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Dykes v. Portfolio Recovery Associates, LLC

United States District Court, E.D. Virginia, Alexandria Division

June 30, 2015

CAROLYN DYKES, on behalf of herself and all others similarly situated, Plaintiff,


JAMES C. CACHERIS, District Judge.

This matter is before the Court on Defendant Portfolio Recovery Associates, LLC's Motion to Dismiss the Amended Complaint. [Dkt. 18.] For the following reasons, the Court will deny the motion.

I. Background

At the motion to dismiss stage, the Court must read the complaint as a whole, construe the complaint in a light most favorable to the plaintiff, and accept the facts alleged in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

On January 28, 2015, Plaintiff Carolyn Dykes ("Plaintiff"), a consumer, filed this putative class action against Portfolio Recovery Associates, LLC ("PRA"), a debt collector, pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. (Compl. [Dkt. 1].) Plaintiff amended her complaint once as a matter of right. (Am. Compl. [Dkt. 16].)

PRA allegedly purchased a debt in the amount of $3, 886.67 that arose from Plaintiff's consumer credit card issued by non-party Capital One Bank (USA), N.A. (Am. Compl. ¶¶ 7, 10.) Nowhere in the amended complaint does Plaintiff dispute the validity of this debt. Instead, Plaintiff alleges that PRA sent her three collection letters, also known as "dunning" letters: the first, on January 29, 2014 (Am. Compl. Ex. A), the second, on May 1, 2014 (id. Ex. B), and the third, on November 12, 2014 (id. Ex. C). (Id. at ¶¶ 6, 13, 16.) Each letter was written almost entirely in Spanish. (Id. at Exs. A, B, C.) PRA's logo, positioned at the top-center of each letter, was in English and read: "Portfolio Recovery Associates, LLC: We're giving debt collection a good name." (Id. at Exs. A, B, C.) Plaintiff does not speak or read Spanish. (Id. at ¶ 8.) Plaintiff never requested that any communications be made in Spanish. (Id. at ¶ 9.)

The following language appeared in bold at the bottom of the first collection letter: "Esta carta proviene de una agencia de cobranza y su intencion es cobrar una deuda. Cualquiera informacion que se obtenga sera utilizada para ese proposito." (Id. at ¶ 11.) According to Plaintiff, this translates in English to: "This letter comes from a collection agency and its intention is to collect a debt. Any information that is obtained will be used for that purpose."[1] (Id. at ¶ 12.)

In the amended complaint, Plaintiff claims that PRA's collection letters are false, deceptive, or misleading in violation of sections 1692e and 1692e(11) of the FDCPA, mainly because they are written almost entirely in Spanish. (Am. Compl. ¶¶ 20-21, 29, 32.) Plaintiff asks for statutory damages, actual damages, costs, and declaratory relief. (Id. at 7.)

This matter is now before the Court on PRA's motion to dismiss the complaint in its entirety for failure to state a claim. (Def.'s Mot. to Dismiss [Dkt. 18]; Def.'s Mem. in Supp. [Dkt. 19].) In short, PRA contends that the FDCPA does not mandate the English disclosures that Plaintiff seeks. (Def.'s Mem. at 1.) Plaintiff filed a brief in opposition [Dkt. 23], to which PRA replied [Dkt. 24]. Accordingly, the motion is ripe for disposition.

II. Legal Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a court to dismiss those allegations which fail "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In deciding a 12(b)(6) motion, a court must be mindful of the liberal pleading standards under Rule 8, which require only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8. While Rule 8 does not require "detailed factual allegations, " a plaintiff must still provide "more than labels and conclusions" because "a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citation omitted).

III. Analysis

Plaintiff's amended complaint contains one count under the FDCPA. (Am. Compl. ¶¶ 26-33.) Plaintiff contends that the three collection letters are false, deceptive, or misleading, in violation of section 1692e's general prohibition against false, deceptive, or misleading representations. (Am. Compl. ¶ 29.) Stated differently, Plaintiff claims that PRA violated section 1692e(11) by failing to provide an English disclosure in the collection letters that stated PRA was a debt collector who was attempting to collect a debt, and that information obtained would be used for that purpose. (Am. Compl. ¶¶ 20-21, 32.)

"The PDCPA seeks to protect consumers from abusive, deceptive and unfair debt collection practices by establishing, in part, guidelines for communications by debt collectors." Creighton v. Emporia Credit Serv., Inc., 981 F.Supp. 411, 414 (E.D. Va. 1997). The FDCPA provides a private right of action to consumers where "(1) the plaintiff has been the object of collection activity arising from consumer debt; (2) the defendant is a debt collector as defined by the FDCPA; and (3) the defendant has engaged in an act or omission prohibited by the FDCPA." Penn v. Cumberland, 883 F.Supp.2d 581, 586-87 (E.D. Va. 2012) (quoting Ruggia v. Washington Mut., 719 F.Supp.2d 642, 647 ...

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