United States District Court, W.D. Virginia, Charlottesville Division
TERI CRAWFORD, GARRY BROWN, LYDIA GREEN, LORETTA PENNINGTON, and PATRICIA SAUNDERS, individually and on behalf of all similarly situated individuals, Plaintiffs,
SENEX LAW, P.C., Defendant.
Glen E. Conrad Chief United States District Judge
bring this action pursuant to the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692 et seq. (the
"FDCPA"). The matter is currently before the court
on defendant's motion to dismiss. For the reasons stated,
the motion will be denied.
following summary of the facts, taken from the
plaintiffs' complaint, is accepted as true for purposes
of the defendant's motion to dismiss. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). The defendant, Senex
Law, P.C. ("Senex"), is a law firm located in
Hampton, Virginia. Senex specializes in assisting apartment
complexes in Virginia collect past due rent payments. Each of
the named plaintiffs has been a tenant at a residential
property in which the landlord engaged Senex to facilitate
overdue rent collection.
five to seven days after being late on his or her rent
payment, each named plaintiff received a written "Notice
of Noncompliance" (hereinafter "Notice" or
"Notices"). The Notice appears to be sent from the
landlord, as it is on the landlord's letterhead and
contains an electronic signature from the landlord. The
Notice instructs the tenant to send payments to the landlord,
and provides the landlord's address. Each Notice lists
the amount owed, including late fees and at least $27 in
attorney's fees for generating the Notice. The letter
specifically states that the landlord has "retained
Senex Law, PC and they have already drafted this notice and
provided legal advice due to your noncompliance." Compl.
Ex. A. The envelope in which the letter is sent notes the
name of the relevant apartment complex. However, the return
address is from Hampton, Virginia, where Senex is located.
The envelope also bears a postal notation indicating that the
Notice was sent from Hampton, Virginia. If the amount due is
not paid in a timely manner, Senex initiates an unlawful
detainer action, often approximately one month after a tenant
receives a Notice of Noncompliance.
allege that, by sending the Notices, Senex is acting as a
debt collector, imposing certain disclosure requirements on
Senex. The gravamen of the plaintiffs' complaint is that
Senex sends dunning letters to plaintiffs without identifying
itself as a debt collector and without certain
statutorily-required disclosures, in violation of the FDCPA.
Specifically, plaintiffs contend that Senex uses the
following process to send the Notices to residents who are
late on rent payments: (1) the landlord sends Senex a list of
accounts for which a debt is allegedly past due; (2) Senex
prepares the Notice of Noncompliance on landlord letterhead;
(3) Senex affixes the landlord's electronic signature;
and (4) Senex then prints and sends the Notice directly to
the tenant. Plaintiffs assert that Senex intentionally fails
to include the required disclosures when it sends the
complaint alleges one count for violations of the FDCPA.
Plaintiffs assert that Senex has violated §§ 1692d,
prohibiting harassment or abuse in the collection of debt;
1692e, prohibiting the use of false or misleading
representations; and 1692g, requiring certain information
about the validity of the debt to be included in the debt
collection communications. The five named plaintiffs also
seek to certify a class of present and former tenants of
residential properties located in Virginia whose landlords
engaged Senex to facilitate overdue rent collection.
Plaintiffs seek statutory damages for each class member,
compensatory damages, and attorney's fees and costs. The
parties have been fully heard on the issues, and the matter
is ripe for review.
12(b)(6) of the Federal Rules of Civil Procedure permits a
party to move for dismissal of a complaint for failure to
state a claim upon which relief can be granted. To survive
dismissal for failure to state a claim, a plaintiff must
establish "facial plausibility" by pleading
"factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal. 556
U.S. 662, 678 (2009). In ruling on a 12(b)(6) motion, all
well-pleaded allegations in the complaint are taken as true
and all reasonable factual inferences are drawn in the
plaintiffs favor. Edwards v. City of Goldsboro, 178
F.3d 231, 244 (4th Cir. 1999). However, "[a]t bottom, a
plaintiff must 'nudge [her] claims across the line from
conceivable to plausible' to resist dismissal."
Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 364-65
(4th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). The complaint must contain
sufficient facts "to raise a right to relief above the
speculative level" and "state a claim to relief
that is plausible on its face." Twombly, 550
U.S. at 555, 570. In considering a Rule 12(b)(6) motion, the
court may consider exhibits attached to or referred to in the
complaint. See Phillips v. LCI Int'l, Inc., 190
F.3d 609, 618 (4th Cir. 1999).
FDCPA protects consumers from abusive and deceptive practices
by debt collectors, and protects non-abusive debt collectors
from competitive disadvantage." Yarney v. Ocwen Loan
Serv., LLC, 929 F.Supp.2d 569, 575 (W.D. Va. 2013)
(Moon, J.) (citing United States v. Nat'l Fin.
Servs., Inc.. 98 F.3d 131, 135 (4th Cir. 1996)). A
plaintiff must plead the following to establish a violation
of the FDCPA: (1) that the plaintiff is a
"consumer" as defined by the FDCPA; (2) that the
defendant is a "debt collector" as defined by the
FDCPA; and (3) that the defendant engaged in any act or
omission in violation of the FDCPA. Id. (citing
Withers v. Eveland, 988 F.Supp. 942, 945 (E.D. Va.
instant case, there is no dispute that plaintiffs are
consumers within the meaning of the FDCPA. However, Senex
makes two arguments in support of its motion to dismiss.
First, Senex asserts that when it sends out the Notices, it
is not a debt collector. Instead, it is performing a
ministerial function for the landlords, who are the creditors
and not subject to the FDCPA. Second, Senex argues that
plaintiffs are subject to a heightened pleading standard,
which they have not met.
FDCPA applies to "debt collectors, " which is
statutorily defined as "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." 15 U.S.C. § 1692a(6). The
FDCPA "generally does not regulate creditors when they
collect debt on their own account." Henson v.
Santander Consumer USA. Inc., 817 F.3d 131, 134 (4th
Cir. 2016). The plain language of the statutory definition of
debt collector establishes two alternative tests for
considering whether a defendant is a debt collector: (1) the
principal purpose test and (2) the regularly collects test.
Goldstein v. Hutton, Ingram, Yuzek, Gainen, Carroll &
Bertolotti, 374 F.3d 56, 61 (2d Cir. 2004). "Thus,
the overall structure of § 1692a(6) makes clear that
when assessing whether a ...