United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE.
Mamaroneck Capital, LLC and McCullough Payne Haan &
Nadler, LLC move to dismiss Plaintiff Judith Drew's
complaint for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6). Doc. 18. For the following
reasons, the Defendants' motion is GRANTED in
part and DENIED in part.
alleges the following facts, which the Court must accept as
true. On June 20, 2008, Drew received a letter from the law
firm of Frederick J. Hanna & Associates, P.C., which
informed Drew that the firm represented Georgia Receivables,
Inc., an assignee of a bank to which Drew allegedly owed
money. Docs. 14 at ¶¶ 31-32; 14-1. Drew claims this
was the first contact she had regarding the account.
Id. at ¶ 33. On July 15, 2008, Drew responded
to the letter, disputing the validity of the debt and asking
Hanna & Associates to provide her more information to
validate the debt. Docs. 14 at ¶ 34; 14-3. On July 22,
2008, Hanna & Associates sent a response letter to inform
Drew that its “client has verified that the balance of
$41, 925.13 to be true, correct, and still owing at this
time.” Docs. 14 at ¶ 36; 14-3. On July 31, 2008,
Drew responded to Hanna & Associates' letter by
noting that the firm ignored her previous request to provide
additional information as to the validity of the debt. Docs.
14 at ¶ 38; 14-4. To this point, all correspondence to
Drew had been mailed to P.O. Box 396, Rochelle, GA 31079
(“the Rochelle address”).
further action was taken by Hanna & Associates until
September 29, 2008, when Hanna & Associates filed a
complaint against Drew in the Superior Court of Wilcox County
to collect the alleged debt. Docs. 14 at ¶ 40-41; 14-4.
Notably, Hanna & Associates stated in the complaint that
Drew could be served at her residential address, “3528
American Legion Road, Abbeville, Georgia” (“the
Abbeville address”). Doc. 14-5 at 2.
November 12, 2008, Drew filed her answer to the complaint,
denying all liability and providing the Rochelle address for
service of future pleadings. Docs. 14 at ¶ 44; 14-6 at
1. Hanna & Associates never replied to the answer but on
February 23, 2009, the firm sent by certified mail and
regular mail to the Abbeville address the following
documents: Request for Production of Documents, First
Interrogatories to Defendant, and First Request for
Admissions of Fact. Doc. 14-7 at 2; see generally
Doc. 14-7. Drew claims she never received any of these
documents. Doc. 14 at ¶ 48. On March 17, 2009, a
certified mailing envelope was returned to Hanna &
Associates as unclaimed, while the first class mail was not.
Doc. 14-7 at 2. On April 27, 2009, Hanna & Associates
moved for summary judgment, arguing Drew had not responded to
its discovery requests. Id. On June 2, 2009, the
court granted the motion and entered a judgment against Drew
in the total amount of $30, 646.20. Doc. 14-8. On June 12,
2009, the clerk issued a Writ of Fieri Facias for the amount
of $30, 651.20 from Drew. Doc. 14-12 at 2. Drew alleges Hanna
& Associates falsely induced the Wilcox County Superior
Court to render a judgment against her based on an unserved
motion for summary judgment and unserved discovery documents.
Doc. 14 at ¶ 50. She also alleges she never received a
copy of the judgment. Id. at ¶ 52.
& Associates was subsequently sued by the Consumer
Financial Protection Bureau (CFPB) for allegedly relying on
deceptive court filings and faulty evidence to churn out
lawsuits in violation of the Fair Debt Collection Practices
Act (FDCPA). Id. at ¶¶ 53-54. After the
CFPB obtained a stipulated final judgment and order against
Hanna & Associates, the firm ceased to exist.
Id. at ¶ 57.
alleges Defendants Mamaroneck and McCullough Payne are
continuing Hanna & Associates' abusive tactics by,
among other things, contacting Drew at an address that the
Defendants know or should know would be inconvenient.
Id. at ¶¶ 58- 69. On October 4, 2016,
McCullough Payne, on behalf of Mamaroneck, sent a letter to
inform Drew that Mamaroneck was an assignee of Georgia
Receivables' debt in the amount of $43, 849.23. Docs. 14
at ¶ 58; 14-10. Notably, this letter was sent to a third
address: 3850 U.S. Highway 280, Pitts, Georgia 31072.
Id. On November 1, 2016, Drew responded to the
letter and requested McCullough Payne to verify and validate
the debt. Docs. 14 at ¶ 60; 14-11. Drew also handwrote
beneath her signature to “[p]lease mail to P.O. Box
396, Rochelle, GA 31079.” Id. On November 7,
2016, McCullough Payne responded with a letter that attached
a copy of the fi. fa., which shows a judgment of $30, 651.20
entered against Drew. Docs. 14 at ¶ 62; 14-12. Drew
alleges that despite being informed of Drew's preferred
address, McCullough Payne still sent the letter to the
address in Pitts. Docs. 14 at ¶¶ 64-65; 14-12 at 1.
on April 18, 2017, Drew filed this action against the
Defendants. Doc. 1. In response to the Defendants' motion
to dismiss (Doc. 7), Drew filed an amended complaint on June
2, 2017. Doc. 14. Drew alleges the Defendants continued the
abusive debt collection practices of Hanna & Associates
with regard to the alleged account in an effort to harass
Drew and otherwise treat her in an unfair manner.
Id. at ¶ 66. Based on the Defendants'
conduct, Drew claims, in Count I, the Defendants violated
multiple provisions of the FDCPA. Id. at
¶¶ 81-93. Additionally, in Count II, Drew alleges
the Defendants are liable for negligence. Id. at
Motion to Dismiss Standard
Federal Rules of Civil Procedure require that a pleading
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). To avoid dismissal pursuant to
Rule12(b)(6), a complaint must contain sufficient factual
matter to “‘state a claim to 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)). “At
the motion to dismiss stage, all well-pleaded facts are
accepted as true, and the reasonable inferences therefrom are
construed in the light most favorable to the
plaintiff.” Garfield v. NDC Health Corp., 466
F.3d 1255, 1261 (11th Cir. 2006) (internal quotation marks
and citation omitted). However, “where the well-pleaded
facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but it
has not ‘show[n]'-‘that the pleader is
entitled to relief.'” Iqbal, 556 U.S. at
679 (quoting Fed.R.Civ.P. 8(a)(2)). “[C]onclusory
allegations, unwarranted deductions of facts or legal
conclusions masquerading as facts will not prevent
dismissal.” Oxford Asset Mgmt., Ltd. v.
Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) (citations
omitted). The complaint must “give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.” Twombly, 550 U.S. at 555 (quotation
marks and citation omitted). Where there are dispositive
issues of law, a court may dismiss a claim regardless of the
alleged facts. Marshall Cty. Bd. of Educ. v. Marshall
Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir.1993)
Fair Debt Collection Practices Act Claim
state a claim pursuant to the FDCPA, a plaintiff must show
that a debt collector attempted to collect a consumer debt
through an act or omission prohibited by the FDCPA. See
Davidson v. Capital One Bank, N.A., 797 F.3d 1309, 1313
(11th Cir. 2015). “The [FDCPA] provides a civil cause
of action against any debt collector who fails to comply with
the requirements of the ...