United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck, United States District Judge
matter comes before the Court on Defendant Hodges Law Office,
PLLC's ("Hodges") Motion to Dismiss Complaint
(the "Motion to Dismiss"). (ECF No. 3.) Plaintiff
Lorranda Arnett responded, (ECF No. 6), and Hodges replied,
(ECF No. 8). This matter is ripe for disposition. The Court
dispenses with oral argument because the materials before it
adequately present the facts and legal contentions, and
argument would not aid the decisional process. The Court
exercises jurisdiction pursuant to 28 U.S.C. § 1331,
the reasons that follow, the Court will grant the Motion to
Dismiss and grant Arnett leave to amend her Complaint.
Procedural and Factual Background
brings her Complaint against Hodges alleging three violations
of the Fair Debt Collection Practices Act (the
"FDCPA"), 15 U.S.C. §§ 1692e and 1692f,
arising from Hodges's attempt to collect Arnett's
overdue home owners association fees.
April 2017, Arnett concedes that she "fell behind on her
home owners association ... fees and her account was sent to
a third-party debt collector called Equity Experts. ORG
["Equity"]... for collection." (Compl. ¶
8, ECF No. 1.) Approximately six months later, in October
2017, Arnett "received a statement from Equity ...
showing that it charged" her $2, 378.00 in fees.
(Id. ¶ 9.) Arnett avers that these fees have no
"contractual or legal basis." (Id.)
three months later, on January 22, 2018, Arnett received a
letter with attachments from Hodges,  which attempted to collect a
debt that Arnett "allegedly owed ... to Belfair
Community Association, Inc." (Id. ¶¶
6, 10.) The attachments Hodges included with the letter
listed two different amounts Arnett owed for the debt-$3,
920.00 and $3, 995.00-a $75.00 (or approximately 1.9%)
contends that Hodges violated 15 U.S.C. §
1692e of the FDCPA by: (1) "misrepresenting
the character, amount, or legal status of any debt;"
and, (2) "using false representations or deceptive means
to collect or attempt to collect any
debt." (Id. ¶¶ 20(a)-(b).) She
also alleges that Hodges violated 15 U.S.C. §
1692f by "attempting to collect fees and
charges for which there is no expressly authorized agreement
with [her]... to pay and for which there is no basis in law
to charge her." (Id. ¶ 20(c).)
asserts that she "is under duress as she does [not] know
how much she owes for the [a]lleged [d]ebt" and claims
that she "has suffered economic, emotional, general, and
statutory damages as a result of these violations of the
FDCPA." (Id. ¶¶ 21-22.) Arnett seeks
"actual damages, costs, interest, and attorneys'
fees." (Id. 6.)
than answer Arnett's Complaint, Hodges filed the instant
Motion to Dismiss. Arnett responded and Hodges replied.
Standard of Review: Rule 12(bV6)
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) (citing 5A
Charles A. Wright & Arthur R. Miller, Federal Practice
and Procedure § 1356 (1990)). To survive Rule 12(b)(6)
scrutiny, a complaint must contain sufficient factual
information to "state a claim to relief that is
plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); see also
Fed. R. Civ. P. 8(a)(2) ("A pleading that states a claim
for relief must contain ... a short and plain statement of
the claim showing that the pleader is entitled to
relief.") Mere labels and conclusions declaring that the
plaintiff is entitled to relief are not enough.
Twombly, 550 U.S. at 555. Thus, "naked
assertions of wrongdoing necessitate some factual enhancement
within the complaint to cross the line between possibility
and plausibility of entitlement to relief." Francis
v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)
(internal quotation marks omitted).
complaint achieves facial plausibility when the facts
contained therein support a reasonable inference that the
defendant is liable for the misconduct alleged.
Twombly, 550 U.S. at 556; see also Ashcroft v.
Iqbal, 556 U.S. 662 (2009). This analysis is
context-specific and requires "the reviewing court to
draw on its judicial experience and common sense."
Francis, 588 F.3d at 193 (citation omitted). The
Court must assume all well-pleaded factual allegations to be
true and determine whether, viewed in the light most
favorable to the plaintiff, they "plausibly give rise to
an entitlement to relief." Iqbal, 556 U.S. at
676-79; see also Kensington, 684 F.3d at 467
(finding that the court in deciding a Rule 12(b)(6) motion to
dismiss "'must accept as true all of the factual
allegations contained in the complaint' and 'draw all
reasonable inferences in favor of the plaintiff"
(quoting Kolon Indus., 637 F.3d at 440)).
Legal Standard: FDCPA Claims Generally
FDCPA protects consumers from abusive and deceptive practices
by debt collectors, and protects non-abusive debt collectors
from competitive disadvantage.'" Lembach v.
Bierman,528 Fed.Appx. 297, 301 (4th Cir. 2013) (quoting
United States v. Nat'l Fin. Servs., Inc., 98
F.3d 131, 135 (4th Cir. 1996)). To prevail on an FDCPA claim,
a plaintiff must allege that: (1) he or she was the object of
collection activity arising from a consumer debt as defined
by the FDCPA; (2) the defendant is a debt collector as
defined by the FDCPA; and, (3) the defendant engaged in an
act or omission prohibited by the FDCPA, such as using a
false, deceptive, or misleading representation or means in
connection with the collection of any debt. See Moore v.
Commonwealth Trs., ...