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Frank Degeorge v. Financial Recovery Services

September 28, 2012

FRANK DEGEORGE, PLAINTIFF
v.
FINANCIAL RECOVERY SERVICES, INC., DEFENDANT



The opinion of the court was delivered by: James Knoll Gardner United States District Judge

OPINION

This matter is before the court on Defendant's Motion to Dismiss filed September 22, 2011 *fn1 . Plaintiff's Opposition to Defendant's Motion to Dismiss was filed October 6, 2011 *fn2 .

For the reasons expressed below, I grant in part and deny in part defendant's motion to dismiss. Specifically, I grant defendant's motion to dismiss to the extent it contends that plaintiff fails to allege sufficient facts to state a claim under Section 1692d of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 - 1692p ("FDCPA")(which prohibits harassment by a debt collector).

I deny defendant's motion to dismiss in all other respects. Specifically, I conclude that the allegations in plaintiff's Complaint are sufficient to state a claim under Section 1692e of the FDCPA (which prohibits false, deceptive or misleading representations by a debt collector) and Section 1692f (which prohibits unfair or unconscionable means to collect a debt).

JURISDICTION

This court has jurisdiction in this matter pursuant to 15 U.S.C. § 1692k(d) *fn3 and 28 U.S.C. § 1331 because plaintiff's Complaint alleges that defendant violated the federal Fair Debt Collection Practices Act, and thus poses a federal question.

VENUE

Venue is proper pursuant to 28 U.S.C. § 1391(b)(1) because defendant resides in this judicial district. *fn4

STANDARD OF REVIEW

A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Generally, in ruling on a motion to dismiss, the court relies on the complaint, attached exhibits, and matters of public record, including other judicial proceedings. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2008).

Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief."

Fed.R.Civ.P. 8(a)(2). Rule 8(a)(2) "[does] not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, 167 L.Ed.2d at 949. *fn5

In determining whether a plaintiff's complaint is sufficient, the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading, the plaintiff may be entitled to relief." Fowler, 578 F.3d at 210 (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).

Although "conclusory or bare-bones allegations" will not survive a motion to dismiss, Fowler, 578 F.3d at 210, a complaint may not be dismissed "merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips, 515 F.3d at 231. Nonetheless, to survive a 12(b)(6) motion, the complaint must provide "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]." Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940) (internal quotation omitted).

The court is required to conduct a two-part analysis when considering a Rule 12(b)(6) motion. First, the factual matters averred in the complaint, and any attached exhibits, should be separated from legal conclusions asserted therein. Fowler, 578 F.3d at 210. Any facts pled must be taken as true, and any legal conclusions asserted may be disregarded. Id. at 210-211.

Second, the court must determine whether those factual matters averred are sufficient to show that the plaintiff has a "plausible claim for relief." Id. at 211 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950, 178 L.Ed.2d at 884).

Ultimately, this two-part analysis is "context-specific" and requires the court to draw on "its judicial experience and common sense" to determine if the facts pled in the complaint have "nudged [plaintiff's] claims" over the line from "[merely] conceivable [or possible] to plausible."

Iqbal,556 U.S. at 680, 129 S.Ct. at 1950-1951, 178 L.Ed.2d at 884-885 (internal quotations omitted).

A well-pleaded complaint may not be dismissed simply because "it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940-941.

FACTS

Based upon the averments in plaintiff's Complaint, which I must accept as true under the applicable standard of review discussed above, the pertinent facts are as follows.

Plaintiff Frank DeGeorge is an adult individual who resides in Lancaster, Lancaster County, Pennsylvania. Defendant Financial Recovery Services, Inc.("FRS") is a national debt collection company with corporate headquarters in Minneapolis, Minnesota, that sought to collect an alleged consumer debt from plaintiff. Plaintiff's alleged debt arose from transactions primarily for personal, family, and household purposes. *fn6

On November 8, 2010, defendant sent a letter to plaintiff seeking payment of the alleged debt ("November 8, 2010 letter") *fn7 . This letter stated in capital, bolded font at the ...


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