United States District Court, D. Minnesota
MEMORANDUM AND ORDER
A. MAGNUSON UNITED STATES DISTRICT COURT JUDGE
matter is before Court on Defendant's Motion for Judgment
on the Pleadings. For the following reasons, the Motion is
Jason Jackson allegedly defaulted on a consumer credit debt
through HSBC Bank Nevada. (Compl. (Docket No. 1) ¶ 7.)
Midland Funding LLC bought the debt and hired Defendant
Messerli & Kramer P.A. to collect it. Messerli brought a
lawsuit on Midland's behalf in state court, ultimately
securing a judgment of $4, 865.30 against Jackson. (Answer
(Docket No. 4) ¶ 8.) In September 2017, Messerli served
a garnishment summons on North Memorial Credit Union, where
Jackson had a joint account with Gretchen Barttelt, who at
the time was his girlfriend and is now his wife. (Compl.
September 7, 2017, Ms. Barttelt called Messerli. The call was
on speaker phone and Jackson was present in the room when Ms.
Barttelt made the call. (Answer Ex. 1 (transcript of call).)
The Messerli representative repeatedly told Ms. Barttelt that
Jackson had to give his permission for Messerli to speak with
Ms. Barttelt. Jackson at first complained that he had tried
to call Messerli “a hundred times” and said that
he was “done with them.” (Id. at 2-3.)
Eventually, Ms. Barttelt asked Jackson, “Can you just
say . . . that I can talk to her about it? Just give the
okay?” (Id. at 3.) Jackson responded,
“Go ahead! Talk to her! Do whatever you want!”
(Id.) Ms. Barttelt and the Messerli representative
then engaged in discussions regarding the debt and the
garnishment. (Id.) Later in the call, the
representative transferred Ms. Barttelt to another Messerli
representative, and Ms. Barttelt informed the new
representative that Jackson gave Ms. Barttelt permission to
speak to Messerli. (Id. at 6.)
contends that Messerli's discussions with Ms. Barttelt
violated the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq., because
he allegedly did not consent to Messerli talking with her
about the “details concerning [Jackson's] alleged
debt.” (Compl. ¶ 18.) He specifically asserts that
Messerli's conduct violated 15 U.S.C. §§
1692b(b), 1692c, 1692d, and 1692f. (Id. ¶ 19.)
He also contends that Messerli “intentionally
interfered with [his] solitude, seclusion, and/or private
concerns . . . when it communicate [sic] with an unauthorized
third party” (id. ¶ 36), that this
invasion of privacy was “highly offensive”
(id. ¶ 38), and that he “suffered
emotional distress and out-of-pocket expenses” as a
result of the alleged invasion of privacy. (Id.
Court evaluates a motion for judgment on the pleadings under
Rule 12(c) using the same standards as a motion to dismiss
under Rule 12(b)(6). Ginsburg v. InBev NV/SA, 623
F.3d 1229, 1233 n.3 (8th Cir. 2010) (citation omitted). Thus,
the Court must assume the facts in the Complaint to be true
and construe all reasonable inferences from those facts in
the light most favorable to the non-moving party. Morton
v. Becker, 793 F.2d 185, 187 (8th Cir. 1986) (citation
omitted). The Court need not accept as true wholly conclusory
allegations, Hanten v. Sch. Dist. of Riverview
Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or legal
conclusions that the plaintiff draws from the facts pled.
Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th
complaint 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). Although a
complaint need not contain “detailed factual
allegations, ” it must contain facts with enough
specificity “to raise a right to relief above the
speculative level.” Id. at 555.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, ” will
not pass muster under Twombly. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555). This standard
“calls for enough fact[s] to raise a reasonable
expectation that discovery will reveal evidence of [the
claim].” Twombly, 550 U.S. at 556.
FDCPA prohibits debt collectors from communicating with third
parties “without the prior consent of the consumer
given directly to the debt collector.” 15 U.S.C. §
1692c(b). Further, the FDCPA prohibits a debt collector from
“engag[ing] in any conduct the natural consequence of
which is to harass, oppress, or abuse any person in
connection with the collection of a debt, ”
id. § 1692d, or from using “unfair or
unconscionable means to collect or attempt to collect any
debt.” Id. § 1692f.
initial matter, Jackson concedes that his claim under §
1692b fails on its face, because this section prohibits a
debt collector from communicating with a person other than
the debtor “for the purpose of acquiring location
information.” Id. § 1692b. Jackson does
not allege that Messerli was seeking his location
information, and any claim he purported to raise under §
1692b is dismissed.
response to Messerli's Motion, Jackson first argues that
he did not give “meaningful” consent directly to
the Messerli representative, and thus that
representative's communication with Ms. Barttelt violated
§ 1692c. According to Jackson, his comments were
directed to Ms. Barttelt, not the representative. But Jackson
knew the representative was also on the call, listening to
his statements. Jackson cannot establish that the
representative violated the FDCPA by concluding that
Jackson's statements were directed at Messerli and were
an expression of consent. And his attempts to graft a
“meaningful” requirement into the statute are not
supported by the statute's text. Consent must be judged
by an objective, not subjective, standard. See,
e.g., Duffy v. Landberg, 215 F.3d 871, 874-75
(8th Cir. 2000) (articulating objective standard for FDCPA
claims). Jackson's statement is objective consent within
the meaning of the statute.
next argues that dismissal of his § 1692c claim is
inappropriate because any consent he might have given was
limited to only discussing the garnishment on his and Ms.
Barttelt's bank account, not the debt generally. He
points out that Ms. Barttelt asked Jackson to give his
permission for her to talk to Messerli about “it,
” and claims that “it” refers only to the
account garnishment, not to the debt generally. But
Jackson's consent was undeniably broad: “Go ahead!
Talk to her! Do whatever you want!” He did not limit
his permission to any specific issue. No. reasonable jury
could find that Jackson did not give his consent within the
requirements of § 1692c. This claim fails.
Jackson establish that the communications with Messerli were
in any way harassing, oppressive, or abusive, as required for
a violation of § 1692d. Ms. Barttelt called Messerli, and
the transcript evidences no conduct on Messerli's part
that approaches a violation of § 1692d. The section
provides a non-exhaustive list of conduct that violates the
FDCPA, such as threats of violence, the use of obscene or
profane language, and calling a debtor repeatedly. 15 U.S.C.
§ 1692d(1), (2), (5). Section 1692d “prohibits
only oppressive and outrageous conduct.” Gearman v.
Heldenbrand, No. 15cv2039, 2015 WL 5255335, at *4 (D.
Minn. Sept. 9, 2015) (Doty, J.) ...