United States District Court, D. Minnesota
Brayer Schwiebert, DBS Law, LLC, Counsel for Plaintiff.
Goltz, Gurstel Chargo, P.A., Counsel for Defendant.
MEMORANDUM OPINION AND ORDER
Michael J. Davis, United States District Court Judge
incurred a financial obligation in the late 2000s in the form
of a credit card account with Wells Fargo Bank, N.A.
(Complaint ¶ 6.) Wells Fargo is alleged to have charged
off the account on or about August 31, 2010. (Id.
¶ 7.) On the day of the charge off, Wells Fargo reported
the balance due on the credit card as $4, 953.47.
(Id. ¶ 8.)
several months before the charge off, Wells Fargo ceased
adding interest to the outstanding balance. (Id.
¶ 9.) Also, Wells Fargo ceased sending Plaintiff
statements showing the accumulation of interest.
(Id. ¶ 10.) Following the charge off, no
alleged successor of Wells Fargo sent Plaintiff a statement
showing the accumulation of interest. (Id. ¶
11.) Wells Fargo and its alleged successors' admissions,
acts and omissions establish a waiver of the right to collect
interest on the account. (Id. ¶ 13.)
Admiral Investments, LLC (“Admiral”) acquired
this debt in October 2012. (Id. ¶ 12.)
Thereafter, Admiral began to attempt to collect on the debt.
(Id. ¶ 14.) Admiral sent Plaintiff a letter
dated October 18, 2012 in which it stated that the
outstanding balance was $7, 385.01. (Id. ¶ 15.)
Admiral also sent Plaintiff validation documents with a
letter dated October 23, 2015. (Id. ¶ 16.) In
this letter, Admiral represented that the outstanding
balance, including interest and late charges, was $10,
January 10, 2016, Admiral served a state court complaint on
Plaintiff. (Id. ¶ 17.) In the complaint,
Admiral alleged that Plaintiff was indebted to Admiral in the
amount of $4, 953.47. (Id. ¶ 18.)
February 23, 2016, Plaintiff filed this action in which she
alleges that Admiral has a pattern and practice of making
improper attempts to recover from Minnesota consumers post
charge-off interest despite the waiver of interest before
Admiral acquired the debt. (Id. ¶ 19.)
Plaintiff alleges such conduct violates numerous sections of
the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. §§ 1692e(2), 1692e(5) and 1692e(10) by
falsely representing the character, amount or legal status of
the alleged debt, threatening to take action that cannot
legally be taken and using a false representation or
deceptive means to collect a debt.
further alleges that Admiral violated 15 U.S.C. § §
1692f and 1692f(1) by using unfair means to collect the
alleged debt and by attempting to collect an amount not
authorized by the agreement or permitted by law.
(Id. ¶¶ 24-26.)
the Court is Admiral's motion to dismiss on the grounds
the claims are time-barred, that Plaintiff lacks standing
and/or fails to state a claim upon which relief may be
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
party may move the Court to dismiss a claim if, on the
pleadings, a party has failed to state a claim upon which
relief may be granted. In reviewing a motion to dismiss, the
Court takes all facts alleged in the complaint to be true.
Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir. 2010).
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. Thus, although a
complaint need not include detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and