White v. Allied Collection Services Inc. ( 2023 )

2 DISTRICT OF NEVADA 2 3 LEAHA WHITE, Case No. 2:23-cv-2000-JAD-EJY 3 4 Plaintiff, 4 ORDER 5 v. 5 6 ALLIED COLLECTION SERVICES INC, 6 7 Defendant. 7 8 8 9 Pending before the Court is Plaintiff’s in forma pauperis application and Complaint. ECF 9 10 Nos. 2, 2-2. 10 11 I. IN FORMA PAUPERIS APPLICATION 11 12 Plaintiff, a non-inmate, filed a complete application to proceed in forma pauperis. Because 12 13 Plaintiff submitted the declaration required by 28 U.S.C. 1915(a) showing an inability to prepay fees 13 14 or costs or give security for them, the Court grants her request to proceed in forma pauperis. 14 15 II. SCREENING THE COMPLAINT 15 16 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 16 17 under 28 U.S.C. § 1915(e)(2). When screening a complaint, the Court must identify cognizable 17 18 claims and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be 18 19 granted or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 19 20 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for 20 21 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 21 22 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual 22 23 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 23 24 U.S. 662, 678 (2009) (internal quotations omitted). The court liberally construes pro se complaints 24 25 and may only dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in 25 26 support of his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th 26 27 Cir. 2014) (citation omitted). 27 28 28 2 allegations of material fact are taken as true and construed in the light most favorable” to the plaintiff. 2 3 Wyler Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 3 4 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 4 5 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 5 6 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it 6 7 is clear the complaint’s deficiencies cannot be cured through amendment, a pro se plaintiff should 7 8 be given leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. 8 9 United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 9 10 III. DISCUSSION 10 11 Plaintiff brings a claim for actual damages and statutory damages under the Federal Debt 11 12 Collection Practices Act (“FDCPA”). ECF No. 2-2 at 3. The FDCPA was created to protect 12 13 consumers from unfair and deceptive debt practices. 15 U.S.C. § 1692. To state a claim for violation 13 14 of the FDCPA, “there are three threshold requirements: (1) the plaintiff must be a ‘consumer’; (2) 14 15 the defendant must be a ‘debt collector’; and (3) the defendant must have committed some act or 15 16 omission in violation of the FDCPA.” Robinson v. Managed Accounts Receivables Corp., 654 F. 16 17 Supp. 2d 1051, 1057 (C.D. Cal. 2009); see also 15 U.S.C. § 1692a(3), (6). If Plaintiff wishes to 17 18 pursue this claim, she must allege sufficient facts to support all three requirements. 18 19 A “consumer” under the FDCPA is “any natural person obligated or allegedly obligated to 19 20 pay any debt.” 15 U.S.C. § 1692a(3). The FDCPA is limited to debts arising out of transactions 20 21 “primarily for personal, family, or household purposes.” Heintz v. Jenkins, 514 U.S. 291, 293 21 22 (1995). Plaintiff claims she allegedly owes a balance on a collection account for a debt incurred 22 23 “primarily for personal, family, or household purchases.” ECF No. 2-2 at 2. Plaintiff attaches an 23 24 exhibit to her Complaint showing the alleged debt is related to damages, unpaid utilities, and filing 24 25 fee for eviction from a leased apartment, which are debts covered under the FDCPA. ECF No. 2-2 25 26 at 7. Medialdea v. L. Off. of Evan L. Loeffler PLLC, Case No. C09-55RSL, 2009 WL 3246799, at 26 27 *4 (W.D. Wash. Oct. 2, 2009) (unpaid utilities); Moonflower v. Columbia Recovery Grp., LLC, Case 27 28 No. C17-5326 BHS, 2019 WL 461122, at *2 (W.D. Wash. Feb. 6, 2019) (apartment damage 28 2 2022) (legal fees). Therefore, Plaintiff sufficiently alleges she is a consumer under the FDCPA. 2 3 A “debt collector” under the FDCPA is “any person who uses any instrumentality of 3 4 interstate commerce or the mails in any business the principal purpose of which is the collection of 4 5 any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due 5 6 or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). “Everyone agrees that the term [‘debt 6 7 collector’] embraces the repo man—someone hired by a creditor to collect an outstanding debt.” 7 8 Henson v. Santander Consumer USA Inc., 582 U.S. 79, 81 (2017). Plaintiff asserts Defendant is “a 8 9 debt collector who regularly collects or attempts to collect debts from consumers using the mail and 9 10 telephone. Defendant regularly attempts to collect consumers’ debts alleged to be due to another.” 10 11 ECF No. 2-2 at 2. Plaintiff’s Complaint clearly alleges that Defendant is a third-party debt collection 11 12 company within the parameters of the definition of “debt collector” under the FDCPA. Plaintiff 12 13 sufficiently alleges Defendant is a debt collector under the FDCPA. 13 14 “A debt collector may not use any false, deceptive, or misleading representation or means in 14 15 connection with the collection of any debt.” 15 U.S.C. § 1692e. This includes “[t]he false 15 16 representation of … the character, amount, or legal status of any debt; or … any services rendered 16 17 or compensation which may be lawfully received by any debt collector for the collection of a debt.” 17 18 15 U.S.C. § 1692e(2). Plaintiff alleges Defendant represented that collection fees were owed when 18 19 they actually were not, thus violating 15 U.S.C. § 1692e and 15 U.S.C. § 1692e(2). ECF No. 2-2 at 19 20 2-3. Further, “[a] debt collector may not use unfair or unconscionable means to collect or attempt 20 21 to collect any debt.” 15 U.S.C. § 1692f. Such prohibited conduct includes “[t]he collection of any 21 22 amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless 22 23 such amount is expressly authorized by the agreement creating the debt or permitted by law.” 15 23 24 U.S.C. § 1692f(1). “[T]he FDCPA prohibits the collection of any fee, including collection costs, 24 25 unless there is a law or an agreement that allows for such fees.” Boatley v. Diem Corp., Case No. 25 26 CIV. 03-0762-PHX-SMM, 2004 WL 5315892, at *5 (D. Ariz. Mar. 24, 2004). Plaintiff alleges 26 27 Defendant added collection fees not authorized by the original agreement or permitted by law, thus 27 28 violating 15 U.S.C. § 1692f. ECF No. 2-2 at 2-3. Plaintiff includes exhibits that on their face appear 28 2 for a claim of violation of the FDCPA. 2 3 IV. ORDER 3 4 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request to proceed in forma 4 5 pauperis is GRANTED. Plaintiff shall not be required to pay the filing fee of $405.00. Plaintiff is 5 6 permitted to maintain this action to conclusion without the necessary prepayment of any additional 6 7 fees or costs or the giving of a security therefor. This Order granting leave to proceed in forma 7 8 pauperis shall not extend to the issuance and/or service of subpoenas at government expense. 8 9 IT IS FURTHER ORDERED that Plaintiff’s Complaint may proceed. The Clerk of Court 9 10 will detach and electronically file Plaintiff’s Complaint (ECF No. 2-2), issue a Summons for 10 11 Defendant, and deliver a copy of Plaintiff’s Complaint, this Order, and the Summons to the U.S. 11 12 Marshal for service. 12 13 IT IS FURTHER ORDERED that the Clerk of Court will mail Plaintiff one USM-285 form, 13 14 together with a copy of this Order. 14 15 IT IS FURTHER ORDERED that Plaintiff must complete the USM-285 form for Defendant 15 16 and return the same to the Clerk’s Office within twenty-one (21) days. Plaintiff must provide an 16 17 address within the State of Nevada for service, which may be found on the Nevada Secretary of 17 18 State’s website as all entities doing business in the State of Nevada must have a resident agent upon 18 19 whom service of process may be made. 19 20 IT IS FURTHER ORDERED that the U.S. Marshal must attempt to effect service of this 20 21 Order, Plaintiff’s Complaint, and the Summons on Defendant no later than twenty-one (21) days 21 22 after receipt of the completed USM-285 form. 22 23 IT IS FURTHER ORDERED that no later than fourteen (14) days after Plaintiff receives a 23 24 copy of the USM-285 form showing whether service has been accomplished, Plaintiff must file a 24 25 notice with the Court identifying whether Defendant was served. If Plaintiff wishes to have service 25 26 again attempted on an unserved defendant, a motion must be filed with the Court identifying the 26 27 unserved defendant and specifying a more detailed name and/or address for said defendant, or 27 28 28 2 4(m), service must be accomplished within 90 days from the date this Order is entered. 2 3 IT IS FURTHER ORDERED that from this point forward, Plaintiff will serve upon 3 4 Defendant, or, if appearance has been entered by counsel, upon Defendant’s attorney(s), a copy of 4 5 every pleading, motion, or other document submitted for consideration by the Court. Plaintiff will 5 6 include with the original papers submitted for filing a certificate stating the date that a true and 6 7 correct copy of the document was mailed to Defendant or Defendant’s counsel. The Court may 7 8 disregard any paper received by a District Judge or Magistrate Judge which has not been filed with 8 9 the Clerk, and any paper received by a District Judge, Magistrate Judge, or the Clerk which fails to 9 10 include a certificate of service. 10 11 DATED this 12th day of December, 2023. 11 12 12 13 13 ELAYNA J. YOUCHAH 14 UNITED STATES MAGISTRATE JUDGE 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28