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Lynn A. Dicesari v. Asset Acceptance LLC and Gordon & Weinberg

September 18, 2012

LYNN A. DICESARI, PLAINTIFF,
v.
ASSET ACCEPTANCE LLC AND GORDON & WEINBERG, P.C., DEFENDANTS.



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

MEMORANDUM AND ORDER

I. BACKGROUND

This case arises from a dispute between Plaintiff Lynn A. Dicesari and Defendants Asset Acceptance LLC, a debt collection agency, and Gordon & Weinberg, P.C., a law firm. According to Plaintiff, Defendant Gordon & Weinberg filed a complaint ("state court complaint") against Plaintiff on behalf of Defendant Asset Acceptance in the Philadelphia County Court of Common Pleas ("Court of Common Pleas") based on a debt allegedly incurred by the Plaintiff with Chase Bank that Asset Acceptance had allegedly purchased. Plaintiff filed preliminary objections to the state court complaint ("preliminary objections") in the Court of Common Pleas on the grounds that the debt could not be proven, or proven to be assigned to Asset Acceptance. (Ex. 1, Compl., Doc No. 1-1). Neither Asset Acceptance nor Gordon & Weinberg filed a response to the preliminary objections, and the Court of Common Pleas sustained the preliminary objections on August 26, 2011. (Ex. 2, Compl., Doc. No. 1-2).

Plaintiff's Amended Complaint contains four separate counts: Violations of the Fair Debt Collection Practices Act ("FDCPA") against both Defendants (Count I); Violations of the Pennsylvania Fair Credit Extension Uniformity Act ("FCEUA") and Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL") against Defendant Asset Acceptance (Count II); Wrongful Use of Civil Proceedings under 42 Pa.C.S.A. § 8351 ("Dragonetti Act") against both Defendants (Count III); and a claim in Equity to delete references to the alleged debt being owed by plaintiff from plaintiff's consumer reports (Count IV). (Am. Compl., Doc. No. 10).

II. STANDARD OF REVIEW

Defendants move to dismiss Plaintiff's claims under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a district court must "accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom." Krantz v. Prudential Invs. Fund Mgmt., 305 F.3d 140, 142 (3d Cir. 2002) (quoting Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). "To survive a motion to dismiss, 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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Threadbare" recitations of the elements of a claim supported only by "conclusory statements" will not suffice. Id. Rather, a plaintiff must allege some facts to raise the allegation above the level of mere speculation. Great Western Mining & Mineral Co. V. Fox Rothschild LLP, 615 F.3d 159, 176 (3d Cir. 2010) (citing Twombly, 550 U.S. at 555). "Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563. "To resolve a 12(b)(6) motion, a court may properly look at public records, including judicial proceedings, in addition to the allegations in the complaint." S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426 (3d Cir. 1999).

III. DISCUSSION

A. Plaintiff's FDCPA Claims

In Count I of the Amended Complaint, the Plaintiff alleges three separate FDCPA, 15 U.S.C. § 1692 et seq., violations. Plaintiff claims that Defendants violated subsection 1692e(2) by giving "a false or misleading representation of the status of the alleged debt which was uncollectible via legal process based on defendants' false claim of AA owning or being owed the alleged debt," subsection 1692e(5) by "threaten[ing] to take the legal action of a money judgment against plaintiff upon defendants' false claim of AA owning or being owed the alleged debt," and subsection 1692f(1) by "attempt[ing] to collect a debt in a manner not permitted by law or by an agreement by plaintiffs with defendants." (Am. Compl. ¶ 16, Doc. No. 10). The Court will address each of these claims in turn.

1. § 1692e(2) Claim

Subsection 1692e(2) of the FDCPA prohibits a debt collector's false representation of "the character, amount, or legal status of any debt." 15 U.S.C. § 1692e(2). Plaintiff alleges that the Defendants violated this subsection by misrepresenting the legal status of the debt in the state court complaint, namely, by falsely representing that Asset Acceptance owned the debt. Defendants point to a decision out of the Sixth Circuit, and to district court cases that follow it, finding that a debt collector's filing of a complaint to collect a debt of which it cannot or does not prove the existence or ownership does not constitute a violation § 1692e(2). (Defs. Mem. of Law in Supp. of Its Mot. to Dismiss at 4-5, Doc. No. 12); see Harvey v. Great Seneca Fin. Corp., 453 F.3d 324 (6th Cir. 2006) (holding that pursuing a claim in court without presently adequate proof of claim does not violate § 1692e). However, plaintiff debtor did not allege that anything in the state court complaint was false in any of these decisions that Defendants cite. Plaintiff actively alleges that the Defendants falsely claim that they own or are owed the debt. (Am. Compl. ¶ 16, Doc. No. 10). That allegation renders this case more similar to the reasoning in two other district court cases.

In Deere v. Javitch, Block, and Rathbone, LLP, the district court rejected the proposition that filing a complaint without present proof of the debt constituted false representation in violation of the FDCPA. 413 F. Supp. 2 886, 891 (S.D. Ohio 2006). However, the court noted that the FDCPA plaintiff "does not allege that anything in the state court complaint was false, or that the complaint was baseless. She essentially alleges that more of a paper trail should have been in the lawyers' hands or attached to the complaint." Id. And in Kelly v. Great Seneca Financial Corp., the court denied defendant debt collector's motion to dismiss precisely because the plaintiffs did allege that defendants violated the FDCPA because "the amount and/or legal status of the debt was falsely represented in the complaint." 443 F. Supp. 2d 954, 961 (S.D. Ohio 2005).

Plaintiff's Amended Complaint alleges that Defendants falsely claimed that they owned or were owed the debt in question, and taking that allegation as true, which the Court must for the purposes of a motion to dismiss, such an allegation of falsity is ...


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