United States District Court, D. Utah
SARAH E. AYRES, Plaintiff,
PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant.
MEMORANDUM DECISION AND ORDER DENYING MOTION FOR
RECONSIDERATION OR TO AMEND
Nuffer United States District Judge
Sarah E. Ayres filed a motion (the
“Motion”) for clarification or reconsideration of
the Memorandum Decision and Order Granting Defendant's
Motion to Dismiss (“Dismissal
Order”) or, alternatively, for leave to file an
amended complaint. For the following reasons, the Motion1 is
The Dismissal Order was decided correctly.
argues that the Dismissal Order should be reconsidered on the
grounds that “the Court may have misapprehended one of
the basis [sic] for” her Fair Debt Collection Practices
Act (“F D C PA ”) claim. Specifically, Ayres asserts
that the court failed to consider her allegation that
Defendant Portfolio Recovery Associates LLC
(“PRA”) violated the FD C PA by “falsely
represent[ing] Ayres could save money by making payments on a
time-barred debt.” But, contrary to Ayres's assertion,
she did not allege in her complaint that PRA violated the
FDCPA in that manner. And she cannot amend her complaint through
a brief in opposition to PRA's motion to
dismiss. Therefore, the Motion will be denied to
the extent it seeks reconsideration of the Dismissal
proposed amendment is futile.
argues that she should be granted leave to file an amended
complaint to allege that PRA violated the FDCPA by falsely
representing that she could save money by making payments on
a time-barred debt. While leave to amend pleadings should be
given freely “when justice so requires,
” courts enjoy broad discretion in making
this determination. If an amendment is futile, leave to
amend is properly denied.
proposed amendment is futile because PRA is allowed under the
FDCPA to offer to accept less than the full amount Ayres
owes-resulting in a savings for Ayres. Ayres's
debt did not evaporate when the statute of limitations ran.
Her debt is a valid obligation, and it will remain so until
she pays it, regardless of whether her creditor can
successfully sue her.
defenses are not moral defenses . . . . And a creditor
remains free, in the absence of a bankruptcy order or
something comparable preventing it from trying to collect the
debt, to let the debtor know what the debt is and to ask her
to pay it. There thus is nothing wrong with informing debtors
that a debt remains unpaid or for that matter allowing them
to satisfy the debt at a discount. For some individuals, such
letters may offer a welcome solution to an outstanding
Ayres's proposed amendment is futile, her request to
amend will be denied.
IT IS HEREBY ORDERED that the Motion is DENIED.
 Motion for Clarification or
Reconsideration of Order Dismissing Complaint, or in the
Alternative, Motion to Amend Complaint
(“Motion”), docket no. 28, filed November 28,
2018; see Defendant's Memorandum in Opposition to
Plaintiff's Motion for Clarification or Reconsideration
of Order Dismissing Complaint, or in the Alternative, Motion
to Amend Complaint, docket no. 29, filed December 12, 2018;
Reply in Support of Motion for Clarification or
Reconsideration of Order ...