Parker v. Midland Credit Management, Inc.

874 F. Supp. 2d 1353, 2012 U.S. Dist. LEXIS 83296, 2012 WL 2226452
CourtDistrict Court, M.D. Florida
DecidedJune 15, 2012
DocketCase No. 8:12-cv-110-T-30TBM
StatusPublished
Cited by13 cases

This text of 874 F. Supp. 2d 1353 (Parker v. Midland Credit Management, Inc.) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parker v. Midland Credit Management, Inc., 874 F. Supp. 2d 1353, 2012 U.S. Dist. LEXIS 83296, 2012 WL 2226452 (M.D. Fla. 2012).

Opinion

ORDER

JAMES S. MOODY, JR., District Judge.

THIS CAUSE comes before the Court upon Defendant’s Dispositive Motion to Dismiss Plaintiffs Amended Class Complaint (Dkt. 26), Plaintiffs Response in opposition (Dkt. 30), and Defendant’s Reply (Dkt. 35). The Court, having considered the motion, response, reply, and be[1354]*1354ing otherwise advised of the premises, concludes that the motion should be granted because the December 2010 letter sent to Plaintiff was not sent in connection with the collection of a debt as prohibited by the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692, et seq.

BACKGROUND

This case centers around a letter sent on or about December 16, 2010, from Midland Funding LLC (“Midland Funding”) to Plaintiff Belinda Parker with respect to Plaintiffs credit account with Capital One. The letter, attached to Plaintiffs amended complaint as Exhibit A, reflected in the top right-hand corner that Midland Funding LLC was the “Current Owner”, Capital One was the “Original Creditor”, the “Original Account No”, the “MCM Account No.” and a current balance of $28,458.11. The body of the letter stated:

The purpose of this letter is to advise you that Midland Funding LLC is the new owner of the above-referenced account, and Midland Credit Management, Inc. (“MCM”), a debt collection company, is now the servicer of this obligation. Midland Funding LLC received an assignment of your account with the above-listed original creditor. Accordingly, all future communication regarding the account should be addressed to MCM as servicer for Midland Funding LLC and not the previous owner. No collection efforts will occur on this account for at least 30 days from the date of this notice.
If an attorney represents you with regard to this debt, please refer this letter to your attorney. Likewise, if you are involved in an active bankruptcy case, or if this debt has been discharged in a bankruptcy case, please refer this letter to your bankruptcy attorney so that we may be notified.
Midland Credit Management, Inc.
8875 Aero Drive, Suite 200 San Diego, CA 92123 IMPORTANT DISCLOSURE INFORMATION
Although this communication is from a debt collector, this is not an attempt to collect a debt.

(Dkt. 22-1).1

Plaintiff filed the instant action, alleging that the letter violated the FDCPA, particularly section 1692e(ll) and section 1692g(a). Specifically, Plaintiff alleges that the letter failed to advise Plaintiff of a portion of her “mini-Miranda” rights under section 1692e(ll), namely that the letter was an attempt to collect the debt and that any information obtained by Defendant would be used for that purpose. Furthermore, Plaintiff alleges that Defendant failed to notify her of her complete validation rights in either the letter or in a subsequent written communication sent to Plaintiff within five days of the letter, as required under section 1692g(a).

Defendant moves to dismiss Plaintiffs amended complaint because it contends that the letter, as a matter of law, did not violate the FDCPA because the Florida Consumer Collection Practices Act (“FCCPA”) expressly required the letter.2 Defendant also argues that the letter was not a communication “in connection with the collection of a debt” as required to trigger obligations under sections 1692e(ll) and 1692g(a).

[1355]*1355The Court concludes that, as a matter of law, the letter did not constitute communication in connection with the collection of a debt.

MOTION TO DISMISS STANDARD

OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). When reviewing a motion to dismiss, a court must accept all factual allegations contained in the complaint as true, and view the facts in a light most favorable to the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). However, unlike factual allegations, conclusions in a pleading “are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). On the contrary, legal conclusions “must be supported by factual allegations.” Id. Indeed, “conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir.2003).

DISCUSSION I. The FDCPA

The FDCPA generally prohibits “debt collectors” from engaging in abusive, deceptive, or unfair debt-collection practices. 15 U.S.C. § 1692 et seq. Its purpose is “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). Among other things, the FDCPA regulates when and where a debt collector may communicate with a debtor, restricts whom a debt collector may contact regarding a debt, prohibits the use of harassing, oppressive, or abusive measures to collect a debt, and bans the use of false, deceptive, misleading, unfair, or unconscionable means of collecting a debt.

For the FDCPA to apply, however, two threshold criteria must be met. First, the defendant must qualify as a “debt collector,” an issue which is not disputed here. The parties agree that Defendant is a “debt collector” under the statute. Second, the communication by the debt collector that forms the basis of the suit must have been made “in connection with the collection of any debt.”

II. Defendant’s Argument with Respect to the FCCPA

Defendant’s motion to dismiss argues that the December 2010 letter was not made in connection with the collection of any debt because Defendant was required to send the letter under the FCCPA, specifically Fla. Stat. § 559.715, which states:

This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor unit-ten notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt.

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874 F. Supp. 2d 1353, 2012 U.S. Dist. LEXIS 83296, 2012 WL 2226452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-v-midland-credit-management-inc-flmd-2012.