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Price-Richardson v. DCN Holdings, Inc.

United States District Court, D. Maryland

February 15, 2018

RHONDA PRICE-RICHARDSON Plaintiff
v.
DCN HOLDINGS, INC., d/b/a ACCOUNTSRECEIVABLE.COM Defendant

          MEMORANDUM AND ORDER RE: MOTION TO DISMISS

          Marvin J. Garbis United States District Judge.

         The Court has before it Defendant DCN Holdings, Inc., d/b/a/ Accountsreceivable.com's Motion to Dismiss Plaintiff's Amended Complaint [ECF No. 17] and the materials submitted relating thereto.[1]

         I. BACKGROUND

         A. The Parties and the Claims

         Rhonda Price-Richardson (“Plaintiff”) brings an action against DCN Holdings, Inc. d/b/a/ Accountreceivables.com (“DCN” or “Defendant”). Plaintiff alleges that Defendant violated various provisions of the Fair Debt Collection Practices Act (“FDCPA”) through misrepresentations and omissions made in connection with the collection of Plaintiff's debt.

         Plaintiff seeks recovery of actual damages, statutory damages, reasonable attorneys' fees and costs, and any other punitive damages.

         B. Statement of Facts[2]

         Plaintiff received dental work from Dr. Kalambayi Kabasela, and because of her lack of dental insurance and limited financial means defaulted on her account, which totaled $4, 525 (“Subject Debt”).[3] Am. Compl. ¶¶ 8-9, ECF No. 16. Dr. Kabasela, in turn, transferred the Subject Debt to DCN, a Florida-based debt collection agency that operates in the State of Maryland. Id. ¶¶ 5, 10. On May 9, 2016, DCN sent a collection letter to Plaintiff. Id. ¶ 11. The collection letter, printed on Defendant's letterhead, stated: (1) the Plaintiff owed $4, 525; (2) “[a]ll reasonable efforts to resolve ... the account have been exhausted”; (3) “[c]ontact us at once if you wish to avoid” being “[reported] to the three major credit reporting agencies for up to seven years”; and (4) “[t]his is an attempt to collect a debt. Any information will be used for that purpose.” Id. ¶¶ 12-13; Ex. B, ECF No. 16-2.

         On November 8, 2016, six months after receiving the letter, Plaintiff called Defendant and spoke with a company representative. Am. Compl. ¶ 16, ECF No. 16. After accessing Plaintiff's account, the representative initially stated that the account was a “duplicate” and that the account was “closed.” Id. ¶ 17. The representative then reported that the account was still open and DCN was reviewing it for “possible action to move forward.”[4] Id. During the course of the conversation with the Plaintiff, the representative never identified DCN as a debt collection agency. Id. ¶ 18.

         As a result of the conversation, Plaintiff filed suit against DCN alleging multiple violations of the FDCPA. Id. ¶¶ 4-6; Pl.'s Resp. in Opp'n at 1-2, ECF No. 17-1. Plaintiff first argues that DCN's alleged conflicting statements regarding the Subject Debt were unlawful misrepresentations actionable under 15 U.S.C. § 1692e, e(2)(A), e(10), and f. Am. Compl. ¶¶ 29, 31, ECF No. 16. Second, Plaintiff contends, DCN's alleged statement regarding “possible action to move forward” was an unlawful threat actionable pursuant to § 1692e(5) and f. Id. Finally, Plaintiff claims, DCN allegedly did not identify itself as a debt collector during the course of its debt collection communication with Plaintiff in violation of 15 U.S.C. § 1692e(11) and f. Id. ¶ 30.

         In response to the Plaintiff's allegations, DCN has moved to dismiss, arguing that (1) plaintiff-initiated communications are not regulated by § 1692 and its subparts; and (2) in the alternative, DCN's alleged statements were not deceptive or unconscionable misrepresentations or threats. Def.'s Mot. at 5-10, ECF No. 17-1.

         II. DISMISSAL STANDARD

         A motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rule of Civil Procedure[5] test the legal sufficiency of a complaint. A complaint need only contain “‘a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007) (alteration in original) (citations omitted). When evaluating a 12(b)(6) motion to dismiss, a plaintiff's well-pleaded allegations are accepted as true and the complaint is viewed in the light most favorable to the plaintiff. However, conclusory statements or “a formulaic recitation of the elements of a cause of action will not [suffice].” Id. A complaint must allege sufficient facts “to cross ‘the line between possibility and plausibility of entitlement to relief.'” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombley, 550 U.S. at 557).

         Inquiry into whether a complaint states a plausible claim is a “‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'” Id. (quoting Twombley, 550 U.S. at 557). Thus, if “the well-pleaded facts [contained within the complaint] do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]' - ‘that the pleader is entitled to relief.'” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (alteration in original)).

         III. DISCUSSION

         Congress enacted the Fair Debt Collection Practices Act (“FDCPA”) to protect consumers from certain deceptive and unfair debt collection practices.[6] 15 U.S.C. § 1692. Section 1692e generally prohibits the “use [of] any false, deceptive, or misleading representation ... in connection with the collection of any debt, ” and also provides a non-exhaustive list of sixteen prohibited activities, including the following alleged in Plaintiff's Complaint:

e(2)(A) “The false representation of the character, amount or legal status of any debt[.]”
e(5) “The threat to take any action ... that is not intended to be taken.”
e(10) “The use of any false representation or deceptive means to collect or attempt to collect any debt...”
e(11) “The failure to disclose ... in subsequent communications that the communication is from a debt collector...”

15 U.S.C. § 1692e; United States v. Nat'l Fin. Servs., Inc., 98 F.3d 131, 135 (4th Cir. 1996).

         Section 1692f additionally prohibits the use of “unfair or unconscionable means to collect or attempt to collect any debt, ” and includes a non-exhaustive list of prohibited conduct.[7] 15 U.S.C. ยง 1692f. A plaintiff is only required to prove one violation of the FDCPA to trigger liability. ...


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