United States District Court, M.D. Florida, Orlando Division
NILKA A. BELTRAN, Plaintiff,
RAS LAVRAR, LLC, Defendant.
G. BYRON UNITED STATES DISTRICT JUDGE.
cause comes before the Court on Defendant RAS LaVRAR,
LLC's Motion to Dismiss (Doc. 9
(“Motion”)), filed May 7, 2019.
Plaintiff Nilka A. Beltran opposes (Doc. 10). With briefing
complete, the matter is now ripe. Upon review, the motion is
due to be granted in part and denied in part.
action arises from a debt collector's conduct in seeking
remittance. While living in Kissimmee, Florida, Plaintiff
Nilka A. Beltran opened a credit card account with Capital
One Bank (USA), N.A. (“Capital One”). (Doc. 1,
¶ 1). Plaintiff defaulted on the credit card agreement,
leading Capital One to file suit against Plaintiff in Lake
County, Florida. (Doc. 9, p. 7). On July 2, 2013, a default
final judgment was entered against Plaintiff for $3, 317.14.
(Doc. 1, ¶ 13). Capital One retained Defendant to
initiate a garnishment proceeding to collect the judgment
against Plaintiff. It is this garnishment proceeding that
gives rise to Plaintiff's claims.
the default judgment was entered but before the garnishment
proceeding began, Plaintiff entered into a second credit card
agreement with Capital One. (Id. ¶ 15).
Plaintiff's stated name on the second agreement is
“Nilka A. Beltran Rivera;” her address is 167
Whisper Wood Court, Kissimmee, Florida, 34743-7810
(“Kissimmee Address”).(Doc. 1-1). Because of the
second credit card agreement, the Complaint alleges that
Plaintiff's last known address to Capital One as of March
2018 was the Kissimmee Address. (Id. ¶ 17).
However, on March 30, 2018, Defendant mailed several court
documents and notices connected to Defendant's debt
collection activities to Plaintiff at an address other than the
Kissimmee Address. (Id. ¶ 18). Thereafter,
Defendant represented in the garnishment proceeding that
Plaintiff's last known address was 2141 Blackhawk Street,
Clermont, Florida, 34714-8077. (“Clermont
Address”). (Id. ¶ 19).
thereafter filed a two-count Complaint against Defendant RAS
on April 11, 2018. (Doc. 1). Both Counts assert claims for
violation of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. §§ 1692 et
seq. Defendant moves to dismiss the Complaint for
failure to state a plausible claim. (Doc. 9).
STANDARD OF REVIEW
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(1). Thus, in order to
survive a motion to dismiss made pursuant to Rule 12(b)(6),
the 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 Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible on its face when the plaintiff “pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
a complaint need not contain detailed factual allegations,
mere legal conclusions or recitation of the elements of a
claim are not enough. Twombly, 550 U.S. at 555.
Moreover, courts are “not bound to accept as true a
legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).
“While legal conclusions can provide the framework of a
complaint, they must be supported by factual
allegations.” Iqbal, 556 U.S. at 679. Courts
must also view the complaint in the light most favorable to
the plaintiff and must resolve any doubts as to the
sufficiency of the complaint in the plaintiff's favor.
Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th
Cir. 1994) (per curiam). In sum, courts must (1) ignore
conclusory allegations, bald legal assertions, and formulaic
recitations of the elements of a claim; (2) accept well-pled
factual allegations as true; and (3) view well-pled
allegations in the light most favorable to the plaintiff.
Iqbal, 556 U.S. at 679.
state an FDCPA claim, a plaintiff must allege three elements:
“(1) the plaintiff has been the object of collection
activity arising from consumer debt, (2) the defendant is a
debt collector as defined by the FDCPA, and (3) the defendant
has engaged in an act or omission prohibited by the
FDCPA.” See Fuller v. Becker & Poliakoff,
P.A., 192 F.Supp.2d 1361, 1366 (M.D. Fla. 2002)
(internal quotation marks omitted). Defendant moves to
dismiss on the ground that the Complaint fails to allege that
its actions were prohibited by the FDCPA. (Doc. 9).
Count I: Violation of 15 U.S.C. § 1692i(a)(2)
FDCPA prescribes two permissible venues in which debt
collectors may “bring  legal action on a debt
against any consumer:” the judicial district
“(A) in which such consumer signed the contract sued
upon; or (B) in which such consumer resides at the
commencement of the action.” 15 U.S.C. §
1692i(a)(2) (emphasis added). Count I avers that Defendant
violated this FDCPA provision by “filing [the]
garnishment action in Lake County, ” as opposed to
Osceola County. (Doc. 1, ¶¶ 21-28). Defendant moves
to dismiss, asserting that its garnishment activities do not
constitute legal action “against any consumer, ”
thus the § 1692i(a)(2) venue provision does not apply.
U.S. Eleventh Circuit Court of Appeals recently addressed the
issue, holding that § 1692i(a)(2) did not apply to
post-judgment garnishment proceedings in Georgia. Ray v.
McCullough Payne & Haan, LLC, 838 F.3d 1107, 1111
(11th Cir. 2016). The court reasoned that § 1692i(a)
applies only to legal actions “against any consumer,
” and in Georgia, garnishment proceedings do not
involve a consumer-rather, “[a] garnishment proceeding