United States District Court, E.D. Virginia, Richmond Division
A. Gibney, United States District Judge.
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.
FACTS ALLEGED IN THE COMPLAINT
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.
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.
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.
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).
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).
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. 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.
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.
Court will enter an appropriate Order.
Clerk send a copy of this Opinion to ...