Vazquez v. Professional Bureau of Collections of Maryland, Inc.

MOTION to dismiss for failure to state a claim

M.D. Fla.September 6, 2016

28154043 v3 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION NYDIA VAZQUEZ, Plaintiff, vs. CASE NO. 16-cv-1533-RBD-TBS PROFESSIONAL BUREAU OF COLLECTIONS OF MARYLAND, INC., Defendant. ___________________________________/ DEFENDANT’S DISPOSITIVE MOTION TO DISMISS WITH PREJUDICE Defendant, PROFESSIONAL BUREAU OF COLLECTIONS OF MARYLAND, INC. (“PBCM” or "Defendant"), by and through its undersigned counsel and pursuant to Federal Rule of Civil Procedure 12(b)(6), hereby moves to dismiss the Statement of Claim (“Complaint”) filed by Plaintiff, Nydia Vazquez (“Plaintiff”) with prejudice, and states as follows: I. FACTUAL BACKGROUND 1. Plaintiff filed her Complaint against PBCM in the Small Claims Court in and for Orange County, Florida, initiating case number 2016-SC-11717-O (the “Litigation”), on or about July 14, 2016. On August 29, 2016, PBCM removed the Litigation to this Court. 2. As alleged in the Complaint, on or about January 4, 2016, Defendant sent a communication to Plaintiff informing her that her account with Comenity Bank (the “Account”) was referred to Defendant for collections purposes due to the outstanding balance on the Account (the “Debt”). Complaint, ¶ 15, Ex. A. On or about January 13, 2016, Plaintiff responded to PBCM, stating: “Because I am disputing, I am not paying. Send me any proof you have.” Complaint, ¶ 16, Ex. B. Thereafter, on or about June 14, 2016, Defendant sent Plaintiff a Case 6:16-cv-01533-RBD-TBS Document 12 Filed 09/06/16 Page 1 of 20 PageID 73 28154043 v3 2 communication offering to settle the entire Debt for only forty percent of the balance due (the “Settlement Offer”). Complaint, ¶ 17, Ex. C. PBCM sent these communications to Plaintiff with the authority to collect on the Account and to make the Settlement Offer. Complaint, ¶¶ 12-13, Ex. A, Ex. C. 3. Plaintiff alleges that, by sending the Settlement Offer after Plaintiff refused to pay the Debt, Defendant violated 15 U.S.C. § 1692c(c) of the Fair Debt Collection Practices Act (“FDCPA”). Complaint, ¶¶ 18-23. Plaintiff alleges no other or further claims or communications in the Complaint, and the Settlement Offer, on its face, does not violate the FDCPA, as a matter of law. The Settlement Offer is simply and plainly an offer to settle the Debt. Plaintiff’s response was to file this lawsuit. 4. Pursuant to Federal Rule of Civil Procedure 12(b)(6), the Complaint should be dismissed with prejudice because Plaintiff has failed to state any claim for which relief can be granted. The Settlement Offer does not violate the FDCPA because it is not a prohibited debt collection communication, but rather a communication explicitly permitted under §§ 1692c(c)(2) and (3) to notify Plaintiff that PBCM intends to invoke a specified remedy, i.e., to settle the Debt for payment of an alternative, reduced amount. It does not demand or coerce payment of the Debt, does not offer to merely discuss or consider settlement, does not make passing reference to payment arrangements, and does not invite the Plaintiff into engaging in any further communications with Defendant regarding the Debt or settlement of the Debt. 5. Case law interpreting § 1692c(c) is clear that a clear settlement offer falls within the exceptions enumerated by § 1692c(c). Lewis v. ACB Business Svcs, Inc., 135 F.3d 389, 394 n.2 (6th Cir. 1998); Flores v. Collection Consultants of California, 2015 WL 4254032, at *2 Case 6:16-cv-01533-RBD-TBS Document 12 Filed 09/06/16 Page 2 of 20 PageID 74 28154043 v3 3 (C.D. Cal. March 20, 2015); Garcia v. Gurstel Chargo, P.A., 2013 WL 4478919, at *4-5 (D. Ariz. Aug. 21, 2013). 6. Accordingly, the Settlement Offer was a communication permitted by 15 U.S.C. § 1692c(c)(2) and (3) and does not constitute a violation of the FDCPA. 7. As more fully discussed in the memorandum of law, any amendment to the Complaint would be futile because the Plaintiff cannot state a claim for violation of 15 U.S.C. § 1692c(c) based upon the Settlement Offer. Therefore, this case should be dismissed with prejudice. WHEREFORE, Defendant, PROFESSIONAL BUREAU OF COLLECTIONS OF MARYLAND, INC., respectfully requests that the Court dismiss the Complaint with prejudice, award Defendant its attorneys’ fees and costs, and grant such other and further relief as the Court deems just and proper. MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS COMPLAINT WITH PREJUDICE II. LEGAL STANDARDS. A. RULE 12(b)(6) MOTION TO DISMISS. For a complaint to survive an attack under Rule 12(b)(6), the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Mere labels, conclusory allegations, and a formulaic recitation of the elements of a cause of action are inadequate. Twombly, 550 U.S. at 555. Furthermore, the Court must limit its consideration to the complaint and written instruments attached as exhibits. Fed. R. Civ. P. 10(c); GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir.1993). Case 6:16-cv-01533-RBD-TBS Document 12 Filed 09/06/16 Page 3 of 20 PageID 75 28154043 v3 4 The ruling in Twombly was based on two underlying principles. Iqbal, 556 U.S. at 678. First, the tenet that the court must accept as true all allegations set forth in a complaint is inapplicable to legal conclusions. Id. Second, only a complaint that asserts a plausible claim for relief will overcome a motion to dismiss. Id. Determining whether the complaint states a plausible claim for relief on its face is a “context-specific task,” requiring the reviewing court to utilize its “experience and common sense.” Id. at 663-64. A plaintiff is not entitled to relief “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.” Id. at 679. In other words, Plaintiff must allege ultimate facts that state a plausible claim for relief. Additionally, the Court may dismiss a Complaint with prejudice when amendment would be futile. Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). B. FAIR DEBT COLLECTION PRACTICES ACT. To state a claim for relief under the FDCPA, a plaintiff must allege sufficient facts that (1) she has been the subject of an attempt to collect a consumer debt; (2) the defendant is a debt collector, as defined within the FDCPA; and (3) the defendant engaged in an act or omission proscribed by the FDCPA. Fuller v. Becker & Poliakoff, P.A., 192 F. Supp. 2d 1361, 1366 (M.D. Fla. 2002) (Kovachevich, J.). When evaluating an FDCPA claim, courts apply the least sophisticated consumer standard. LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1193 (11th Cir. 2010). “‘The least sophisticated consumer’ can be presumed to possess a rudimentary amount of information about the world and a willingness to read a collection notice with some care.” Id. (quoting Clomon v. Jackson, 988 F.2d 1314, 1319 (2nd Cir. 1993) (internal quotation omitted)). This objective test is designed to protect naïve consumers, while also preventing the imposition of liability for bizarre or idiosyncratic interpretations of communications. Id. (quoting United States v. Nat’l Fin. Servs., Inc., 98 F. 3d 131, 136 (4th Cir. 1996)). Case 6:16-cv-01533-RBD-TBS Document 12 Filed 09/06/16 Page 4 of 20 PageID 76 28154043 v3 5 The FDCPA, at 15 U.S.C. § 1692c(c), states in pertinent part that “[i]f a consumer notifies a debt collector in writing that the consumer refuses to pay a debt . . . the debt collector shall not communicate further with the consumer with respect to such debt.” However, the FDCPA “does not require a debt collector to cease all collection efforts.” Lewis v. ACB Business Svcs, Inc., 135 F.3d 389, 394 n.2 (6th Cir. 1998). The statue permits the debt collector to communicate with the consumer “to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor,” or “to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.” 15 U.S.C. § 1692c(c)(2)-(3) (the “Exceptions”). Settlement offers are “specified remedies” under the Exceptions. Lewis, 135 F.3d at 399; Cruz v. Int’l Collection Corp., 673 F.3d 991, 998, (9th Cir. 2012). Because the Settlement Offer falls squarely within the Exceptions, the Complaint must be dismissed with prejudice. III. ARGUMENT A. Plaintiff fails to state a claim for violation of the FDCPA because the Settlement Offer is not a communication prohibited by the FDCPA. Plaintiff fails to state a claim for violation of the FDCPA because the Settlement Offer is not a communication prohibited by the FDCPA. Contrary to Plaintiff’s claim, a settlement offer is permitted under §§ 1692c(c)(2) and (3). Lewis v. ACB Business Svcs, Inc., 135 F.3d 389, 399 (6th Cir. 1998). Case law decided after Lewis accepts the same proposition -- a clear and unequivocal settlement offer is an exception to § 1692c(c). E.g., Flores v. Collection Consultants of California, 2015 WL 4254032, at *2 (C.D. Cal. March 20, 2015); Garcia v. Gurstel Chargo, P.A., 2013 WL 4478919, at *4-5 (D. Ariz. Aug. 21, 2013). As explained below, case law from the Middle District of Florida has distinguished (but not rejected) the reasoning and holding in Lewis in cases where the subject communication fell short of a clear and unequivocal settlement Case 6:16-cv-01533-RBD-TBS Document 12 Filed 09/06/16 Page 5 of 20 PageID 77 28154043 v3 6 offer. Smith v. ARS Nat’l Sevs Inc., 102 F. Supp. 3d 1276, 1280 (M.D. Fla. 2015); Schwarz v. Portfolio Recovery Associates, LLC, 2016 WL 1169249, at *2 (M.D. Fla. March 24, 2016). The undersigned counsel is unaware of any case that has rejected the reasoning or holding of Lewis. In Smith and Schwarz, the Court did not apply Lewis because the communications at issue in those cases were factually dissimilar from the communication at issue in Lewis. The question before the Court in this case, as it has been in each case decided after Lewis, is whether the subject communication, on its face, constitutes a notification of intent to invoke a specified remedy, or whether the communication requires further factual analysis. Although some courts, like in Smith and Schwarz, require further factual analysis based upon the equivocal language of the subject letters, there is no question in this case that the Settlement Offer is clearly and unequivocally notified the Plaintiff of Defendant's intent to invoke a specified remedy, i.e., to settle the Debt, and therefore, is not a violation of the FDCPA. “To hold that a debt collector cannot offer payment options as part of an effort to resolve an outstanding debt, possibly without litigation, would force honest debt collectors seeking a peaceful resolution of the debt to file suit in order to advance efforts to resolve the debt -- something that is clearly at odds with the language and purpose of the FDCPA.” Lewis, 135 F.3d at 399. The FDCPA, a consumer protection statute, was designed to eliminate abusive debt collection practices, such as “late-night telephone calls, false representations, and embarrassing communications.” Id. at 398-99; 15 U.S.C. § 1692(e). It was not designed to prohibit all communications between debt collectors and consumers, to force consumers into litigation, or to subject consumers to threats or "notifications" of litigation. However, a determination that debt collectors cannot communicate settlement offers to consumers in compliance with § 1692c(c) does just that: it limits debtor collectors to notifications of intent to enforce the debt through Case 6:16-cv-01533-RBD-TBS Document 12 Filed 09/06/16 Page 6 of 20 PageID 78 28154043 v3 7 means other than settlement, e.g. litigation. There is no authoritative support to limit the statute in this way. 1. Section 1692c(c) must be construed to allow settlement offers. As with any statutory interpretation, the Court must examine the text of the statute to determine whether its meaning is clear. Harry v. Marchant, 291 F.3d 767, 770 (11th Cir. 2002). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Med. Transp. Mgmt. Corp. v. Comm’r of IRS, 506 F.3d 1364, 1368 (11th Cir. 2007). Courts should avoid literal interpretations that create an absurd result. Peter v. GC Services L.P., 310 F.3d 344, 351 (5th Cir. 2002). Even if a plaintiff has a “decent technical argument” for its interpretation, that interpretation should not be followed if it results in “unreasonable consequences [that] weigh heavily against it.” Olvera v. Blitt & Gaines, P.C., 431 F.3d 285, 289 (7th Cir. 2005). An examination of the plain language § 1692c(c) reveals that it was not intended to prevent all communications with a consumer after the consumer refuses to pay a debt. See 15 U.S.C. § 1692c(c). Had that been Congress’s intent, it would not have included the three enumerated exceptions in § 1692c(c)(1)-(3). Indeed, § 1692c(c)(2) allows the debt collector to notify the consumer that it “may invoke specified remedies” and § 1692c(c)(3) allows the debt collector to notify the consumer that it intends to invoke a specified remedy. Black’s Law Dictionary defines “remedy” as “[t]he means of enforcing a right or preventing or redressing a wrong; legal or equitable relief.” Black’s Law Dictionary, (9th ed. 2009) p. 1407. A debt collector’s offer to settle a dispute over payment of a debt in exchange for payment of a specified reduced amount is one means of obtaining relief, redressing a wrong, and enforcing a right to Case 6:16-cv-01533-RBD-TBS Document 12 Filed 09/06/16 Page 7 of 20 PageID 79 28154043 v3 8 payment, albeit in a reduced amount. Nothing in the statutory language of § 1692c(c) suggests that it was intended to exclude a notification of an intent to invoke the “specified remedy” of settlement. Such an interpretation is also consistent with the purpose of the FDCPA as a consumer protection statute, “designed to protect against abusive debt collection practices which would likely disrupt a debtor’s life.” Retrieval Masters Creditors Bureau, Inc., 211 F.3d 1057, 1059 (7th Cir. 2000); Taylor v. Cavalry Investment, LLC, 365 F.3d 572, 574 (7th Cir. 2004). While the purpose of the FDCPA is “to protect consumers from a host of unfair, harassing, and deceptive debt collection practices,” it must do so “without imposing unnecessary restrictions on ethical debt collectors.” Peter v. GC Services L.P., 310 F.3d 344, 351–52 (5th Cir. 2002) (quoting S.Rep. No. 95–382, at 1–2, reprinted *352 in 1977 U.S.Code Cong. & Admin. News 1695, 1696). Indeed, the FDCPA was enacted to “eliminate abusive practices, not disadvantage ethical debt collectors, and promote consistent state action.” Berg v. Merchants Ass’n Collection Div., Inc., 586 F. Supp. 2d 1336, 1341–42 (S.D. Fla. 2008) (citing S.Rep. No. 95–382 at 7 (1977) as reprinted in 1977 U.S.C.C.A.N. 1695, 1701). In discussing § 1692c(c) in particular, the Senate stated: “If a consumer notifies a debt collector in writing that he refuses to pay a debt or wishes the debt collector to cease further contacts, the debt collector must cease communications except to notify the consumer of the debt collector’s or creditors possible further actions.” S. REP. 95- 382, 7, 1977 U.S.C.C.A.N. 1695, 1701 (emphasis added). Settlement of the debt is one of many possible further actions that a debt collector may take. In other words, the purpose of the FDCPA is to protect consumers from certain types of debt collection practices, and at the same time, allow ethical debt collectors to do their job. An interpretation that prohibits debtor collectors from making clear and unequivocal offers to settle Case 6:16-cv-01533-RBD-TBS Document 12 Filed 09/06/16 Page 8 of 20 PageID 80 28154043 v3 9 debt for substantially less than what is owed must yield to an interpretation that permits such offers, especially where the alternative to settlement would litigation, or even worse, notifications of intent to sue rather than settle (as more fully discussed below). To exclude settlement offers from application of the statutory exceptions would render a statutory interpretation that is not only inconsistent with the general purposes of the FDCPA but also inconsistent with the plain language of the statute and congressional intent. An analogy is helpful here. Section 1692c(c), according to its plain language, would allow a debt collector to send a notification to the consumer that it intended to sue the consumer to collect a debt because litigation would be, without question, a “specified remedy” of the debt collector. Heintz v. Jenkins, 115 S.Ct. 1489, 1491-92 (1995). Between a notification of an impending lawsuit and a notification of an intent to settle the debt, the least sophisticated consumer is more likely to be coerced or threatened to make a payment, maybe even to his detriment, by a notice of intent to sue, rather than a notice of intent to settle. There is nothing coercive, distressing or threatening about a settlement offer, whereas a letter threatening a lawsuit could be very distressing and much more likely to result in the very harm the FDCPA was intended to prevent. The only inference a court can draw from a debt collector’s notification of an impending lawsuit, under the least sophisticated consumer standard, is that the notification was sent with the intent to elicit, coerce, or threaten payment from the consumer, rather than simply notify the consumer of the impending lawsuit. On the other hand, no debt could ever be settled if a debtor collector is not permitted to notify the consumer of its intent to settle the debt. The only alternative for the debtor collector then is to continue its debt collection efforts through litigation (or communications notifying the consumer of its intent to litigate). It would be absurd Case 6:16-cv-01533-RBD-TBS Document 12 Filed 09/06/16 Page 9 of 20 PageID 81 28154043 v3 10 to conclude that Congress intended to protect a communication that threatened litigation, while prohibiting a communication that offered settlement as a remedy. An interpretation of § 1692c(c) that prohibits settlement offers as an alternative remedy to further dispute or litigation must yield to an interpretation that promotes settlement offers, especially where the purpose of the statute is to protect consumers. An interpretation that prohibits settlement offers would subject the consumer to further stress, aggravation, expense, and confusion over debt collection. Permitting settlement offers, like the one at issue here, promotes an amicable and final resolution to debt collection in a non-coercive or threatening manner. If the Exceptions mean anything, they must mean that if a consumer disputes a debt and requests proof of the debt, the statute is designed to protect the consumer from further coercive or threatening communications, rather than to subject the consumer to threats of litigation. The Settlement Offer at issue here was designed to notify the consumer of the specific remedy of paying less than the amount due in full resolution of the Debt. It was designed in an effort to permit the Plaintiff to avoid costly and stressful litigation over collection or disputes about the Debt, by conveying to Plaintiff that she had an avenue to resolve the Debt once and for all. Permitting a communication, such as the Settlement Offer, encourages debt collectors and consumers to resolve their disputes without resorting to litigation. It would be absurd to conclude that the FDCPA intended to result in more litigation for consumers. Concluding that a debt collector can never notify a consumer of a specific and concrete settlement offer and still comply with § 1692c(c), does just that. 2. Case law supports Defendant’s interpretation of § 1692c(c). Consistent with this reasoning, in Lewis, the Sixth Circuit concluded that a communication indicating that payment plans may be available to the consumer was a settlement Case 6:16-cv-01533-RBD-TBS Document 12 Filed 09/06/16 Page 10 of 20 PageID 82 28154043 v3 11 offer, such that the communication fell into the Exceptions and was not a violation of the FDCPA. Lewis, 135 F.3d at 399.1 In reaching this conclusion, the Lewis court concluded that the non-coercive letter “simply offered to settle Lewis’s debt without litigation” potentially “saving all parties involved the needless cost and delay of litigation as is exemplified by this very case.” Id. Though the letter required a “close look” for the Court to reach this conclusion, not all communications require such fact-intensive examination. On the contrary, communications that, on their face, make a clear, specific, and non-pretextual offer to settle the debt, have been held to fall within the Exceptions, even at the pleadings stage. Flores, 2015 WL 4254032, at *2; Garcia, 2013 WL 4478919, at *4-5. In contrast, communications that make illusory and pre-textual settlement offers in an attempt to bait the consumer into further conversation with the debt collector violate the FDCPA. Smith, 102 F. Supp. 3d at 1280; Schwarz, 2016 WL 1169249, at *2. 1 The language of the letter at issue in Lewis read as follows: YOUR ACCOUNT HAS BEEN TRANSFERRED TO MY OFFICE FOR FINAL REVIEW. IN A PERCENTAGE OF CASES, I FIND THAT PAYMENT ARRANGEMENTS MAY NOT HAVE BEEN OFFERED BY OUR AFFILIATED OFFICE. IN ORDER TO PROVIDE YOU WITH AN OPPORTUNITY TO PAY THIS DEBT, PLEASE SELECT ONE OF THE FOLLOWING PAYMENT ARRANGEMENT AND ENCLOSE PAYMENT, OR PROVIDE ME WITH A NUMBER WHERE I CAN CONTACT YOU TO DISCUSS TERMS. . . . IT IS IMPORTANT THAT ARRANGEMENTS BE MADE AS SOON AS POSSIBLE. IF YOU HAVE ANY QUESTIONS REGARDING THE PAYMENT PLANS, GIVE ME A CALL OR PROVIDE ME WITH A NUMBER WHERE I CAN CONTACT YOU. FOR YOUR CONVENIENCE, I AN ARRANGE FOR YOU TO PAY YOUR ACCOUNT USING VIA AND/OR MASTERCARD. Case 6:16-cv-01533-RBD-TBS Document 12 Filed 09/06/16 Page 11 of 20 PageID 83 28154043 v3 12 Consistent with Lewis, when a communication contains only a passing reference to a payment arrangement as a pretext to lure the consumer into further communication with the debt collector, it does not fall within the Exceptions. Smith, 102 F. Supp. 3d at 1280; Schwarz, 2016 WL 1169249, at *2. The communications at issue in Smith and Schwarz were invitations for further communications, and therefore, the debtor collector's intent to invoke the remedy of settlement remained at issue at the pleadings stage. The communications at issue in Smith and Schwarz are factually distinct from the Settlement Offer at issue here. For example, in Smith, rather making an unequivocal offer of settlement, the communication stated that the debt collector was willing to consider a “payment arrangement” and encouraged the consumer to contact the debt collector. Smith, 102 F. Supp. 3d at 1279. In Schwarz, though the communications at issue contained an offer for a slight reduction in the amount due (offering to accept 80% of the balance) if the consumer paid the reduced amount, but then invited the consumer to disregard the offer by “referencing the potential availability of other payment options” if payment of the reduced amount in a lump sum was “difficult,” instructing the consumer to contact the debt collector “to determine the potentially available payment plan options.” 2016 WL 1169249, at *1 (emphasis added). In other words, the debtor collector in Schwarz made an offer to settle that was never intended to be accepted, or its intent to invoke settlement as a remedy was otherwise at issue, because (1) the offer was to pay most of the balance, i.e., 80% of it, and (2) even the most shrewd consumer would prefer calling the debt collector for a better deal, which was the obvious goal of the subject communications. The illusory offer in Schwarz was designed to elicit further communications by the consumer, during which the debt collector could “determine” why payment of 80% is “difficult,” and then make no further offers to settle the debt but instead demand payment if the answer was unsatisfactory. The Case 6:16-cv-01533-RBD-TBS Document 12 Filed 09/06/16 Page 12 of 20 PageID 84 28154043 v3 13 plausible violations of the FDCPA in Schwarz were obvious, and the court correctly refused to apply Lewis because the letter contained the illusion of a settlement offer. A review of the communications in Smith and Schwarz reveals the intent of the communications was not to settle a debt but rather to invite further, plausibly abusive, unfair, or deceptive communications with the consumer. At best, the take-away from Smith and Schwarz is that whenever a debt collector invites further negotiations, the debtor collector's intent to actually invoke the remedy of settlement will be at issue in the case, requiring further factual analysis. In such communications, any reference to settlement is necessarily illusory and overshadowed by the debt collector’s intent to engender further communications or negotiations with the consumer. Simply stated, an intent to negotiate further is not an intent to settle. In contrast to the Settlement Offer here, in Smith and Schwarz, each of the subject communications contained illusory, pre-textual, or merely potential or possible offers of settlement, designed to either coerce the consumer into making a payment or to engender further communications between the consumer and debt collector in plausible violation of the FDCPA. To constitute an exception to § 1692c(c), the language and intent of the communication must be to settle the debt on clear and unequivocal terms. A letter that contains a definite, specific, and unequivocal settlement offer, without coercive language or a solicitation for the consumer to contact the debt collector, constitutes a debt collector’s legitimate notification of its intent to settle the debt without resorting to litigation. See e.g., Flores, 2015 WL 4254032 at * 7; Garcia, 2013 WL 4478919 at *4-5. For example, in Flores, the communication at issue stated, in pertinent part: OFFER TO SETTLE AT HUGE REDUCTION [W]e are starting this year by offering you the ability to settle your account(s) for only $612.14. . . . Simply pay $612.14 to this office by April 28th of this year and Case 6:16-cv-01533-RBD-TBS Document 12 Filed 09/06/16 Page 13 of 20 PageID 85 28154043 v3 14 your account(s) will be closed and settled in full. . . . We will then notify our client and the Credit Reporting Agencies, if applicable, that your account(s) have been settled. 2015 WL 4254032, at *2. The Flores court concluded that this communication fell within the Exception, because it was a clear, unambiguous, and definite settlement offer. Id. at *7. The Flores court also found it significant that only one letter was sent to the consumer, reasoning that, a single letter provided the requisite notice to the consumer of a potential settlement as a remedy and indicated that the debt collector’s intent was settlement of the debt, rather than harassment or coercion. Id. Similarly, the Garcia court concluded that the letters at issue did not constitute violations of § 1692c(c)(2), because they notified the consumer of a specified remedy -- the ability to compromise the dispute. 2013 WL 4478919, at *4. The letters at issue in Garcia offered to settle the consumer’s debt for a 50% reduction of the balance and reiterated that the debt collector may be able to settle the account for less than the outstanding balance. Id. at *1. Accordingly, the Garcia court concluded that the two letters fell within § 1692c(c)(2) and that any contrary conclusion would run afoul of the purpose of the FDCPA. Id. at *4-5.2 Like Lewis, the Garcia court suggested that it would be absurd to suggest that the FDCPA was intended to result in more debt collection litigation against consumers. See id. Pursuant to the face of the Settlement Offer attached to the Complaint, Defendant made a clear and unequivocal settlement offer to Plaintiff. The Settlement Offer is a single, non-coercive communication invoking a definite and specific remedy -- settlement of the debt through a 2 Additionally, Garcia was decided on a motion for judgment on the pleadings under Rule 12(c), which, the court explained, is “substantially identical” to a motion to dismiss under Rule 12(b)(6). Accordingly, although a fully-developed evidentiary record may be required when the intent of the communication is ambiguous, it is unnecessary when, on its face, the communication is a settlement offer. See id. at *2. Case 6:16-cv-01533-RBD-TBS Document 12 Filed 09/06/16 Page 14 of 20 PageID 86 28154043 v3 15 substantial, specified reduction in the balance of the account. The Settlement Offer contains specific instructions as to how Plaintiff may accept the offer and neither requires nor requests any further communication with Plaintiff, in contrast to Smith and Schwarz. The Settlement Offer is akin to those made in Flores and Garcia, which were both decided at the pleadings stage, and is consistent with the Sixth Circuit’s findings in Lewis. The Settlement Offer was clearly designed to give the consumer an opportunity to resolve the dispute without resorting to litigation. It would be absurd to suggest that the FDCPA was intended to result in more litigation against consumers. However, Plaintiff’s Complaint advocates for just that proposition, i.e., that after a consumer’s refusal to pay, the debt collector’s only recourse is to respond with a lawsuit to collect a debt (or worse yet, a letter threatening litigation). In fact, Plaintiff requested proof of the debt in her correspondence to PBCM. Accepting Plaintiff’s argument, PBCM would not have been able to provide that information to Plaintiff; instead, its proof would have to have been provided in the context of a lawsuit. Such a result could not have been intended by Congress, and is contrary to both the language and purpose of the FDCPA. B. Inclusion of the “mini-Miranda warning” on the Settlement Offer has no dispositive significance. The inclusion of the “mini-Miranda warning”3 in the Settlement Offer has no dispositive significance in determining whether the Settlement Offer is a violation of the FDCPA. Instead, debt collectors that fail to include such language in their communications may violate the FDCPA. See 15 U.S.C. § 1692e(11). Numerous courts have concluded that the inclusion or omission of the mini-Miranda warning is not dispositive in determining whether the 3 This term is used to describe the following disclaimer language required by the FDCPA: “This is an attempt to collect a debt and any information obtained will be used for that purpose.” Case 6:16-cv-01533-RBD-TBS Document 12 Filed 09/06/16 Page 15 of 20 PageID 87 28154043 v3 16 communication was sent for impermissible debt collection purposes, rather than for permissible settlement purposes. Lewis, 135 F. 3d at 398 (“We note that the mere fact that the letter states at the bottom that it “is an attempt to collect a debt” does not transform the letter into an unlawful demand for payment.”); Herrera v. Bank of America, N.A., No. 15-cv-62156-Bloom/Valle, 2016 WL 4542105, at *12 (S.D. Fla. 2016) (“[C]ourts have held that statements or disclaimers that a communication is an attempt to collect a debt is not alone dispositive.”); Gburek v. Litton Loan Servicing LP, 614 F.3d 380, 386 (7th Cir. 2010) (“The letter bore a disclaimer identifying it as an attempt to collect a debt, but this does not automatically trigger the protections of the FDCPA, just as the absence of such language does not have dispositive significance.”). Accordingly, the mini-Miranda warning should not be accorded any significance here. Instead, the plain language and intent of the letter is controlling, and clearly demonstrates the letter at issue was a settlement offer permitted by § 1692c(c). In addition, the mini-Miranda statement does not alter the intent or purpose of the communication, which was to settle the Debt in full. The mini-Miranda statement is intended to provide more protection for the consumer, not less. There is nothing deceptive, misleading, or unfair about the mini-Miranda statement because a communication that falls within the Exceptions to § 1692c(c) are necessarily communications that notify a consumer of a specified remedy to collect a debt, and of course, any response from the consumer, other than an acceptance and payment of the offer to settle the debt in full, would be used for that purpose. C. The Court should dismiss Plaintiff’s Complaint with prejudice because amendment would be futile. Finally, the Court should dismiss Plaintiff’s Complaint with prejudice because amendment would be futile. At the motion to dismiss stage, the Court may properly examine the exhibits to the Complaint, and a review of the Settlement Offer reveals that, on its face, it is a Case 6:16-cv-01533-RBD-TBS Document 12 Filed 09/06/16 Page 16 of 20 PageID 88 28154043 v3 17 clear and unequivocal settlement offer that categorically falls into the Exceptions. The Settlement Offer is an offer to settle that can be accepted by the Plaintiff without any further interaction with PBCM, and in fact, the Settlement Offer does not even request or suggest that Plaintiff should contact PBCM about the Debt or the Settlement Offer. The Settlement Offer merely notifies the Plaintiff that it is PBCM’s intent to accept a payment of forty percent of the balance due to fully and finally resolve the Account. According to the Complaint, the only alleged communication that possibly violates the FDCPA is the Settlement Offer, which is explicitly allowed by the statute as a matter of law. Accepting as true all sufficient factual matter in the Complaint and its exhibits, the Complaint fails to state a plausible claim for relief. As a matter of law, the relief requested in the Complaint must be denied as a matter of law because the subject communication is facially permissible. No amendment can correct this deficiency, and this case should therefore be dismissed with prejudice. When courts can conclude from the face of the communication at issue that it is, in fact, a specific and unequivocal settlement offer, courts have resolved § 1692c(c) claims at the pleadings stage. For example, in Flores, the court dismissed plaintiff’s § 1692c(c) claim pursuant to Rule 12(b)(6) after it concluded that the communication at issue was a settlement communication under 1692c(c)(2) and that the communication’s intent was facially apparent. 2015 WL 4254032, at *7-8. Likewise, in Garcia, the court granted defendant’s motion for judgment on the pleadings under Rule 12(c) after reaching the conclusion that the communication at issue, on its face, was a settlement offer under the Exceptions. 2013 WL 4478919, at *4-5. The Garcia court also emphasized that the standard under Rule 12(c) is “substantially identical” to a motion to dismiss under Rule 12(b)(6). Id. at *2. Case 6:16-cv-01533-RBD-TBS Document 12 Filed 09/06/16 Page 17 of 20 PageID 89 28154043 v3 18 In contrast, when the communication at issue contains only “a passing reference to a payment arrangement or a possible reduction in the amount of debt,” courts have found that resolution at the motion to dismiss stage is inappropriate. Smith, 102 F. Supp. 3d at 1280; Schwarz, 2016 WL 1169249 at *2. The Courts’ conclusions in Smith and Schwarz that further factual development was necessary, was necessitated by the language of the letters themselves, because they were factually dissimilar from the communication at issue in Lewis. In Smith, the Court found that the communication in Lewis notified the consumer of available payment plans and gave him an opportunity to pay the debt through one of the payment plans. 102 F. Supp. 3d at 1280. Because the Defendant's communications at issue in Smith "merely notified Plaintiff that it was willing to consider any payment arrangement or a reduction in the balance owed, and instructed Plaintiff to call [Defendant]." Id. Likewise, in Schwarz, the communications "reference the potential availability of other payment options" and "invite Plaintiff to call a listed number to determine the potentially available payment plan options." 2016 WL 1169249, at *1. Although the communications in Schwarz contained a purported offer to settle for a payment of 80% of the balance of the debt, the communications instructed the Plaintiff to call the Defendant "to determine the potentially available payment plan options" if the lump sum offer was "difficult." Id. The Court in Schwarz did not apply Lewis at the pleadings stage because the Sixth Circuit's analysis "was informed by a fully-developed record concerning the context of the communications between plaintiff and defendant." Id. at *2. In both Smith and Schwarz, the subject letters, on their face, referenced further communications that required further contextual analysis and factual determinations. In this case, the only context alleged in the Complaint is the Settlement Offer, which makes no reference to further communications but instead makes a clear and unequivocal offer to settle the Debt. Case 6:16-cv-01533-RBD-TBS Document 12 Filed 09/06/16 Page 18 of 20 PageID 90 28154043 v3 19 The Settlement Offer makes a specific, unequivocal, and non-pretextual offer to resolve the Plaintiff’s Account for less than half of the balance due. It makes no request for Plaintiff to contact Defendant. It is not coercive, harassing, or threatening in any way. There can be no question that the Settlement Offer -- a single, non-coercive offer to settle the Debt through a substantial, specified reduction in the balance of the account -- was intended to notify the consumer of Defendant’s invocation of a definite and specified remedy: settlement. Thus, as a matter of law, the Settlement Offer is not a violation of the FDCPA, and Plaintiff can allege no set of facts to the contrary. Accordingly, based on the face of the Complaint and a review of its exhibits, the Court should dismiss Plaintiff’s Complaint with prejudice. CONCLUSION In sum, Plaintiff’s Complaint must be dismissed with prejudice, because the Settlement Offer at issue here did not violate the FDCPA as a matter of law. Contrary to the Plaintiff’s claims, case law interpreting § 1692c(c) stands for the proposition that a clear and unequivocal settlement offer falls squarely within an exception to § 1692c(c). The plain language of the letter at issue here reveals that there are no questions of fact. The language and intent of the letter is to settle the Debt, which is permitted, as a matter of law, under § 1692c(c)(2) and (3). Accordingly, Plaintiff can allege no set of facts that would entitle her to relief, and the Complaint must be dismissed with prejudice. WHEREFORE, Defendant respectfully requests that the Court dismiss the Complaint with prejudice, award its attorneys’ fees and costs for defending against such action, and for such other and further relief as the Court deems just and proper. Dated this 6th day of September, 2016. /s/Lauren Marie Reynolds Jonathan M. Sykes, Esquire Case 6:16-cv-01533-RBD-TBS Document 12 Filed 09/06/16 Page 19 of 20 PageID 91 28154043 v3 20 Florida Bar No. 73176 Email: jsykes@burr.com Secondary Email: lloving@burr.com ccrumrine@burr.com Lauren Marie Reynolds, Esquire FL Bar No. 0112141 Email: lreynolds@burr.com Secondary Email: jnelson@burr.com Burr & Forman, LLP 200 South Orange Avenue, Suite 800 Orlando, Florida 32801 Telephone: (407) 540-6600 Facsimile: (407) 540-6601 Attorneys for Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 6th day of September, 2016, a true and correct copy of the foregoing was filed with the CM/ECF system, which will send an electronic notice of filing to: Michael Tierney, Esquire Michael Tierney, P.A. 918 Beard Avenue Winter Park, Florida 32789 michael@tierneylaw.us Counsel for Plaintiff /s/Lauren Marie Reynolds Attorney Case 6:16-cv-01533-RBD-TBS Document 12 Filed 09/06/16 Page 20 of 20 PageID 92