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El-Bakara v. Weltman, Weinberg & Reis Co., LPA

United States District Court, E.D. Pennsylvania

June 26, 2019

DAUD S. EL-BAKARA, SR.,
v.
WELTMAN, WEINBERG & REIS CO., LPA

          MEMORANDUM RE: MOTION TO DISMISS SECOND AMENDED COMPLAINT

          Baylson, J.

         This is the second time this Court has had an opportunity to review a complaint in this FDCPA case. In March of 2018, this Court granted Defendant's Motion to Dismiss Plaintiff's Complaint without prejudice, with leave to amend. (ECF 51.)

         Plaintiff's Second Amended Complaint (“SAC”) again pleads violations of the FDCPA (Count I) and state law claims for conversion (Count II) and negligence (Count III). (SAC, ECF 52). Presently before the Court is Defendant's Motion to Dismiss the SAC. (Mot., ECF 53.) Plaintiff responded. (ECF 56.)

         Because we have previously outlined the factual background of this case in our prior memorandum, we refrain from doing so again. For the reasons that follow, Defendant's Motion to Dismiss is denied.

         I. Legal Standard

         In considering a motion to dismiss under Rule 12(b)(6), “we accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff.” Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for 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)). However, the Court in Iqbal does explain that while factual allegations must be treated as true, legal conclusions do not. 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).

         II. Analysis

         A. FDCPA claims

          To state a claim under the FDCPA, Plaintiff must allege four elements: “(1) he or she is a ‘consumer' who is harmed by violations of the FDCPA; (2) the ‘debt' arises out of a transaction entered into primarily for personal, family, or household purposes; (3) the defendant collecting the debt is a ‘debt collector'; and (4) the defendant has violated, by act or omission, a provision of the FDCPA.” Berk v. J.P. Morgan Chase Bank, N.A., No. CIV.A. 11-2715, 2011 WL 4467746, at *3 (E.D. Pa. Sept. 26, 2011) (Schiller, J.).

         As with its last motion to dismiss, Defendant alleges that Plaintiff has failed to make out the second element of his FDCPA claim and has not shown that the debt arises out of a consumer transaction. In addressing Plaintiff's first Complaint, the Court concluded that he had “not pled facts sufficient to state a plausible FDCPA claim because he has not alleged any facts that support his conclusion that the underlying debt was a consumer debt.” (ECF 51 at 6.)

         As the Court explained in our prior memorandum, the Third Circuit developed a test for determining if an obligation falls within the FDCPA's definition of a consumer debt in St. Pierre v. Retrieval-Masters Creditors Bureau, Inc., 898 F.3d 351, 360 (3d Cir. 2018). We explained:

First, the court determines whether the obligation arose out of a transaction, i.e., consensual transaction involving an affirmative request and the rendition of a service or purchase of property. Id. Second, the court must identify, based upon Plaintiff's allegations, what money, property, insurance, or services are the subject of the transaction. Id. at 361. Finally, the court considers the characteristics of that money, property, insurance, or services to ascertain whether they're primarily for personal, family, or household purposes. Id.

(ECF 51 at 4-5.)

         Plaintiff has attempted to cure this insufficiency by asserting not only that the “debt arose out of transactions which were primarily for personal family or household purposes” but that “[t]he underlying credit card was a consumer credit card” that “was voluntarily opened as a result of the actual debtor applying for a credit card.” (SAC at ¶¶ 9, 13, 14.) Plaintiff also alleges that “[t]he purchases made on the consumer credit ...


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