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Drew v. Mamaroneck Capital, LLC

United States District Court, M.D. Georgia, Macon Division

September 12, 2017

JUDITH DREW, Plaintiff,



         Defendants 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).[1] Doc. 18. For the following reasons, the Defendants' motion is GRANTED in part and DENIED in part.


         Drew 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”).

         No 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.

         On 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.

         Hanna & 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.

         Drew 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.

         Consequently, 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 ¶¶ 94-98.


         A. Motion to Dismiss Standard

         The 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) (citations omitted).

         B. Fair Debt Collection Practices Act Claim

         To 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 ...

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