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Smith v. Dynamic Recovery Solutions LLC

United States District Court, D. South Carolina, Charleston Division

June 5, 2019

BELICIA SMITH, individually and on behalf of all others similarly situated, Plaintiff,
v.
DYNAMIC RECOVERY SOLUTIONS LLC, LVNV FUNDING LLC, and JOHN DOES 1-25, Defendants.

          ORDER

          DAVID C. NORTON, UNITED STATES DISTRICT JUDGE

         This matter is before the court on defendant Dynamic Recovery Solutions LLC (“Dynamic Recovery”) and defendant LVNV Funding LLC's (“LVNV”) (collectively, “defendants”) joint motion to dismiss, ECF No. 9. For the reasons set forth below, the court grants the motion.

         I. BACKGROUND

          Plaintiff Belicia Smith (“Smith”) allegedly incurred a debt to Regional Finance Corporation of South Carolina (“RFC”) some time prior to January 16, 2018. Smith alleges that RFC issued funds to her on credit, and she was unable to make the required payments due to financial constraints. As a result, the debt, totaling $960.68, went into default. LVNV then allegedly purchased the debt and contracted with Dynamic Recovery to collect the debt.

         Smith received a letter from Dynamic Recovery dated January 16, 2018 seeking to collect the debt (“the Letter”). The Letter offers Smith several repayment options. The first option permits Smith to resolve her account in full if she makes a payment of $384.27 by March 2, 2018. The second option offers full resolution of the account with a total amount due of $432.31, made in two payments of $216.16 each.[1] The third option offers Smith to resolve her account in full with four payments of $120.09 each. The Letter states that the total amount due under this final option is $480.34; however, the sum of four payments of $120.09 is actually $480.36. Smith argues that this difference “is an attempt to collect an amount greater than allowed under the proposed offer” and is confusing and misleading. Compl. ¶¶ 42-48.

         In addition, at the bottom of the Letter, there is language that states “[t]he law limits how long you can be sued on a debt. Because of the age of your debt, LVNV Funding LLC will not sue you for it. If you do not pay the debt, LVNV Funding LLC may report it to the credit reporting agencies as unpaid.” ECF No. 1-1 at 2. Smith alleges that this language is deceiving because it “implies that [LVNV] has chosen not to sue . . . instead of the true fact that neither [LVNV] nor [Dynamic Recovery] nor any subsequent creditor/collector can file a lawsuit.” Compl. ¶ 35-36.

         As a result, Smith filed a proposed class action complaint alleging violations of the Fair Debt Collection Practice Act (“FDCPA”) pursuant to 15 U.S.C. §§ 1692e and 1692f. Defendants filed a joint motion to dismiss on March 19, 2019. ECF No. 9. Smith responded on April 16, 2019, ECF No. 13, and defendants replied on April 23, 2019, ECF No. 15. The motion is fully briefed and ripe for review.

         II. STANDARD

         A Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted “challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009) (citations omitted); see also Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) . . . does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”). To be legally sufficient, a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A Rule 12(b)(6) motion should not be granted unless it appears certain that the plaintiff can prove no set of facts that would support his claim and would entitle him to relief. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When considering a Rule 12(b)(6) motion, the court should accept all well-pleaded allegations as true and should view the complaint in a light most favorable to the plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir.1999); Mylan Labs., Inc., 7 F.3d at 1134. “To survive a motion to dismiss, a complaint must contain 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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id.

         III. DISCUSSION

         “The FDCPA protects consumers from abusive and deceptive practices by debt collectors, and protects non-abusive debt collectors from competitive disadvantage.” United States v. Nat'l Fin. Servs., Inc., 98 F.3d 131, 135 (4th Cir. 1996). Specifically, the FDCPA prohibits the “use [of] any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. It is a violation of § 1692e, among other things, to: (1) falsely represent the character, amount, or legal status of any debt, id. § 1692e(2); (2) threaten to take any action that cannot be legally taken, id. § 1692e(5); or (3) use “any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer, ” id. § 1692e(10). In a similar vein, § 1692f prohibits the “use [of] unfair or unconscionable means to collect or attempt to collect any debt.” To state a claim for a FDCPA violation, the plaintiff must allege that “(1) the plaintiff has been the object of collection activity arising from consumer debt; (2) the defendant is a debt collector as defined by the FDCPA; and (3) the defendant has engaged in an act or omission prohibited by the FDCPA.” Ruggia v. Washington Mut., 719 F.Supp.2d 642, 647 (E.D. Va. 2010), aff'd, 442 Fed.Appx. 816 (4th Cir. 2011). “Whether a communication is false, misleading, or deceptive in violation of § 1692e is determined from the vantage of the ‘least sophisticated consumer,' evaluating how that consumer would interpret the allegedly offensive language.” Powell v. Palisades Acquisition XVI, LLC, 782 F.3d 119, 126 (4th Cir. 2014) (citation omitted).

         Here, Smith alleges that “[d]efendants made deceptive and misleading representations” based on the language that LVNV chose not to sue Smith in violation of 15 U.S.C. §§ 1692e, 1692e(2), 1692e(5), and 1692e(10). Compl. ¶ 55. Smith also alleges that defendants made false, misleading, and unfair misrepresentations by offering Smith a payment option with terms that “deceptively attempted to collect more than the amount of the offer” in violation of 15 U.S.C. §§ 1692e, 1692e(2), 1692e(10), and 1692f. Compl. ¶¶ 56, 61. Defendants argue that Smith's complaint should be dismissed because (1) the statute of limitations disclosure language does not violate the FDCPA, and (2) the payment option amount discrepancy was a rounding error that does not violate the FDCPA. The court agrees and finds as a matter of law that the conduct alleged by Smith is not a violation of the FDCPA.

         A. Statute of Limitations Disclosure Language

          First, defendants argue that the statute of limitations disclosure language at the end of the Letter does not violate the FDCPA. The language states that “[t]he law limits how long you can be sued on a debt. Because of the age of your debt, LVNV Funding LLC will not sue you for it. If you do not pay the debt, LVNV Funding LLC may report it to the credit reporting agencies as unpaid.” ECF No. 1-1 at 2. Smith alleges that stating that LVNV “will not sue” is deceiving when LVNV cannot sue due to the statue of ...


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