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Kalebaugh v. Cohen, McNeile & Pappas, P.C.

United States District Court, D. Kansas

January 5, 2015

MATTHEW KALEBAUGH, Plaintiff,
v.
COHEN, McNEILE & PAPPAS, P.C., Defendant

Page 1252

For Matthew Kalebaugh, Plaintiff: Alan J. Stecklein, Michael H. Rapp, LEAD ATTORNEYS, Consumer Legal Clinic LLC, Kansas City, KS.

For Cohen McNeile & Pappas, PC, Defendant: David E. Larson, LEAD ATTORNEY, Martin, Pringle, Oliver, Wallace & Bauer, LLP -- MO, Kansas City, MO; Kate Bohon McKinney, Martin, Pringle, Oliver, Wallace & Bauer, LLP -- OP, Overland Park, KS.

Page 1253

MEMORANDUM AND ORDER

J. THOMAS MARTEN, CHIEF UNITED STATES DISTRICT JUDGE.

Plaintiff Matthew Kalebaugh seeks damages against defendant Cohen, McNeile & Pappas, P.C. (" defendant" ) for alleged violations of the Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. § 1692 et seq., and the Kansas Consumer Protection Act (" KCPA" ), K.S.A. § 50-623 et seq. This matter is before the court on defendant's Motion to Dismiss (Dkt. 6). For the reasons stated below, defendant's motion is granted in part and denied in part.

I. Factual and Procedural Background

This case arises out of defendant's attempt to collect a credit card debt allegedly owed by plaintiff to Discover Bank. On June 7, 2013, defendant mailed plaintiff a debt collection letter which read, in pertinent part, as follows:

This is to notify you that Discover Bank has retained this firm to collect its claim against you for the balance owing on your Discover Card account. We are hereby making demand upon you to contact us for payment of this debt. If you are on active duty in the military, please provide us with written documentation to that effect.
This communication is from a debt collector and is an attempt to collect a debt. Any information obtained will be used for that purpose. Unless you notify us within thirty (30) days after receipt of this letter that the validity of this debt, or any portion of it, is disputed, we will assume that the debt is valid. If you do notify us of a dispute, we will obtain verification of the debt and mail it to you. Further, upon your written request within thirty (30) days, we will provide you with the name and address of the original creditor if different from the current creditor. We may proceed with suit against you without waiting the 30 days if so requested by our client.

Dkt. 1-1, at 9 (emphasis in original).

Plaintiff filed suit against defendant in the District Court of Wyandotte County, Kansas, on May 1, 2014, case number 14LM2209, for alleged violations of the FDCPA and the KCPA (Dkt. 1-1). On May 22, 2014, defendant removed this case to the United States District Court for the District of Kansas (Dkt. 1).[1] On June 20, 2014, defendant filed a Motion to Dismiss plaintiff's claims in their entirety (Dkt. 6).

II. Legal Standard

Under Rule 12(b)(6), a defendant may move for dismissal of any claim for which the plaintiff has failed to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Upon such motion, the court must decide " whether the complaint contains 'enough facts to state a claim to relief that is plausible on its face.'" Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)

Page 1254

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim is facially plausible if the plaintiff pleads facts sufficient for the court to reasonably infer that the defendant is liable for the alleged misconduct. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The plausibility standard reflects the requirement in Rule 8 that pleadings provide defendants with fair notice of the nature of the claims as well as the grounds upon which each claim rests. See Robbins v. Okla., 519 F.3d 1242, 1248 (10th Cir. 2008) (internal citations omitted); 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." ). Under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint, but need not afford such a presumption to legal conclusions. Iqbal, 556 U.S. at 678-79. Viewing the complaint in this manner, the court must decide whether the plaintiff's allegations give rise to more than speculative possibilities. See id. at 678. ( " The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." ). If the allegations in the complaint are " so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs 'have not nudged their claims across the line from conceivable to plausible.'" Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 570).

III. Discussion

A. FDCPA Violation

The FDCPA, designed in part to " eliminate abusive debt collection practices by debt collectors," " establishes certain rights for consumers whose debts are placed in the hands of professional debt collectors for collection, and requires that such debt collectors advise the consumers whose debts they seek to collect of specified rights." 15 U.S.C. § 1692(e); Kalebaugh v. Berman & Rabin, P.A., 43 F.Supp.3d 1215, at *7-8 (D. Kan. Aug. 28, 2014) (quoting DeSantis v. Computer Credit, Inc. 269 F.3d 159, 161 (2d Cir. 2001)). The Act " generally prohibits debt collectors from engaging in harassing and abusive conduct; using false, deceptive, and misleading representations; and using unfair or unconscionable means to collect debts." Martin v. Kan. Counselors, Inc., at *15-16 (D. Kan. May 13, 2014) (citing Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir. 2002)).

In Count I of his Complaint, plaintiff alleges that the collection letter sent by defendant violates the FDCPA, namely § 1692g, because it contradicts and/or overshadows the validation rights notice required by the Act. Specifically, plaintiff takes issue with the last sentence of the letter, which states, " [w]e may proceed with suit against you without waiting the 30 days if so requested by our client." Dkt. 1-1, at 9.

1. Matter of Law

The Tenth Circuit has never directly addressed whether the contradiction/overshadowing question is one of law that may be addressed in a motion to dismiss, or fact that is reserved for the jury. However, the majority of circuits that have ruled on the issue view it as a question of law. See, e.g., Fed. Home Loan Mortg. Corp. v. Lamar, 503 F.3d 504, 508 n.2 (6th ...


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