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Beltran v. RAS LaVRAR, LLC

United States District Court, M.D. Florida, Orlando Division

July 7, 2018

NILKA A. BELTRAN, Plaintiff,
RAS LAVRAR, LLC, Defendant.



         This 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.

         I. BACKGROUND

         This 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).[1] 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.

         After 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”).[2](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[3] 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).

         Plaintiff 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).


         A 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 alleged.” Id.

         Though 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.


         To 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).

         A. Count I: Violation of 15 U.S.C. § 1692i(a)(2)

         The 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.

         The 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 ...

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