UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
| IASIA EBONY OWENS,
Plaintiff,
vs. DISCOVER FINANCIAL SERVICES, Defendant |
Case No. 8:21-cv-320-MSS-CPT |
RESPONSE TO DEFENDANT’S MOTION TO DISMISS
Plaintiff hereby submits the following Brief in Opposition to Defendant’s Motion to Dismiss Plaintiff’s Complaint. For the reasons set forth below, Plaintiff requests that this Court deny the Motion to Dismiss in its entirety.
INTRODUCTION
Plaintiff commenced Case No. 8:21-CV-320-MSS-CPT on or about [ENTER DATE]. In the Complaint, Plaintiff made several allegations, inter alia, that Defendant, as a debt collector, commenced communications with Plaintiff without Plaintiff’s express consent; did not ensure the security and confidentiality of Plaintiff’s records and information; and Defendnt discriminated upon the Plaintiff.
On or about June 11, 2021, Defendant filed a Motion to Dismiss alleging, inter alia, that Defendant is not a debt collector and that Plaintiff’s allegations fail to state claim of action(s).
ARGUMENT(S)
- STADARD OF REVIEW
To warrant dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, it must be “clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. “Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994) (quoting Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). In determining whether to grant a motion to dismiss, a court must accept all the factual allegations in the complaint as true and consider all reasonable inferences derived therefrom in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir. 1994); Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir. 1994)
Generally, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See In re Johannessen, 76 F.3d 347, 349 (11th Cir. 1996).
In the instant action, there is no allegation in the Complaint that Plaintiff cannot prove by evidence. Besides, it is incumbent upon this Honorable Court to accet all factual allegations in Plaintiff’s complaint as true, and in the light most favorable to the Plaintiff.
- THE DEFENDANT VIOLATED THE FAIR DEBT COLLECTION PRACTICES ACT (FDCPA)
- Defendant is a debt collector
According to 15 U.S. Code § 1692a(6), a debt collector:
means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 1692f(6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. (Emphasis added).
In the instant action, Defendant acknowledges that they are the original creditors. They engaged in communication with the Plaintiff in a bid to obtain their debt. The extent of communication includes sending instrumentality to Plaintiff’s address claiming payment of debt alleged to be owed by Plaintiff. It follows; Plaintiff contends that Defendant’s action to communicate to Plaintiff seeking payment of the debt, qualifies the Defendant as a debt collector.
In Defendant’s Motion to dismiss, Defendant cites legal authotities and states that “For the FDCPA to apply, two threshold criteria must be met.” McElveen v. Westport Recovery Corp., 310 F. Supp. 3d 1374, 1380 (S.D. Fla. 2018) (quoting Dyer v. Select Portfolio Servicing, Inc., 108 F. Supp. 3d 1278, 1280 (M.D. Fla. 2015)). “First, the defendant must qualify as a ‘debt collector,’” and “[s]econd, 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.’” Id.
Therefore, having dealt with the identity of the Defednant as a debt collector, it is incumbent for Defendant to show that Defendant’s communication was made in connection with debt collection. Notably, the extent of Defendant’s communication includes sending mails to Plaintiff’s address claiming payment of debt alleged to be owed by Plaintiff. This is sufficient proof that Defendant is a debt collector.
- Defendant commenced communication with Plaintiff without Plaintiff’s consent.
According to 15 U.S.C. § 1692c(a), “[w]ithout the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt—“.
Section “1692c restricts debt collectors’ communications with and about consumers and is understood to protect only the consumer-debtors themselves.” Todd v. Collecto, Inc., 731 F.3d 734, 737 (7th Cir. 2013).
The Defendant should have obtained Plaintiff’s consent before communicating with Plaintiff regarding the collection of the debts. Accordingly, the Defendant is liable for violating the said provision.
- Defendant failed to disclose the purpose of its communication with Plaintiff.
According to 15 U.S.C. §1692e(11):
A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(11). The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action. (Emphasis added).
“The intent behind 15 U.S.C. § 1692e(11) is to make it apparent to debtors that the request for payment that they receive is from a debt collector.” Berger v. Northland Grp., Inc., 886 F. Supp. 2d 59, 64 (D. Mass. 2012).
In the instant action, Defendant failed to inform the Plaintiff that the purpose of the communication is to attempt to collect a debt. This is in violation of the said provision.
- Defendant has used symbols indicating Defendant is in the business of Debt Collection.
According to 15 U.S.C § 1692b(5),
Any debt collector communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall—
(5) not use any language or symbol on any envelope or in the contents of any communication effected by the mails or telegram that indicates that the debt collector is in the debt collection business or that the communication relates to the collection of a debt;
Congress enacted the FDCPA to eliminate abusive debt collection practices, to insure that 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. § 1692e; see also Wade v. Regional Credit Association, 87 F.3d 1098, 1099 (9th Cir. 1996) (discussing purpose of the FDCPA). As such, the statute is liberally construed to protect the “least sophisticated debtor.” Clark v. Capital Credit Collection Services, Inc., 460 F.3d 1162, 1171 (9th Cir. 2006);see also Clomon v. Jackson, 988 F.2d 1314, 1318-19 (2d Cir. 1993). This objective standard “ensure[s] that the FDCPA protects all consumers, the gullible as well as the shrewd . . . the ignorant, the unthinking and the credulous.” Clomon, 988 F.2d at 1318-19.
In the instant case, the Defendant used symbols that were displayed on all envelopes and contents of communications sent to and received by Plaintiff. The use of such symbols were in violation of the said provision.
- Plaintiff has a valid claim under the truth in Lending Act
The Truth in Lending Act and its regulations must “be absolutely complied with and strictly enforced.” See Handy v. Anchor Mortg. Corp., 464 F.3d 760, 764 (7th Cir.2006) (“Truth in Lending Act does not easily forgive ‘technical’ errors.”) (quotation marks omitted); Smith v. Fid. Consumer Disc. Co., 898 F.2d 896, 898 (3rd Cir.1990) (“Once the court finds a violation, no matter how technical, it has no discretion with respect to liability.”) (quotation omitted); Semar v. Platte Valley Fed. Sav. & Loan Ass’n, 791 F.2d 699, 704 (9th Cir.1986) ( “Technical or minor violations of [Truth in Lending Act] … mpose liability on the creditor and entitle the borrower to rescind.”); Williamson v. Lafferty, 698 F.2d 767, 768–69 (5th Cir.1983) (holding that the failure to fill in rescission expiration date violates the Truth in Lending Act).
“The [Truth-in-Lending Act] claim does not involve the obligations created by the underlying contract.Rather, the [Truth-in-Lending Act] claim enforces a federal policy regarding disclosure by invoking a penalty.” Maddox v. Kentucky Finance Co., Inc., 736 F.2d at 382 (citing Whigham, 599 F.2d at 1324). It follows; “[T]he Truth in Lending Act provides `detailed remedial machinery’ to redress violations of the Act.” Gerasta v. Hibernia National Bank, 575 F.2d 580, 583 (5th Cir. 1978).
In light of the foregoing, Defendant engaged in a consumer credit transaction where the debt is initially payable on the face of the evidence of indebtedness. Besides, Defendant admitted to using Plaintiff’s “credit card”. Plaintiff did not benefit from such use, which in return amounts to unauthorized use. Accordingly, Plaintiff has been uninformed on the proper use of credit and therefore has been harmed.
- Plainiff has a valid privacy infringement claim.
Under the Gramm-Leach-Biley Act (15 U.S.C. §§ 6802-6809), financial institutions are prohibited from “disclos[ing] to a nonaffiliated third party any nonpublic personal information” received by the institution from a consumer, unless the consumer has notice of the disclosure and has been given an opportunity to “opt out” of that disclosure. 15 U.S.C. § 6802(a)-(b) (2002).
Plaintiff’s claims to her right to privacy are not limited in the Gramm-Leach-Biley Act alone. Notably, Courts have acknowledged the “individual’s constitutional right to privacy” in Sterling v. Borough of Minersville, 232 F.3d 190, 193 (3d Cir. 2000). Besides, the Supreme Court has found certain constitutional “zones of privacy.” C.N. v. Ridgewood Bd. of Educ, 430 F.3d 159, 178 (3d Cir. 2005) (citing Roe v. Wade, 410 U.S. 113, 152-53 (1973)). From these zones of privacy, the U.S. Supreme Court articulated two types of privacy interests rooted in the Fourteenth Amendment. Nunez v. Pachman, 578 F.3d 228, 231 n. 7 (3d Cir. 2009); see also Malleus v. George, 641 F.3d 560, 564 (3d Cir. 2011); C.N., 430 F.3d at 178. The first privacy interest is the “individual interest in avoiding disclosure of personal matters,” C.N., 430 F.3d 159, 178 (3d Cir. 2005). (Emphasis added).
In the instant action, Defendant did not ensure the security and confidentiality of Plaintiff’s records and information. Notably, Defendant directly disclosed Plaintiff’s personal information to nonaffiliated third parties. Most importantly, Defendant did not provide Plaintiff with clear and conspicuous disclosureswith the option for Plaintiff to exercise the right to opt-out of such information being disclosed.
- Plaintiff is entitled to amend the Complaint
“[A] district court’s discretion to dismiss a complaint without leave to amend is severely restricted by Fed. R. Civ. P. 15(a).”). To be sure, “[w]here a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).
“Leave to amend a complaint shall be freely given when justice so requires.” Moore v. Baker, 989 F.2d 1129, 1131 (11th Cir. 1993) (citing Fed. R. Civ. P. 15(a)). “While a decision whether to grant leave to amend is clearly within the discretion of the district court, a justifying reason must be apparent for denial of a motion to amend.” Id. “In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.—the leave sought should, as the rules require, be freely given.” Foman v. Davis, 371 U.S 178, 182 (1962).
Plaintiff contends that she is entitled to the right to amend the Complaint. Notably, in the event this Court finds an issue with a claim in Plaintiff’s complant, a more carefully drafted complaint might state a claim. Besides, it would amount to a furtherance of justice for the Court to grant the leave to amend the Complaint. There is no bad faith in Plaintiff’ contact.
CONCLUSION
Plaintiff has raised sufficient facts to establish a case against Defendant. Accordingly, Plaintiff asks the Court to deny the defendant’s Motion in its entirety.
DATED: ______
CERTIFICATE OF MAILING
I, [ENTER NAME], certified on this day of .2021, I deposited a true copy of the above to the Defendant by placing the document with prepaid postage in the United States mailbox address to each person.
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