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Crosby v. Brock & Scott, PLLC

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

May 1, 2018

TIMOTHY CROSBY, Plaintiff,
v.
BROCK & SCOTT, PLLC, Defendant.

          ORDER DENYING MOTION TO DISMISS

          TILMAN E. SELF, III, JUDGE

         FACTUAL BACKGROUND

         A. Plaintiff's Complaint.

         The following facts are taken from Plaintiff's Complaint [Doc. 1] and assumed to be true for the purposes of ruling on Defendant's Motion to Dismiss [Doc. 5]. Defendant Brock & Scott, PLLC, is a collection law firm and debt collector operating in Georgia. [Doc. 1 at ¶¶ 8, 14]. On July 31, 2017, Defendant sent a letter - the contents of which are not disputed - to Plaintiff, a consumer, indicating that “[t]he above referenced loan has been placed with Brock & Scott, PLLC (“B&S”) for foreclosure.” [Id. at ¶¶ 12, 15; Doc. 1-1 at 2]. The letter lists the loan in question as amounting to $93, 791.35, which Plaintiff alleges is in excess of the actual balance of the loan. [Doc. 1 at ¶¶ 23, 24; Doc. 1-1 at 2].

         On each page of the letter, the following language appears:

***THIS COMMUNICATION IS FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT TO COLLECT A DEBT, AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE RECEIVED A DISCHARGE IN BANKRUPTCY, AND YOU HAVE NOT REAFFIRMED THIS DEBT, THIS NOTICE CONSTITUTES NEITHER A DEMAND FOR PAYMENT NOR A NOTICE OF PERSONAL LIABILITY.***

[Doc. 1-1 at 2, 3].

         Elsewhere, the letter states, “This correspondence is not a payoff quote or a demand for payment or money from you, and should not be interpreted or construed as a payoff letter or a demand for payment from you by B&S.” [Doc. 1-1 at 2]. The letter also states, “If your personal liability for this debt has been discharged in a bankruptcy proceeding and you have not reaffirmed the debt, this communication is for notice purposes only in connection with the foreclosure of the referenced property, and we are not attempting to collect the debt from you personally.” [Id. at 3].

         Plaintiff filed his Complaint [Doc. 1] on November 11, 2017, seeking damages for Defendant's alleged violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”), and for Defendant's alleged negligence. Plaintiff's alleged damages include “actual injuries the FDCPA seeks to prevent including (without limitation) an invasion of a statutory right and undue stress.” [Doc. 1 at ¶ 28].

         B. Defendant's Motion to Dismiss.

         Defendant moved to dismiss Plaintiff's claims on December 7, 2017. [Doc. 5]. Defendant's Motion states several grounds for dismissal. First, Defendant contends that Plaintiff fails to state a claim under the FDCPA because the letter was a notice of a security interest foreclosure rather than a notice of debt collection and thus not subject to scrutiny under the FDCPA. [Doc. 5-1 at 3]. Second, Defendant argues that Plaintiff fails to sufficiently plead an FDCPA violation because “Plaintiff has not provided even one reason why he believes the amount [of the debt] provide[d] [in the letter] was incorrect.” [Id. at 5-6]. Third, Defendant argues that the letter satisfies the “least sophisticated user” standard of the FDCPA because it is not confusing; “it expressly states that it is not a payoff quote or a demand for payment . . . and contains language that clearly states that the amount quoted may change.” [Id. at 8, 9]. Fourth, Defendant argues that any violation of the FDCPA was not intentional and that the FDCPA's “bona fide error” defense applies if the amount of the debt is in fact misstated in the letter. [Id. at 8-9]. Finally, Defendant argues that Plaintiff's negligence claim fails because “Plaintiff has failed to show any damages that were proximately caused by [Defendant].” [Id. at 10].

         CONCLUSIONS OF LAW

         A. Standard of Review.

         A complaint fails to state a claim if it does not include “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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual allegations in a complaint “must be enough to raise a right to relief above the speculative level” and cannot “merely create[] a suspicion [of] a legally cognizable right of action.” Twombly, 550 U.S. at 555 (first alteration in original). In other words, ...


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