United States District Court, D. Connecticut
ORDER GRANTING MOTION TO DISMISS
JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE
The
Fair Debt Collection Practices Act (FDCPA) provides in
relevant part that a debt collector may not use false,
misleading, or deceptive means to attempt to collect a debt.
See 15 U.S.C. § 1692e. This case asks how this
provision of the FDCPA applies when two different debt
collectors make reports for the same debt to a credit
reporting agency. On the basis of the bare-bones allegations
of the complaint filed in this case, I conclude that the
plaintiff has failed to allege sufficient facts to show that
the defendant used false, misleading, or deceptive means to
attempt to collect a debt.
Background
The
complaint alleges that plaintiff Paul Reyes was delinquent on
a cable bill with DirecTV and that at some point in time
defendant IC System, Inc. (“ICS”) began
collecting on this debt on behalf of DirectTV. On June 1,
2019, Reyes reviewed his credit report, and he noticed a
credit entry from ICS seeking to collect $254. He also
noticed on the same credit report an entry for $254 from
another debt collector for the same debt.
Reyes
alleges that the duplicative reporting of the same delinquent
debt hurt his credit score. He further alleges that ICS
violated the FDCPA by engaging in false, deceptive, or
misleading conduct as a result of its duplicative
contribution to the credit report. The complaint names only
ICS as a defendant; it does not name as a defendant the other
debt collector who reported the same debt to the credit
reporting agency. ICS has moved to dismiss the complaint
pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a
claim.
Discussion
When
considering a motion to dismiss under Rule 12(b)(6), the
Court must accept as true all factual matters alleged in a
complaint, although a complaint may not survive unless the
facts it recites are enough to state plausible grounds for
relief. See, e.g., Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); Hernandez v. United States,
939 F.3d 191, 198 (2d Cir. 2019). Although this
“plausibility” requirement is “not akin to
a probability requirement, ” it “asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678. The Court
need not accept allegations that couch legal conclusions in
the form of factual allegations or that are otherwise
conclusory. See Hernandez, 939 F.3d at 198. In
short, my role in reviewing a motion to dismiss under Rule
12(b)(6) is to determine if the complaint-apart from any of
its conclusory allegations-alleges enough facts to state a
facially plausible claim for relief.
The
FDCPA provides in relevant part that “[a] debt
collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of
any debt.” 15 U.S.C. § 1692e. It goes on to list
numerous examples of prohibited conduct including
“[t]he use of any false representation or deceptive
means to collect or attempt to collect any debt or to obtain
information concerning a consumer.” 15 U.S.C. §
1692e(10); see generally Altman v. J.C. Christensen &
Assocs., Inc., 786 F.3d 191, 194 (2d Cir. 2015).
ICS
argues that the complaint does not allege facts to plausibly
show that it used any false, deceptive, or misleading means
to attempt to collect a debt. I agree. To begin with, Reyes
does not dispute that he owes $254 as allegedly reported by
ICS to the agency that issued his credit report. Even if
another debt collector opted to report the same debt to the
credit reporting agency, this does not mean, without more,
that ICS's otherwise truthful report was false,
deceptive, or misleading. “[I]t is not false,
deceptive, or misleading for [a debt collector] to tell a
consumer credit reporting agency that it attempted to collect
a debt that [plaintiff] concedes is valid even if that leads
to two records relating to the same debt in [plaintiff's]
credit report.” Kohut v. Trans Union, LLC,
2004 WL 1882239, at *3 (N.D. Ill. 2004); see also Macias
v. Credit Control, LLC, 2017 WL 2619145, at *3 (N.D.
Ill. 2017) (noting that “courts in this District have
held that debt collectors do not violate the FDCPA when they
report a debt, even if another entity has already made a
credit bureau report about the same
debt”).[1]
The
complaint contains no allegations that ICS's report was
misleading to its only recipient-the credit reporting
agency-or led to a false statement in the resulting credit
report. Indeed, the complaint is consistent with a credit
report that stated, truthfully, that two different debt
collectors were seeking the same debt and the credit
reporting agency elected, for the purposes of its own
reporting, to report the facts of those two collection
attempts as representing twice the debt burden. In such a
situation, there would be by definition no “false or
misleading” representation actionable under the FDCPA.
As it is, then, the complaint at best raises only the
“sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678.
Moreover,
although Reyes alleges that he has been harmed by the
duplicative reporting of a single debt on his credit report,
he does not allege whether it was ICS or the other debt
collector who first reported the debt to the credit reporting
agency. This is fatal to Reyes's claim because, even
assuming that a credit report containing duplicative debt
data can be said to be false, misleading, or deceptive in
nature, the statute requires more than that to prove a
violation: it requires that the debt collector
“use” such improper means to attempt to collect a
debt. 15 U.S.C. § 1692e(10); cf. Vincent v. The
Money Store, 736 F.3d 88, 98-99 (2d Cir. 2013)
(discussing “use” in the context of the FDCPA).
If ICS was the first debt collector to report the debt, then
there are no grounds to plausibly conclude that ICS was
responsible for any subsequent duplicative reporting by
another debt collector and thus that ICS tried to
“use” a false representation to collect a debt
from Reyes. The only “use” of the report to the
credit reporting agency in this situation would be completely
true: that ICS was collecting a $254 debt.
Conclusion
For the
foregoing reasons, I conclude that plaintiff Reyes has failed
to plausibly allege that defendant ICS used any false,
misleading, or deceptive means to attempt to collect a debt.
Accordingly, defendant ICS's motion to dismiss is GRANTED
without ...