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Myrick Fair Collections and OutsourcingFDCPA Response in Opposition to Dismiss

Myrick Fair Collections and OutsourcingFDCPA Response in Opposition to Dismiss

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Published by: ghostgrip on Sep 08, 2012
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 YAUMARY MYRICK, Plaintiff, Case No.: 11-24033-CIV-MARTINEZ vs. FAIR COLLECTIONS & OUTSOURCING, INC., and FAIRWAY VIEW ASSOCIATES, LTD., Defendants.  _____________________________________/
, (“Plaintiff”), by and through u
ndersigned counsel, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, hereby submits this Response in Opposition to Defendant FAIRWAY VIEW ASSOCIATES, LTD.
(Defendant “FVA”
Motion to Dismiss Plaintiff‟s Complaint.
Plaintiff filed the instant action seeking relief under the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”), and the Florida Consumer Collection Practices Act, Fla. Stat. § 559.55 et seq. (“FCCPA”).
Defendant FVA has moved to dismiss this action, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. 3.
Defendant FVA argues that
Defendant is a “creditor” and not a “debt collector” under
15 U.S.C. § 1692a(6) therefore, not subject to the FDCPA. As such,
Case 1:11-cv-24033-JEM Document 11 Entered on FLSD Docket 01/03/2012 Page 1 of 6
Defendant FVA argues that
Plaintiff‟s supplemental claim under the FCCPA should be
dismissed because the Court does not have supplemental jurisdiction over such claim.
Memorandum of Law A.
Standard of Review for Dismissal Under Fed. R. Civ. P. 12(b)(6)
Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a complaint
need only contain “„
short and plain statement of the claim showing that the pleader is
entitled to relief,‟ in order to „
give the defendant fair notice of what the . . . claim is and the grounds up
on which it rests.‟”
 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim tests the sufficiency of the complaint; it is insufficient to decide the merits of the case. Milburn v. U.S., 734 F.2d 762, 765 (11th Cir. 1984). A complaint must contain enough facts to indicate the presence of the required elements. Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1302 (11th Cir. 2007). As long as the allegations rise above a speculative level, a well-
 pleaded complaint will survive a motion to dismiss “ „even if it appears that a recovery is
very remote and unlik 
ely.‟ ”
Conley, 355 U.S. at 45-46. Therefore, the Court must accept the allegations in the complaint as true and construe them in the light most favorable to the Plaintiff,
Sec‟y of Labor v. Labbe
, 319 Fed. Appx. 761, 763 (11th Cir. 2008), and the dismiss
al of a claim is appropriate “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.”
Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994) (quoting Hinshon v. King & Spalding, 467 U.S. 69 (1984)).
Case 1:11-cv-24033-JEM Document 11 Entered on FLSD Docket 01/03/2012 Page 2 of 6
Fairway View Associates is subject to the FCCPA
Plaintiff does not dispute that Defendant FVA does not meet the definition of a
“debt collector” and
is thus
a “creditor” under the FDCPA
. However, Plaintiff does dispute that Defendant FVA is subject to liability under the FCCPA.
An individual is held liable under the FDCPA if they are found to be a “debt collector” under 1
5 U.S.C. § 1692(a)(6). However, under 15 U.S.C. § 1692a(6)(F), the
term “debt collector”
 does not include: any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained  by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor. 15 U.S.C. § 1692a(6)(F). Therefore, because Defendant is excluded from the definition of a
“debt collector” under the FDCPA, Defendant
is not liable under the FDCPA. However,
Fla. Stat. § 559.72(9) states that “[i]n collecting consumer debts,
no  person shall . . . [c]laim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such
 person knows that the right does not exist.”
Fla. Stat. § 559.72(9). As such, an individual can be
“subject to liability under Fla. Stat. § 559.72(9) for actions it took as a
 person or entity collecting consumer debts
 even if such individual is not found to be a
“debt collector” or “creditor”
 when such individual knows that the debt is not legitimate. See Reynolds v. Gables Residential Services, Inc., 428 F.Supp.2d 1260, 1265 (M.D. Fla. 2006) (stating that a party can be held liable under the FCCPA even if that party does not meet the statutory definition of a debt collector under Florida law). In this case,
Case 1:11-cv-24033-JEM Document 11 Entered on FLSD Docket 01/03/2012 Page 3 of 6

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