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Brown v. Van Ru Credit Corp.

United States District Court, E.D. Michigan, Southern Division

January 16, 2015



VICTORIA A. ROBERTS, District Judge.

I. Introduction

This case involves an alleged violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §1692 et seq., as well as violations of two state laws, arising from a single telephone message left by Van Ru Credit Corporation ("Van Ru") at the business of William Brown III ("Brown"). Van Ru filed a Motion for Judgment on the Pleadings, shortly followed by Brown's Motion to File First Amended Complaint.

The Motion to File First Amended Complaint is DENIED. The Motion for Judgment on the Pleadings is GRANTED; the Court declines to retain jurisdiction over the state claims: Counts II and III are DISMISSED without prejudice. Van Ru's request for fees and costs is DENIED.

II. Background

Brown incurred a student loan debt with Michigan Guaranty Agency. Van Ru, a debt collector, mailed a letter in the spring of 2014 to Brown's business regarding payroll information. Brown mentions this letter but does not allege it violated the FDCPA. One of Van Ru's representatives called Brown's business on April 14, 2014 and left this message:

"Good morning, my name is Kay and I'm calling from Van Ru Credit Corporation. If someone from the payroll department can please return my phone call my phone number is (877) 419-5627 and the reference number is *****488; again my telephone number is (877) 419-5627 and reference number is *****488."

The voicemail message was left in the general voicemail box of the business and was heard by employee Brandon Harris ("Harris"). Brown says Harris is aware that Van Ru is a debt collector. Harris informed Brown of the message. Brown says he has not received anything in writing from Van Ru. Brown says this voicemail message was an attempt to collect an alleged debt in violation of state and federal law.

III. Discussion

A. Motion for Judgment on the Pleadings

The Court applies essentially the same standard of review for judgment on the pleadings as for a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir.2001): "... [A]ll well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment." Poplar Creek Dev. Co. v. Chesapeake Appalachia, L.L.C., 636 F.3d 235, 240 (6th Cir.2011) (citation omitted). Although the Court's decision rests primarily on the allegations of the complaint, "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint" may also be considered. Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir.2008).

To survive a Rule 12(c) motion, the plaintiff must provide grounds of entitlement to relief that are more than "labels and conclusions" and "factual allegations must be enough to raise a right of relief above the speculative level..." Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir.2008) citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief.'" Id. Specific facts are not necessary; the statement need only give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) quoting Twombly, 127 U.S. at 555.

1. The Voicemail Message is Not a "Communication" as Defined by Statute

Brown says Van Ru violated 15 U.S.C. §1692c(b) by communicating with a third party about a debt without permission or legal justification. §1692c(b) says in part:

(b) Communication with third parties Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

The term "communications" is defined by the FDCPA as "the conveying of information regarding a debt directly or indirectly to any person through any medium." 15 U.S.C. §1692a(2). The ...

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