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Pierce v. Calvary SPV I, LLC

United States District Court, Third Circuit

December 20, 2013

LINDA R. PIERCE, Plaintiff,
v.
CALVARY SPV I, LLC, et. al., Defendants.

MEMORANDUM ORDER

CATHY BISSOON, District Judge.

I. MEMORANDUM

Currently pending before the Court are Defendant Jorge M. Pereira and Defendant The Law of Business, PC's Motion to Dismiss for Failure to State a Claim/Motion to Dismiss for Lack of Jurisdiction (Doc. 8) and Defendant Calvary SPV I, LLC's Motion to Compel Arbitration/Motion to Dismiss for Failure to State a Claim (Doc. 15).

For the reasons stated below, Defendant Jorge M. Pereira and Defendant The Law of Business, PC's Motion to Dismiss will be granted in part and denied in part. Defendant Calvary SPV I, LLC's Motion to Compel Arbitration/Motion to Dismiss for Failure to State a Claim will be denied.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Linda R. Pierce ("Plaintiff") filed a five-count Complaint (Doc. 1) against Defendants Calvary SPV I, LLC ("Calvary"), Jorge M. Pereira ("Pereira"), and The Law of Business, PC ("TLOB"), alleging claims under both Federal and State statutes. Counts I and II allege violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Count III alleges a violation of Pennsylvania's Fair Credit Extension Uniformity Act ("FCEUA"), 73 Pa. Stat. Ann. § 2270.1, et seq. Count IV alleges a violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 Pa. Stat. Ann. § 201-1 et seq. Count V alleges a claim for the "Wrongful Use of Civil Proceedings" under 42 Pa. Stat. Ann. §§ 8351-54, a statute commonly known as Pennsylvania's "Dragonetti Act."

All of Plaintiff's claims stem from a Civil Complaint ("the collection complaint") that was filed against her in Butler County, Pennsylvania on October 16, 2012, for an overdue credit card account. Comp. at ¶¶ 6-7. The collection complaint allegedly sought interest and liquidated attorney's fees. Id. at ¶ 7. Plaintiff alleges that Pereira signed the collection complaint, but does not specifically explain how the other two defendants were involved in the lawsuit. Id. at ¶ 8. Upon viewing the record as a whole, it appears that Calvary was assigned the underlying debt by the original creditor, and that Calvary retained the law firm TLOB to collect that debt. Pereira appears to be an attorney employed at TLOB, and is the individual who ultimately filed the collection complaint against Plaintiff on behalf of Calvary.

Plaintiff alleges that Pereira failed to review the collection complaint or Plaintiff's file, and that Defendants had no personal knowledge as to the accuracy of the information provided by the original creditor. Id. at ¶¶ 12-13. Further, Plaintiff alleges that Defendants[1] were not familiar with how the original creditor created or maintained its business records, and at the time that the collection complaint was filed, Defendants were not in possession of Plaintiff's account statements, her signed application, documentation substantiating Calvary's request for 22.65% interest, or proof that the account was assigned to Calvary from the original creditor. Id. at ¶¶ 10-11. Plaintiff alleges that the credit card agreement did not allow for the collection of attorney's fees, and if it did, then it did not permit the collection of liquidated attorney's fees sought in the collection complaint. Id. at ¶ 24.

On January 15, 2013, a judge allegedly entered judgment for Plaintiff in the collection suit, and Defendants did not appeal the judgment. Id. at ¶¶ 20-21. Plaintiff alleges that although she prevailed in the collection suit, she incurred attorney's fees, harm to her reputation, emotional distress, mental anguish and humiliation as a result of the lawsuit. Id. at ¶¶ 22-23.

Defendants Pereira and TLOB filed a Motion to Dismiss for Failure to State a Claim/Motion to Dismiss for Lack of Jurisdiction (Doc. 8), pursuant to Rules 12(b)(6) and (1) on May 24, 2013. Subsequently, Defendant Calvary filed a Motion to Compel Arbitration/Motion to Dismiss for Failure to State a Claim (Doc. 15). Defendants have made several arguments as to why Plaintiff has failed to state a claim. The Court will examine each count in Plaintiff's complaint and consider the arguments made by each Defendant in turn. The Court will then turn to Defendant Calvary's Motion to Compel Arbitration.

ANALYSIS

A. Motions to Dismiss

When considering a Rule 12(b)(6) motion, the Court must accept all of plaintiff's allegations as true and construe all reasonable inferences in favor of the plaintiff. Alston v. Parker , 363 F.3d 229, 233 (3d Cir. 2004). To survive a motion to dismiss under 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 , 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)). A claim "requires a complaint with enough factual matter (taken as true) to suggest the required element." Phillips v. County of Allegheny , 515 F.3d 224, 234 (3d Cir. 2008) (citing Twombly , 550 U.S. at 556) (internal quotations omitted). "This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id.

1. Counts 1 & 2 - FDCPA Claims

In Counts I and II, Plaintiff alleges violations of the FDCPA. The FDCPA was enacted "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e). Because the FDCPA was designed to protect consumers, FDCPA claims are "analyzed from the perspective of the least sophisticated debtor." Brown v. Card Serv. Ctr. , 464 F.3d 450, 453-54 (3d Cir. 2006).

Specifically, Count I of Plaintiff's complaint alleges a violation of §§ 1692f and 1692f(1). Section 1692f provides:

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

15 U.S.C. § 1692f(1).

Similarly, Count II alleges a violation of §§ 1692e, 1692e(2)(A) & (B), and ...


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