Opinion
NO. CV 00-1231 PCT PGR
December 19, 2002
ORDER
Pending before the Court is the defendant's [Second] Motion to Dismiss (doc. #41), wherein the defendant seeks the dismissal of this action for lack of subject matter jurisdiction pursuant to Fed.R.CiV.P. 12(b)(6). Having considered the parties' memoranda, the Court finds that the motion should be denied.
The amended complaint alleges that the defendant, an attorney, violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., by filing a Petition for Order Allowing Repossession of Collateral in the Navajo Nation District Court against James Walker, the plaintiff herein, on behalf of the creditor which was the assignee of the retail installment contract and security agreement for a mobile home owned by Walker's deceased mother. The petition filed by the defendant alleged that the creditor was entitled to possession of the mobile home on the ground that there was an arrearage in the payments on it; the petition named Walker as the defendant because he was then occupying and in control of the mobile home. The gist of the amended complaint is that Walker is entitled to damages under the FDCPA because the defendant misrepresented in the tribal court petition he filed that his client was entitled to recover remedies from Walker for a breach of contract notwithstanding that Walker was not a party to the financing contract and had never assumed the debt for the mobile home after his mother's death.
The defendant argues that the Court has no subject matter jurisdiction over this action because the plaintiff's claim does not fit within the FDCPA inasmuch as the defendant was not seeking collect a "debt" from the plaintiff as that termed is defined in 15 U.S.C. § 1692a(5). The first half of the defendant's argument is his contention that the plaintiff is not a "consumer" for purposes of the FDCPA because he has affirmatively alleged that he did not owe the underlying debt and because the tribal court petition for repossession did not allege that the plaintiff owed the underlying debt.
The FDCPA defines a "debt" as being "any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment." 15 U.S.C. § 1692a(5). The FDCPA defines a "consumer" as being "any natural person obligated or allegedly obligated to pay any debt." 15 U.S.C. § 1692a(3).
The Court is unpersuaded by the defendant's argument because the plaintiff need not be a "consumer" to have standing under the FDCPA to bring this action. The FDCPA's enforcement provision, 15 U.S.C. § 1692k(a), governs who may enforce the provisions of the FDCPA. That section provides that "any debt collector for fails to comply with any provision of this subchapter with respect to any person is liable to such person[.]" Federal courts, noting that this section is "couched in the broadest possible language", interpret the section as being a broad grant available to persons who are not obligated or allegedly obligated to pay the debt that the defendant sought to collect absent a specific limitation in the FDCPA's substantive provisions.Wright v. Finance Service of Norwalk, Inc., 22 F.3d 647, 649 (6th Cir. 1994) (en banc). While a plaintiff must be a "consumer" to have a cause of action under certain sections of the FDCPA because those sections define violations in terms of conduct directed toward a consumer, the sections specifically alleged in the amended complaint to have been violated by the defendant, i.e., 15 U.S.C. § 1692e(2)(A) and (B), § 1692e(5), § 1692e(10), and § 1692f, do not limit relief to consumers. See id. at 649 ("Unlike other sections of the act where relief is limited to `consumers,' under § 1692e a debt collection practice need not offend the alleged debtor before there is a violation of the provisions[,]" and id. at 649 n. 1 ("Section 1692c . . . appears to be the most restrictive of the FDCPA's provisions. The other provisions are not limited to `consumers,' and thus are broader than § 1692c.") Conboy v. AtT Corp., 84 F. Supp.2d 492, 504 (S.D.N.Y. 2000), aff'd, 241 F.3d 242 (2nd Cir. 2001) (Court noted that § 1692(e) does not limit the FDCPA's protections to the statutory definition of "consumer" except in subsection 1692e(11)); Dutton v. Wolbur, 809 F. Supp. 1130, 1134 (D.Del. 1992) ("A plain reading of the [FDCPA] demonstrates that § 1692k does not limit recovery to `consumers.' Instead, it imposes liability where a debt collector has failed to comply with the Act with respect to `any person.' . . . In addition, none of the sections of the Act before this Court . . . limits its proscriptions to `consumers.'"); Whatley v. Universal Collection Bureau, Inc., 525 F. Supp. 1204, 1205 (N.D.Ga. 1981) (Court noted that the FDCPA's liability section, § 1692k(a), "is couched in the broadest possible language; the statute is not limited to `consumers.' Moreover, a number of violations prescribed by the Act harm persons other than consumers.")
The second half of the defendant's argument is his contention that he was not collecting a debt for purposes of the FDCPA by filing the tribal court petition for repossession because he was not thereby trying to force the plaintiff to pay money on the underlying indebtedness. The Court is also unpersuaded by this argument because the limitation urged by the defendant on what constitutes the collection of a debt is inconsistent with the broad scope of the FDCPA.
The amended complaint alleges various violations of § 1692e, which provides in part that "[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt[,]" and § 1692f, which provides in part that "[a] debt collector may not use any unfair or unconscionable means to collect or attempt to collect any debt." The Court concludes that the filing of the petition for repossession of the mobile home, which was the collateral for the underlying consumer retail installment contract, was in fact an attempt to collect a debt for purposes of the FDCPA regardless of whether or not the defendant alleged that the plaintiff owed the deficiency on the underlying contract. That the purpose of the petition for repossession was to collect on the underlying consumer debt is made clear by petition which specifically stated that "Plaintiff is lawfully entitled to and has a right to immediate possession of the Collateral because Defendant [the plaintiff in this action] has failed to make the payments under the Contract and is in default[,]" and that "[t]he net sales proceeds from the resale of the Collateral shall be applied in reduction of the monies owed under the Contract." Therefore,
In any case, as the plaintiff correctly notes, the defendant was in fact attempting through the request for repossession to collect money from him allegedly owed under the terms of the underlying retail installment contract inasmuch the petition stated that "in accordance with the Contract, Plaintiff [the creditor] is entitled to recover attorney fees and costs[,]" and requested in its prayer for relief that the creditor be awarded from the plaintiff herein its "attorney fees, and costs and expenses of collection.'"
IT IS ORDERED that the defendant's [Second] Motion to Dismiss (doc. #41) is denied.
IT IS FURTHER ORDERED that the parties shall file their Joint Pretrial Statement no later than February 14, 2003.
IT IS FURTHER ORDERED that the Pretrial Conference shall be held on Monday, March 17, 2003 at 3:30 p.m. in Courtroom 601.