chapter 7 bankruptcy case,
[3]
docs. 11 at 7-14; (2) that Morrow's claims are core
bankruptcy proceedings over which this court lacks
jurisdiction, [4] doc. 20 at 2- 5, and (3) that the charge
at issue in Morrow's complaint is a tax, not a consumer
debt, and therefore does not fall under the purview of FDCPA,
[5]
docs. 11 at 14-16; 20 at 5-9. The court agrees with the last
contention.
To
state a FDCPA claim, Morrow must allege (1) that she was
subjected to a collection attempt, (2) that SRA is a debt
collector, and (3) that SRA violated the FDCPA. Swann v.
Dynamic Recovery Sols., LLC., No. 4:18-CV-1000-VEH, 2018
WL 6198997, at *3 (N.D. Ala. Nov. 28, 2018). The parties do
not dispute that SRA is a debt collector and subjected Morrow
to a collection attempt for the garbage collection debt while
she was in bankruptcy proceedings. See docs. 1; 11;
12; 19; 20. At issue is the third prong. More specifically,
whether SRA is correct that the FDCPA does not apply to the
charges at issue because those charges are taxes, not
consumer debts. Docs. 11 at 14-16; 20 at 5-9.
To
state a plausible FDCPA claim, “a plaintiff must make a
threshold showing that the money being collected qualifies as
a debt.” Oppenheim v. I.C. System, Inc., 627
F.3d 833, 836-37 (11th Cir. 2010). A consumer debt is
“any obligation or alleged obligation of a consumer to
pay money arising out of a transaction in which the money,
property, insurance, or services which are the subject of the
transaction are primarily for personal, family, or household
purposes.” § 1692a(5). “A transaction under
the FDCPA must involve some kind of business dealing or other
consensual obligation.” Hawthorne v. Mac
Adjustment, Inc., 140 F.3d 1367, 1370-71 (11th Cor.
1998). Stated simply, a debt under the FDCPA is an obligation
arising from a contract. Agrelo v. Affinity Mgmt. Servs.,
LLC, 841 F.3d 944, 950 (11th Cir. 2016).
The
issue before the court is whether Morrow's obligation to
pay her county for garbage removal services is a municipal
tax that falls outside the purview of the FDCPA, as SRA
alleges, docs. 11 at 14-16; 20 at 5-9, or is a consumer debt,
as Morrow contends, doc. 19 at 11-15. Several circuits have
held that the FDCPA does not encompass taxes, and the
district courts in this circuit that have addressed this
issue have reached a similar conclusion.[6] For the reasons
below, because the court concludes that the garbage
collection fees are mandatory, rather than contractual, and
are therefore more akin to a tax, the court joins these other
courts in finding that efforts to collect a “tax”
are not covered by the FDCPA.
Two
elements determine whether Morrow's obligation is better
defined as a tax or a consumer debt: (1) whether the
obligation arose from a contract, and (2) whether the service
rendered was “primarily for personal, family, or
household purposes.” § 1692a(5); See St.
Pierre v. Retrieval-Masters Creditors Bureau, Inc., 898
F.3d 351 (3d. Cir. 2018). Where charges arise from
contractual agreements between the debtor and the service
provider, they constitute consumer debts under the
FDCPA.[7] However, automatic fees that require no
affirmative consent from the obligee fail the transactional
criterion for FDCPA consumer debts.[8] And, where, as here,
municipal services provide for the general welfare, they do
not meet the FDCPA statutory “personal use”
requirement.[9] In that respect, Morrow can only pursue
her claim if her obligation to Franklin County is more
appropriately deemed a debt. Morrow cannot make such a
showing.
Alabama
cities and towns have the right to establish and maintain
garbage disposal systems and “to fix and collect such
reasonable fees as may be necessary” for that
maintenance. Ala. Code 1975 § 11-47-135. Individuals who
refuse to use municipal garbage services face jail for up to
six months and a maximum fine of $500. Ala. Code 1975 §
11-45-1. Under the Solid Wastes and Recyclable Materials
Management Act, “[e]very person . . . shall participate
in and subscribe to . . . [a garbage collection] service
unless granted a certificate of exception.” Ala. Code
1975 § 22-27-3(a)(2). Without this certificate of
exception, garbage collection services are mandatory.
Martin v. City of Trussville, 376 So.2d 1089, 1093
(Ala. Civ. App. 1979). Residents seeking a certificate of
exception must file an application with their county health
officer explaining how they will comply with sanitation rules
and regulations set by state and county boards of health.
Id. at § 22-27-3(g). The county health officer
then performs an investigation of the proposed plan and
either issues or denies the certificate of exception.
Id.
A
review of the Alabama Code and cases show that the services
Morrow received and the fees she owed Franklin County were
mandatory, rather than contractual. Unlike the plaintiffs in
Pollice, Piper, and St. Pierre,
[10]
Morrow did not have the option to forego the service or pay
based on how much she chose to use it.[11] Garbage
collection services and the accompanying fees are
automatically assessed against residents of Alabama. Thus,
the fees Morrow incurred and which SRA sought to collect were
not the result of a transactional, consensual dealing between
Morrow and the municipal government-they were imposed upon
her as a consequence of her residency in the state.
Therefore, Morrow's obligation to the county did not
arise from a contract. Because Morrow's obligations to
Franklin ...