United States District Court, E.D. Michigan, Southern Division
ANGELA D. ROE, Plaintiff,
ROOSEN, VARCHETTI & OLIVER, PLLC, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO AMEND (Doc. 15), AND DENYING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. 20) AS
CARAM STEEH UNITED STATES DISTRICT JUDGE.
Angela Roe brought this suit against Defendants Roosen,
Varchetti & Oliver, PLLC, (“Roosen”) and
Credit Acceptance Corporation (“Credit
Acceptance”) for submitting a writ of garnishment to
her employer, which included the social security number of
the actual debtor who shared her same name, in alleged
violation of the Fair Debt Collection Practices Act
(“FDCPA”) and under Michigan law. Now before the
court is Plaintiff's motion to amend her Complaint. Also
pending is the matter of whether this action should be
dismissed for Plaintiff's lack of standing which has been
thoroughly briefed. For the reasons set forth below, this
court has Article III subject matter jurisdiction over the
First Amended Complaint, Plaintiff's motion to amend
(Doc. 15) shall be GRANTED IN PART and DENIED IN PART such
that Plaintiff may proceed with all claims except for her 15
U.S.C. § 1692d claim.
is a collection agency, and Credit Acceptance is an auto
finance company which provides automobile loans. Credit
Acceptance obtained a judgment against a debtor other than
the Plaintiff with the same name of Angela Roe. On October 9,
2018, Defendants filed a request for a writ of garnishment in
Michigan's 91st Judicial District. The garnishee was
identified as National Realty Centers, Inc. (“National
Realty”). Plaintiff works for National Realty as a real
estate agent on a commission basis. The writ was served on
National Realty on October 30, 2018. National Realty sent a
copy of its garnishee disclosure form to Plaintiff on October
31, 2018. According to Plaintiff, receipt of the garnishee
disclosure form caused her to be extremely confused and
emotionally distressed. She tried to speak to Defendants
about the debt, but when she could not provide the correct
verifying information, namely the social security number,
they would not speak to her.
November 13, 2018, Plaintiff filed this lawsuit. One week
before the suit was filed, on November 6, 2018, her employer
learned that Plaintiff was not the debtor named Angela Roe
identified in the writ, and submitted an amended garnishee
disclosure form to Defendants. Plaintiff's wages were
never garnished. Plaintiff did not learn of the amended
garnishee disclosure form until February 25, 2019. Plaintiff
alleges she refrained from selling real estate during this
time period for fear her wages would be garnished.
original Complaint alleges that Defendants violated 15 U.S.C.
§§ 1692e and 1692f, and Michigan's Occupational
Code, M.C.L. § 339.915(f)(ii). In her First Amended
Complaint, Plaintiff pleads these same FDCPA claims, but also
seeks to add claims for alleged violations of § 1692c(b)
and § 1692d. Plaintiff also seeks to add claims under
the Michigan Collection Practices Act, M.C.L. §§
445.252(e)(i)(n)(q). In opposition to Plaintiff's motion
to amend, Defendants argue all of the FDCPA claims should be
dismissed for failure to state a claim. For the reasons set
forth below, Plaintiff's motion to amend shall be granted
in part as to §§ 1692e, 1692f and 1692d and denied
in part and Plaintiff's claim under § 1692d. The
parties have not addressed the supplemental state law claims;
thus, the court does not do so either.
Article III Standing
threshold matter, the court must determine whether Plaintiff
has Article III standing to bring this action. Standing
requires three elements. “First, the plaintiff must
have suffered an injury in fact - an invasion of a legally
protected interest which is (a) concrete and particularized,
and (b) actual or imminent, not conjectural or
hypothetical.” Macy v. GC Servs. Ltd.
P'ship, 897 F.3d 747, 752 (6th Cir. 2018) (quoting
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992)). “Second, there must be a causal connection
between the injury and the conduct complained of - the injury
has to be fairly . . . trace[able] to the challenged action
of the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the
court.” Id. (quoting Lujan, 504 U.S.
at 560-610). “Third, it must be likely, as opposed to
merely speculative, that the injury will be redressed by a
favorable decision.” Id. (quoting
Lujan, 504 U.S. at 561). Also, a plaintiff cannot
“allege a bare procedural violation, divorced from any
concrete harm, and satisfy the injury-in-fact requirement of
Article III.” Spokeo. Inc. v. Robins, 136
S.Ct. 1540, 1549 (2016).
assessing whether Plaintiff has Article III standing, the
court is mindful that the Sixth Circuit has determined that
the FDCPA is an extraordinarily broad statute. Currier v.
First Resolution Inv. Corp., 762 F.3d 529, 533 (6th Cir.
2014). Through the enactment of the FDCPA, “Congress
addressed itself to what it considered to be a widespread
problem, and to remedy that problem it crafted a broad
statute.” Frey v. Gangwish, 970 F.2d 1516,
1521 (6th Cir. 1992). The Sixth Circuit has noted that the
FDCPA should be applied broadly according to its terms.
Bridge v. Ocwen Fed. Bank, FSB, 681 F.3d 355, 362
(6th Cir. 2012). Defendants argue that the FDCPA was designed
to address solely “abusive” debt collection
practices, and is not meant to address cases of mistaken
identity as is the case here. But the legislative history of
the FDCPA reveals that Congress was concerned with cases of
mistaken identity and debt collectors trying to recover from
the wrong persons. Specifically, a Senate Report states that
the purpose of the Act's debt verification is to
“eliminate the recurring problem of debt collectors
dunning the wrong person or attempting to collect debts which
the consumer has already paid.” S. Rpt. 95-382 at 4
reprinted in 1977 U.S.C.C.A.N. 1695, 1699. A House
report noted Congressional intent to regulate collection
activities based on either “mistaken identity or
mistaken facts.” H.R.REP. No. 131, at 8.
rely on Lyshe v. Levy, 854 F.3d 855 (6th Cir. 2017)
for the proposition that Plaintiff lacks standing. In
Lyshe, the Sixth Circuit found that plaintiffs had
not alleged concrete harm sufficient to establish standing.
Id. at 861. In that case, plaintiffs' alleged
FDCPA violations arose when defendants attempted to collect
plaintiffs' debt in state court, and misrepresented that
plaintiffs' discovery responses needed to be sworn and
notarized, when in fact they did not. Id. at 860.
The Sixth Circuit found that the procedural violation alleged
- a violation of state law procedure not required under the
FDPCA - was not the type of harm the FDPCA was designed to
prevent. Id. Here, by contrast, the challenged
conduct involves Defendants' attempt to garnish the wages
of the wrong person, which is the very type of abuse the
FDPCA was enacted to curb.
also argue that because they included the correct social
security number on the writ, Plaintiff's employer is
solely responsible for any harm to Plaintiff. Defendants have
cited no authority in support of this proposition, and the
court is aware of none. In a related context, the Eighth
Circuit held that serving plaintiff's attorney with
discovery requests on extinguished debt amounts to concrete
injury as representations to a consumer's attorneys
routinely come to the consumer's attention. Demarais
v. Gurstel Chargo, P.A., 869 F.3d 685, 690 (8th Cir.
2017). Similarly, service of a writ of garnishment on an
employer is likely to come to the employee's attention,
just as it did here.
also cite to Kujawa v. Palisades Collection, LLC,
614 F.Supp.2d 788, 792 (E.D. Mich. 2008) and Williams v.
Web Equity Holdings, LLC, No. 13-CV-13723, 2014 WL
3845952 at *4 (E.D. Mich. Aug. 5, 2014). But neither of those
cases discussed Article III standing at all. Kujawa
addressed claims pursuant to defendants' motion for
summary judgment under the “least sophisticated
consumer” standard, which this court will discuss below
when it considers whether Plaintiff has satisfied the
plausible claim requirement under Rule 12(b)(6). Moreover,
Williams involved a motion to dismiss for failure to
state a claim, not a challenge to Article III standing.
the conduct alleged was Defendants' act of serving a writ
of garnishment on Plaintiff's employer, which included
the correct social security number of the actual debtor whose
name was the same as Plaintiff's. Although
Plaintiff's wages were never garnished, Plaintiff claims
she suffered emotional distress, refrained from selling real
estate so her wages would not be garnished, contacted an
attorney, and suffered embarrassment because her employer was
led to believe she owed a debt that had been reduced to
judgment. (Doc. 15-2 at ¶¶ 26, 32, 37-40). Although
the plausibility of these claims may be addressed under Rule