Angela Bashore v. Resurgent Captl Services, L.P.

Case: 11-40418 Document: 00511686578 Page: 1 Date Filed: 12/06/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 6, 2011
No. 11-40418
Summary Calendar Lyle W. Cayce
Clerk
ANGELA CHRISTINE BASHORE,
Plaintiff - Appellant
v.
RESURGENT CAPITAL SERVICES, L.P.; LVNV FUNDING, L.L.C.;
FINANCIAL RECOVERY SERVICES, INC.; ACADEMY COLLECTION
SERVICE, INC.; RLI INSURANCE COMPANY,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:10-CV-585
Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Proceeding pro se and in forma pauperis, Angela Christine Bashore
appeals the dismissal, under Federal Rule of Civil Procedure 12(b)(6) (failure to
state a claim), of her action based on: Fair Debt Collection Practices Act
(FDCPA); Fair Credit Reporting Act (FCRA); Texas Debt Collection Practices Act
(TDCPA); Texas Deceptive Trade Practices Act (TDTPA); and, negligence and
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-40418
defamation under Texas law. Bashore contends: the district court erroneously
applied a heightened pleading standard; and, she pleaded sufficient facts to
support her claims.
A dismissal for failure to state a claim is reviewed de novo; all well-pleaded
facts are accepted as true and viewed in the light most favorable to plaintiff.
E.g., Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir.
2011). A pleading must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief”. FED. R. CIV. P. 8(a)(2). “To survive
a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009) (citation and internal quotation marks omitted).
The district court correctly applied that standard and, additionally, recognizing
Bashore’s pro se status, allowed her to file an amended complaint, after
determining the original complaint was conclusional.
Bashore reiterates the allegations raised in her complaint: she owed no
debt; appellees ignored her letters of dispute; and, they continued collection
activities after her dispute-notification.
First, the district court did not err in dismissing Bashore’s FDCPA claims.
Regardless of whether a debt existed, it was not a violation of FDCPA for
appellees to send Bashore written communications regarding the claimed debt.
See 15 U.S.C. § 1692g. Nor does FDCPA require the debt collector to respond by
letter of verification to the consumer’s letter of dispute; the debt collector is
instead required only to cease collection of the debt until verification of the debt
is obtained. 15 U.S.C. § 1692g(b). Bashore’s allegation that Financial Recovery
Services, Inc. (FRS), failed to cease collection activities after notification of her
dispute was rejected by the district court on the basis that Bashore did not allege
she notified FRS of the dispute within the 30-day period established by FDCPA.
15 U.S.C. § 1692g(a)(3), (b). Along that line, Bashore’s general allegations that
appellees failed to cease collection efforts after notification of her dispute are
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No. 11-40418
unsupported by specific factual allegations in her complaint that permit our
court to infer more than the mere possibility of misconduct. See Iqbal, 129 S. Ct.
at 1950 (“the complaint has alleged–but it has not ‘show[n]’–‘that the pleader is
entitled to relief’”).
Regarding her FCRA claim, 15 U.S.C. § 1681s-2(b)(1), Bashore again has
not alleged sufficient facts to show a violation. Her assertion that the statute
mandates that the allegedly inaccurate information be deleted from her credit
reports on account of her dispute is inaccurate.
Bashore next contends TDCPA required an investigation and response by
appellees to her letter of dispute. See TEX. FIN. CODE § 392.202(a), (b). Her
complaint, however, verifies that Bashore received notice from TransUnion and
Experian regarding the results of their investigation of the debt reported by
appellee LVNV Funding, L.L.C. Thus, the district court did not err in
dismissing Bashore’s TDCPA claim. Moreover, as Bashore’s purported TDCPA
claim is the sole basis on which she contends she has stated a TDTPA claim, she
has shown no error in the dismissal of the TDTPA claim.
Bashore’s allegations of publication of false information are conclusional
and, thus, insufficient to defeat a motion to dismiss her defamation claim. Iqbal,
129 S. Ct. at 1949. Finally, the dismissal of Bashore’s negligence claim was not
error, as she pleaded no facts plausibly giving rise to an entitlement to relief on
the basis of a breach of duty. See, e.g., Dukes v. Philip Johnson/Alan Ritchie
Architects, P.C., 252 S.W.3d 586, 591 (Tex. Ct. App. 2008).
AFFIRMED.
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