United States District Court, D. Utah
SHAKARA MERRILL, individually and on behalf of all others similarly situated, Plaintiff,
JOHNSON MARK, LLC, MIDLAND FUNDING, LLC, and JOHN DOES 1-25, Defendants.
MEMORANDUM DECISION AND ORDER
Benson, United States District Judge.
Judge Dee Benson Before the court are two motions: a Motion
to Dismiss filed by Defendant Midland Funding, LLC (Dkt. No.
20) and a Motion for Judgment on the Pleadings filed by
Defendant Johnson Mark, LLC. (Dkt. No. 23.) The Motions have
been fully briefed by the parties, and the court has
considered the facts and arguments set forth in those
filings. Pursuant to civil rule 7-1(f) of the United States
District Court for the District of Utah Rules of Practice,
the Court elects to determine the motion on the basis of the
written memoranda and finds that oral argument would not be
helpful or necessary. DUCivR 7-1(f).
a Fair Debt Collections Practices Act (“FDCPA”)
action arising from Defendants' efforts to collect an
outstanding debt owed by Plaintiff. Some time prior to
January 9, 2018, Plaintiff incurred a credit card debt with
Credit One Bank, N.A. (“Credit One”) (Complaint,
Dkt. No. 2, ¶¶ 23, 24.) Credit One later sold or
assigned the debt to Defendant Midland Funding, LLC
(“Midland”). (Id. ¶ 27.) Midland
then contracted with Defendant Johnson Mark, LLC
(“Johnson Mark”) to collect the debt.
(Id. ¶ 28.)
letter dated January 9, 2018, Johnson Mark wrote to Plaintiff
in an attempt to collect on the Credit One debt that had been
assigned to Midland. (Id. ¶ 30, Dkt. No. 20-1.)
The letter explained that Johnson Mark had been retained to
collect the debt and identified the original creditor as
Credit One. (Id.) At the top of the letter, the
“Account Balance” and “Total Amount
Due” were each identified as $572.54. (Id.
letter invited Plaintiff to pay the debt or contact Johnson
Mark for payment arrangements. (Dkt. No. 20-1.) It stated
that if Plaintiff failed to pay the debt, Midland may be
entitled to file a lawsuit or take further action to collect
the debt. (Id.) The letter also notified Plaintiff
of her right to seek verification of the debt as follows:
Unless you, within thirty days after receipt of this notice,
dispute the validity of the debt, or any portion thereof, the
debt will be assumed to be valid by our office. If you do
dispute it by notifying our firm in writing to that effect,
we will, as required by law, obtain and mail to you
verification of the debt. And if, within the same period, you
request in writing the name and address of your original
creditor, if the original creditor is different from the
current creditor, we will furnish you with that information
(Id.) The letter further stated that the law firm
would suspend collection efforts during the thirty-day
verification period. (Id.)
last paragraph of the letter stated: “As of the date of
this letter, you owe the Total Amount Due shown above. For a
current Total Amount Due, mail us a request or
call….” (Id., Complaint ¶ 33.)
basis of the letter, Plaintiff filed a putative class action
against Midland and Johnson Mark, alleging a violation of the
FDCPA. Defendants then filed a Motion to Dismiss and Motion
for Judgment on the Pleadings, respectively.
argues that the letter violated the FDCPA in two ways: 1) by
inviting Plaintiff to contact the law firm for her current
amount due, the letter falsely implied that interest and/or
fees were being added to the total balance; and 2) by
omitting the statutory language that Plaintiff has a right to
a copy of the judgment against her, the letter failed to
comply with the statutory requirements for such a notice,
pursuant to 15 U.S.C. § 1692g(a).
respect to Plaintiff's first contention, the court finds
that Plaintiff has failed to plead a false representation in
violation of the FDCPA. Section 1692 of the FDCPA generally
prohibits the use of false representations in connection with
the collection of any debt. Section 1692e (2)(A) specifically
prohibits the false representation of the amount of the debt.
Section 1692e (10) prohibits the use of false representations
to collect a debt or obtain information about a consumer.
Section 1692(f) provides that a debt collector “may not
use unfair or unconscionable means to collect or attempt to
collect any debt.” 15 U.S.C. §1692(f).
letter did not falsely represent the nature or amount of
Plaintiff's debt. The letter identified the
“Account Balance” and “Total Amount
Due” as $572.54. The letter did not threaten that
interest or fees may be or were being added to that amount.
Nor did Defendants' invitation to contact the firm for a
current amount due falsely imply that interest and fees would
be added. Rather, the statement merely alerted Plaintiff that
the amount due ...