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Powell v. Aldous & Associates, P.L.L.C.

United States District Court, D. New Jersey

January 3, 2018

FITZROY POWELL, on behalf of himself and others similarly situated Plaintiff,


          Kevin Mcnulty United States District Judge

         The plaintiff, Fitzroy Powell, brings this putative class action against Aldous & Associates, P.L.L.C. ("Aldous") for alleged violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., which prohibits debt collectors from engaging in abusive, deceptive, and unfair practices. (FAC ¶¶ 1, ll).[1] Now before the court is the motion of the defendant, Aldous & Associates, P.L.L.C. ("Aldous") to dismiss the first amended complaint under Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the motion is granted.

         I. BACKGROUND [2]

         Plaintiff Fitzroy Powell lives in Paterson, New Jersey. (FAC ¶ 6). Before January 21, 2017, Powell entered into an agreement with Diamond Wireless for personal wireless service. (FAC ¶¶ 15-25). Pursuant to that agreement, Powell came to owe Diamond a debt, which was placed with Aldous for collection. (FAC ¶¶ 27-30).

         Aldous is a law firm located in Utah. (FAC ¶ 7). Aldous is in the business of collecting debts owed to others. (FAC ¶¶ 8-9). Aldous sent Powell a letter dated January 21, 2017, which states, in relevant part:

The original creditor of this file, Diamond Wireless, has developed an "Amnesty Program, " for seriously delinquent accounts. Therefore, you will be permitted to clear your obligation on your past due amount by paying 50% of the Total Due to our office no later than April 15, 2017.
Amnesty Program amount to settle debt: $200.00. Pay now online by going to and click "Pay Now" at the top. Be sure to reference the listed account number.
A negative credit report reflecting on your credit record may be submitted to a credit reporting agency and will remain if you fail to fulfill the terms of your credit obligations. Upon receipt of this payment, your account and any negative report to the credit bureau will be "Settled in Full, " and you will be released from further obligation.
If you desire to pay over the phone, please contact our office today at 1.888.221.5155. More than thirty (30) days has passed since our first written notice to you. Currently, your obligation is not resolved.
When payment is received your obligation will be finalized and closed. Once paid and if you choose, you will be able to enter into a new agreement with the original creditor. Sincerely,
Aldous 85 Associates, P.L.L.C.


         At this time, not [sic] attorney with this firm has personally reviewed the particular circumstances of your account.


         (FAC ex. A) (emphasis in original).[3] This letter to Powell stated that he owed $400 but could "settle" the debt for $200. (FAC ¶¶ 38, ex. A). As of the date of the letter, no attorney employed with Aldous was licensed to practice in New Jersey. (FAC ¶ 41).

         From Powell's perspective, Aldous's use of the January 21, 2017 letter would confuse "the least sophisticated consumer" as to whether Aldous was meaningfully involved in the matter as an attorney. (FAC ¶ 44). The complaint alleges that Aldous's letter falsely implies that an attorney, acting as an attorney, is meaningfully involved in collecting the consumer debts at issue. (FAC ¶ 46).

         Powell asserts four FDCPA violations provided for in 15 U.S.C. § 1692(e). They are:

(a) Using false, deceptive or misleading representations or means in connection with the collection of a debt; [Section 1692]
(b) Threatening to take any action that cannot legally be taken or that is not intended to be taken; [Section 1692(e)(5)]
(c) Using unfair or unconscionable means to collect or attempt to collect any debt; [Section 1692(e) (10)] and
(d) Making a false representation or implication that an attorney is meaningfully involved [Section 1692(e)(3)].

         (FAC ¶ 49) ([bracketed] material inserted).[4]

         Powell filed his original complaint against Aldous on May 25, 2017. (ECF no. 1). Aldous filed a motion to dismiss on July 19, 2017. (ECF no. 4). Powell then filed a first amended complaint on August 17, 2017. (Herein, the "complaint, " unless otherwise specified, refers to the first amended complaint.)


         Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if it 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). In deciding a motion to dismiss under Rule 12(b)(6), a court must take all allegations in the complaint as true and view them in the light most favorable to the plaintiff. See Warth v. Seldm, 422 U.S. 490, 501 (1975); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).

         Federal Rule of Civil Procedure 8(a) does not require that a complaint contain detailed factual allegations. Nevertheless, "a plaintiffs obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and formulaic recitation of the elements of a cause of action will not do." BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual allegations must be sufficient to raise a plaintiffs right to relief above a speculative level, such that it is "plausible on its face." See Id. at 570; see also Umland v. PLANCO Fin. Sew., Inc., 542 F.3d 59, 64 (3d Cir. 2008). 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." 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.

         The United States Court of Appeals for the Third Circuit has explicated the Twombly/Iqbal standard on several occasions. See, e.g., Argueta v. U.S. Immigration & Customs Enforcement,643 F.3d 60, 70-73 (3d Cir. 2011); Santiago v. Warminster Twp.,629 F.3d 121, 129-30 (3d Cir. 2010). In ...

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