Lewis v. Scott, Parnell & Associates, P.C. et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

M.D. Ala.October 11, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION YVONNE BROWN LEWIS Plaintiff, v. SCOTT, PARNELL & ASSOCIATES, P.C., and ASSET ACCEPTANCE, L.L.C. Defendants. Civil Action No.: 1:16-cv-290 PCH - TCM MOTION TO DISMISS PURSUANT TO F.R.C.P., RULE 12(b)(6) Defendant, Scott, Parnell & Associates, P.C. (hereafter, “SPA”) moves to dismiss this lawsuit for failure of the Plaintiff to state a claim upon which relief may be granted. F.R.C.P. 12(b)(6). Plaintiff filed her Amended Complaint asserting violations of the Fair Debt Collection Practices Act -essentially for wrongful garnishment. In her initial complaint, she alleged that she is not the consumer and she makes the same assertion in the Amended Complaint. Ms. Lewis claims that the debt is not hers (Amended Complaint, ¶¶ 55, 62), but that she knows it was incurred from transaction(s) in which the money, property, insurance, or services that are the subject of the transaction were incurred primarily for personal, family or household purposes. 15 U.S.C §1692a(5). (Amended Complaint, ¶11.) If the debt is not hers, the claim constitutes a legal conclusion she cannot factually support, and the Court must enter an order dismissing the Amended Complaint. Case 1:16-cv-00290-PCH-TFM Document 28 Filed 10/11/16 Page 1 of 8 The Amended Complaint alternatively admits she is the consumer, and the debt is hers, but asserts that the garnishment was wrongful because the Plaintiff was not served with process in the underlying collection lawsuit, despite the fact that the trial court entered judgment and the Judgment was valid at the time of the garnishment. (See, Amended Complaint, ¶ 66 in which the Plaintiff advises the Court that the underlying Judgment has not been vacated.) The Judgment was valid at the time of the garnishment. It was not wrongful, and no violation of the FDCPA occurred. Scott Parnell & Associates requests the Court enter an Order dismissing this lawsuit. This Motion is supported by the attached Memorandum of Points and Authorities which is incorporated herein. Respectfully submitted this 11th day of October, 2016. Scott & Associates, P.C. /s/ Cynthia Fulton Cynthia L. Fulton (Az. SBN 012480) 3150 N. 24th St., Ste. B-200 Phoenix, Az. 85016 (602) 748-4331 (602) 254-3788 (fax) cfulton@scott-pc.com Case 1:16-cv-00290-PCH-TFM Document 28 Filed 10/11/16 Page 2 of 8 MEMORANDUM OF POINTS AND AUTHORITIES Defendant, Scott Parnell & Associates, P.C. (“SPA”) moves for dismissal of Plaintiff, Yvonne Brown Lewis’ Complaint against it because Plaintiff fails to state a claim upon which relief may be granted. See, F.R.C.P. Rule 12(b)(6). STANDARD OF REVIEW Motion to Dismiss F.R.C.P. Rule 8 requires a pleader to provide a “short and plain statement of the claim showing that the pleader is entitled to relief.” The standard of review doesn’t require detailed factual allegations, but it does require more than “an unadorned, the-defendant-harmed-me” accusation. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932 (1986), Ashcroft v. Iqbal, 556 U.S. 662, 278, 129 S.Ct. 1937 (2009). A recitation of the elements of a cause of action are not enough, nor is a complaint sufficient if it tenders “naked assertion[s]” devoid of “further factual enhancement”. Id. “Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context specific task that requires the reviewing court to draw on its judicial experience and common sense. [Iqbal v. Hasty, 490 F.3d 143, 157 - 58 (2d Cir. 2007)]. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not “shown” - “that the pleader is entitled to relief.” Fed. R.Civ. P. 8(a)(2).” Iqbal, at 679, 129 S.Ct. 1937, 1949 - 1950. Case 1:16-cv-00290-PCH-TFM Document 28 Filed 10/11/16 Page 3 of 8 A complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Twombly at 555, 127 S.Ct. 1955. 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. Iqbal, at 556, 127 S.Ct. 1955. “The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id., at 557, 127 S.Ct. 1955(brackets omitted).” Iqbal at 678, 129 S.Ct. 1937, 1949 (citing Twombly, at 556 - 557). “In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, at 679, 129 S.Ct. 1937, 1950. Fair Debt Collection Practices Act Plaintiff has asserted that the Defendants violated the Fair Debt Collections Practices Act, 15 U.S.C. §1692, a statute that governs the collection of consumer debt. 15 U.S.C. §1692(a)(3) requires the complainant to be a “natural person obligated or allegedly obligated to pay any debt.” It must be combined with 15 U.S.C. § 1692(a)(5) which defines “debt” as an “obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been Case 1:16-cv-00290-PCH-TFM Document 28 Filed 10/11/16 Page 4 of 8 reduced to judgment.” If Plaintiff cannot show either that she is a consumer, or she is unable to provide factual support that the “debt” meets the statutory definition of debt, she has failed to show that she is entitled to relief as a matter of law, and her complaint must be dismissed. Her complaint also fails if she is unable to show that the Defendants falsely represented the character, amount or legal status of the “debt”, that a false, deceptive or misleading representation or means was used to collect the debt or that unfair or unconscionable means were used to collect the debt. See, 15 U.S.C.§1692(e)(2), e(10) and (f). Thus, if she is the judgment debtor, her complaint must be dismissed as well because she has failed to state a claim for relief. Plaintiff’s Entitlement to Relief Plaintiff asserts in paragraph 11 of her Complaint, “Plaintiff’s alleged obligation arises from a transaction in which the money, property, insurance, or services that are the subject of the transaction were incurred primarily for personal, family, or household purposes - namely, a personal Chase credit card (the “Debt”). She later asserts the Debt is not hers, (Complaint, ¶ 16) but was incurred by “one similarly named, but not the Plaintiff: Yvonne F. Lewis.” Complaint, ¶17. If one assumes the factual portion of her Complaint to be true, that the Debt was incurred by someone else, then she cannot know whether the subject of the transactions were incurred for personal, family or household purposes, nor can she know that the underlying debt was incurred through the use of a personal Chase credit card. (Or if she does, her complaint does not provide the factual basis for that knowledge.) Her legal conclusion that the transaction[s] were incurred primarily for personal, family, or household purposes are not sufficient to entitle her to relief because the Fair Debt Collection Practices Case 1:16-cv-00290-PCH-TFM Document 28 Filed 10/11/16 Page 5 of 8 Act, 15 U.S.C. §1692 et seq only applies to consumer transactions, (see, 15 U.S.C. §1692(a)(5)) and Plaintiff has provided no plausible factual support for the conclusion. Plaintiff has done just what the Court in Twombly and Iqbal reject and identify as insufficient pleading to support her claim for relief. She has provided only a threadbare recitation of the element of her cause of action, that the debt meets the FDCPA definition, unsupported by plausible facts. Plaintiff is not entitled to relief from the Court. She has failed to state a claim upon which relief may be granted. Plaintiff’s legal conclusion that she does not owe the debt because she received the two letters from Chase Bank does not provide her with the relief she requests. Chase Bank sold the account that relates to the state court judgment to Asset Acceptance. The account is no longer owed to Chase Bank. It was the basis for the collection case judgment. In any event, the correspondence should not be considered when evaluating Plaintiff’s claim because it is hearsay. Plaintiff’s alternate theory of recovery that she was not served with process and thus, the judgment isn’t valid is legally wrong. The underlying collection judgment remains valid because it has not been set aside. See, Amended Complaint, ¶ 66. Parnell & Crum, the law firm that filed the Complaint, had the Plaintiff served in hand by an employee of the Houston County Sheriff’s office. See Exhibit E to the Amended Complaint. The Houston County District Court believed that the Plaintiff had been served because it sent a notice of intent to dismiss for failure to prosecute to Parnell & Crum on or about August 9, 2004, attached hereto as Exhibit A1, and it based the entry of the Default Judgment on the service of process. 1 SPA requests the Court take judicial notice of the exhibit and its source. Case 1:16-cv-00290-PCH-TFM Document 28 Filed 10/11/16 Page 6 of 8 The Amended Complaint spends an inordinate number of paragraphs reciting the numerous attempts to serve the Plaintiff before it was actually accomplished. None of them matter. The only attempt that matters is the one in which the Sheriff’s office employee actually served the Plaintiff with process. See, Exhibit E to the Amended Complaint. The Rooker-Feldman line of cases (Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)) prevent this Court from determining that the Plaintiff had not been served with process. That determination must be made by the state court. The Rooker-Feldman doctrine instructs that federal district courts are without jurisdiction to hear direct appeals from the judgments of state courts. The doctrine bars a district court from exercising jurisdiction not only over an action explicitly styled as a direct appeal but also the ‘de facto equivalent’ of such an appeal. The purpose of the doctrine is to protect state judgments from collateral federal attack. The Rooker-Feldman doctrine applies where a party [1] asserts as her injury legal error or errors by the state court and [2] seeks as her remedy relief from the state court judgment. In this instance, the Plaintiff asserts the garnishment was wrongful and violated the FDCPA despite the Judgment entered against her. See, Exhibit B to the Amended Complaint. Because the Judgment has not been vacated, it remains legally valid. The Plaintiff’s employer was served and the answer of the employer confirmed Plaintiff’s Social Security Number as the Judgment Debtor. With a valid judgment, the garnishment was not wrongful. There could have been no violation of the FDCPA for falsely representing the character, amount or legal status of the “debt”, that a false deceptive or misleading representation or means was used to collect the debt or that unfair or unconscionable means were used to collect Case 1:16-cv-00290-PCH-TFM Document 28 Filed 10/11/16 Page 7 of 8 the debt. See, 15 U.S.C. §1692(e)(2), e(10) and (f). Plaintiff has failed to state a claim upon which this Court may grant her relief. CONCLUSION The Court is not obligated to accept the Plaintiff’s conclusory statements as truth. Either she did not incur the debt, so she cannot possibly know whether it was consumer debt, or it was her debt and a state court Judgment was entered against her. That Judgment remains valid because it has not been vacated. Any garnishment that was subsequently issued to her employer was done to enforce a valid judgment. Under either theory of recovery, Plaintiff cannot prevail. This Court must dismiss this case because the Plaintiff has not stated a claim upon which it can provide her relief. Respectfully submitted this 11th day of October, 2016. Scott & Associates, P.C. /s/ Cynthia Fulton Cynthia L. Fulton (Az. SBN 012480) 3150 N. 24th St., Ste. B-200 Phoenix, Az. 85016 (602) 748-4331 (602) 254-3788 (fax) cfulton@scott-pc.com CERTIFICATE OF SERVICE I certify that the foregoing document was filed this 11th day of October using the Court’s CM/ECF filing system, which provides an electronic copy to all counsel of record as shown below: Rachel R. Friedman Curtis Hussey R. Frank Springfield Hussey Law Firm, LLC Burr Forman, LLP 10 N. Section Street, No. 122 420 N 20th Street, Ste. 3400 Fairhope, AL 36532-1896 Birmingham, AL 35203 chussey@consumerlawinfo.com rfriedman@burr.com fspringf@burr.com /s/ Cynthia Fulton Case 1:16-cv-00290-PCH-TFM Document 28 Filed 10/11/16 Page 8 of 8 Case 1:16-cv-00290-PCH-TFM Document 28-1 Filed 10/11/16 Page 1 of 1