United States District Court, D. Alaska
ORDER AND OPINION [RE: MOTION AT DOCKET 9]
JOHN
W. SEDWICK, SENIOR JUDGE.
I.
MOTION PRESENTED
At
docket 9, defendant Hal P. Gazaway and Associates, LLC
(“Defendant”) moves to dismiss the complaint
filed by plaintiff Rebecca Gagnon (“Plaintiff”).
In the alternative, Defendant asks the court to stay this
case pending resolution of a state court case which is set
for trial on July 13, 2020. While Plaintiff does not mention
it in his motion, the request to dismiss the complaint is
clearly brought pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff
responds at docket 10, and Defendant replies at docket 13.
Oral argument has not been requested and would not assist the
court.
II.
BACKGROUND
Defendant
sent a letter dated September 26, 2017, to Plaintiff
(“the Letter”). The Letter advised Plaintiff that
she had failed to pay Defendant’s client Alpine Village
Condominium Association the sum of $371.99 due on the first
of each month commencing on October 1, 2013. Prominently
displayed in a box above the salutation, the Letter
proclaimed, “The purpose of this letter is to collect a
debt.” The Letter went on to state that as of October
1, 2017, Plaintiff would need to pay $3,155.32, consisting of
monthly dues and special assessments of $2,545.32 plus late
charges of $360 and attorneys’ fees of $250, to cure
her default. The Letter further advised that if the payment
were not made in 30 days, a foreclosure proceeding would be
commenced and that once a foreclosure was commenced, the
amount to be paid would increase to a higher amount as
specified in the Letter.[1]
Plaintiff
brings her complaint pursuant to the Fair Debt Collection
Practices Act[2](“FDCPA”). Her complaint sets
forth two claims for relief. In Count 1 she alleges that
Defendant violated 15 U.S.C. § 1692g(a), which would
entitle Plaintiff to recover damages pursuant to 15 U.S.C.
§ 1692k(a).[3] Count II alleges Defendant violated 15
U.S.C. § 1692e, which would also entitle Plaintiff to
recover damages pursuant to 15 U.S.C. § 1692k(a).
III.
STANDARD OF REVIEW
Rule
12(b)(6) tests the legal sufficiency of a plaintiff’s
claims. In reviewing such a motion, “[a]ll allegations
of material fact in the complaint are taken as true and
construed in the light most favorable to the nonmoving
party.”[4] To be assumed true, the allegations,
“may not simply recite the elements of a cause of
action, but must contain sufficient allegations of underlying
facts to give fair notice and to enable the opposing party to
defend itself effectively.”[5] Dismissal for failure to
state a claim can be based on either “the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory.”[6] “Conclusory
allegations of law . . . are insufficient to defeat a motion
to dismiss.”[7]
To
avoid dismissal, a plaintiff must plead facts sufficient to
“‘state a claim to relief that is plausible on
its face.’”[8] “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.”[9] “The
plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer
possibility that a defendant has acted
unlawfully.”[10] “Where a complaint pleads facts
that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the
line between possibility and plausibility of entitlement to
relief.’”[11] “In sum, for a complaint to
survive a motion to dismiss, the non-conclusory
‘factual content,’ and reasonable inferences from
that content, must be plausibly suggestive of a claim
entitling the plaintiff to relief.”[12]
IV.
DISCUSSION
Plaintiff
alleges that Defendant regularly engages in the collection of
consumer debt.[13] Under the Rule 12(b)(6) standard, the
court must accept this allegation of material fact as true.
Plaintiff also alleges that the Letter’s purpose is to
collect a debt. That material fact cannot be disputed,
because the Letter specifically states that such is its
purpose.
In
Count I, Plaintiff contends 15 U.S.C. § 1692g(a)
required Defendant to give her a debt validation notice
within five days from the date of Defendant’s first
communication with her. In Count I, Plaintiff also contends
that 15 U.S.C. § 1692g(a)(3) required Defendant to
inform her that she had thirty days from the receipt of the
debt validation notice to request Defendant to provide her
with proof of the debt’s validity. Plaintiff alleges
that Defendant did not comply with either requirement. In
Count II, Plaintiff contends that Defendant violated 15
U.S.C. § 1692e, because the Letter made a false
representation about the character, amount or legal status of
the debt it sought to collect.
To
support dismissal of Plaintiff’s claims, Defendant
relies on its interpretation of the recent Supreme Court
decision in Obduskey v. McCarthy & Holthus
LLP.[14]Defendant argues that because it was
attempting to complete a non-judicial foreclosure, it is not
a debt collector under Obduskey and so cannot
violate the FDCPA. This argument does not withstand scrutiny.
In
Obduskey, the Court considered an action brought
against a law firm engaged to bring a non-judicial
foreclosure on Obduskey’s home in Colorado. Colorado,
like Alaska, has statutes which authorize non-judicial
foreclosures. Obduskey argued that the law firm was a debt
collector within the meaning of the FDCPA and that the law
firm had violated the statute. The Court examined the FDCPA
in detail and concluded that ...