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Brinkley v. Midland Funding Llc et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

27 Cited authorities

  1. Ashcroft v. Iqbal

    556 U.S. 662 (2009)   Cited 255,203 times   280 Legal Analyses
    Holding that a claim is plausible where a plaintiff's allegations enable the court to draw a "reasonable inference" the defendant is liable

  2. Bell Atl. Corp. v. Twombly

    550 U.S. 544 (2007)   Cited 268,949 times   367 Legal Analyses
    Holding that a complaint's allegations should "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face' "

  3. Eidson v. Tennessee Department of Children's Services

    510 F.3d 631 (6th Cir. 2007)   Cited 1,067 times
    Holding that an analogy to Heck and malicious prosecution was inapt because plaintiff's claims were "not dependent on a determination" that the findings in a juvenile-court proceeding were wrong

  4. Clark v. Capital Credit Collection Serv

    460 F.3d 1162 (9th Cir. 2006)   Cited 580 times   3 Legal Analyses
    Holding that "general principles of agency ... form the basis of vicarious liability under the FDCPA"

  5. Cole v. Homier Distributing Co.

    599 F.3d 856 (8th Cir. 2010)   Cited 422 times
    Finding that "lost-profit damages cannot rest upon mere speculation" and affirming an expert's exclusion where the expert's twenty-five-year damage term was speculative because the parties could terminate the contract with ninety-days' notice and there was no indication it would continue for twenty-five years

  6. Pollice v. National Tax Funding, L.P.

    225 F.3d 379 (3d Cir. 2000)   Cited 531 times
    Holding that a tax lien transfer agreement was not a credit transaction under TILA because "the nature of the underlying claim" as a property tax had not "been extinguished"

  7. Drobnak v. Andersen Corpo

    561 F.3d 778 (8th Cir. 2009)   Cited 336 times   1 Legal Analyses
    Holding that allegations pleaded on information and belief meet Rule 9(b)'s particularity requirement when the facts constituting the fraud are peculiarly within the opposing party's knowledge and if accompanied by a statement of facts on which the belief is founded

  8. Advanced Cardiovascular v. Scimed Life

    988 F.2d 1157 (Fed. Cir. 1993)   Cited 202 times   2 Legal Analyses
    Holding that in a Section 256 claim, laches cannot be decided at the pleading stage "based solely on presumptions"

  9. Frey v. Gangwish

    970 F.2d 1516 (6th Cir. 1992)   Cited 120 times
    Finding liability for a technical violation of § 1692g when debt collector, who had had prior communications with debtor's attorney, failed to send out validation notice after first communication directly with debtor

  10. Bodur v. Palisades Collection, LLC

    829 F. Supp. 2d 246 (S.D.N.Y. 2011)   Cited 52 times
    Holding that “[w]ithout evidence that [debt collection company] exercised control over [attorney's] conduct generally or as to [plaintiff] specifically, [debt collection company] is not vicariously liable and therefore is entitled to summary judgment.”

  11. Rule 12 - Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

    Fed. R. Civ. P. 12   Cited 348,503 times   930 Legal Analyses
    Granting the court discretion to exclude matters outside the pleadings presented to the court in defense of a motion to dismiss

  12. Rule 8 - General Rules of Pleading

    Fed. R. Civ. P. 8   Cited 157,606 times   196 Legal Analyses
    Holding that "[e]very defense to a claim for relief in any pleading must be asserted in the responsive pleading. . . ."

  13. Section 1692 - Congressional findings and declaration of purpose

    15 U.S.C. § 1692   Cited 15,046 times   139 Legal Analyses
    Finding that abusive debt-collection practices lead to "personal bankruptcies," "marital instability," "loss of jobs," and "invasions of individual privacy"

  14. Section 1692e - False or misleading representations

    15 U.S.C. § 1692e   Cited 6,946 times   109 Legal Analyses
    Prohibiting false representation of the "character, amount, or legal status of a debt"

  15. Section 1692f - Unfair practices

    15 U.S.C. § 1692f   Cited 3,411 times   35 Legal Analyses
    Providing a non-exhaustive list of conduct that is unfair or unconscionable

  16. Section 26-2-114 - Procedure for exercising exemption - Notice

    Tenn. Code § 26-2-114   Cited 12 times

    (a) Should a bona fide citizen permanently residing in Tennessee become a judgment debtor, such debtor must exercise the exemption as provided in § 26-2-103 by filing a list of all the items owned, constructive or actual, which the judgment debtor chooses to declare as exempt, together with the value of each such item. Such listing shall be on oath and filed with the court having jurisdiction. Furthermore, the judgment debtor may modify or amend the listing from time to time as the individual deems

  17. Section 16-15-901 - Issuance and service of civil warrants, writs and other papers

    Tenn. Code § 16-15-901   Cited 5 times

    (a) Upon filing of civil warrants, writs and other papers, the clerk of the general sessions court in which the civil warrants, writs or other papers are filed, shall issue the required process, writs or other papers, and cause it or them, with necessary copies of the civil warrant, writ or papers, to be delivered for service to the person authorized to serve process as may be designated by the party filing the civil warrant, writ or other papers or the party's attorney if represented by counsel

  18. Section 26-2-407 - Motion to quash execution or garnishment

    Tenn. Code § 26-2-407   Cited 3 times

    A judgment debtor may assert exemption rights after the service of an execution or garnishment by filing a motion to quash the garnishment or execution. The motion to quash must be filed within the following time periods: (1) Twenty (20) days from the mailing of the notice required by § 26-2-404 in the event of a levy of execution; (2) Twenty (20) days from the withholding of wages by a garnishee/employer pursuant to a wage garnishment; and (3) With respect to any other garnishment, twenty (20) days

  19. Section 26-2-401 - Applicability

    Tenn. Code § 26-2-401   Cited 2 times

    This part shall apply to executions and garnishments in aid of execution in supplement to other applicable provisions of law; provided, that the contents of the Notice to Judgment Debtor required in connection with a wage garnishment shall be governed by § 26-2-216. T.C.A. § 26-2-401 Acts 1988, ch. 934, § 2.

  20. Section 26-2-405 - Copy of execution furnished judgment debtor

    Tenn. Code § 26-2-405   Cited 1 times

    A sheriff or other officer who levies an execution upon property of a judgment debtor shall immediately thereafter on that same or next working day provide the judgment debtor with a copy of the execution that describes the property levied upon and with a completed copy of the notice set forth in § 26-2-404 by mailing them first class, postage prepaid, to the judgment debtor at the address provided pursuant to § 26-2-402, or by actual delivery to the judgment debtor. T.C.A. § 26-2-405 Acts 1988,

  21. Rule 69.07 - Execution on Realty

    Tenn. R. Civ. P. 69.07   Cited 14 times

    (1) Lien Lis Pendens. A lien lis pendens applies only to realty that is the subject matter of a lawsuit and described in the complaint. To affect the rights of bona fide purchasers and encumbrancers, an abstract must be registered in the register's office of the county where the realty is located. The abstract must identify the court and contain names of parties to the action and a description of the realty and its ownership. (2) Judgment Lien. A judgment lien against the judgment debtor's realty