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Post v. Hodges Law Office, PLLC

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

November 9, 2018

RICHARD POST, Plaintiff,
v.
HODGES LAW OFFICE, PLLC, Defendant.

          OPINION

          John A. Gibney, United States District Judge.

         The plaintiff, Richard Post, brings two claims for violation of the Fair Debt Collection Practices Act ("FDCPA") against the defendant, Hodges Law Office, PLLC ("Hodges"). Hodges has moved to dismiss Post's complaint for failure to state a claim. Because the FDCPA does not impose an affirmative duty to dismiss a pending lawsuit in response to a debt verification request, the Court will grant Hodges' motion to dismiss.

         I. FACTS ALLEGED IN THE COMPLAINT

         Post resides in Mechanicsville, Virginia, in a neighborhood subject to the covenants of the Kings Charter Homeowners Association (the "HOA"). Post allegedly owed $3, 271.34 to the HOA as a result of unpaid dues. The HOA assigned Hodges to pursue Post's unpaid dues. On March 21, 2018, Hodges filed a warrant in debt against Post in the Hanover County General District Court. At the time of filing, Hodges also sent a demand letter to Post detailing Post's validation procedure rights under the FDCPA.

         On March 28, 2018, through Credit Repair Lawyers of America, Post sent Hodges a request for validation of the alleged debt. Hodges contacted the HOA, which validated the debt, and then sent a debt verification letter to Post on April 2, 2018. On April 12, 2018, Post contacted the Hanover County General District Court, which informed Post that Hodges' warrant in debt action remained pending against him.

         Post commenced this action on May 24, 2018, alleging violations of §§ 1692g(b) and 1692e(10) of the FDCPA. Hodges moved to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), arguing that leaving a lawsuit pending, without taking action to advance the litigation, does not constitute debt collection activity under the FDCPA.

         II. DISCUSSION[1]

         If a consumer requests debt validation, § 1692g(b) of the FDCPA requires "the debt collector [to] cease collection of the debt... until the debt collector obtains verification of the debt" and mails the verification to the consumer. 15 U.S.C. § 1692g(b). A debt collector engages in debt collection activity, for example, when it initiates foreclosure proceedings, files a warrant in debt, or takes other action that would result in the collection of debt. See, e.g., Wilson v. Draper & Goldberg, P.L.L.C, 443 F.3d 373, 378 (4th Cir. 2006) ("Defendants' foreclosure action was an attempt to collect a 'debt.'"); Dikun v. Stretch, 369 F.Supp.2d 781, 788 (E.D. Va. 2005) (finding that filing a warrant in debt after receiving a verification request without first verifying the debt violates the FDCPA).

         Accordingly, the FDCPA prohibits debt collectors from commencing litigation in response to a verification request. See Garcia-Contreras v. Brock & Scott, PLLC, 775 F.Supp. 2d. 808, 827 (M.D. N.C. 2011). The FDCPA, however, imposes no obligation that debt collectors take affirmative actions to dismiss or cancel ongoing collection efforts. See Humphrey v. Brown, No. 09-CV-3429, 2011 WL 53081, at *3 (D. Md. 2011) (citing Shimek v. Weissman, 374 F.3d 1011, 1014 (11th Cir. 2004)) ("By its plain terms, the FDCPA requires only that a debt collector cease collection activity when a debt is disputed; it does not require the debt collector to take any affirmative action to cancel debt collection activity previously initiated."). A debt collector, therefore, does not violate § 1362g(b) when it initiates a debt collection action before receiving a verification request and takes no further steps in the collection action until after fulfilling the verification request. See Shimek, 374 F.3d at 1014 (holding that a debt collector need not prevent a court clerk from recording a previously filed lien after receiving a consumer verification request).

         Although Hodges' warrant in debt action remained pending when Post requested debt verification, Hodges took no steps to advance the action during the verification period. Post argues that the continuing, active litigation constitutes an ongoing collection action. While taking an affirmative action in its litigation would constitute debt collection activity, Hodges took no action during the verification period. Cf. Garcia-Contreras, 775 F.Supp. 2d. at 827. The FDCPA did not require Hodges to dismiss the debt collection action that it initiated before Post's request for verification.[2] See Humphrey, 2011 WL 53081, at *3. Accordingly, Post has failed to show that Hodges' conduct in leaving its state law claim pending amounts to a violation of the FDCPA.[3]

         III. CONCLUSION

         For the reasons stated in this Opinion, Post has failed to state a claim upon which relief can be granted. Accordingly, the Court will grant Hodges' motion to dismiss.

         The Court will enter an appropriate Order.

         Let the Clerk send a copy of this Opinion to ...


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