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Mesa v. American Express Educational Assurance Co.

United States District Court, S.D. Florida

May 18, 2017

RENE MESA, Plaintiff,
v.
AMERICAN EXPRESS EDUCATIONAL ASSURANCE COMPANY, AMERICAN EXPRESS, and TRANSWORLD SYSTEMS INCORPORATED, Defendants.

          ORDER

          PAUL C. HUCK UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court upon American Express Company and American Express Educational Assurance Company's Motion to Dismiss ... ("Motion") [ECF No. 26], filed February 22, 2017. Plaintiff Rene Mesa ("Mesa") filed a Motion in Opposition 12(B)(6) . .. ("Response") [ECF No. 29] on March 15, 2017. Defendants American Express Company ("Amex") and American Express Educational Assurance Company ("AEEAC") filed their Reply Memorandum . . . ("Reply") [ECF No. 35] on March 28, 2017. The Court has carefully considered the parties' submissions, the record, and applicable law.

         I. BACKGROUND[1]

         Mesa filed his Amended Complaint on February 7, 2017 [ECF No. 22], in which he alleges eight separate violations: Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692d (Count I); FDCPA, 15 U.S.C. § 1692e(2) (Count II); FDCPA, 15 U.S.C. § 1692e(8) (Count III); FDCPA, 15 U.S.C. § 1692e(10) (Count IV);[2] FDCPA, 15 U.S.C. § 1692e(ll) (Count V); Florida Consumer Collection Practices Act ("FCCPA"), Fla. Stat. § 559 (Count VI); Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 (Count VII); and Negligent Hiring and Supervision (Count VIII). Counts VI, VII, and VIII are the only allegations against Amex and AEEAC.

         Mesa alleges that he received calls to his cellular telephone "several times within the last four years, by use of an automated telephone dialing system." (Am. Compl. ¶ 31). The caller represented that the call was on behalf of Defendant Transworld Systems Inc. ("Transworld"), but "failed to provide meaningful identification as debt collector at the inception of the calls." (Id. ¶ 32). "Plaintiff received several telephone calls from different telephone numbers." (Id.). Plaintiff received these calls "after numerous requests to cease and desist" and after settling a federal lawsuit against Defendant NCO Financial Systems[3] in case 13-cv-23131 -UU. (Id. ¶ 33). The final call Mesa received from Transworld was on or about October 22, 2015. (Id. ¶ 34).

         When Mesa returned the telephone calls, Transworld did not advise him that it was attempting to collect a debt nor did Transworld identify itself as a debt collector. (Id. ¶ 35). Although Mesa did not consent to being recorded during the phone calls, the representative indicated that she could not turn off the recorder. (Id. ¶ 36). Only after obtaining Mesa's private information did the representative indicate that she was a debt collector. (Id.). The Transworld representative refused to identify herself as a debt collector until after Mesa provided his identification information. (Id. ¶ 37). Mesa subsequently called Transworld various times, and a different representative informed Mesa that he owed $10, 945.85. (Id. ¶ 39). The representative told Mesa that if he made late payments, "those late payments would not appear on the credit report." (Id.). However, "[t]he late payments did appear on Plaintiffs credit report." (Id.). Plaintiff "expressed his frustration" to a supervisor regarding late payments on his credit report "that never took place." (Id. ¶ 40).

         The Transworld supervisor informed Mesa that the original lender for the loan was AEEAC and that "further inquiry regarding the false late payments that appeared in [the] credit report should be taken up with them." (Id. ¶ 41). Plaintiff sent Transworld a notice of dispute regarding the "false late payments" on his credit report, and Transworld "failed to list the debts as disputed." (Id.). Mesa alleges that "[b]y reporting misleading information regarding the nature and/or status of said alleged debt with respect to such matters as the identity of the original creditor, the relevant dates and ages of said alleged debt, and other matters which these Defendants knew or should have known would mislead, " Defendants violated the law. (Id.). The late payment entries were removed from the credit report after several months. (Id.).

         Mesa's credit report provided that he had "missed 14 payments within the last four (4) years, " when in fact "[t]hese were defaulted student loans and no payment was ever made on them." (Id. ¶ 43). The Defendants AEEAC, Amex, and Transworld "knowingly, willfully[, ] and with malice listed seventy-two (72) false and derogatory entries in Plaintiffs credit with Equifax, Experian[, ] and Transunion ... in order to coerce payment." (Id.). Mesa did not consent to receive calls from Transworld. (Id. ¶ 44). AEEAC, Amex, and Transworld "engaged in a knowingly, willfully[, ] and with malice attempt to collect a debt by providing knowing false and deceptive credit information to the Credit Bureaus in an attempt to collect a debt." (Id. ¶ 45). Mesa's telephone number is unlisted, he does not do business with Transworld, and he never consented to Transworld's use of his private financial information and telephone number. (See Id. ¶¶44, 46- 47).

         Mesa alleges that AEEAC "controls, directs, manages, oversees, supervises, profits from[, ] and engages in debt collection directly and indirectly through" Transworld and is "responsible to the acts of their agents under agency." (See Id. ¶ 48). As such, AEEAC "is required to make certain that their employees, agents[, ] and servants engage in collection efforts that are compliant with the TCPA, FDCPA[, ] and the FCCPA." (See id). Likewise, Mesa alleges that Amex "controls, directs, manages, oversees, supervises, profits from[, ] and engages in debt collection directly and indirectly through" Transworld and is "responsible to the acts of their agents under agency." (See Id. ¶ 49).

         II. LEGAL STANDARD

         "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although this pleading standard "does not require 'detailed factual allegations, '... it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Id. (alteration added) (quoting Twombly, 550 U.S. at 555). Pleadings must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citation omitted). Indeed, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). To meet this "plausibility standard, " a plaintiff must "plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (citing Twombly, 550 U.S. at 556).

         When reviewing a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and take the factual allegations therein as true. See Brooks v. Blue Cross & Blue Shield of Fla, Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). However, pleadings that "are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 556 U.S. at 678.

         III. ANALYSIS

         Mesa contends that Amex and AEEAC are legally responsible for telephone calls that Transworld allegedly made to him. (Am. Compl. ¶¶ 31-41, 48-9). He alleges that AEEAC and Amex control, direct, manage, oversee, supervise, profit from, and engage in debt collection directly and indirectly through their agent Transworld. (See Id. ΒΆΒΆ 48-49). Defendants AAEAC and Amex argue that the claims against them should be dismissed "because there are no well-pleaded facts supporting the alleged existence of their agency relationship with" Transworld. (Mot. 5). Rather, Defendants maintain that Mesa's "conclusory agency allegations do ...


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