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Shand-Pistilli v. Professional Account Services

July 26, 2010

BEVERLY SHAND-PISTILLI
v.
PROFESSIONAL ACCOUNT SERVICES, INC.



The opinion of the court was delivered by: O'neill, J.

MEMORANDUM

Plaintiff Beverly Shand-Pistilli filed a complaint against defendant Professional Account Services, Inc. on April 23, 2010 seeking damages, costs and attorney's fees for defendant's alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et. seq. Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure defendant has filed a motion to dismiss the complaint for failure to state a claim under the FDCPA. Presently before me are defendant's motion to dismiss, plaintiff's response and defendant's reply. For the following reasons, I will grant in part and deny in part defendant's motion.

BACKGROUND

Beginning on January 1, 2010, defendant made multiple calls to plaintiff's home and demanded that plaintiff pay the balance due for a debt allegedly owed to a third party. On at least one occasion defendant called as late as 8:58 pm. Compl. ¶ 18. Despite plaintiff's request that defendant stop calling her at home the calls continued. Compl. ¶ 19. Defendant continues to attempt to collect the alleged debt. Compl. ¶ 24.

Defendant mailed letters to plaintiff's home dated January 12 and January 27, 2010. The January 12 letter reads as follows:

RE: Pottstown Memorial Medical Center

Your account has been placed with this collection agency for collection.

Please detach the top portion of this letter and include it with your payment in full or contact our office to discuss this account. 1-800-755-5152.

Unless you notify this office within 30 days after receiving this notice that you dispute the validity of the debt or any portion thereof, this office will assume the debt is valid. If you notify this office in writing within 30 days from receiving this notice, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office in writing within 30 days after receiving this notice this office will provide you with the name and address of the original creditor if different from the current creditor.

For questions please call 1-800-755-5152 and ask for EXT 8500.

The January 27 letter informed plaintiff that defendant had contacted her employer and "verified" her employment status with Norristown State Hospital. Compl. ¶ 22. The letter further explained defendant's belief that plaintiff's current employment indicates that she has the ability to pay her debt. Id.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," although plaintiff's obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id., citations omitted.

The Court of Appeals has recently made clear that after Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1955 (2009), "conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'" Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), citing Iqbal, 129 S.Ct. at 1949. "To prevent dismissal, civil complaints must set forth 'sufficient factual matter' to show that the claim is facially plausible." Id. "Where the well-pleaded facts 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." Iqbal, 129 S.Ct. at 1949, internal quotations omitted. The Court also set forth a two part analysis for reviewing motions to dismiss in light of Twombly and Iqbal: First the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well pleaded factual allegations as true , but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 210-211 (quoting Iqbal, 129 S.Ct. at 1950). The Court explained, "a complaint must do more than allege the plaintiff's entitlement to relief. A ...


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