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Margaret Morant v. Miracle Financial

September 17, 2012

MARGARET MORANT, PLAINTIFF,
v.
MIRACLE FINANCIAL, INC., DEFENDANT.



The opinion of the court was delivered by: Seybert, District Judge:

MEMORANDUM & ORDER

Plaintiff Margaret Morant ("Plaintiff") commenced this action against Defendant Miracle Financial, Inc. ("Defendant" or "Miracle") asserting violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"). Pending before the Court is Defendant's motion to dismiss and Plaintiff's cross-motion to amend her Complaint. For the following reasons, both motions are GRANTED IN PART and DENIED IN PART.

BACKGROUND*fn1

Plaintiff asserts that, in or around March 2011, Miracle began calling her residence in an attempt to collect an alleged debt from a person named Theresa Brown. (Compl. ¶ 10.) On or about April 19, 2011, Plaintiff spoke with one of Miracle's representatives. (Compl. ¶ 14.) She informed him or her that Miracle had the wrong number and demanded that Miracle stop calling her. (Compl. ¶¶ 15-16.) Notwithstanding this conversation, Miracle called Plaintiff "several" times thereafter. (Compl. ¶¶ 17-18.)

On August 25, 2011, Plaintiff commenced this action asserting violations of four provisions of the FDCPA--Sections 1692d, 1692d(5), 1692b(1), and 1692b(3). (Docket Entry 1.) On October 11, 2011, Defendant answered the Complaint (Docket Entry 3), and on November 9, 2011, Defendant moved to dismiss pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Docket Entry 4). On November 19, 2011, Plaintiff filed a motion to amend her Complaint. (Docket Entry 5.) Plaintiff does not assert any new claims in her proposed Amended Complaint; rather, she amplifies the facts as stated in her original Complaint. On November 22, 2011, Plaintiff filed her opposition to Defendant's motion to dismiss. (Docket Entry 6.) Defendant has neither opposed Plaintiff's motion to amend nor submitted anything further in support of its motion to dismiss.

DISCUSSION

The Court will address Defendant's motion to dismiss before turning to the merits of Plaintiff's motion to amend.

I. Motion to Dismiss

A. Standard of Review under Rule 12(c)

The standard for deciding a motion pursuant to Rule 12(c) "is identical to that of a Rule 12(b)(6) motion for failure to state a claim." Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001) (citations omitted). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient factual allegations in the complaint to "state a claim [for] relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A complaint does not need "detailed factual allegations," but it demands "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555. In addition, the facts pled in the complaint "must be enough to raise a right to relief above the speculative level." Id. Determining whether a plaintiff has met her burden is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citation omitted); accord Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

B. Alleged FDCPA Violations

The FDCPA was enacted to "eliminate abusive debt collection practices by debt collectors, [and] to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged." 15 U.S.C. § 1692(e). Plaintiff, in both her Complaint and proposed Amended Complaint, asserts that Defendant violated Sections 1692d, 1692d(5), 1692b(1), and 1692b(3) of the FDCPA. The Court will address the claims asserted under Sections 1692d and 1692b separately.

1. Claims under Section 1692d

Plaintiff asserts two claims under Section 1692d: one for a violation of subsection (5) and one under the section generally. Section 1692d ...


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