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Wideman v. Monterey Financial Services

May 7, 2009

BERNITA WIDEMAN, PLAINTIFF,
v.
MONTEREY FINANCIAL SERVICES, INC., DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Amy Reynolds Hay

MEMORANDUM OPINION

Factual and Procedural Background

Plaintiff Bernita Wideman ("Wideman") commenced this action under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692, et seq., alleging that defendant Monterey Financial Services, Inc. ("MFS"), a debt collection agency, sent her two e-mails regarding her delinquent loan without identifying itself as a debt collector; threatened to file a 1099 C form with the IRS; and left a message with her administrative assistant in violation of the statute. Wideman alleges that as a result of these illegal collection activities, she has suffered "anger, anxiety, emotional distress, fear, frustration, upset, humiliation, embarrassment, as well as unjustified and abusive invasions of personal privacy." Complaint ¶ 18.

MFS has filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), arguing that, with the exception of one section, Wideman's claims fail to contain sufficient averments from which it could be concluded that MFS's conduct violated the FDCPA.

Standard of Review

The United States Supreme Court has recently held that a complaint is properly dismissed under Fed. R. Civ. P. 12(b)(6) where it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (rejecting the long-adhered to 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In assessing the sufficiency of the complaint, the Court must accept as true all allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985). The Court, however, need not accept inferences drawn by the plaintiff if they are unsupported by the facts as set forth in the complaint. See California Public Employees' Retirement System v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004), citing Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. The question is not whether the plaintiff will prevail in the end but, rather, is whether the plaintiff is entitled to offer evidence in support of his or her claims. See Oatway v. American International Group, Inc., 325 F.3d 184, 187 (3d Cir. 2003).

Discussion

In her complaint, Wideman alleges that MFS violated the following sections of the FDCPA: § 1692c(b), § 1692d, § 1692d(1), § 1692e, § 1692e(5), § 1692e(8), § 1692e(10), § 1692e(11), and § 1692f. MFS concedes that Wideman has properly stated a claim under § 1692e(11), and Wideman concedes that §§ 1692d, 1692d(1), 1692e(8) and 1692f are properly dismissed. As such, only Wideman's claims brought under §§ 1692c(b), 1692e, 1692e(5), and 1692e(10) remain at issue.

Section 1692c(b) of the FDCPA provides:

(b) Communication with third parties

Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector. 15 U.S.C. § 1692c(b). Thus, the FDCPA prohibits debt collectors from communicating with third parties regarding the debtor's debt without the consumer's consent.

Wideman has alleged in the complaint that MFS violated § 1692c(b) when it left a message with her administrative assistant on February 26, 2008, regarding Wideman's debt. Complaint ¶ 16. The extent of the message is reflected in an e-mail Wideman received from her administrative assistant dated February 26, 2008, which states, "Call MCS at 877.775.3091 ex. 1032." Complaint, Exh. C.

MFS argues that Wideman has failed to state a claim under this provision of the FDCPA, because the communication of which Wideman complains contains no information which would permit the third party to conclude that it concerned the collection of a debt.

The statute, however, defines "communication" as "the conveying of information regarding a debt directly or indirectly to any person through any medium." 15 U.S.C. ยง 1692a(2). Thus, the fact that the word "debt" may not have been mentioned is not fatal to Wideman's claim if information regarding ...


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