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Cavin v. Smith Debnam Narron Drake Saintsing & Myers, LLP

United States District Court, M.D. North Carolina

September 6, 2019

DONNA CAVIN, individually and on behalf of all others similarly situated, Plaintiff,
v.
SMITH DEBNAM NARRON DRAKE SAINTSING & MYERS, LLP, Defendant.

          MEMORANDUM OPINION AND ORDER

          N. CARLTON TILLEY, JR. SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Smith Debnam Narron Drake Saintsing & Myers, LLP's Motion to Dismiss [Doc. #8]. Plaintiff Donna Cavin filed this putative class action alleging that the collection letter Smith Debnam Narron Drake Saintsing & Myers, LLP (“Smith Debnam”) sent Cavin violated the Fair Debt Collection Practices Act (“FDCPA”). (See generally Compl. [Doc. #1].) Smith Debnam has moved to dismiss the action because it contends the letter complied with the FDCPA requirements. For the reasons explained below, the motion is granted.

         I.

         As alleged in the Complaint, Cavin received a letter dated June 7, 2018, from Smith Debnam purporting to collect a balance owed on Cavin's Belk Rewards Card. (Compl. ¶¶ 18-22; Letter from Christina McAlpin Taylor to Donna Cavin (June 7, 2018), Ex. A to Compl. (“Letter”) [Doc. #2].) The body of the Letter reads as follows:

This is to notify you that Synchrony Bank has retained this law firm to collect its claim against you for the balance owing on your Belk Rewards Card account. We assume this to be a valid debt unless you contact us within 30 days of your receipt of this letter to dispute all or any part of the balance indicated. If you notify us in writing of any dispute with regard to this debt within 30 days of receiving this letter, we will obtain verification of the debt or a copy of a judgment against you, if any, and mail it to you. Upon your written request within 30 days following your receipt of this letter, we will provide you with the name and address of the original creditor, if different from the current creditor. This communication is from a debt collector. This is an attempt to collect a debt and any information obtained will be used for that purpose.
If you have made payments to reduce the amount stated, please advise the amount paid, to whom it was paid, and when payment was made. It is our desire to give you an opportunity to resolve this claim before legal action becomes necessary, and we are willing to discuss this matter with you or your attorney. Please note, this account is now handled from our office, all contact and payments must come through us. If you wish to discuss this claim, please call Tonya Williamson at 919/250-2141 at extension 2236 or the toll-free number above.
If this account is not disputed, we request payment be sent to our office, payable to Synchrony Bank for the balance due - do not mail your payments to Belk Rewards Card. If payment is not received, legal action may become necessary. It is important that this claim be paid or we receive a reply from you in connection with this account. Otherwise, we will assume that you do not wish to resolve this matter amicably.

         Cavin focuses on the first eight words in the second sentence of the first paragraph: “We assume this to be a valid debt . . . “. (Compl. ¶ 24.) She alleges that Smith Debnam's assumption that the debt was valid prior to the expiration of the validation period was deceptive and misleading and overshadowed her rights, “attempted to put added pressure” on her, and “provided less of a reason to believe that disputed [sic] the alleged debt would have any impact.” (Id. ¶¶ 25, 26, 29.) Cavin further alleges that this “inaccurate validation notice” “depriv[ed] her of information to which she was statutorily entitled to receive” and “caus[ed] her to be unaware of how to effectively dispute her debt.” (Id. ¶ 29.) Accordingly, Cavin contends that Smith Debnam violated 15 U.S.C. § 1692g by “[f]ailing to accurately convey the validation notice” and “[o]vershadow[ing] [her] validation rights”, (id. ¶¶ 40-43), and 15 U.S.C. § 1692e(10) “by providing a deceptive and misleading validation notice”, (id. ¶¶ 44-48). Smith Debnam responds that the Letter “was accurate and conformed with the requirements of section 1692g” and, therefore, was not misleading under § 1692e.

         II.

         To survive a Rule 12(b)(6) motion, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic 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 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556); see also McCleary-Evans v. Md. Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (noting that a complaint must “contain[] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face in the sense that the complaint's factual allegations must allow a court to draw the reasonable inference that the defendant is liable for the misconduct alleged”). However, when a complaint states facts that are “'merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.''” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). When evaluating whether the complaint states a claim that is plausible on its face, the facts are construed in the light most favorable to the plaintiff and all reasonable inferences are drawn in her favor. U.S. ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014). Nevertheless, “labels and conclusions[, ]” “a formulaic recitation of the elements of a cause of action[, ]” and “naked assertions . . . without some further factual enhancement” are insufficient. Twombly, 550 U.S. at 557. In other words, “[f]actual allegations must be enough to raise a right to relief above the speculative level”. Id. at 555.

         III.

         Facing “abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors” which “contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy” and “inadequate” laws to protect consumers, Congress enacted the FDCPA “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692.

         “To effectuate this purpose, the FDCPA regulates interactions between consumers and debt collectors by imposing affirmative statutory obligations upon debt collectors and proscribing certain abusive conduct.” Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 388-89 (4th Cir. 2014). As is relevant here, “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt” such as “[t]he use of any false representation or deceptive means to collect or attempt to collect any debt . . . .” 15 U.S.C. § 1692e(10). A debt collector must also provide a consumer written notice containing, among other information, “a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector”. 15 U.S.C. § 1692g(a)(3). According to the Fourth Circuit Court of Appeals, “the FDCPA's legislative history suggests that the purpose of the validation notice requirement was to ‘eliminate the recurring problem of debt collectors dunning[1] the wrong person or attempting to collect debts which the consumer has already paid.'” Russell, 763 F.3d at 394 (added emphasis removed) (quoting S. Rep. No. 382, 95th Cong., at 4 (1977)). In other words, “Congress included the debt validation provisions in order to guarantee that consumers would receive adequate notice of their legal rights.” Miller v. Payco-Gen. Am. Credits, Inc., 943 F.2d 483, 484 (4th Cir. 1991).

         “[T]he notice Congress required must be conveyed effectively to the debtor.” Id. “[T]o be effective, the notice must not be overshadowed or contradicted by other messages or notices appearing in the initial communication from the collection agency.” Id. (internal quotations omitted) (finding the form notice “both contradicted and overshadowed the required validation notice, preventing the notice's effective communication” where the face of the form demanded “IMMEDIATE FULL PAYMENT”, directed the consumer to “PHONE U.S. TODAY”, and emphasized the word “NOW”, information that “flatly contradict[ed] the [notice] information contained on the back” of the form). The notice “must be placed in such a way to be easily readable, and must be prominent enough to be noticed by an unsophisticated consumer.” United States v. Nat'l Fin. Servs., Inc., 98 F.3d 131, 139 (4th Cir. 1996) (affirming holding that notices not only ...


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