United States District Court, D. Nebraska
JACQUELINE HAYNES, on behalf of herself and all other similarly situated, Plaintiff,
ALLIED INTERSTATE, LLC, RESURGENT CAPITAL SERVICES, LP, and PYOD, LLC, Defendants.
MEMORANDUM AND ORDER
RICHARD G. KOPF, District Judge.
This is a putative class action brought pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. ("FDCPA"), and the Nebraska Consumer Protection Act, Neb. Rev. Stat. §§ 59-1601 et seq. ("NCPA"). Defendants have moved to dismiss the action for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). Defendants' motion will be granted with respect to Plaintiff's FDCPA claims, which will be dismissed with prejudice, but Plaintiff's NCPA claims will be dismissed without prejudice pursuant to 28 U.S.C. § 1367(c).
Plaintiff alleges that she "incurred a credit card obligation to Plains Commerce Bank" which "was closed or charged off on January 17, 2008, [after] the last payment was made [on] November 12, 2007" (filing 1, ¶¶ 9, 10); that Defendant "PYOD, LLC obtained [Plaintiff's] Plains Commerce Bank obligation after it had gone into default" ( id., ¶ 11); that "PYOD, LLC placed [Plaintiff's] Plains Commerce Bank obligation with [Defendant] Resurgent Capital Services LP [("Resurgent")] for collection" ( id., ¶ 12); that "Resurgent retained the services of [Defendant Allied Interstate LLC ("Allied")] to collect debts and send letters... for that purpose" ( id., ¶ 15); and that on February 1, 2014, Allied sent a letter to Plaintiff which reads:
We are a debt collection company and our client, Resurgent Capital Services LP, has retained us to collect the debt noted above. This is an attempt to collect a debt and any information obtained will be used for that purpose.
Our client is willing to accept payment in the amount of $359.11 in settlement of this debt. You can take advantage of this settlement offer if we receive your payment, or you make other mutually acceptable payment arrangements, within 40 days from the date of this letter. We reserve the right to extend this or a different settlement offer to you in the future.
Notwithstanding the above settlement offer, as of the date of this letter, the Amount Owed is $2394.08. Because the creditor continues to assess interest on the debt, the amount due on the day you pay may be greater. Hence, if you pay the Amount Owed shown above, an adjustment may be necessary after we receive your payment, in which event we will inform you of any remaining balance. To make a payment, please telephone us at 866-466-4479 or mail your payment using the coupon on the reverse side of this letter. We process checks electronically and your checking account will be debited on the day we receive your payment. Your check will not be returned.
Unless you notify us within 30 days after receiving this letter that you dispute the validity of this debt or any portion thereof, we will assume that this debt is valid. If you notify us in writing within 30 days after receiving this letter that you dispute the validity of this debt, or any portion thereof, we will obtain and mail to you verification of the debt or a copy of a judgment. If you request of us in writing within 30 days after receiving this letter, we will provide you with the name and address of the original creditor, if different from the current creditor.
We look forward to receiving your payment.
Allied Interstate LLC
( Id., ¶ 16 & attached Exhibit A.)
Plaintiff claims this letter violates the FDCPA because it "falsely, deceptively, and misleadingly misrepresents... how or if the amount to settle the account within 40 days of the date of this letter' would be affected by assessment of continuing interest, in violation of 15 U.S.C. § 1692e;... the relationship of our client Resurgent Capital Services LP' to the alleged debt, or the Current Creditor, or Plains Commerce Bank, in violation of 15 U.S.C. § 1692e;... consumers [ sic ] on time-barred debts without disclosure of that fact in violation of 15 U.S.C. § 1692e and f; [and]... the legal status of the alleged debt in violation of 15 U.S.C. § 1692e[(2)](A)" ( id., ¶ 44). The alleged § 1692e violations involve "[t]he false representation of... the character, amount, or legal status of any debt, " 15 U.S.C. § 1692e(2)(A), "[t]he threat to take any action that cannot be legally taken or that is not intended to be taken, " 15 U.S.C. § 1692e(5), and "[t]he use of any false representation or deceptive means to ...