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McGee v. Michael Andrews & Associates

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

June 20, 2019

Cheryl D. McGee, Plaintiff,
v.
Michael Andrews & Associates, Defendant.

          U.S. Magistrate Judge Mona K. Majzoub

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS [14]

          ARTHUR J. TARNOW SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff, Cheryl McGee, brings this case under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. In 2017, Plaintiff financed the purchase of her automobile through Tracer Financial Company. When she fell behind on her payments, Ms. McGee began receiving phone calls from Michael Andrews & Associates, a debt collection company. Defendant defended the legality of those phone calls in its January 3, 2019 Motion to Dismiss [14]. For the reasons below, that motion will be granted in part and denied in part.

         Factual and Procedural Background

         Because Defendant's motion is brought under Fed.R.Civ.P. 12(b)(6), all of Plaintiff's plausible allegations will be accepted as true.

         Plaintiff began receiving phone calls from Defendant around the spring of 2018, regarding the $8, 000 she continued to owe to Tracer. (Am. Compl. ¶¶ 10-11). Though Defendant primarily used one phone number for its calls, it occasionally used others. (Id. at ¶ 13). Plaintiff alleges that although Defendant was aware of Plaintiff's insupportable financial condition, it continued to place calls that were rude and demeaning in tone. (Id. at ¶¶ 17-18). Defendant told Plaintiff that it would repossess Plaintiff's vehicle if payment was not made. (Id. at ¶ 19). Defendant also berated Plaintiff for purchasing a vehicle that she could not afford. (Id. at ¶ 20).

         On October 16, 2018, Plaintiff filed her original Complaint. [Dkt. # 1]. Defendant filed a Motion to Dismiss [9], but Plaintiff filed an Amended Complaint [13] on December 18, 2018. Defendant filed a second Motion to Dismiss [14] on January 3, 2019. That motion is now fully briefed and suitable for determination without a hearing in accord with Local Rule 7.1(f)(2).

         Legal Standard

         Defendant moves to dismiss the amended complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). On such a motion to dismiss, the Court must “construe the complaint in a light most favorable” to Plaintiff and “accept all of [its] factual allegations as true.” Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). “Although the factual allegations in a complaint need not be detailed, they ‘must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief.'” Id. quoting LULAC v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). To survive such a motion, Plaintiff must plead factual content that allows the Court to draw a reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged- but it has not ‘show[n]'-'that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         Defendant has attached transcripts of a phone call between it and Plaintiff. Such evidence is outside of the Court's purview on a Rule 12(b)(6) motion and will not be considered in its determination.

         Analysis

         “Congress enacted the FDCPA ‘to address the widespread and serious national problem of debt collection abuse by unscrupulous debt collectors.'” Scheuer v. Jefferson Capital Sys., LLC, 43 F.Supp.3d 772 (E.D. Mich. 2014) (quoting Currier v. First Resolution Inv. Corp., 762 F.3d 529, 2014 WL 3882745 at *2 (6th Cir. 2014) (citing S. Rep. No. 95-382, at 2 (1977))).

         Plaintiff alleges, in one count, violations of four separate provisions of the FDCPA.

         15 ...


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