United States District Court, E.D. Virginia, Richmond Division
R. Dante DeCapri, Plaintiff,
Law Offices of Shaprio Brown & Alt, LLP, Defendant.
(DENYING MOTION TO DISMISS)
HENRY E. HUDSON, District Judge.
This is a putative class action for damages under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"). Plaintiff R. Dante DeCapri ("Plaintiff), a consumer and Virginia resident, alleges on behalf of himself and all others similarly situated that the form dunning letter he received from Defendant Law Offices of Shaprio Brown & Alt, LLP ("Defendant") violates several provisions of the FDCPA.
The matter is before the Court on Defendant's Motion to Dismiss (ECF No. 10). The Court will dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and oral argument would not aid in the decisional process. For the reasons stated herein, Defendant's Motion to Dismiss will be denied.
As required by Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court assumes Plaintiffs well-pleaded allegations to be true, and views all facts in the light most favorable to him. T.G. Slater & Son v. Donald P. & Patricia A. Brennan, LLC, 385 F.3d 836, 841 (4th Cir. 2004) (citing Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). Viewed in this light, the facts are as follows.
Plaintiff alleges that on July 15, 2013, Defendant, a Virginia Beach law firm whose principal business is debt collection, sent Plaintiff a letter notifying him that Defendant had been retained to initiate foreclosure proceedings on Plaintiffs home. (Compl. ¶¶ 4, 12, Ex. A thereto, ECF No. 1.) The letter notifying Plaintiff of the foreclosure proceedings was the first written communication by Defendant to Plaintiff relating to the collection of the subject debt. ( Id. ¶ 15.)
Plaintiff alleges that because the form dunning letter makes multiple misleading and inaccurate disclosures, Defendant has violated the FDCPA. The paragraphs of the letter at issue state:
3. The Fair Debt Collection Practices Act entitles you to dispute the debt, or any portion thereof, within thirty (30) days of your receipt of this letter. If you do not dispute the debt within this period, it will be assumed to be valid. The law also entitles you to request that we provide you the name of the original creditor if the original creditor is different from the current creditor, Wells Fargo Bank, NA. If you choose to dispute the debt, or any portion thereof, you must notify us within thirty (30) days of the date you receive this letter.
4. If you notify us in writing within thirty (30) days of the date you receive this letter that you are disputing the debt or any portion thereof, or if you notify us in writing within thirty (30) days of the date you receive this letter that you want to know the name of the original creditor if that creditor is different from Wells Fargo Bank, NA, then we will obtain and mail to you verification of the debt and/or the name and address of the original creditor.
6. If you request proof of the debt or any portion thereof or if you request the name of the original creditor within thirty (30) days from the date you receive this letter, the Fair Debt Collection Practices Act requires us to suspend our efforts to foreclose on the Deed of Trust/Mortgage on your property, until we mail you the information validating the debt and/or until we provide you with the name of the original creditor.
( Id. Ex. A thereto.)
Plaintiff filed this action on March 21, 2014 on behalf of himself and all others similarly situated. ( Id. at ¶ 1.) Plaintiff has not yet sought certification of the class under Federal Rule of Civil Procedure 23. Thus, the Court does not consider this case to be a class action at this stage.
Plaintiff alleges Defendant violated the FDCPA's cornerstone debt validation disclosure requirements, 5 U.S.C. § 1692g, and the FDCPA's central substantive prohibition against the use by a debt collector of any false, deceptive, or misleading representations in connection with the collection of consumer debt, 5 U.S.C. § 1692e, by (1) failing to include"by the debt collector" or similar language in the § 1692g(a)(3) disclosure stating that it is the debt collector who will assume this debt to be valid if not disputed; (2) falsely representing that to dispute the debt the consumer must notify the debt collector within thirty (30) days of receipt of the letter; and (3) omitting the requirement that the consumer's dispute must be in writing in order to invoke protections afforded by the FDCPA.
Plaintiff seeks certification for this matter to proceed as a class action; declaratory relief that Defendant's use of Exhibit A violates the FDCPA as alleged; statutory damages under 15 U.S.C. § 1692k(a)(2)(B); attorney's fees, litigation expenses and costs of suit under 15 U.S.C. § 1692k(a)(3); and any further relief the Court deems proper.
Defendant filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on July 14, 2014. Defendant argues that the Complaint should be dismissed with prejudice because when the letter is read as a whole, it complies with the FDCPA. Moreover, Defendant contends that the letter does not include any statement which would materially mislead Plaintiff under the "least sophisticated consumer" standard. Additionally, Defendant alleges that Plaintiff makes only passing reference to actual damages without including a request for actual damages in his ad damnum, and that his allegations do not support a claim of actual damages.
Plaintiff responded on August 15, 2014 (ECF No. 27) and Defendant replied on August 29, 2014 (ECF No. 28). This matter is ripe for decision.
II. LEGAL STANDARD
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation omitted). The Federal Rules of Civil Procedure "require only a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint need not assert "detailed factual allegations, " but must contain "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555 (citations omitted). Thus, the "[f]actual allegations must be enough to raise a right to relief above the speculative level, " id. (citation omitted), to one that is "plausible on its face, " id. at 570, rather than merely "conceivable." Id. In considering ...