United States District Court, D. Minnesota
B. Schwiebert, Esq. and DBS Law LLC, counsel for plaintiff.
Jessica L. Klander, Esq. and Bassford Remele, counsel for
S. Doty, Judge
matter is before the court upon the motion to dismiss by
defendant Credico Inc. Based on a review of the file, record,
and proceedings herein, and for the following reasons, the
motion is granted.
debt-collection dispute arises out of Credico's attempt
to collect, on behalf of High Pointe Surgery Center, a $3,
902.46 debt from plaintiff Dina Klein, a Minnesota resident.
Compl. ¶¶ 4, 6; Klander Decl. Ex. A. On March 14,
2017, Credico, which also does business under the registered
name of Credit Collections Bureau, sent a collection letter
to Klein informing her that a lawsuit would be brought
against her unless she contacted its collector, Shane Gold,
to pay the debt in full or pursue one of other several
options listed. Compl. ¶ 6; see Klander Decl.
March 9, 2018, Klein filed suit against Credico alleging that
the letter violated the Fair Debt Collections Practices Act
(FDCPA), 15 U.S.C. § 1692, et seq. Klein contends that
the letter was false, deceptive, and misleading because it:
(1) listed a return address in Portland, Oregon, although
Credico is based in South Dakota; (2) falsely identified
Credico as “Professional Debt Collectors, ” an
entity that does not exist; (3) invited her to pay her debt
or correspond with “CCB” at www.payccb.com even
though the letter did not state the identity of
“CCB” and the name “CCB” is not a
registered name of Credico; (4) was signed by an individual
debt collector, Kathy Mitchell, who was not licensed in
Minnesota, and (5) stated that Credico could seek
pre-judgment interest against her, which Klein asserts
Credico had no legal basis to recover. Compl. ¶¶
12-14, 16-20. Credico now moves to dismiss.
Standard of Review
survive a motion to dismiss for failure to state a claim,
“‘a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.'” Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“A claim has facial plausibility when the plaintiff
[has pleaded] factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
556 (2007)). Although a complaint need not contain detailed
factual allegations, it must raise a right to relief above
the speculative level. Twombly, 550 U.S. at 555.
“[L]abels and conclusions or a formulaic recitation of
the elements of a cause of action” are not sufficient
to state a claim. Iqbal, 556 U.S. at 678 (citation
and internal quotation marks omitted).
court does not consider matters outside the pleadings under
Rule 12(b)(6). Fed.R.Civ.P. 12(d). The court may, however,
consider matters of public record and materials that are
“necessarily embraced by the pleadings.”
Porous Media Corp. v. Pall Corp., 186 F.3d 1077,
1079 (8th Cir. 1999) (citation and internal quotation marks
omitted). Here, the court properly considers Credico's
Identity of the Debt Collector
argues that Klein's claims that the letter created
confusion regarding the identity of the debt collection
agency fail as a matter of law. The court agrees.
FDCPA prohibits a debt collector from employing “any
false, deceptive, or misleading representation in connection
with the collection of the debt” or using the name of a
“business, company, or organization ... other than the
true name of the debt collector's business ....” 15
U.S.C. §§ 1692e, 1692e(14). In determining whether
a debt collection letter is false, deceptive, or misleading,
the court must view it “through the eyes of an
unsophisticated consumer.” Peters v. Gen. Serv.
Bureau, Inc., 277 F.3d 1051, 1055 (8th Cir. 2002).
Although the test is meant to protect consumers of
“below average sophistication or intelligence, ”
the court must also apply an “objective element of
reasonableness.” Id. (citations and internal
quotations marks omitted). In other words, a plaintiff cannot
prevail on ...