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Lucero v. Debt Recovery Attorneys

United States District Court, D. New Mexico

April 15, 2019

HECTOR LUCERO, Plaintiff,
v.
DEBT RECOVERY ATTORNEYS, and MICHAEL SAYER, Defendants.

          MEMORANDUM OPINION AND ORDER

         On March 1, 2019, Defendants Debt Recovery Attorneys (DRA) and owner Michael Sayer (Sayer) (together, Defendants) filed DEFENDANT DEBT RECOVERY ATTORNEYS AND MICHAEL SAYER'S NOTICE OF MOTION AND MOTION TO DISMISS THE COMPLAINT PURSUANT TO FRCP 12(b)(6); OR IN THE ALTERNATIVE FOR A MORE DEFINITE STATEMENT PURSUANT TO FRCP 12(e); MEMORANDUM OF POINTS AND AUTHORITIES (Doc. No. 6) (Motion). Plaintiff Hector Lucero (Plaintiff) opposes the Motion. See PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS (Doc. No. 9) (Response). The Motion is fully briefed. See DEFENDANT DEBT RECOVERY ATTORNEYS AND MICHAEL SAYER'S REPLY IN OPPOSITION OF PLAINTIFF TO MOTION TO DISMISS THE COMPLAINT PURSUANT TO FRCP 12(b)(6); OR IN THE ALTERNATIVE FOR A MORE DEFINITE STATEMENT PURSUANT TO FRCP 12(e); MEMORANDUM OF POINTS AND AUTHORITIES (Doc. No. 10) (Reply).

         Having considered the Motion, Response, Reply, and the applicable law, the Court will deny the Motion because the Complaint and the Response adequately inform Defendants of Plaintiff's claim for violations of the Federal Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692g (a)(3) through the use of an allegedly misleading form letter to collect a debt.

         I. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” While this Rule “does not require ‘detailed factual allegations, '” it demands more than “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action'” which, as the Supreme Court explained, “will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         Under Rule 12(b)(6) a court may dismiss a claim “for failure to state a claim upon which relief can be granted[.]” Fed.R.Civ.P. 12(b)(6). “The court's function on a Rule 12(b)(6) motion is . . . to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Brokers' Choice of America, Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135 (10th Cir. 2014) (citing Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991)). In evaluating a Rule 12(b)(6) motion, the court must “accept as true all well-pleaded facts, as distinguished from conclusory allegations, and view the facts in the light most favorable to the nonmoving party.” Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998). To summarize, a complaint must contain sufficient factual allegations “to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true ....” Twombly, 550 U.S. at 555.

         When reviewing a motion to dismiss, the Court “generally must limit itself to the facts stated in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference.” De Gutierrez v. Albuquerque Pub. Sch., 18 CV 00077 JAP/KBM, 2018 WL 3647208, at *3 (D.N.M. Aug. 1, 2018) (unpublished) (citation omitted). However, in the Tenth Circuit, courts may “consider additional facts or legal theories asserted in a response brief to a motion to dismiss if they were consistent with the facts and theories advanced in the complaint.” Id. (quoting, Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 2001)). Within the Court's discretion, a claim can be saved by additional, consistent facts provided in subsequent briefing. Hayes, 264 F.3d at 1025.

         Rule 12(e) provides,

A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response….

Fed. R. Civ. P. 12(e). Where a defendant is unable to frame a fair response to a pleading because the pleading's meaning is unclear, the proper remedy is ordinarily not a motion to dismiss but instead a motion for a more definite statement. Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990) (“[I]f it is at all possible that the party against whom the dismissal is directed can correct the defect in the pleading or state a claim for relief, the court should dismiss with leave to amend.”).

         II. ALLEGATIONS IN THE COMPLAINT

         On February 7, 2019, Plaintiff filed the CLASS ACTION COMPLAINT FOR DAMAGES (Doc. No. 1) (Complaint). In the Complaint, Plaintiff alleges that Defendants as debt collectors violated the FDCPA by sending collection form letters that do not meet the requirements of the FDCPA. Plaintiff alleges that in January 2017, he entered into a Residential Solar Power Purchase Agreement (PPA) with Vivint Solar (Vivint). (Compl. ¶ 5.) In the PPA, Plaintiff purchased electricity generated by a solar energy system in exchange for payment over 20 years. (Id. ¶ 9(a).) Vivint contracted with DRA to collect the debt owed by Plaintiff under the PPA. (Id. ¶ 22.)

         In November 2018, DRA sent a form letter to Plaintiff dated November 12, 2018 (November 2018 Letter) in which DRA identified itself as a “debt collector” and demanded payment of the entire balance due under the PPA, referred to as the “Debt.” (Id.) On the reverse side of the November 2018 Letter, DRA stated: “You have thirty (30) days from the date of this letter to dispute the Debt, or any portion of it, before it is assumed to be valid.” (Id. ¶ 23.) Plaintiff alleges that Sayer's signature appears on the November 2018 Letter and that Sayer created, approved, or ratified the November 2018 Letter. (Id. ¶ 24-25.) Plaintiff alleges that DRA sent a similar form letter to 100 or more consumer debtors. (Id. ¶ 26.) Plaintiff claims that the November 2018 Letter violates § 1692g(a)(3) of the FDCPA. (Id. ¶ 32.)

         In a second letter to Plaintiff dated December 13, 2018 (December 2018 Letter), also with Sayer's signature at the bottom, DRA stated that it “may commence legal proceedings pursuant to” the PPA.[1]

         In the single First Claim for Relief (First Claim), Plaintiff alleges that Defendants' “actions” violated the FDCPA, “including but not limited to 15 U.S.C. § 1692g(a)(3).” (Id. ΒΆ 37.) Plaintiff claims he and the class members are entitled to ...


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