United States District Court, M.D. Georgia, Columbus Division
D. LAND, CHIEF U.S. DISTRICT COURT JUDGE
Smith brought this putative class action alleging that
Portfolio Recovery Associates, LLC (“PRA”) sent
her a collection letter that violates the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692, et seq. Presently pending before the
Court is PRA's motion to dismiss (ECF No. 7). As
discussed below, the motion is granted.
TO DISMISS STANDARD
survive a motion to dismiss” under Federal Rule of
Civil Procedure 12(b)(6), “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 Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). The complaint must include sufficient factual
allegations “to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
In other words, the factual allegations must “raise a
reasonable expectation that discovery will reveal evidence
of” the plaintiff's claims. Id. at 556.
But “Rule 12(b)(6) does not permit dismissal of a
well-pleaded complaint simply because ‘it strikes a
savvy judge that actual proof of those facts is
improbable.'” Watts v. Fla. Int'l
Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting
Twombly, 550 U.S. at 556).
Smith (also known as Lakeasha Brown) owes a debt to PRA based
on her use of a credit card she got from Comenity Capital
Bank. PRA, the debt servicer, sent a collection letter that
contained the following details about the debt:
Ex. A, Collection Letter (Feb. 13, 2018), ECF No. 1-1. The
letter contained the following “account offers”:
Omitted) Id. At the time of the letter, Smith's
debt was more than six years old, so a lawsuit to recover the
debt was time-barred under Georgia law.
does not allege that she selected any of the payment options.
Smith does allege that if she were to make a partial payment,
she “could unknowingly cause the statute of limitations
to restart.” Compl. ¶ 32, ECF No. 1. Smith further
alleges that PRA's letter is misleading and deceptive
because it “fails to inform the consumer that making a
partial payment with some form of written acknowledgement
will restart the statute of limitations for a lawsuit to
occur.” Id. ¶ 30. Smith does not allege
facts to suggest that PRA would sue her following a
partial payment. In fact, Smith alleged that PRA
unequivocally stated that it will not sue her. See
Id. ¶ 29.
prevail on her FDCPA claim, Smith must establish that: (1)
she was the object of collection activity arising from
consumer debt; (2) PRA is a debt collector under the FDCPA;
and (3) PRA engaged in a practice prohibited by the FDCPA.
See LeBlanc v. Unifund CCR Partners, 601 F.3d 1185,
1193 (11th Cir. 2010) (per curiam) (explaining that a
“debt collector” engaging in “collection
activity” to recover an outstanding “consumer
debt” “is subject to the FDCPA”). Here, PRA
does not dispute that Smith was the object of collection
activity arising from consumer debt or that it is a debt
collector under the FDCPA. The dispositive question is
whether Smith adequately alleged an FDCPA violation.
Court previously examined a debt collection letter that also
sought to collect a time-barred debt, offered partial payment
options, and contained a disclosure regarding the statute of
limitations that is nearly identical to the one in the letter
Smith received. See generally Cooper v. Midland Credit
Mgmt., Inc., No. 4:18-CV-82 (CDL), 2018 WL 6517448 (M.D.
Ga. Dec. 11, 2018), appeal docketed, No. 19-10120
(11th Cir. Jan. 10, 2019). The Court concluded that the plaintiff
in that action failed to state a claim under 15 U.S.C. §
1692e or 15 U.S.C. § 1692f because the plaintiff did not
allege facts to suggest that the statute of limitations
would be revived in the event of a partial payment,
so he did not adequately allege that the letter he received
was misleading. Cooper, 2018 WL 6517448, at *4. In
reaching this conclusion, the Court noted that the
defendant's collection letter contained a promise not to
sue the plaintiff because of the age of his debt and that the
plaintiff did not allege any facts to suggest that the
defendant would disregard its promise not to sue. The Court
also distinguished the cases Smith relies on in her response
brief. See Id. at *3-*4 (distinguishing Pantoja
v. Portfolio Recovery Assocs., LLC, 852 F.3d 679 (7th
Cir. 2017), Buchanan v. Northland Grp., Inc., 776
F.3d 393 (6th Cir. 2015), and Daugherty v. Convergent
Outsourcing, Inc., 836 F.3d 507 (5th Cir. 2016)).
the Court studied the letter Smith received in its entirety
and considered the parties' arguments regarding the
implications of the disclosure language. This case is
indistinguishable from Cooper. And, the Court is not
convinced that the Eleventh Circuit's recent decision
Holzman v. Malcolm S. Gerald & Associates, Inc.,
920 F.3d 1264 (11th Cir. 2019), requires a different
conclusion than the one the Court reached in Cooper.
In Holzman, the collection letter sought to collect
a time-barred debt by making an “offer” to
“resolve” the plaintiff's debt, but the
letter did not disclose that the debt was time-barred.
Id. at 1267. The Eleventh Circuit concluded that the
letter could mislead an unsophisticated consumer as to the
legal status of the debt. Id. at 1272. In addressing
the defendant's argument that it would be required to
give legal advice to debtors if its letter were found to be
misleading, the Eleventh Circuit noted that if a debt
collector was “unsure about the applicable statute of
limitations, it would be easy to include general language
about that possibility, correcting any possible misimpression
by unsophisticated consumers without venturing into the realm
of legal advice.” Id. at 1273 (quoting
Buchanan, 776 F.3d at 400). The Eleventh Circuit
further suggested that any misimpression could be cured by
incorporating the following language into its collection
letters: “The law limits how ...