United States District Court, D. New Mexico
JOSHUA CORDOVA, on his own behalf, and on behalf of all others similarly situated, Plaintiff,
JODY JENKINS and JENKINS, WAGNON & YOUNG, P.C., Defendants.
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Defendants Jody Jenkins
and Jenkins, Wagnon & Young, P.C.'s
(“Defendants'”) Rule 12(b)(6) Motion to
Dismiss and Motion for Judgment on the Pleadings
(“Motion”), filed on May 27, 2016. (Doc. 5).
Plaintiff filed a response (“Response”) on June
24, 2016, and Defendants filed a reply (“Reply”)
on July 22, 2016. (Docs. 14 and 15). Having reviewed the
Motion and the accompanying briefs, the Court DENIES the
Joshua Cordova originally filed a Class Action Complaint for
Damages (“Complaint”) in the Second Judicial
District Court in the County of Bernalillo, New Mexico
(“State District Court”). (Doc. 1-1) at 8-15. In
the Complaint, Plaintiff alleges that attorney Jody Jenkins
(“Defendant Jenkins”) and his law firm, Jenkins,
Wagnon & Young, P.C. (“Defendant JWY”)
submitted fraudulent attorney fee affidavits in their New
Mexico debt collection cases, resulting in hundreds of
inflated judgments against New Mexico residents.
(Id. at 8). Plaintiff claims that Defendants'
conduct violated the Fair Debt Collection Practices Act, 15
U.S.C. §§ 1692 et seq.
(“FDCPA”), the New Mexico Unfair Practices Act,
NMSA 1978, §§ 57-12-1, et seq.
(“UPA”), and constituted malicious abuse of
process, fraud, and unjust enrichment. Id.
basis for Plaintiff's claims, Plaintiff specifically
alleges that, on June 16, 2014, Defendant Jenkins filed suit
in State District Court on behalf of debt buyer Auto vest,
L.L.C. (“Auto vest”), against Plaintiff (the
“Lawsuit”). (Doc. 1-1) at 9. The complaint in
that case alleged that Auto vest was the owner and holder of
an auto loan contract, acquired from Wells Fargo, that
Plaintiff had signed in 2006 to finance the purchase of a
motor vehicle. Id. The complaint further alleged
that Plaintiff defaulted on the auto loan and, as a result,
was indebted to Auto vest. Id. Throughout the
Lawsuit, no responsive pleadings were filed, no hearings were
held, and Defendant Jenkins did not make any court
appearances. Id. at 9-10. Subsequently, Defendant
Jenkins filed a Motion for Default Judgment on behalf of Auto
vest, to which he attached a signed, notarized,
“Itemized Affidavit in Support of Attorney's
Fees” (“Fee Affidavit”). Id. at
Affidavit sought attorney's fees for the hours Defendants
Jenkins and JWY spent on the Lawsuit under the lodestar
method. Id. In support of their request, Defendant
Jenkins stated, under oath, that Defendant JWY had spent a
total of 4.25 attorney hours, at a reasonable rate of $250
per hour, on the Lawsuit, itemized as follows: (1) receive
and review file and general demand letter - .5; (2) draft
complaint, summons, affidavit in support of complaint, and
non-military affidavit - 1.0; (3) file complaint, correspond
with process server - .5; (4) draft letter to clerk to file
return of service with certificate of mailing - .25; (5)
draft Motion for Default Judgment and Final Judgment - 1.0;
and (6) miscellaneous communication with client - 1.0.
Id. On October 30, 2014, the State District Court
granted Auto vest default judgment and awarded Defendants
attorney's fees. Id.
alleges that Defendant Jenkins did not perform 4.25 of work
in the Lawsuit. In support, Plaintiff attaches several other
nearly identical Fee Affidavits, which Defendant Jenkins
submitted in other debt collection cases resolved by default
judgment around the time of the Lawsuit. Id. at 10,
16-23; (Doc. 1-2) at 1-11. In those Fee Affidavits, Defendant
Jenkins claims that he performed 4.25 hours of work, with the
same itemization of attorney time. Id. In addition,
Plaintiff attaches a one-page Motion for Default Judgment
which was filed in the Lawsuit, along with five other
examples of nearly identical motions for default judgment
filed in similar cases. (Doc. 1-2) at 11-16. As a result,
Plaintiff claims that Defendant Jenkins could not have
performed all these tasks and that they more likely were
completed by support staff in less than 4.25 hours. Thus,
Defendants' Fee Affidavits contained false statements.
(Doc. 1-1) at 11.
removed the case to this Court on May 20, 2016. (Doc. 1).
Subsequently, they filed their Motion, seeking dismissal of
Plaintiff's claims under Fed.R.Civ.P. 12(b)(6), and
judgment on the pleadings pursuant to the doctrines of
res judicata and collateral estoppel. (Doc. 5). In
response, Plaintiff argues that he has stated a viable claim
under the FDCPA and that he has otherwise alleged sufficient
factual matter to survive a Rule 12(b)(6) motion to dismiss.
In addition, Plaintiff maintains that his claims are not
barred by res judicata or collateral estoppel.
Standard of Review
reviewing a Rule 12(b)(6) motion asserting a failure to state
a claim upon which relief can be granted, the Court must
accept all well-pleaded allegations as true and must view
them in a light most favorable to the plaintiff. Zinermon
v. Burch, 494 U.S. 113, 118 (1990). Rule 12(b)(6)
requires that a complaint set forth the grounds of a
plaintiff's entitlement to relief through more than
labels, conclusions and formulaic recitation of the elements
of a cause of action. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). To survive a 12(b)(6)
motion to dismiss, a complaint need not include detailed
factual allegations, but “[f]actual allegations must be
enough to raise a right to relief above the speculative
level.” Id. In other words, dismissal of a
complaint under Rule 12(b)(6) is proper only where it is
obvious that the plaintiff failed to set forth “enough
facts to state a claim to relief that is plausible on its
face.” Id. at 570.
complaint alleges fraud, however, “a party must state
with particularity the circumstances constituting fraud . . .
. Malice, intent, knowledge, and other conditions of a
person's mind may be alleged generally.”
Fed.R.Civ.P. 9(b). “At a minimum, Rule 9(b) requires
that a plaintiff set forth the ‘who, what, when, where
and how' of the alleged fraud.” U.S. ex rel.
Sikkenga v. Regence Bluecross Blueshield of Utah, 472
F.3d 702, 726-27 (10th Cir. 2006) (citing Thompson v.
Columbia/HCA Healthcare Corp., 125 F.3d 899, 903 (5th
Cir.1997)). In addition, a complaint alleging fraud must
“set forth the time, place and contents of the false
representation, the identity of the party making the false
statements and the consequences thereof.” Koch v.
Koch Industries, Inc., 203 F.3d 1202, 1236 (10th Cir.
2000) (internal quotation omitted).
move to dismiss the Complaint under Fed.R.Civ.P. 12(b)(6) and
9(b), and for judgment on the pleadings pursuant to the
doctrines of res judicata and collateral estoppel.
The Court will address each argument in turn.
12(b)(6) and 9(b)
argue that Plaintiff has failed to state a viable FDCPA claim
based on the allegations in the Complaint. In addition,
Defendants contend that Plaintiff has otherwise failed to set
forth sufficient factual allegations to support her claims,
pursuant to Fed.R.Civ.P. 12(b)(6) and 9(b). Plaintiff
responds that he has stated a viable claim under the FDCPA,
and that he has otherwise alleged sufficient factual matter
to survive a Rule 12(b)(6) motion to dismiss.
purpose of the FDCPA is “to eliminate abusive debt
collection practices by debt collectors, to insure that those
debt collectors who refrain from using 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(e). A prima
facie case for violation of the FDCPA requires proof of the
following four elements:
(1) the plaintiff is any natural person who is harmed by
violations of the FDCPA, or is a “consumer”
within the meaning of 15 U.S.C.A. §§ 1692a(3),
1692c(d) for purposes of a cause of action ...