In re Thomas

592 B.R. 99
CourtUnited States Bankruptcy Court, W.D. Virginia
DecidedSeptember 28, 2018
DocketCase No. 16-50612; Case No. 16-50396; Adv. P. No. 17-05010
StatusPublished
Cited by4 cases

This text of 592 B.R. 99 (In re Thomas) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Thomas, 592 B.R. 99 (Va. 2018).

Opinion

Rebecca B. Connelly, UNITED STATES BANKRUPTCY JUDGE

The Court now faces round two of the dispositive motions to dismiss or dispose of this adversary proceeding. In round one, the defendants, Midland Funding, LLC and Midland Credit Management, Inc. ("Midland"), moved to dismiss the complaint under Rule 12(b)(6) for failure to state an actionable claim. The Court denied the motion to dismiss Count I but granted the motion to dismiss Count II with leave to amend the complaint. Now in round two, the plaintiffs, Karen Thomas, Gary Brooks, and Mary Gillespie-Brooks, amended the complaint, and the defendants move to dismiss the amended complaint under Rule 12(b)(6) or in the alternative compel arbitration.

This case is about practices of filing proofs of claim in chapter 13 bankruptcy cases that may violate the Fair Debt Collections Practices Act ("FDCPA")1 and may not comply with Federal Rule of Bankruptcy Procedure 3001. The plaintiffs allege the defendants' business practice involves filing proofs of claim that the defendants reasonably know contain false statements and do not comply with Rule 3001 such that the defendants are violating the FDCPA and should be subject to Court ordered relief for noncompliance with Rule 3001.

*102JURISDICTION

Karen Thomas, Gary Brooks, and Mary Gillespie-Brooks are debtors in this Court. Midland is a creditor in each of the bankruptcy cases. This Bankruptcy Court has jurisdiction over these bankruptcy cases by virtue of 28 U.S.C. § 1334(a). The amended complaint, which is subject to this motion to dismiss, concerns federal non-bankruptcy law (specifically, the FDCPA) and Federal Rule of Bankruptcy Procedure 3001. The plaintiffs have consented to have this Court issue a final ruling in this adversary proceeding. Am. Compl. ¶ 3. The defendants move to dismiss the amended complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), or in the alternative to compel arbitration and strike class allegations; the defendants have neither challenged this Court's jurisdiction nor moved to dismiss the complaint for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) or (b)(2). See Fed. R. Bankr. P. 7012(b) (incorporating Federal Rule of Civil Procedure 12(b)-(i) and providing that "[a] responsive pleading shall include a statement that the party does or does not consent to entry of final orders or judgment by the bankruptcy court."). The Court will issue its ruling on the motions by consent.

PROCEDURAL HISTORY

The plaintiffs' initial complaint described the proofs of claim that defendants filed in these chapter 13 cases and defendants' actions before and after they filed their claims. The Court determined that the complaint sufficiently pleaded, in Count I, a cause of action under the FDCPA (specifically, 15 U.S.C. § 1692e and § 1692f ). As to Count II, the Court found that the complaint sufficiently pleaded how the proofs of claim did not comply with Rule 3001 but concluded that the complaint was so unspecific as to the relief requested that it failed to state a cause of action. The Court granted leave to amend the complaint.

The plaintiffs amended the complaint. In the amended complaint, the plaintiffs recount how after they filed the initial complaint, the defendants amended the proofs of claim. Plaintiffs contend that the amended proofs of claim still fail to adequately comply with Rule 3001. Plaintiffs assert that defendants' practice of first filing claims that violate Rule 3001 and contain false statements, coupled with a practice of not providing complete documentation in response to written requests made by a debtor, and only after service of an adversarial complaint related to the practice, filing amended, yet still deficient, proofs of claim demonstrates conduct which violates the FDCPA.

Defendants naturally disagree. Defendants reiterate that the plaintiffs have failed to state an actionable claim under the FDCPA and insist that the misstatements in the original proofs of claim are simply not material misstatements or material misrepresentations and do not create any plausible risk of injury. Defendants point out that all the same they amended the proofs of claim. They purport that the amended proofs of claim attach appropriate documentation and argue that the amended proofs of claim comply with Rule 3001 and do not violate the FDCPA.

ANALYSIS

A. Motion to dismiss

A motion under Rule 12(b)(6) looks into the legal sufficiency of a complaint. RTC Mortg. Tr. v. McMahon , 225 B.R. 604, 607 (E.D. Va. 1997). The merits of the claims or the defenses are not relevant. The relevant question is whether the plaintiffs pleaded a claim that is more than *103conceivable and indeed plausible. See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

The parties agree that the amended complaint, like the original complaint, sufficiently meets two of the three necessary elements2 of a FDCPA action: that the plaintiffs are "consumers" as defined by 15 U.S.C. § 1692a(3) and that Midland is a "debt collector" as defined by 15 U.S.C. § 1692a(6). The third element requires a plaintiff to plead the act or omission by which a defendant has violated the FDCPA. As in the previous motion to dismiss, the third element remains in dispute. The defendants move to dismiss the amended complaint alleging that the facts described in the amended complaint fail to show an actual violation of the FDCPA, fail to show that any alleged violation was material, and fail to show a plausible risk of injury from any alleged violation. More to the point, defendants refer to the amended facts and allegations in Count I that describe their amended proofs of claim.

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Bluebook (online)
592 B.R. 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-thomas-vawb-2018.