Quale v. Unifund CCR Partners

682 F. Supp. 2d 1274, 2010 U.S. Dist. LEXIS 7203, 2010 WL 338044
CourtDistrict Court, S.D. Alabama
DecidedJanuary 27, 2010
DocketCivil Action No. 09-0519-CG-M
StatusPublished
Cited by6 cases

This text of 682 F. Supp. 2d 1274 (Quale v. Unifund CCR Partners) is published on Counsel Stack Legal Research, covering District Court, S.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Quale v. Unifund CCR Partners, 682 F. Supp. 2d 1274, 2010 U.S. Dist. LEXIS 7203, 2010 WL 338044 (S.D. Ala. 2010).

Opinion

ORDER

CALLIE V. S. GRANADE, Chief Judge.

After due and proper consideration of all portions of this file deemed relevant to the issue raised, and there having been no objections filed, the Report and Recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) is ADOPTED as the opinion of this Court. It is ORDERED that Defendant Unifund CCR Partners’ Motion to Dismiss (Doc. 6) is DENIED as to Count One of the Complaint and GRANTED as to Counts Two and Three of the Complaint. It is further ORDERED that Counts Two and Three of the Complaint be and are hereby DISMISSED without prejudice as to Defendant Unifund CCR Partners.

REPORT AND RECOMMENDATION

BERT W. MILLING, JR., United States Magistrate Judge.

This federal question action was referred to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), and is before the Court on the Motion to Dismiss filed by Defendant, Unifund CCR Partners (“Unifund”) on September 9, 2009. (Doc. 6). After consideration of the pleadings, and for the reasons set out below, it is recommended that Defendant’s Motion to Dismiss be denied as to Count One of the Complaint and granted as to Counts Two and Three of the Complaint. (Docs. 1, 6).

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 11, 2009, Plaintiff filed this action, pro se, against Defendant Unifund,1 alleging that: (1) Unifund violated the Fair Debt Collection Practices Act (“FDCPA”) by failing to provide Plaintiff validation of his debt and reporting derogatory information about the debt to Experian and Innovis credit reporting agencies (Count One); (2) Unifund violated the Fair Credit Reporting Act (“FCRA”) by failing to verify Plaintiffs debt and reporting erroneous information about the debt to Ex-perian and Innovis (Count Two); and (3) Unifund violated the FCRA by failing to notify Experian and Innovis that the alleged debt was in dispute (Count Three). (Doc. 1 at 2-3).

According to Plaintiff, on or about December 26, 2007, Defendant Unifund, a debt collector, contacted him by mail indicating that it owned or was servicing Plaintiffs debt. (Doc. 1 at 2). Plaintiff responded to Defendant on January 3, 2008, disputing the debt and requesting validation by affidavit within thirty days. (I'd). Plaintiff never received validation of the debt from Defendant. Instead, Defendant reported the debt to two credit reporting agencies, Experian and Innovis, and did not notify the agencies that the [1276]*1276debt was in dispute. (Id. at 2-3). Plaintiff claims that Defendant’s conduct violated the FDCPA and the FCRA.

On September 9, 2009, Unifund filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that: (1) Plaintiffs FDCPA claim based on Uni-fund’s failure to provide validation of the debt is due to be dismissed because Plaintiff does not allege that Unifund attempted to collect the debt after receiving Plaintiffs request for validation; and (2) Plaintiffs FCRA claims are due to be dismissed because Plaintiff has no private right of action for inaccurate reporting. (Doc. 6, att. 1 at 5-7). Defendant’s Motion to Dismiss is now before the Court.

II. STANDARD OF REVIEW

“[W]hen considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court construes the complaint in the light most favorable to the plaintiff and accepts all well-pled facts alleged by [the plaintiff] in the complaint as true.” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir.2009). “Although it must accept well-pled facts as true, the court is not required to accept a plaintiffs legal conclusions.” Id. (citing Ashcroft v. Iqbal, 556 U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)).

In evaluating the sufficiency of a plaintiffs pleadings, we make reasonable inferences in Plaintiffs favor, “but we are not required to draw plaintiffs inference.” Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir.2005). Similarly, “unwarranted deductions of fact” in a complaint are not admitted as true for the purpose of testing the sufficiency of plaintiffs allegations. Id.; see also Iqbal, 129 S.Ct. at 1951 (stating conclusory allegations are “not entitled to be assumed true”).
A complaint may be dismissed if the facts as pled do not state a claim for relief that is plausible on its face. See Iqbal, 129 S.Ct. at 1950 (explaining “only a complaint that states a plausible claim for relief survives a motion to dismiss”); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561-62, 570, 127 S.Ct. 1955, 1968-69, 1974, 167 L.Ed.2d 929 (2007) (retiring the prior “unless it appears beyond doubt that the plaintiff can prove no set of facts” standard). In Twombly, the Supreme Court emphasized a complaint “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1965. Factual allegations in a complaint need not be detailed but “must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555, 127 S.Ct. at 1964-65 (internal citations and emphasis omitted).
... A complaint must state a plausible claim for relief, and “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss. Id. The well-pled allegations must nudge the claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570,127 S.Ct. at 1974.

Sinaltrainal, 578 F.3d at 1260-61.

Because Plaintiff is proceeding pro se, the Court will liberally construe his pleadings. See Harris v. United Auto. Ins. Group, Inc., 579 F.3d 1227, 1231 n. 2 (11th Cir.2009) (citing Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.1998)) [1277]*1277(“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.”). However, the Court will not serve as “de facto counsel” for Plaintiff nor “rewrite an otherwise deficient pleading in order to sustain an action.” GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359

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Bluebook (online)
682 F. Supp. 2d 1274, 2010 U.S. Dist. LEXIS 7203, 2010 WL 338044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quale-v-unifund-ccr-partners-alsd-2010.