United States District Court, E.D. Pennsylvania
I. QUIÑONES ALEJANDRO, U.S.D.C. JUDGE
27, 2017, Plaintiff Brenda Zachary (“Plaintiff”)
filed this civil action against Defendants Midland Funding
LLC, Midland Credit Management, Inc., and Encore Capital
Group, Inc. (collectively, “Defendants”) in the
Court of Common Pleas of Philadelphia County, Pennsylvania,
alleging violations of, inter alia, the Fair Debt
Collection Practices Act (the “FDCPA”), 15 U.S.C.
§ 1692 et seq., Pennsylvania's Fair Credit
Extension Uniformity Act (the “FCEUA”), 73 Pa.
Cons. Stat. § 2270.1 et seq., and
Pennsylvania's Unfair Trade Practices and Consumer
Protection Law (“UTPCPL”), 73 Pa. Cons. Stat.
§ 201-1 et seq. [ECF 1]. Before this Court
is a motion to dismiss filed by Defendants pursuant
to Federal Rule of Civil Procedure (“Rule”)
12(b)(6) in which Defendants seek the partial dismissal of
Counts I, II, and III of Plaintiff's complaint, and the
dismissal of Counts IV, V, and VI of the complaint in their
entirety. [ECF 5]. Plaintiff has filed a response opposing
the motion. [ECF 6]. The issues in the motion to dismiss have
been fully briefed by the parties and are ripe for
disposition. For the reasons set forth, Defendants'
motion to dismiss is granted.
complaint, Plaintiff asserts claims for violations of the
FDCPA (Count I), violations of the FCEUA (Count II),
violations of the UTPCPL (Count III), defamation (Count IV),
abuse of process (Count V), and violations of the Fair Credit
Reporting Act (the “FCRA”) (Count VI). These
claims are premised upon Defendants' efforts to collect
certain consumer debts owed by Plaintiff, including,
inter alia, the filing of a debt collection lawsuit
in Philadelphia Municipal Court. As noted, Defendants moved
to dismiss these claims in part. When ruling on a motion to
dismiss, this Court must accept as true all factual
allegations in the Complaint and construe these facts in the
light most favorable to Plaintiff. See Fowler v.
UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.
2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677
(2009)). The following is a summary of the relevant
allegations in Plaintiff's complaint; to wit:
Defendants are engaged in the business of purchasing and
collecting unpaid consumer debts. (Compl. at ¶ 7). On
September 20, 2016, Defendants filed a lawsuit against
Plaintiff in Philadelphia Municipal Court (the “Debt
Collection Lawsuit”), in which they sought damages in
the amount of $1, 156.21, which included, inter
alia, damages that had accumulated as a result of
Plaintiff's alleged default on a Citibank, N.A./Sears
MasterCard credit account (the “Citibank
Account”). (Id. at ¶ 12). Plaintiff
retained counsel and contested Defendants' claim in the
Debt Collection Lawsuit. When the case was scheduled for
trial, (id. at ¶ 13), Defendants failed to
produce credible, competent and/or sufficient evidence of the
alleged debt, and judgment was entered in favor of Plaintiff.
(Id.). Defendants did not appeal this judgment,
which became final on March 5, 2017. (Id. at ¶
Plaintiff alleges that Defendants failed to notify credit
reporting agencies that the alleged debt was in dispute,
(id. at ¶ 15), and that, despite the entry of
judgment in Plaintiff's favor in the Debt Collection
Lawsuit, Defendants continue to make false reports to credit
reporting agencies in which they characterize Plaintiff's
account as past due. (Id. ¶ 16). Plaintiff
avers that Defendants have failed to prove they are the
assignees and/or successors-in-interest to Plaintiff's
original creditor, Citibank, N.A., (id. at ¶
21), and that even if they are the assignees and/or
successors-in-interest, they have used unfair and/or
unconscionable means to collect the debt. (Id. at
¶ 23). Plaintiff further alleges that Defendants have
made harassing phone calls to her residential and/or cellular
telephones after being advised to cease and desist making
such calls. (Id. at ¶ 24).
removed the case to this court on September 5, 2017. [ECF 1].
Thereafter, Defendants filed the instant motion to dismiss
pursuant to Rule 12(b)(6). [ECF 5]. As noted, Plaintiff filed
a response in opposition. [ECF 6].
considering a Rule 12(b)(6) motion to dismiss for failure to
state a claim, the court “must accept all of the
complaint's well-pleaded facts as true, but may disregard
any legal conclusions.” Fowler, 578 F.3d at
210-11 (citing Iqbal, 556 U.S. at 677). The court
must determine whether the plaintiff has pled facts
sufficient to show a plausible entitlement to relief.
Id. at 211. If the pled facts only allow the court
to infer the mere possibility of misconduct, then
the complaint has only alleged, and not shown, that
the plaintiff is entitled to relief. Iqbal, 556 U.S.
at 679 (citing Fed.R.Civ.P. 8(a)) (emphasis added). Thus, the
plaintiff “must allege facts sufficient to ‘nudge
[his or her] claims across the line from conceivable to
plausible.'” Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Mere “labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555. After
construing the complaint in the light most favorable to the
plaintiff, if the court finds that the plaintiff could not be
entitled to relief, it can dismiss the claim.
Fowler, 578 F.3d at 210.
complaints and submissions filed by pro se litigants
are subject to liberal interpretation and are held
“‘to less stringent standards than formal
pleadings drafted by lawyers, '” Fantone v.
Latini, 780 F.3d 184, 193 (3d Cir. 2015) (citing
Haines v. Kerner, 404 U.S. 519, 520-21 (1972)), the
court still must ensure that a pro se complaint
contains “‘sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.'” Id. at 193 (citing Iqbal,
556 U.S. at 678).
noted, the Complaint asserts six causes of action, each
premised upon Defendants' attempts to collect certain
debts allegedly owed by Plaintiff. Defendants move to
partially dismiss Counts I through III, and dismiss Counts IV
through IV in their entirety. This Court will address each
cause of action and the relevant arguments concerning the
dismissal of each claim in turn.
FDCPA Claims (Count I)
Count I of the complaint, Plaintiff alleges that Defendants
violated §§ 1692e, 1692e(2), 1692e(10), and
1692f(1) of the FDCPA by, inter alia, failing to
“produce credible, competent and/or sufficient evidence
of the alleged debt” during the Municipal Court
litigation and failing “to prosecute its claim”
at trial. (See Compl. at ¶¶ 2, 26).
Defendants move to dismiss Plaintiff's FDCPA claim, in
part, arguing that, as a matter of law, the commencement of a
lawsuit without supporting evidence does not constitute the
type of harassing, abusive, or dishonest conduct proscribed
by the FDCPA. This Court agrees.
FDCPA protects consumers from “abusive, deceptive or
unfair debt collection practices by debt collectors.”
Piper v. Portnoff Law Assocs., Ltd., 396 F.3d 227,
232 (3d Cir. 2005). The FDCPA prohibits three general
categories of conduct by debt collectors: (1) harassment,
oppression, or abuse; (2) false, deceptive, or misleading
representations; and (3) unfair or unconscionable practices.
See 15 U.S.C. §§ 1692d, 1692e, 1692f.
alleges that Defendant violated §§ 1692e and 1692f
by filing the Debt Collection Lawsuit without sufficient
evidence to support its claims against Plaintiff. Section
1692e prohibits the use of “any false, deceptive, or
misleading representation or means in connection with the
collection of any debt.” 15 U.S.C. § 1692e. The
section also includes a non-exhaustive list of conduct that
violates this general prohibition. Id. In her claim,
Plaintiff specifically relies on § 1692e(2), which
prohibits “[t]he false representation of the character,
amount, or legal status of any debt, ” and §
1692e(10), which prohibits, inter alia, “[t]he
use of any false representation or deceptive means to collect
or attempt to collect any debt . . . .” Id.
§§ 1692e(2), 1692e(10). Section 1692f prohibits
“unfair or unconscionable means to collect or attempt
to collect any debt” and provides a non-exhaustive list
of examples of prohibited conduct. Id. §
careful review of the allegations of the complaint, it is
apparent that Plaintiff's FDCPA claim and her contention
that Defendants violated §§ 1692e, 1692e(2),
1692e(10), and 1692f(1), rest primarily on Defendant's
alleged act of filing and pursuing the Debt Collection
Lawsuit against Plaintiff in state court. Nowhere in the
complaint has Plaintiff alleged that Defendants' claims
in the Debt Collection Lawsuit were frivolous or baseless, or
that Defendants lacked a good faith basis to file that
lawsuit. Without more, the allegation that Defendant filed
and pursued the underlying lawsuit without sufficient
evidence fails to state a claim that the lawsuit was a false,
deceptive, or misleading representation or means to collect a
debt, as prohibited by §§ 1692e, e(2), e(10), or
that it constituted an unconscionable and unfair practice as
proscribed by § 1692f(1). See Eades v. Kennedy, PC
Law Offices, 799 F.3d 161, 172 (2d Cir. 2015)
(dismissing FDCPA claim predicated on the initiation of a
debt collection lawsuit on the grounds that the complaint did
not allege facts tending to show the lawsuit was frivolous or
baseless); Harvey v. Great Seneca Fin. Corp., 453
F.3d 324, 325 (6th Cir. 2006) (rejecting argument that
“a lawsuit filed without the immediate means of proving
the existence, amount, or true owner of the debt”
violates § 1692(e)). Accordingly, Plaintiff's FDCPA
is dismissed to the extent it is predicated on the
commencement and prosecution of the Debt Collection
UTPCPL and FCEUA ...