Brumberger v. Sallie Mae Servicing Corp.

84 F. App'x 458

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 7, 2004
• Docket: 03-30440
• Status: Unpublished

Opinion

PER CURIAM. *

Jeffrey Brumberger (Brumberger) appeals the district court’s order dismissing his claim under the Fair Debt CoEection Practices Act (FDCPA) pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Brumberger argues that the district court erred in finding that Sallie Mae Servicing Corporation (Sallie Mae) does not meet the definition of a “debt collector” under the FDCPA.

A district court’s ruling on a Rule 12(b)(6) motion for failure to state a claim is subject to de novo review. Scanlan v. Texas A & M University, 343 F.3d 533, 536 (5th Cir.2003). The motion may be granted “only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Id.

Under the FDCPA, a debt collector does not include “any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity ... concerns a debt which was not in default at the time it was obtained by such person.” 15 U.S.C. § 1692(a)(6)(F). By its plain terms the FDCPA does not apply to Sallie Mae because Brumberger does not allege that he was in default at the time Sallie Mae began servicing his loans. Thus, Brumberger fails to show in his complaint that he is entitled to relief under the FDCPA, and the district court correctly dismissed his claim under Fed. R. Civ. P. 12(b)(6). See Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.1985). Accordingly, the judgment of the district court is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.