United States District Court, D. Maryland
MEMORANDUM AND ORDER RE: MOTION TO DISMISS
J. Garbis United States District Judge.
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.
Parties and the Claims
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.
seeks recovery of actual damages, statutory damages,
reasonable attorneys' fees and costs, and any other
Statement of Facts
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”). 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.
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.” Id. During the course of the
conversation with the Plaintiff, the representative never
identified DCN as a debt collection agency. Id.
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.
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.
motion to dismiss filed pursuant to Rule 12(b)(6) of the
Federal Rule of Civil Procedure 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).
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)).
enacted the Fair Debt Collection Practices Act
(“FDCPA”) to protect consumers from certain
deceptive and unfair debt collection practices. 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
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
15 U.S.C. § 1692e; United States v. Nat'l Fin.
Servs., Inc., 98 F.3d 131, 135 (4th Cir. 1996).
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. 15 U.S.C. § 1692f. A plaintiff is
only required to prove one violation of the FDCPA to trigger