Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Donahue v. Probasco & Associates, P.A.

United States District Court, D. Kansas

May 10, 2019

SUSAN DONAHUE, Plaintiff,
v.
PROBASCO & ASSOCIATES, P.A., Defendant.

          MEMORANDUM AND ORDER

          Carlos Murguia, United States District Judge.

         Plaintiff Susan Donahue brings this action against defendant Probasco & Associates, P.A. claiming violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. The matter is now before the court on defendant's Motion to Dismiss for Failure to State a Claim (Doc. 29) and plaintiff's Motion to Strike Portions of Defendant's Reply to Plaintiff's Response to Defendant's Motion to Dismiss (Doc. 42). Defendant seeks dismissal of plaintiff's Second Amended Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that plaintiff acknowledged the debt at issue in a 2013 bankruptcy proceeding, which restarted the statute of limitations; and therefore, defendant did not violate the FDCPA. Plaintiff asks this court to strike portions of defendant's reply that were raised for the first time in the reply. For the reasons set forth below, the court denies defendant's motion and grants plaintiff's motion.

         I. Background

         According to the amended complaint, plaintiff allegedly incurred three debts owed to Stormont Vail HealthCare, Inc. Defendant, a law firm engaged in debt collection, sued plaintiff to recover one of the debts. Defendant obtained a judgment regarding that debt in 2002. Another of the debts was incurred in June 2006 (“2006 debt”). Defendant did not obtain a judgment against plaintiff regarding the 2006 debt.

         In January 2013, plaintiff filed a voluntary petition in the United States Bankruptcy Court for the District of Kansas under Chapter 13 of the Bankruptcy Code. On her Schedule F form, plaintiff listed Stormont Vail Healthcare as a creditor with a claim of $27, 977.97.

         As of November 1, 2017, plaintiff had not made a payment on the 2006 debt in more than five years. In Kansas, a breach of contract action to collect on a written contract must be filed within five years. At some point in November 2017, plaintiff contacted defendant via telephone and attempted to make a payment of $50 toward the 2002 judgment. In response, a representative working for defendant urged plaintiff to make a payment of $75 to spread out among each of the three debts defendant was seeking to collect, including the 2006 debt. Plaintiff initially objected but then agreed to permit defendant to spread out her payment among the three debts. Defendant did not advise plaintiff that a payment toward the 2006 debt would effectively restart the statute of limitations on the 2006 debt- which had already expired. On March 25, 2018, defendant filed a lawsuit against plaintiff to collect the 2006 debt.

         On June 28, 2018, plaintiff filed the present case claiming defendant violated the FDCPA by using “false, deceptive, misleading and unfair or unconscionable means to collect or attempt to collect an alleged debt, ” by “falsely represent[ing] the character, amount, or legal status of any debt, ” and for acting deceptive and failing “to comply with the provisions of the FDCPA.” (Doc. 9, at 4-5.) Plaintiff claims that defendant violated the FDCPA when its employee induced her into making a payment on the 2006 debt without advising her that making a payment on the stale debt would restart the statute of limitations.

         II. Legal Standards

         Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Rule 8(a)(2) states that a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” To withstand a motion to dismiss under 12(b)(6), a complaint must contain “enough allegations of fact, taken as true, ‘to state a claim to relief that is plausible on its face.'” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). A claim is plausible when “the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). When the complaint contains well-pled factual allegations, a court should “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

         III. Analysis

         a. Defendant's Motion to Dismiss

         Defendant argues that plaintiff failed to state a claim under Rule 12(b)(6) because her acknowledgement of the 2006 debt in the 2013 bankruptcy proceeding restarted the statute of limitations; and therefore, defendant did not violate the FDCPA when it encouraged her to make a payment on the 2006 debt in November 2017. Defendant's argument is based on K.S.A. § 60-520(a), which states:

In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.

         Under the plain language of the statute, “[a]ny of the three means mentioned in the statute- payment, acknowledgement, or promise-starts anew the period of limitations which would have been applicable had an action been brought on the original debt or claim.” O'Malley v. Frazier, 49 P.3d 438, 441 (Kan. 2002) (quoting Morton v. Leslie, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.