United States District Court, S.D. Georgia, Dublin Division
HOPE D. DARRISAW, Plaintiff,
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY (PHEAA), a Pennsylvania Corporation d/b/a AES and FEDLOAN, Defendant.
Hope Darrisaw, proceeding pro se, has filed i this
civil action asserting claims under the Fair Debt; Collection
Practices Act ("FDCPA"), 15 U.S.C. §§
1692 et seq., against Defendant Pennsylvania Higher
Education Assistance Agency ("PHEAA"). PHEAA has
moved to dismiss the case on the basis that it is not a debt
collector under the FDCPA. The motion to dismiss is hereby
United States Magistrate Judge's direction, Plaintiff
filed an amended complaint on November 21, 2016. Thereafter,
the Magistrate Judge screened the amended complaint because
Plaintiff is proceeding in forma pauperis and
recommended dismissal of the individuals defendants and
Plaintiff's claims under the Federal Trade Commission
Act. This Court adopted the Report and Recommendation on
December 27, 2016.
remaining FDCPA claims against PHEAA arise out of the
following allegations. Beginning in April 2016, PHEAA has
sent several letters to Plaintiff claiming that she is in
default of her federal student loans and demanding immediate,
full payment. (Am. Compl. ¶¶ 18, 21, 23, 25-27.) In
September 2016, PHEAA began garnishing her wages.
(Id. ¶¶ 27-29.) PHEAA has also threatened
to collect the debt by way of a Treasury offset.
(Id. ¶ 26.) Plaintiff alleges that she believed
the correspondence was a "fake debt collection scam,
" especially considering that her legitimate student
loan debt is in deferment status. (Id. ¶¶
20, 24.) Plaintiff further alleges that she has twice called
a 1-800 number that she found on the internet related to
PHEAA and the call representative could not find an
outstanding debt owed by Plaintiff. (Id.
¶¶ 22, 30.) Based upon the foregoing, Plaintiff
claims that PHEAA has engaged in abusive, deceptive and
unfair collection practices under the FDCPA.
January 31, 2017, PHEAA moved to dismiss. PHEAA explains that
it is the loan guarantor for several federal student loans
issued by Wells Fargo bank to Plaintiff under the Federal
Family Education Loan Program ("FFELP"), which is
authorized under Title IV, Part B, of the Higher Education
Act of 1965, 20 U.S.C. §§ 1071 et seg. Under the
FFELP, guaranty agencies, such as PHEAA, act as backstops for
the loans such that if a borrower defaults, the guaranty
agency pays a default claim to the lender and is then
reimbursed by the Department of Education
("DoE"). 34 C.F.R. §§ 682.100; 20 U.S.C.
§ 1078(a). The guaranty agency is then required to
attempt to collect the debt directly from the borrower on
behalf of the DoE. 20 U.S.C. §§ 1078(c) (2) (A)
(requiring due diligence in collection of loans), 1080(d); 34
C.F.R. § 682.410 (b) (7) (ii) (C) . In the instant case,
PHEAA contends that it was diligently pursuing debt
collection of Plaintiff's defaulted federal student loans
as required by law in its capacity as the guaranty agency on
response to PHEAA's motion to dismiss, Plaintiff
responded with insistence that her loans are in deferment
status. Plaintiff also filed a motion to amend her
complaint because she was unaware of PHEAA's guaranty
agency claim prior to filing her case, and she now wishes to
add a claim of fraud because she does not agree with
PHEAA's claim. (See Doc. No. 23, at 4
("[PHEAA] knows or should know that its independent
contractual relationship with the DoE does not grant it
federal status, and its purchase of a federal loan debt does
not grant it federal guarantor status. As a national provider
of services to millions of student borrowers, it is
disturbing that [PHEAA] would make such a fraudulently (sic)
claim.").)PHEAA opposes Plaintiff's motion to
amend as futile.
matters before the Court have been fully briefed and are ripe
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) does not test whether the plaintiff will ultimately
prevail on the merits of the case. Rather, it tests the legal
sufficiency of the complaint. Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)). Therefore, the court
must accept as true all facts alleged in the complaint and
construe all reasonable inferences in the light most
favorable to the plaintiff. See Hoffman-Puah v.
Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002). The court,
however, need not accept the complaint's legal
conclusions as true, only its well-pled facts. Ashcroft
v. Iqbal, 556 U.S. 662 (2009) . A complaint also must
"contain sufficient factual matter, accepted as true,
"to state a claim to relief that is plausible on its
face."' Id. at 678 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
plaintiff is required to plead "factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."
Id. Although there is no probability requirement at
the pleading stage, "something beyond . . . mere
possibility . . . must be alleged." Twombly,
550 U.S. at 556-57 (citing Durma Pharm., Inc. v.
Broudo, 544 U.S. 336, 347 (2005)).
FDCPA regulates the collection of "debts" by
"debt collectors" by regulating the type and number
of contacts a collector may make with the debtor. To state a
claim under the FDCPA, a plaintiff must establish that (1)
she was the object of "collection activity" arising
from "consumer debt"; (2) the defendant qualifies
as a "debt collector" under the FDCPA; and (3) the
defendant engaged in an act or omission prohibited by the
FDCPA. Belle Terrace Presbyterian Church v. CC
Recovery, 2014 WL 317190 (S.D. Ga. Jan. 28, 2014) (cited
source omitted). The disputed issue brought to bear by the
motion to dismiss is whether PHEAA falls under the definition
of "debt collector." Under the FDCPA, a "debt
collector" is "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). Without
more, this definition would include PHEAA. However, the FDCPA
contains a number of exceptions to the generalized definition
of "debt collector." The FDCPA expressly states
that the following is not a "debt
collector": " [A]ny person collecting or attempting
to collect any debt owed or due or asserted to be owed or due
another to the extent such activity is incidental to a bona
fide fiduciary obligation . . . ." 15 U.S.C. §
1692a(6) (F) (i) .
the binding law of this circuit, this fiduciary exception
unequivocally applies to a federal guaranty agency. In
Bennett v. Premiere Credit of N. Am., LLC, 504
F.App'x 872 (11th Cir. 2013), the Eleventh Circuit held
that an agency's status as a guaranty agency places it in
a fiduciary relationship to the DoE, and therefore the agency
falls within the fiduciary exception to the term "debt
collector" under the FDCPA. Id. at 878. Indeed,
the Bennett court points out that the Higher
Education Act of 1965 "expressly characterized the
relationship between a guaranty agency and the DoE as a
fiduciary relationship." Id. at 876 (citing 34
C.F.R. § 682.419(a)).
case, the Court takes judicial notice that PHEAA is a listed
guaranty agency posted on the DoE's official website.
See Guaranty Agency List, at
visited April 11, 2017). Accordingly, at all times relevant
to the amended complaint, PHEAA was acting incidental to its
bona fide fiduciary relationship with the DoE. Thus, PHEAA is
not a debt collector under the FDCPA.Accord Donahue v.
Regional Adjustment Bureau, Inc., 2013 WL 607853 (E.D.
Pa. Feb. 19, 2013) ...