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Higgins v. Quality Recovery Services, Inc.

United States District Court, N.D. Georgia, Atlanta Division

February 13, 2018

TABETHA-JENNIE HIGGINS, individually and on behalf of all others similarly situated, Plaintiff,
v.
QUALITY RECOVERY SERVICES, INC., and John Does 1-25, Defendants.

          NON-FINAL REPORT AND RECOMMENDATION ON A MOTION TO DISMISS

          JUSTIN S. ANAND UNITED STATES MAGISTRATE JUDGE

         The above-captioned action is before the Court on the Motion to Dismiss for Failure to State a Claim [6] (“Motion to Dismiss”) filed by Defendant Quality Recovery Services, Inc. (“Defendant”). For the reasons discussed below, the undersigned RECOMMENDS that Defendant's Motion to Dismiss [6] be DENIED.

         I. BACKGROUND

         Plaintiff Tabetha-Jennie Higgins (“Plaintiff”) initiated this action by filing a Class Action Complaint [1] (“Complaint”) on July 10, 2017, asserting that Defendant had violated the Fair Debt Collection Practices Act, (“FDCPA”), 15 U.S.C. §§ 1692, et seq. Defendant filed the Motion to Dismiss [6] on September 26, 2017. Plaintiff filed a Memorandum of Law in Opposition to Defendant's Motion to Dismiss [8] (“Pl. Br.”) on October 10, 2017.[1]

         The following facts are taken from Plaintiffs' allegations in the Complaint [1] and the documents attached thereto, and are assumed to be true for the purpose of this discussion.

         On or about January 5, 2017, Defendant caused to be delivered to Plaintiff a collection letter in an attempt to collect an alleged debt owed to Windrush Apartments. Compl. ¶ 31, Ex A. [1-1] (the “Collection Letter”). Windrush Apartments had contracted Defendant to collect this alleged debt. Compl. ¶ 30. The Collection Letter was the first communication between Defendant and Plaintiff regarding the alleged debt to Windrush Apartments. Compl. ¶ 32.

         The Collection Letter stated that Plaintiff owed $3, 473.36. Compl., Ex. A. The Letter stated, in relevant part:

Please be advised that your account has been assigned to Quality Recovery Services, Inc. for collection. Unless you notify this office in writing within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume the debt is valid.

Compl. ¶ 37, Ex. A. Plaintiff received and read the Collection Letter sometime after January 5, 2017. Compl. ¶ 35. Plaintiff believed that the only legally effective way to dispute the debt was to do so in writing. Compl. ¶ 38.

         In her Complaint, Plaintiff asserts two Counts for relief. In Count I, Plaintiff asserts that Defendant violated § 1692g of the FDCPA by failing accurately to convey the notice that Defendant was required to provide to Plaintiff under § 1692g(a). Compl ¶ 47. In Count II, which is mislabeled in the Complaint as a second “Count I, ” Plaintiff asserts that Defendant violated § 1692e of the FDCPA by making a false representation in connection with the collection of a debt, namely, that the only effective way Plaintiff could dispute the debt was to do so in writing. Compl. ¶¶ 51-52. Plaintiff brings this action individually and putatively on behalf of a class consisting of “a) All consumers who have an address in the state of Georgia b) who were sent a collection letter from the Defendant c) attempting to collect a consumer debt, d) that states ‘Unless you notify this office in writing within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid.' e) which letter was sent on or after a date one year prior to the filing of this action and on or before a date 21 days after the filing of this action.” Compl. ¶ 14.

         Defendant moves to dismiss the Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. See Def. Mot. at 1.

         II. DISCUSSION

         A. Standard on a Motion to Dismiss

         When evaluating a motion to dismiss under Rule 12(b)(6), the Court cannot consider matters outside of the pleadings, and must accept the allegations of the non-movant's pleadings as true, but “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Moreover, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citations omitted).

         Iqbal went on to instruct that, while a court must accept all factual allegations in a complaint as true, it need not accept as true legal conclusions recited in a complaint. Repeating that “only a complaint that states a plausible claim for relief survives a motion to dismiss, ” the Supreme Court advised that “[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But 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)) (other citations omitted).

         In this case, because Plaintiff attached the Collection Letter to the Complaint, it is considered part of the Complaint for all purposes. Fed.R.Civ.P. 10(c).

         B. Defendant's Motion to Dismiss

         Defendant does not dispute the facts at issue in this case, nor does it otherwise dispute the applicability of the FDCPA to its Collection Letter, [2] at least for purposes of the Motion to Dismiss. See Def. Mot. at 4. The principal issue presented by Defendant's Motion to Dismiss is whether the inclusion of the words “in writing” in the above-quoted language from the Collection Letter violated 15 U.S.C. § 1692g(a)(3) and § 1692(e)(10). In short, Defendant argues that § 1692g(a)(3) impliedly requires a consumer's dispute of a debt to be “in writing” to be effective, and hence, the Collection Letter accurately conveyed the notice that Defendant was required to provide to Plaintiff under that subsection. See Def. Mot. At 9-10. Secondarily, Defendant argues that Plaintiff's Complaint fails sufficiently to allege a violation of the FDCPA because Plaintiff does not allege that Defendant's wording in the Collection Letter was confusing to the “least sophisticated consumer.” See ...


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