Brumberger v. Sallie Mae Servicing Corp.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 7, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30440
Summary Calendar
JEFFREY BRUMBERGER
Plaintiff - Appellant
v.
SALLIE MAE SERVICING CORPORATION
Defendant - Appellee
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 02-CV-2909-K
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Before KING, Chief Judge, and HIGGINBOTHAM and WIENER, Circuit
Judges.
PER CURIAM:*
Jeffrey Brumberger (Brumberger) appeals the district court’s
order dismissing his claim under the Fair Debt Collection
Practices Act (FDCPA) pursuant to FED. R. CIV. P. 12(b)(6) for
failure to state a claim. Brumberger argues that the district
court erred in finding that Sallie Mae Servicing Corporation
(Sallie Mae) does not meet the definition of a “debt collector”
under the FDCPA.
*
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that this opinion should not be published and is not precedent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.
No. 03-30440
-2-
A district court’s ruling on a Rule 12(b)(6) motion for
failure to state a claim is subject to de novo review. Scanlan
v. Texas A&M University, 343 F.3d 533, 536 (5th Cir. 2003). The
motion may be granted “only if it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim that
would entitle him to relief.” Id.
Under the FDCPA, a debt collector does not include “any
person collecting or attempting to collect any debt owed or due
or asserted to be owed or due another to the extent such
activity...concerns a debt which was not in default at the time
it was obtained by such person.” 15 U.S.C. § 1692(a)(6)(F). By
its plain terms the FDCPA does not apply to Sallie Mae because
Brumberger does not allege that he was in default at the time
Sallie Mae began servicing his loans. Thus, Brumberger fails to
show in his complaint that he is entitled to relief under the
FDCPA, and the district court correctly dismissed his claim under
FED. R. CIV. P. 12(b)(6). See Perry v. Stewart Title Co., 756
F.2d 1197, 1208 (5th Cir. 1985). Accordingly, the judgment of
the district court is AFFIRMED.