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Ali v. Portfolio Recovery Associates, Lcc

United States District Court, D. New Jersey

May 2, 2014

SHAUKAT ALl, Plaintiff Pro Se,
v.
PORTFOLIO RECOVERY ASSOCIATES, LCC, Defendant.

MEMORANDUM OPINION

KEVIN McNULTY, District Judge.

This matter comes before the Court upon i) the Motion of Defendant, Portfolio Recovery Associates, LLC ("Defendant"), to Dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6); and ii) the Request for Default Judgment by Plaintiff. Pursuant to Fed.R.Civ.P. 78, no oral argument was heard. For the reasons expressed herein, Defendant's Motion to Dismiss is GRANTED IN PART, and Plaintiff's Request for Default Judgment is DENIED.

I. BACKGROUND

The plaintiff, Shaukat Ali, alleges that on July 22, 2013, he received a letter from Defendant, a debt collector located in Norfolk, Virginia. The letter stating that Ali owed Defendant $1, 068.00 and that he should start making payments to Defendant before the 16th of every month. (Complaint [ECF No. 1] at ¶ 9). Plaintiff also alleges that an employee of Defendant informed him that he owed money to "[T]arget Corporation" or "[Target store, " and that Defendant had purchased this debt. ( Id. at ¶ 10). Plaintiff claims that he told the employee that he never received validation of the debt and asked that Defendant stop contacting him. ( Id. ). Plaintiff claims that Defendant's employee told him that if he did not start sending money, he would "start receiving barrage of other calls, " and that the employee "used an abusive language." ( Id. at ¶¶ 11-18). Plaintiff states that he has suffered from loss of sleep, anxiety, embarrassment, humiliation, anger, and frustration due to the actions of Defendant. ( Id. at ¶ 20).

On July 26, 2013, Plaintiff filed a Complaint ("Compl., " ECF No. 1) alleging that Defendant violated various provisions of the Fair Debt Collection Practices Act (the "FDCPA"). Defendant filed this Motion to Dismiss on September 12, 2013 (ECF No. 5). Plaintiff filed a Request for Default Judgment on September 13, 2013 (ECF No. 6).[1] Plaintiff filed an Opposition to Defendant's Motion to Dismiss on September 23, 2013 (ECF No. 8).[2] Defendant filed a Reply on September 30, 2013 (ECF No. 11).

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). For purposes of a motion to dismiss, the well-pleaded factual allegations of the complaint must be taken as true, with all reasonable inferences drawn in plaintiff's favor. Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) ("reasonable inferences" principle not undermined by subsequent Supreme Court case law). Where the plaintiff is proceeding pro se, the complaint is "to be liberally construed, " and, "however in artfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).

Although a complaint need not contain detailed factual allegations, "a plaintiff's obligation to provide the grounds' of [his] entitlement to relief' requires more than labels and conclusions." Bell Atl. Corp. v. Twombly, 550 U.s. 544, 555 (2007). Thus the factual allegations must be sufficient to raise a plaintiff's right to relief above a speculative level, demonstrating that it is "plausible on its face." See id. at 570; see also Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 64 (3d Cir. 2008). This entails "plead[ing] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). While "[t]he plausibility standard is not akin to a probability requirement'... it asks for more than a sheer possibility." Iqbal, 556 U.S. at 678. Stated differently, in reviewing the well-pleaded factual allegations and assuming their veracity, this Court must "determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679.

III. DISCUSSION

A. FDCPA Claims

Plaintiff asserts that Defendant's conduct violated four provisions of the FDCPA. Defendant seeks to dismiss all of these claims on Rule 12(b)(6) grounds. I find that only two of the claims should be dismissed.

1) 15 U.S.C. § 1692g(b)

The Complaint alleges that Defendant violated § 1692g(b) of the FDCPA "by not validating the alleged debt and continuing collection activities by contacting [P]laintiff through Postal service mailers followed up by phone calls" (Compl. ¶ ¶ 23(a)). Title 15, U.S. Code, Section 1692g contains what is sometimes known as the "statutory validation procedure." Under that procedure, if the creditor first provides the consumer with notice of certain required information about the debt, then the burden shifts to the consumer to notify the debt collector in writing that the consumer disputes the debt.

The initial required notice to the consumer consists of the following: a written notice containing (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 ...


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