United States District Court, D. Minnesota
STEPHEN S. EDWARDS, Plaintiff,
FINANCIAL RECOVERY SERVICES FRS INC.; BARCLAYS BANK INC., et al.; JOHN DOE'S x 10; and JANE DOE'S x 10, Defendants.
Stephen S. Edwards, Pro Se Plaintiff
Erwin, Esq., Madigan, Dahl & Harlan, P.A., for Defendant
Barclays; Michael Poncin, Esq., Moss & Barnett, PA, for
Defendant Financial Recovery Services, Inc.
REPORT AND RECOMMENDATION
T. SCHULTZ UNITED STATES MAGISTRATE JUDGE
S. Edwards brought a lawsuit against Barclays Bank
Delaware and Financial Recovery Services, Inc.
(FRS) asserting three causes of action under federal and
state consumer protection statutes. He contends that Barclays
and FRS violated the statutes in the course of their efforts
to collect a disputed credit card debt owed to Barclays.
Barclays brought a motion to dismiss Edwards' claims
against it for failure to state a claim. Edwards then brought
a motion for judgment on the pleadings against Barclays. For
the reasons stated below, the Court recommends that
Barclays' motion to dismiss be granted and Edwards'
motion for judgment on the pleadings be denied.
had an American Airlines credit card issued by Barclays.
Complaint ¶ 14, Docket No. 1. On some unspecified date
Edwards reported to Barclays that unauthorized or fraudulent
charges had been made on his credit card account.
Id. ¶¶ 15-16. He alleges that Barclays
either failed to investigate or did an inadequate
investigation, wrongly concluded the charges were authorized,
and continued to send him statements for payment of the
disputed principal amount plus interest. Id.
¶¶ 17-20. Barclays then hired FRS, a debt
collection agency, to collect the unpaid amount from Edwards.
Id. ¶¶ 4, 21.
brought this lawsuit against Barclays and FRS, as well as
various John and Jane Does, alleging that their actions to
collect the disputed amount violated the Fair Debt Collection
Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. (Count
One); the Minnesota Fair Debt Collection Practices Act (known
as the Minnesota Collection Agencies Act (MCAA)), Minn. Stat.
§§ 332.31-.44 (Count Two); and the Minnesota
Consumer Fraud Act (MCFA), Minn. Stat. § 325.69 (Count
Three). Id. ¶¶ 6, 10, 14 and Counts One,
Two and Three at ¶¶ 28-34. He alleges that FRS is a
debt collection agency and Barclays is the financial
institution that issued the credit card and sought to collect
the unpaid amount charged to that card. Id.
¶¶ 3-4, 8-9. Edwards' complaint also mentions
the Fair Credit Reporting Act (FCRA), the Arizona Deceptive
and Unfair Trade Practices Act, the Arizona Consumer
Collection Practices Act, theft, and fraud, but does not
include any counts or causes of action under those statutes
or theories. Id.
answered Edwards' complaint [Docket No. 5], and Barclays
brought a motion to dismiss the claims against it under Rule
12(b)(6) of the Federal Rules of Civil Procedure [Docket No.
27]. Edwards then brought a Rule 12(c) motion for judgment on
the pleadings against Barclays. Docket No. 36.
Barclays' Rule 12(b)(6) Motion to Dismiss
survive a motion to dismiss under Rule 12(b)(6), a complaint
must plead sufficient facts, accepted as true, to state a
claim for relief that is plausible on its face. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp
v. Twombly, 550 U.S. 544, 570 (2007). To determine
whether a plaintiff has stated a plausible claim, the Court
considers only the materials that are “necessarily
embraced by the pleadings and exhibits attached to the
complaint.” Cox v. Mortgage Elect. Registration
Sys., Inc., 685 F.3d 663, 668 (8th Cir.
2012); see also Kushner v. Beverly Enterprises,
Inc., 317 F.3d 820, 831 (8th Cir. 2003)
(“When deciding a motion to dismiss, a court may
consider the complaint and documents whose contents are
alleged in a complaint and whose authenticity no party
questions, but which are not physically attached to the
pleading.”). Here, the undisputed facts establish that
Edwards cannot state a claim against Barclays under the
FDCPA, MFDCPA/MCAA, or MCFA. Therefore, Barclays' motion
to dismiss should be granted.
One of Edwards' complaint alleges a violation of the
FDCPA. This consumer protection statute was created in
response to abusive, deceptive, and unfair debt collection
practices. See Schmitt v. FMA Alliance, 398 F.3d
995, 997 (8th Cir. 2005) (per curiam). The FDCPA
makes a fundamental distinction between
“creditors” and “debt collectors” and
does not regulate the activities of creditors “at
all.” Id. at 998.
FDCPA defines a “debt collector” as
any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose
of which is the collection of any debts, or who regularly
collects or attempts to collect, directly or indirectly,