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Helen Combs v. Nco Financial Systems

April 5, 2011

HELEN COMBS, PLAINTIFF,
v.
NCO FINANCIAL SYSTEMS, INC., ET AL., DEFENDANTS.



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

MEMORANDUM

Plaintiff, Helen Combs, brings this action against defendants, Capital One Services, LLC, Capital One, N.A. (collectively, "Capital One"), and NCO Financial Systems, Inc. ("NCO"), for violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (the "FDCPA"), and state law. Capital One moves to dismiss plaintiff's claims against it for failure to state a claim under Fed. R. Civ. P. 12(b)(6). For the reasons set forth below I will grant in part and deny in part Capital One's motion.

I. Factual and Procedural Background

This case centers around an alleged debt of approximately $500.00 (the "Debt") owed by plaintiff's late husband to Capital One,*fn1 and attempts by defendants to collect the Debt. (See Compl. ¶ 9.) According to the allegations in the complaint, which I must accept as true in deciding this motion to dismiss, plaintiff began to receive calls regarding the debt from NCO in or around September 2010. (Id.) NCO called at least five or six times per day. (Compl. ¶ 11.) Plaintiff informed NCO's agent that her husband was very sick and asked that NCO stop calling, but the agent "continue[d] to talk over" her and the calls continued. (Compl. ¶¶ 12-15.) On September 28, 2010, plaintiff's husband passed away. (Compl. ¶ 16.) When NCO called that morning, plaintiff informed NCO that her husband had passed away and again asked that NCO cease calling her, but the caller "continued to talk over" her and she continued to receive calls from NCO asking for her deceased husband, six to seven times per day. (Compl. ¶¶ 16-18.) The complaint does not specify precisely how long the calls continued, but plaintiff continued to receive calls at least until October 5, 2010, including on the day of her husband's funeral, despite repeated protestations that her husband had died. (Compl. ¶¶ 19-23, 29.)

On or around October 4, 2010, plaintiff's son mailed copies of plaintiff's husband's death certificate to defendants. (Compl. ¶ 24.) That same day, plaintiff received a letter from Capital One addressed to her husband, thanking him for contacting Capital One despite the fact that he was deceased and had not contacted Capital One. (Compl. ¶ 25; Compl. Ex. A.) Plaintiff called the number provided in that letter, but the number ultimately led to NCO although an automated message initially stated that it was Capital One. (Compl. ¶ 26.)

On October 4, 2010, plaintiff complained to Capital One about the phone calls, by email. (Compl. ¶¶ 27-28; Compl. Ex. B.) After exchanging more emails with Capital One, plaintiff received an email from a Capital One representative on October 11, 2010, informing her that the account would be sent to Capital One's estate department, and that the calls would cease. (Compl. ¶¶ 30-32; Compl. Ex. C; Compl. Ex. D.) Plaintiff spoke by phone with that Capital One representative, who sympathized with plaintiff and told her that an investigation would be conducted. (Compl. ¶ 33.) Then on October 12, 2011, plaintiff received an email from Capital One offering her husband a payment plan. (Compl. ¶ 34; Compl. Ex. E.)

Plaintiff filed this action on October 26, 2010. Capital One has moved to dismiss under Rule 12(b)(6) for failure to state a claim.

II. Legal Standard

"To survive a motion to dismiss [pursuant to Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Factual allegations "that are 'merely consistent with' a defendant's liability," or that permit the court to infer no more than "the mere possibility of misconduct" are not enough. Id. at 1949-50 (quoting Twombly, 550 U.S. at 557). Rather, the plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949. In evaluating a motion to dismiss, the court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009); see also Iqbal, 129 S. Ct. at 1949 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.").*fn2

III. Discussion

Plaintiff asserts claims against Capital One for violation of the FDCPA, civil conspiracy, and emotional distress intentionally inflicted. Capital One challenges plaintiff's three counts on different grounds, and I will address each in turn. For the reasons set forth below I will grant Capital One's motion as to plaintiff's claims for violation of the FDCPA and intentional infliction of emotional distress, and I will deny Capital One's motion as to plaintiff's civil conspiracy claim.

A FDCPA - Count I

Capital One argues that plaintiff's FDCPA claim against it should be dismissed because Capital One, as the creditor with respect to the debt in question, cannot meet the definition of a "debt collector" under the FDCPA and therefore cannot be liable for breach of the act's provisions. (Capital One's Mem. of Law in Supp. of Mot. to Dismiss ("Capital One Mot.") 3-4.)

The FDCPA defines a "debt collector" as "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. ยง 1692a(6). "The FDCPA's provisions generally apply only to 'debt collectors.'" Pollice v. National Tax Funding, L.P., ...


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