United States District Court, N.D. Georgia, Atlanta Division
For Keith Davidson, on behalf of plaintiff and a class, Plaintiff: Catherine A. Ceko, LEAD ATTORNEY, Cathleen M. Combs LEAD ATTORNEY, PRO HAC VICE, Edelman Combs & Latturner & Goodwin, LLC, Chicago, IL; E. Talley Gray, LEAD ATTORNEY, Law Offices of E. Talley Gray, Suwanee, GA.
For Capital One Bank (Usa), N.A., Defendant: Jennifer Ziemann, Burr & Forman, LLP-ATL, Atlanta, GA; Joshua Howard Threadcraft, Burr & Forman LLP-AL, Birmingham, AL.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR., UNITED STATES DISTRICT JUDGE.
This matter is before the Court on Magistrate Judge E. Clayton Scofield's Report and Recommendation  (" R& R" ) recommending that Defendant Capital One Bank (USA), N.A.'s (" Defendant" ) Motion to Dismiss  be denied and that Plaintiff Keith Davidson (" Plaintiff" ) be given twenty days after the date of the Court's order to renew his motion for class certification. The Court will also consider Defendant's Motion for Hearing  (" Hearing Motion" ) regarding its Objection  to the R& R and its Motion for Leave to File Reply in Support of Objection  (" Motion for Leave" ), and Plaintiff's Motion to Certify Class .
This case involves a matter of first impression in the circuit, and is decided against the following factual, procedural, and statutory backdrop.
On September 12, 2013, Plaintiff, on behalf of himself and a class of similarly situated individuals, filed his Amended Complaint  alleging that Defendant violated certain provisions of the Fair Debt Collection Practices Act (" FDCPA" ). Plaintiff alleges that Defendant regularly acquired credit card portfolios containing millions of dollars of delinquent or defaulted accounts, including its acquisition of twenty-eight (28) billion dollars of credit card accounts originally held by HSBC Bank Nevada, N.A. (" HSBC" ), which included Plaintiff's credit card account. (Am. Com. at ¶ ¶ 7-8, 11, 15, 21, 25). Plaintiff alleges that many of the credit card receivables on accounts issued by Defendant are securitized, and thus are actually owned by others. (Id. at ¶ 16-17). Plaintiff alleges that Defendant's regular course of business is to attempt to collect such acquired defaulted debts. (Id. at 18). Plaintiff thus claims that Defendant is a " debt collector," as defined by the FDCPA, with respect to the delinquent or defaulted accounts it acquired from HSBC and other credit card companies. (Id. at 20). Plaintiff alleges that Defendant violated the FDCPA by undertaking to collect on Plaintiff's credit card account. (Id. at 29-35, 44).
On September 26, 2013, Defendant filed its Motion to Dismiss, asserting that it was not a " debt collector" subject to the provisions of the FDCPA, because it was undertaking to collect debt that was owed to it, and not debt " owed or due another."
On December 11, 2014, the Magistrate Judge issued his R& R, finding that Plaintiff had asserted sufficient facts to raise a plausible inference that Defendant was a " debt collector" as defined under the FDCPA. (R& R at 7).
On January 6, 2014, Defendant filed its Objection to the R& R and the Hearing Motion. On January 20, 2014, Plaintiff filed his Response  to Plaintiff's Objection to the R& R. On January 28, 2014, Defendant filed its Motion for Leave, and on January 31, 2014, Plaintiff filed his Response
to the Motion for Leave. On March 19, 2014, Plaintiff filed his renewed Motion to Certify Class .
A. Standard of Review
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1)(C); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge " shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). In the absence of objections, a district judge reviews the magistrate judge's findings and recommendations for plain error. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
The Magistrate Judge noted that the sole issue before him was whether Plaintiff had sufficiently alleged that Defendant was a " debt collector" under the FDCPA. (R& R at 7). Because Defendant objects to the Magistrate Judge's conclusion in the R& R that Defendant is a " debt collector," the Court reviews the Magistrate Judge's findings and recommendations de novo. See 28 U.S.C. § 636(b)(1)(C).
1. Debt Collector Defined By FDCPA
The FDCPA protects consumers from unfair, harassing, or deceptive debt collection practices by debt collectors. 15 U.S.C. § 1692e; Acosta v. Campbell, 309 F.App'x 315, 320 (11th Cir. 2009). The FDCPA defines the term " debt collector" as:
any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.
15 U.S.C. § 1692a(6) (emphasis added).
To qualify as a " debt collector" under the FDCPA, a person must fall within one of the two definitions of § 1692a(6). They must either be " a person who uses an instrumentality of interstate commerce or the mails in a business which has the principal purpose of collecting debts, or who regularly collects debts owed to another." Warren v. Countrywide Home Loans, Inc., 342 F.App'x 458, 460 (11th Cir. 2009) (emphasis added).
The second definition -- the regular collection or attempt at collection of " debts owed or due or asserted to be owed or due another" -- has an exception to it. Section 1692a(6)(F) specifically states: " [t]he term ['debt collector'] does not include -- any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity . . . concerns a debt which was not in default at the time it was obtained by such person . . . ." 15 U.S.C. § 1692a(6)(F). Thus § 1692a(6)(F) excludes from debts " owed or due or asserted to be owed or due ...