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Daren Dutterer v. Thomas Kalperis International

February 4, 2011

DAREN DUTTERER
v.
THOMAS KALPERIS INTERNATIONAL, INC.



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM RE: MOTION TO DISMISS

I. Introduction

Plaintiff Darren Dutterer filed this action pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), claiming that the debt collection letter sent to him by law firm Thomas Kalperis International, Inc. ("Defendant") failed to properly validate the debt as required by the FDCPA. Specifically, Plaintiff alleged in his Complaint (ECF No. 1) that the collection notice violated the FDCPA by (1) requiring Plaintiff to supply Defendant with "substantive information proving payment" in order to dispute the debt, and (2) not informing Plaintiff that he has the option to dispute a "portion" of the debt. Presently before the Court is Defendant's Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court will deny the motion.

II. Factual and Procedural History

According to Plaintiff's Complaint, Defendant sent him a letter dated May 12, 2010 ("the collection notice") concerning a consumer debt that Plaintiff allegedly owed to Defendant's client. Compl. ¶ 10. The collection notice contains the following language regarding validation of the debt:

We have supporting materials validating this debt. Unless you supply us with substantive information providing payment within 30 days after receipt of this notice, we will consider this a valid claim. If you provide us with a dispute within 30 days we will investigate your dispute and obtain verification. The findings of said dispute resolution will be made available to you via mail.

Compl. Ex. A (ECF No. 1-1).

On November 23, 2010, Plaintiff filed this action for damages against Defendant, alleging one count of violation of the Fair Debt Collection Practices Act. Compl. ¶ 16. On December 23, 2010, Defendant moved to dismiss Plaintiff's complaint for failure to state a claim. (ECF No. 5). Plaintiff filed his opposition to Defendant's Motion to Dismiss on January 7, 2011. (ECF No. 7). Defendant replied on January 14, 2011. (ECF No. 8).

III. The Parties' Contentions

Defendant contends that the collection notice provided Plaintiff with an adequate validation notice as required by the FDCPA. Defendant argues that the FDCPA does not require that debt collector to use the specific language of the statute in the communication to the debtor. Def.'s Mot. Dismiss ¶ 15; Def.'s Mem. Support 3. Defendant further argues that Plaintiff did not allege that the validation notice was overshadowed or contradicted by other messages from the debt collector, or that the letter caused Plaintiff to be confused as to his rights under the FDCPA. Def.'s Mot. Dismiss ¶¶ 23-24; Def.'s Mem. Support 3-4.

Plaintiff responds that the validation notice can reasonably be read to have multiple meanings, at least one of which is inaccurate. Pl.'s Opp. 4-5. Plaintiff argues that by requiring the debtor to provide proof of payment, the validation notice is deceptive as to the debtor's rights. Pl.'s Opp. 6-7. Furthermore, Plaintiff contends that the omission of language notifying the debtor of the option to dispute a portion of the debt may affect the debtor's decision to dispute or seek verification. Pl.'s Opp. 9.

IV. Legal Standard

A. Jurisdiction

The Court has jurisdiction over this FDCPA action pursuant to 28 U.S.C. § 1331, because this case arises under the laws of the United States, and 15 U.S.C. § 1692k(d), which grants the district courts original jurisdiction over any action to enforce ...


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