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Croyder v. Hetley

United States District Court, D. Kansas

July 11, 2017

GEOFFREY W. HETLEY, et al., Defendants.



         Plaintiff Stephanie Croyder, proceeding pro se, filed this action alleging violations under the Fair Debt Collection Practices Act (“FDCPA”) and the Kansas Consumer Protection Act (“KCPA”). Plaintiff claims Defendants violated both the FDCPA and the KCPA by filing a lawsuit to collect Plaintiff's debts before sending her a validation of the debts, as required under the FDCPA. Before the Court is Defendants' Motion to Dismiss Count II of Complaint and Defendants Geoffrey W. Hetley and Hetley Law Firm, P.A. Pursuant to Rule 12(b)(6) (Doc. 15). The motion is fully briefed and the Court is prepared to rule. For the reasons stated below, the Court grants Defendants' Motion to Dismiss.

         I. Standard

         To survive a motion to dismiss for failure to state a claim, a complaint must present factual allegations, assumed to be true, that “raise a right to relief above the speculative level, ” and must contain “enough facts to state a claim to relief that is plausible on its face.”[1] To state a claim for relief under Rule 12(b)(6), “the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.”[2] The plausibility standard does not require a showing of probability that a defendant has acted unlawfully, but requires more than “a sheer possibility.”[3] “[M]ere ‘labels and conclusions, ' and ‘a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim.”[4] Finally, the Court must accept the nonmoving party's factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.[5]

         The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court “must take all the factual allegations in the complaint as true, [but] we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'”[6] Thus, the court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.[7] Second, the court must determine whether the factual allegations, when assumed true, “plausibly give rise to an entitlement to relief.”[8] “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[9]

         Because Plaintiff proceeds pro se, the Court must construe her pleadings liberally.[10]However, the Court cannot assume the role of advocate.[11] Also, Plaintiff's pro se status does not excuse her from “the burden of alleging sufficient facts on which a recognized legal claim could be based.”[12] Plaintiff is not relieved from complying with the rules of the Court or facing the consequences of noncompliance.[13]

         II. Background

         Drawing all reasonable inferences in favor of Plaintiff, the following facts are taken from Plaintiff's Complaint. On August 11, 2016, Plaintiff received a collection notice from Defendants stating she owed a balance of $5, 838 on a charge card account. Plaintiff sent a notice to Defendant on September 3, 2016, within thirty days of receiving the letter, disputing the debt and requesting a validation pursuant to the FDCPA. On September 6, 2016, Defendant filed a lawsuit to collect the amount due.[14] On September 13 and September 26, 2016, Defendant sent letters verifying the date that the account was created and the amount of the outstanding debt.[15]Plaintiff alleges that the validation letters were “inconsistent with the disclosures required by 1692g” and that filing the lawsuit overshadowed her right to dispute the debt.

         III. Discussion

         Under the FDCPA, a debt collector must send to a debtor a written notice that includes

(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.[16]

         If the debtor timely notifies the creditor within the thirty-day period that the debt is disputed or that the debtor requests the name and address of the original creditor, the debt collector must cease collection efforts.[17] After the debtor gives notice of the debt, the debt collector may not engage in any collection activities or communication during the thirty-day period that would “overshadow or be inconsistent with the consumer's right to dispute the debt or request the name and address of the original creditor.”[18] The debt collector may not resume debt collection until it (1) obtains a verification of the debt, a copy of a judgment, or the name and address of the original creditor; and (2) mails the verification, judgment, or name and address of the original creditor to the consumer.[19]

         Plaintiff alleges that Defendants violated § 1692g(b) because the debt verification was not sufficient and because Defendants filed a debt collection after Plaintiff sent notice disputing the debt and before Defendants sent validation of the debt. Defendants argue in their Motion to Dismiss that (1) Defendants Hetley and Hetley Law Firm must be dismissed because there are no facts alleging they participated in either filing the suit or preparing or sending the verification letter, and (2) Plaintiff's KCPA claim must be dismissed because a technical violation of the FDCPA does not give rise to a cause of action under the KCPA.

         A. Defendants Hetley and Hetley Law Firm

         Plaintiff alleges Defendants violated the FDCPA and KCPA by attempting to collect on debts after receiving notice of her dispute and by sending letters of debt verification that did not meet the disclosure requirements under the FDCPA. But Plaintiff does not allege that Hetley or the Hetley Law Firm participated in preparing or sending the verification letters or engaged in collection efforts after receiving Plaintiff's notice of dispute.[20] Therefore, because Plaintiff alleges no facts to support a plausible FDCPA or KCPA claim against Hetley or Hetley Law Firm, the Court grants Defendants' motion as it relates to dismissal of these Defendants.

         B. The KCPA Claim

         Plaintiff also alleges Defendants violated the KCPA based on the same facts that she alleges in support of her FDCPA claim. Defendants move for dismissal of this claim, arguing that “an alleged technical violation of the [FDCPA's] ...

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