Opinion
Civil Action 22-CV-2844
10-05-2022
TRANE ALICIA OVERTON, Plaintiff, v. FIRST INVESTORS SERVICING CORPORATION, et al., Defendants.
MEMORANDUM
GOLDBERG, J.
Plaintiff Trane Alicia Overton initiated this civil action by filing a pro se Complaint against First Investors Servicing Corporation (“First Investors”), Johnathan C. Poss, and Matthew Macy. Overton's Complaint raises claims under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p. Overton seeks leave to proceed in forma pauperis. For the following reasons, I will grant Overton leave to proceed in forma pauperis. But because I find that the Complaint lacks sufficient detail regarding how Defendants allegedly violated the FDCPA, I will dismiss the Complaint without prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). I will grant Overton an opportunity to cure the deficiencies identified in this opinion by filing an amended complaint.
The facts set forth in this Memorandum are taken from Overton's Complaint (ECF No. 2) and documents attached thereto. Page numbers refer to the pagination supplied by the CM/ECF docketing system.
Overton's allegations are brief and pertain to the repossession of a car. Interpreted in the light most favorable to Overton, her Complaint alleges the following:
- First Investors “repossessed] private property” when “the vehicle was illegally removed from the abode of Daquan Overton” on June 19, 2022. (Compl. at 3.)
- Overton contends that Defendant Poss “defaulted on the validation of debt” after Overton “exercised good faith and refused to pay [the] alleged debt without verification.” She further avers that “[n]othing was sent.” (Id.)
- Additionally, Overton claims that Defendants Poss and Macy “responded by denying [First Investors'] participation in FDCPA but they are a debt collecting agency.” Overton asserts that “[t]here was no right to recission disclosed and they denied right to cure.” She further claims that the “[r]epossession department was contacted where no further debt verification was provided, or a repossession notice when requested.” “[Poss] also directed the dept [sic] to reapply for a loan, further violating consumer law.” (Id.)
- Overton also alleges that First Investors “continued to illegally use our identity to report prohibited information to the 3 consumer reporting bureaus.” (Id.)
- Overton attaches several documents to the Complaint. The first appears to be a copy of an unsigned, January 13, 2022 “Debt Validation Letter” addressed to First Investors that indicates that “your claim is disputed and validation is required” pursuant to 15 U.S.C. § 1692(g). Included therein is an undated, unsigned document entitled “Cease and Desist” that informs First Investors to “cease all forms of communication” with Overton. Also attached is an unsigned, undated “Affidavit of Truth” that asserts that Overton's rights under the FDCPA were violated by First Investors. (ECF No. 1-1 at 1-6.)
- The next attached document is a June 20, 2022 email correspondence between First Investors and Overton in which Overton claimed that “your company violated the agreement and federally protected consumer rights. 15 USC 1692d(4) states that repossession of property is illegal.” An email response from Defendant Poss, whose title is listed as Chief Compliance and Privacy Officer, indicates that “your account is not covered by the FDCPA” and that Overton was “issued a pre-repossession letter, chose not to cure the delinquency, and it expired.” Defendant Poss's email response also states that “neither federal nor state law prohibits repossession in your case” and that First Investors honored Overton's “do not contact request” upon receipt of her letter. According to the email message from Defendant Poss, Overton would “soon receive a post-repossession letter to explain ... [her] options.” Defendant Macy is copied on the email response from Defendant Poss to Overton. (Id. at 7-9.)
- Overton alleges that she sustained injury to her “reputation and consumer report.” She seeks monetary relief, return of the property that was taken, and “title w/o lien.” (Compl. at 4.)
II. STANDARD OF REVIEW
I will grant Overton leave to proceed in forma pauperis because it appears that she is incapable of paying the fees to commence this civil action. Accordingly, 28 U.S.C. § 1915(e)(2)(B)(ii) requires that I dismiss Overton's Complaint if it fails to state a claim. I must determine whether the Complaint contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted). ‘“At this early stage of the litigation,' ‘[the Court will] accept the facts alleged in [the pro se] complaint as true,' ‘draw[] all reasonable inferences in [the plaintiff's] favor,' and ‘ask only whether [that] complaint, liberally construed, ... contains facts sufficient to state a plausible [] claim.'” Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021) (quoting Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)). Conclusory allegations do not suffice. Iqbal, 556 U.S. at 678.
As Overton is proceeding pro se, I construe her allegations liberally. Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)). However, ‘“pro se litigants still must allege sufficient facts in their complaints to support a claim.'” Id. (quoting Mala, 704 F.3d at 245). An unrepresented litigant ‘“cannot flout procedural rules-they must abide by the same rules that apply to all other litigants.'” Id.
III. DISCUSSION
“Congress enacted the FDCPA ‘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.'” Rotkiske v. Klemm, 140 S.Ct. 355, 358 (2019) (quoting 15 U.S.C. § 1692(e)). “The FDCPA pursues these stated purposes by imposing affirmative requirements on debt collectors and prohibiting a range of debt-collection practices.” Id. (citing 15 U.S.C. §§ 1692b-1692j); see also Riccio v. Sentry Credit, Inc., 954 F.3d 582, 585 (3d Cir. 2020) (en banc) (“The FDCPA protects against abusive debt collection practices by imposing restrictions and obligations on third-party debt collectors.”).
To state a claim under the FDCPA, a plaintiff must establish that “(1) she is a consumer, (2) the defendant is a debt collector, (3) the defendant's challenged practice involves an attempt to collect a ‘debt' as the [FDCPA] defines it, and (4) the defendant has violated a provision of the FDCPA in attempting to collect the debt.” Moyer v. Patenaude & Felix, A.P.C., 991 F.3d 466, 470 (3d Cir. 2021) (internal citation omitted). Where a plaintiff fails to allege facts supporting each of these elements, the FDCPA claim is not plausible. See Humphreys v. McCabe Weisberg & Conway, P.C., 686 Fed.Appx. 95, 97 (3d Cir. 2017) (per curiam) (concluding that FDCPA claim was pled based on “conclusory and speculative statements that cannot survive a motion to dismiss”); Astarita v. Solomon & Solomon, PC, No. 12-5670, 2013 WL 1694807, at *2 (D.N.J. Apr. 18, 2013) (“Plaintiff's Complaint is utterly devoid of any factual content-such as the specific debt which Defendant attempted to collect on, or details about the dates, times, and manner of the communications Defendant made to Plaintiff in attempting to collect on that unspecified debt- which would allow the Court to draw the reasonable inference that Defendant's actions violated any provision of the FDCPA.”).
As an initial matter, Overton fails to plausibly allege that Defendants are debt collectors as defined in the FDCPA. A “debt collector” is defined by the FDCPA 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 “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); Tepper v. Amos Fin., LLC, 898 F.3d 364, 365-66 (3d Cir. 2018). The statutory definition of “debt collector” also includes “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests.” 15 U.S.C. § 1692a(6). There are also several enumerated exceptions to the definition. 15 U.S.C. § 1692a(6)(A)-(F).
Although Overton states in her Complaint that Defendants “are a debt collecting agency,” Overton offers no facts in support of this legal conclusion. See Estate of Egenious Coles v. Zucker, Goldberg & Ackerman, 658 Fed.Appx. 108, 111 (3d Cir. 2016) (“As to Ballard Spahr, the complaint alleges, in a conclusory fashion, that the law firm is a ‘debt collector' by quoting the relevant definition from the FDCPA. However, beyond this legal conclusion, the complaint provides no factual allegations that suggest Ballard Spahr regularly collects or attempts to collect debts owed to another.”); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (“The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions.”).
Second, the manner in which Overton has pled her claims makes the nature of the alleged violations difficult to discern. I understand Overton to allege generally that she notified Defendants that a debt was disputed, but that a car, nonetheless, was subsequently repossessed. (See generally Compl. at 3.) But to the extent Overton seeks to bring a claim based on First Investors' alleged failure to follow its responsibilities when a consumer disputes the validity of a debt as provided in 15 U.S.C. § 1692g, Overton has failed to allege facts regarding how First Investors' conduct deviated from those obligations. At most, the Complaint suggests that a car was repossessed after Overton disputed a debt. It is unclear from these allegations how Defendants violated any provision of the FDCPA in attempting to collect a debt.
Overton also alleges that Defendants violated § 1692d(4) by repossessing a car. (Compl. at 3.) Section 1692d prohibits a debt collector from “engag[ing] in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” Overton specifically alleges that subsection (4) was violated, but this subsection describes a violation for “the advertisement for sale of any debt to coerce payment of the debt,” which does not appear to be applicable to the facts alleged. Overton further states that First Investors “has continued to illegally use our identity to report prohibited information to the 3 consumer reporting bureaus,” and that “Jonathan also directed the dept to reapply for a loan, further violating consumer law.” It is unclear how these general statements correspond to alleged violations of the FDCPA. Overton's Complaint does not provide sufficient detail for me to discern the relevant statutory provisions potentially implicated by such vague allegations.
While Overton cites to various provisions of the FDCPA, Overton's statutory citations do not appear to apply to the alleged facts. Overton claims that “15 USC 1692c(c)” was violated when “the vehicle was illegally removed from the abode of Daquon Overton.” (See Compl. at 3.) That provision corresponds to a debt collector's obligation to cease certain forms of communication upon request, which does not appear to relate to the removal of Overton's vehicle. Overton further claims that “property ... was taken in violation of 15 USC 1635 right to recission and retainment.” (Compl. at 4.) However, 15 U.S.C. § 1635 applies in mortgage transactions, and nothing in the Complaint suggests that a mortgage is implicated here. See Ishmael v. GM Finan., Inc., No. 221095, 2022 WL 2073821, at *4 (E.D. Pa. June 9, 2022).
While Overton attaches email communications to her Complaint, I decline to speculate on their significance without more specific allegations from Overton. Cf. Estate of Egenious Coles, 658 Fed.Appx. at 111 (“[W]e cannot fault the District Court for failing to intuit the necessary factual allegations from one of the many exhibits appended to the complaint.”); see also Berkery v. Credit Collection Servs., No. 21-3809, 2021 WL 4060454, at *2 (E.D. Pa. Sept. 7, 2021) (“While a court may consider exhibits attached to a complaint, merely attaching exhibits is insufficient to meet the requirement that a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.”).
For these reasons, I find that Overton's Complaint does not plausibly allege a violation of the FDCPA.
IV. CONCLUSION
For the foregoing reasons, I will grant Overton leave to proceed in forma pauperis and dismiss her Complaint without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. Because I cannot say at this time that Overton can never state a plausible claim based on the acts or omissions of one or more Defendants, I will grant Overton leave to amend. Cognizant of Overton's pro se status, I will grant her an opportunity to “flesh out [her] allegations by ... explaining in [the] amended complaint the ‘who, what, where, when and why' of [her] claim.” See Gambrell v. S. Brunswick Bd. of Educ., No. 18-16359, 2019 WL 5212964, at *4 (D.N.J. Oct. 16, 2019). Any amended complaint should clearly describe the factual basis for the claims asserted.
An appropriate Order follows.