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Orr v. Westport Recovery Corp.

United States District Court, N.D. Georgia

April 16, 2013

PAUL E. ORR, JR., on behalf of himself and all others similarly situated, Plaintiff,
v.
WESTPORT RECOVERY CORPORATION, et al., Defendants

For Paul E. Orr, Jr., on behalf of himself and all others similarly situated, Plaintiff: James Marvin Feagle, LEAD ATTORNEY, Skaar & Feagle, LLP-Decatur, Decatur, GA; Justin Tharpe Holcombe, Kris Kelly Skaar, LEAD ATTORNEYS, Skaar & Feagle, LLP - Marietta, Marietta, GA; Scott D. Owens, LEAD ATTORNEY, Law Office of Scott D. Owens, Hallandale, FL.

For Westport Recovery Corporation, a Florida corporation, Friedman & Greenberg, P.A., a Florida professional association, Debra L. Greenberg, individually, Robert D. Friedman, individually, Defendants: Jill Warner, Michael E. Brooks, McRae Brooks Warner, LLC, Atlanta, GA.

OPINION

ORDER

WILLIAM C. O'KELLEY, Senior United States District Judge.

The captioned case is before the court for consideration of defendants' motion to dismiss [8].

I. Facts[1]

On May 28, 1992, First Union National Bank of Florida (" First Union" ) obtained a judgment against Paul E. Orr, Jr. and Harriet I. Orr in the County Court of Broward County, Florida, for the principal sum of $4,017,90, interest of $1,226.04, court costs of $162.00, and attorneys' fees of $650.00 (the " Judgment" ). Defendants allege that on November 8, 1997, the Judgment was assigned to defendant Westport Recovery Corporation (" Westport" ). On May 11, 2012, Westport filed a complaint to extend final judgment against plaintiff in the County Court of Broward County, Florida (the " Complaint to Extend Judgment" ). (Mot. to Dismiss Ex. 1.) [2] That

Page 1378

case was an action on the Judgment pursuant to Florida Statute § 95.11(1). [3]

On July 3, 2012, defendants sent plaintiff two letters attempting to collect a total balance of $21,052.82, which purports to include post judgment interest and costs. (Compl. Exs. A, B.) One letter is from Westport signed by Robert D. Friedman (" Friedman" ). The other is from the law firm of Friedman & Greenberg, P.A. (" Friedman & Greenberg" ), signed by Debra L. Greenberg (" Greenberg" ) (hereinafter collectively referred to as the " Letters" ). The Letters identify that Westport is represented by Friedman & Greenberg, that the owners of Friedman & Greenberg are Friedman and Greenberg, and that Friedman and Greenberg are also the owners of Westport.

The Letters specifically refer to the Complaint to Extend Judgment, the balance due on the Judgment, and the fact that Westport purchased the Judgment from First Union. The Letters also expressly state that " [t]his communication is from a debt collector attempting to collect a debt and any information obtained will be used for that purpose." In addition, the Letters contain the following:

Pursuant to Section 809 of the Fair Debt Collection Practices Act you are hereby notified that unless you dispute the validity of this debt or any portion thereof within thirty days of receipt of this notice, the debt will be assumed to be valid. Furthermore, if you notify [Westport or Greenberg] in writing within the thirty-day period that this debt or any portion thereof is disputed, verification of the debt will be obtained and a copy of same will be mailed to you. Upon written request within this thirty-day time frame, you will also be provided with the name and address of the original creditor if this account was not originally opened with Westport.

(Id.) These Letters are the only written communications from defendants. ( Id. at ¶ 22.)

Plaintiff filed this complaint against defendants Westport, Friedman & Greenberg, Friedman, and Greenberg alleging that they violated the Federal Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (the " FDCPA" ). More specifically, plaintiff alleges that defendants violated the FDCPA by sending the Letters that " failed to properly deliver the notice required by 15 U.S.C. § 1692g(a)(3) by omitting the required language which limits the assumption of validity to the debt collector." (Id. at ¶ 1.) Plaintiff alleges that this failure constitutes violations of 15 U.S.C. § § 1692e, and 1692g. ( Id. at ¶ ¶ 24, 36.) Plaintiff seeks certification of a class pursuant to Rule 23(b)(3) and an award of statutory damages, costs, and attorney's fees pursuant to 15 U.S.C. § 1692k. ( Id. at ¶ ¶ 29, 34, 37-38.)

II. Legal Analysis

Defendants assert that plaintiff's complaint must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because plaintiff has failed to state a claim upon which relief can be granted. On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the complaint's ...


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