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Cynthia A. Siwulec v. Jm Adjustment Services

April 1, 2011


The opinion of the court was delivered by: Hon. Garrett E. Brown, Jr.


BROWN, Chief Judge


This matter comes before the Court upon the motion to dismiss (Doc. No. 10) filed by Defendant JM Adjustment Services, LLC (JMAS). JMAS seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The Court has considered the parties' submissions and decided the matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the following reasons, the Court will grant JMAS's motion to dismiss.


For the purpose of this motion, the Court accepts as true the factual allegations in the Amended Complaint and draws all reasonable inferences in favor of Plaintiff. See, e.g., Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Plaintiff Cynthia A. Siwulec, a resident of Rumson, New Jersey, alleges that a JMAS representative personally delivered an envelope to her home on or about May 10, 2010. (Am. Compl. ¶ 12.) The envelope contained a letter, bearing the name and address of Plaintiff's home mortgage lender, Chase.*fn1 The letter (1) indicated that Chase was "deeply concerned about [Plaintiff's] past due account"; (2) reminded Plaintiff of her loan obligations; (3) asked Plaintiff to contact Chase; and (4) informed Plaintiff to "[r]emit payment to: Chase, P.O. Box 78036, Phoenix, AZ 85062-8036." (Am. Compl. Ex. A.)

Plaintiff also avers that the JMAS representative dropped or discarded documents on her lawn, which appeared to contain JMAS's standard instructions to its agents. (Am. Compl. ¶ 16.) The instructions indicate that the agent should "make contact with the customer," "offer [his/her] cell phone to the customer to try to call the lender while [he/she] is at the address," and identify the bank representative with whom the customer speaks. (Am. Compl. Ex. B.) The instructions further direct the agent to make the following introductory statement if the agent makes contact with the customer:

Hello, I'm from J.M. Adjustment Services and I'm here on behalf of Chase. They've been trying to contact you by phone and mail and have been unable to reach you. As a service to their customers, Chase has sent me out to make contact with you so that you will contact them as soon as possible. (Id.) Beyond this script, the instructions tell the JMAS agent to "fill out the Field Call Summary COMPLETELY before returning the update sheet to [JMAS]. Please indicate a neighbor's address on each and every assignment whether the neighbor confirmed the customer's address or not," and requires the JMAS agent to "[i]nclude a complete description of the property, whether it is vacant or for sale and indicate any damage to the property." (Id.) The instructions further provide that, if the customer is not available, the JMAS agent should "make a second attempt" and "[t]ry to obtain contact information from the customer-home, cell, work phone . . . ."(Id.)

On August 14, 2010, Plaintiff filed a Class Action Complaint alleging that JMAS violated the Fair Debt Collection Practices Act (FDCPA) by failing to comply with the disclosure requirements mandated by 15 U.S.C. § 1692e(11) and g. Plaintiff filed an Amended Complaint on December 19, 2010. JMAS now moves to dismiss for failure to state a claim, arguing that Plaintiff has not alleged a plausible FDCPA claim, and that, accepting Plaintiff's allegations as true, JMAS does not qualify as a "debt collection agency" subject to the requirements of the FDCPA.


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff has failed to set forth fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint will survive a motion to dismiss if it "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570). The plausibility standard requires that "the plaintiff plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged" and demands "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). Although a court must accept as true all factual allegations in a complaint, that tenet is "inapplicable to legal conclusions," and "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). In evaluating a motion to dismiss, a court may consider only the complaint, exhibits attached to the complaint, matters of public record, andundisputedly authentic documents if the complainant's claims are based upon those documents. Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).

JMAS argues that, accepting the facts alleged by Plaintiff to be true, JMAS does not qualify as a debt collector under the FDCPA. The Court agrees.

The express purpose of the FDCPA is "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e). Generally speaking, the FDCPA's restrictions only apply to "debt collectors." FTC v. Check Investors, Inc., 502 F.3d 159, 171 (3d Cir. 2007); Pollice v. Nat'l Tax Funding, L.P., 225 F.3d 379, 403 (3d Cir. 2000). The FDCPA defines "debt collector" as "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6). In construing this term, Courts have differentiated between third-party entities that provide messenger services, such as the delivery of a lender's collection notices, and more invasive services that constitute indirect debt-collection attempts. Compare, e.g., Romine v. Diversified Collection Servs., Inc.,155 F.3d 1142, 1145--49 (9th Cir. 1998) (concluding that courier qualified as debt collector, where the courier's automated telegram service surreptitiously collected borrowers' phone numbers and provided this information to the lender) with Aquino v. Credit Control Servs., 4 F. Supp. 2d 927, 929--30 (N.D. Cal.1998) (dismissing FDCPA claim against same courier, where allegations only indicated that courier delivered a debt collection notice).Plaintiff argues that JMAS's conduct falls into the indirect debt collection activities identified by Romine and its progeny, but Plaintiff's allegationsdo not support this conclusion.

Romine involved Western Union's automated voice telegram (AVT) system, whereby Western Union personally delivered a notice indicating that the borrower had a "personal delivery only telegram" waiting for them if they called a certain telephone number, the borrower called the AVT system and was prompted to confirm their identity with their telephone number, and then the courier would transmit the previously unlisted telephone number to the lender. See Romine, 155 F.3d at 1144. A majority of the Romine court found that this system constituted an indirect debt collection activity subject to FDCPA requirements, because Western Union's service "[went] beyond mere information gathering or message delivery." Id. at 1149. In reaching this determination, the Romine court took judicial notice of a Federal Trade Commission interpretive letter, which opined that a similar automated phone number retrieval and dissemination service subjected the courier to FDCPA requirements, because the message served a "collection function." Id. at 1146--47. The court further emphasized Western Union's "curious" notification methodology, which told borrowers that they had a "personal delivery only telegram," but that the message could not be delivered until the borrower provided the telephone number to confirm the borrower's identity. Id. at 1148. However, the purported confirmation was a ruse for the courier to obtain unlisted contact information about the borrower, which the courier would then convey to the lender. Id. ("The chief purpose of the alleged 'confirmation' process is to obtain unlisted or otherwise unavailable telephone numbers which Western Union then turns ...

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