United States District Court, D. Minnesota
B. Schwiebert, Esq., DBS Law LLC, Minneapolis, MN, on behalf
Derrick N. Weber, Esq., Messerli & Kramer, P.A.,
Plymouth, MN, on behalf of Defendants.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
December 21, 2016, the undersigned United States District
Judge heard oral argument on Defendants MSW Capital, LLC
(“MSW”) and Messerli & Kramer, P.A.'s
“Defendants”) Motion to Dismiss [Docket No. 8].
Plaintiff Mahmoud Dakowa (“Dakowa”) opposes the
motion. For the reasons set forth below, the Motion is
granted in part and denied in part.
lawsuit concerns credit card debt incurred by Dakowa that
Defendants were engaged to collect. Dakowa's debt arose
from his credit card contract with Credit One Bank. Compl.
[Docket No. 1] ¶ 7. On October 9, 2011, Credit One Bank
charged off the $649.25 balance Dakowa owed. Id.
¶¶ 8-9. Following the charge-off, Dakowa no longer
received periodic statements reflecting the accumulation of
interest on the debt. Id. ¶ 10.
March 16, 2015, MSW, represented by M&K, served Dakowa
with a state court summons and complaint. Weber Decl. [Docket
No. 10] Ex. A. The state court complaint alleges that MSW
now owns the account, and that Dakowa owes the principal
balance of $649.25 as well as $511.85 in interest from
November 21, 2011 through March 10, 2015, plus continuing
interest on the balance at the rate of 23.90% per annum.
Id. The complaint also includes a “Cardholder
Agreement” that Dakowa avers Defendants impliedly
represents to be the agreement governing his account
Id.; Compl. ¶ 24.
answered the state court complaint on March 30, 2015. He
denied the allegations but agreed that Credit One Bank issued
him credit. See id. Ex. C. On April 20, 2015, MSW
served Dakowa with Rule 26 disclosures. Id. Ex. D.
Like the complaint, the disclosures claim that Dakowa owes
principal and interest. Id. The same Cardholder
Agreement that was attached to the complaint was also
included in the Rule 26 disclosures. Id. Three
affidavits generally describing Credit One Bank's
procedures for selling accounts in default were also
August 25, 2015, MSW served upon Dakowa
“Plaintiff's First Set of Interlocking
Discovery.” Compl. ¶ 13; Weber Decl. Ex. E. In its
request for admissions, MSW asks Dakowa to admit that an
attached Cardholder Agreement is a copy of the terms and
conditions governing his account. Weber Decl. Ex. E. The
attached Cardholder Agreement is the same Cardholder
Agreement included with the complaint and Rule 26
disclosures. MSW also asked Dakowa to admit that an attached
Bill of Sale and Assignment transferred his account from
Capital One Bank to MSW. Id. The Bill of Sale and
Assignment refers to the same three affidavits that were
included with the Rule 26 disclosures. Id.
did not timely answer the requests for admission. Compl.
¶ 32. On January 11, 2016, Defendants filed the
collections action in Anoka County, Minnesota district
court. Id. ¶ 22; Weber Decl. Ex. F.
The complaint filed is identical to the complaint served on
Dakowa on March 16, 2015, and included the same Cardholder
February 2016, Dakowa made a $400 payment on the account.
Id. ¶ 30. On June 30, 2016, Defendants moved
for summary judgment in state court. Id. ¶ 31;
Weber Decl. Ex. G. In its summary judgment memorandum,
Defendants state that “there remains an outstanding
principal balance due and owing of $649.25, plus accrued
interest” and that “Credit One Bank, N.A.
assigned the Account to Plaintiff.” Compl. ¶¶
33-34. The proposed findings Defendants submitted provide for
an award of interest at 23.90% per annum dating back to
November 2011. Id. ¶ 35.
October 27, 2016, Judge Jonathan N. Jasper denied
Defendants' motion for summary judgment. Schwiebert Aff.
[Docket No. 15] Ex. A. In denying the motion, Judge Jasper
identified five questions of material fact precluding summary
judgment. Id. at 7. Judge Jasper also concluded that
Dakowa's failure to timely respond to Defendants'
requests for admission was not in bad faith but was a mistake
by an unsophisticated party. Id. at 6.
August 16, 2016, Dakowa filed this federal action alleging
five violations of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq.
Dakowa's five claims are based on the August 25, 2015
“Interlocking Discovery, ” the January 11, 2016
complaint filed in Anoka County District Court, and the June
30, 2016 motion for summary judgment. Two of the five alleged
violations relate to the “Interlocking
Discovery:” 1) the instructions and definitions were
deceptive, misleading, oppressive, unfair, and
unconscionable, and 2) were designed to mislead by seeking
admissions to things that Dakowa either could not possibly
know or were false. Compl. ¶¶ 14, 19-21. Two other
violations relate to the state court complaint: 3) Defendants
misrepresented the authenticity of the terms and conditions
of Dakowa's account, and 4) improperly sought an interest
award that had been waived. Id. ¶¶ 23-29.
Finally, in its summary judgment memorandum, Dakowa alleges
that Defendants 5) misstated the outstanding principal
balance due. Id. ¶ 33.
have moved to dismiss the Complaint in its entirety.
Defendants argue that Dakowa's claims are subject to the
FDCPA's one-year statute of limitations. Defendants also
argue that Dakowa's claims relating to litigation do not
state a plausible claim that entitles him to relief.
Motion to Dismiss Standard
Rule 8(a) of the Federal Rules of Civil Procedure, pleadings
“shall contain a short and plain statement of the claim
showing that the pleader is entitled to relief.” A
pleading must contain “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl.
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 a reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Determining whether a complaint states a plausible
claim for relief is “a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
“But where the well-pleaded facts do not permit ...