NON-FINAL REPORT AND RECOMMENDATIONftpcontent.worldnow.com/wgcl/FederalCourtMotionsDen… · · 2014-07-11NON-FINAL REPORT AND RECOMMENDATION Pending before the court is ... The

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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

EDUARDO G. AUSTINindividually and as ClassRepresentative for all others similarlysituated,

Plaintiff, CIVIL ACTION FILE NO.

v. 1:14-CV-00561-SCJ-JFK

FREDERICK J. HANNA &ASSOCIATES, P.C.,

Defendant.

NON-FINAL REPORT AND RECOMMENDATION

Pending before the court is Defendant Frederick J. Hanna & Associates, P.C.’s

(“Hanna”) motion [Doc. 9] to dismiss the first amended complaint for damages for

alleged violations of the 15 U.S.C. § 1692, et seq., the Fair Debt Collection Practices

Act (“FDCPA”). Defendant seeks to dismiss the complaint for failure to state a claim

upon which relief can be granted, Fed. R. Civ. P. 12(b)(6). [Id.]. Plaintiff Eduardo G.

Austin opposes the motion to dismiss [Doc. 13], and Defendant filed a reply in support

of the motion to dismiss [Doc. 16].

Case 1:14-cv-00561-SCJ-JFK Document 18 Filed 07/10/14 Page 1 of 26

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1Based on the filing of the amended complaint, Defendant withdrew the motionto dismiss. [Doc. 12].

2The complaint seeks certification to proceed as a class action. [Doc. 13]. AfterPlaintiff filed a motion to extend the time to file a motion seeking class certification,which was not opposed by Defendant, the District Court granted the motion. [Docs.7, 10, 17].

2

I. Procedural History and Background Facts

On February 25, 2014, Plaintiff filed a complaint alleging violations of the

FDCPA, specifically, 15 U.S.C. §§ 1692d, 1692e, 1692e(2), 1692e(10) and 1692f.

[Doc. 1]. After Defendant filed a motion to dismiss pursuant to Rule 12(b)(6) [Doc.

3], Plaintiff filed an amended complaint - the operative pleading in this case [Doc. 6].1

Most of the allegations of fact repeat those found in the original complaint, and except

for adding a claim pursuant to 15 U.S.C. § 1692f(1), the causes of action in both

complaints are the same. [Docs. 1, 6].2 Defendant then renewed the motion to dismiss

making essentially the same arguments in support of dismissal as raised in the first

motion to dismiss. [Docs. 3, 9]. As noted, Plaintiff opposes the motion to dismiss.

[Doc. 13].

The amended complaint alleges that Plaintiff defaulted on a credit card account

that was primarily used for personal purposes. [Doc. 6 ¶¶ 15-16]. After the account

was transferred for collection, a judgment was obtained against Plaintiff on April 18,

2004, in the State of Virginia in the amount $2,401.05. [Id. ¶¶ 17-18]. On June 4,


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2006, the judgment was domesticated by the State Court of Fulton County, and

Defendant was hired to collect on the judgment. [Id. ¶¶ 19-20]. On May 25, 2010,

Defendant filed an affidavit of garnishment in the State Court of Fulton County

claiming that Plaintiff was indebted to the credit card company in the amount of

$3,312.02, and thereafter, Plaintiff’s wages were garnished and paid into the Clerk’s

Office registry of that State Court until paid in full on October 11, 2010. [Id. ¶¶ 22-

26]. The complaint alleges that Defendant was aware of the payments into the court’s

registry and was responsible for ensuring that the garnished wages were distributed to

Defendant because Plaintiff did not have responsibility for disbursement. [Id. ¶¶ 28-

30].

On April 23, 2013, Defendant signed another garnishment affidavit asserting

that Plaintiff was indebted to the credit card company in the amount of $970.76;

however, Plaintiff contends that, as Defendant knew, he was not indebted in that

amount. [Id. ¶¶ 32-35]. On May 2, 2013, Defendant filed the affidavit in support of

the garnishment action in the Magistrate Court of Gwinnett County; however, as

Defendant knew, Plaintiff was not indebted to the credit card company. [Id. ¶¶ 36-39].

Because of the garnishment action, Plaintiff’s employer withheld $271.16 of his wages

and paid the amount to the Gwinnett County Magistrate Court. [Id. ¶ 40]. On May 17,

2013, Plaintiff called Defendant and spoke with an employee who repeatedly


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4

misrepresented the amount of the debt by failing to give Plaintiff credit for the

payments on the Fulton County garnishment action and by seeking interest on the

funds paid into that court’s registry. [Id. ¶¶ 41-42, 44].

Plaintiff filed a garnishment traverse on June 14, 2013, contending that he had

paid the balance on the judgment. At the hearing on June 27, 2013, Defendant

contended that Plaintiff owed interest on the judgment because the credit card

company had not yet received the funds. [Id. ¶¶ 48-49]. On June 27, 2013, the court

granted Plaintiff’s traverse ruling that Defendant was not entitled to interest on the

wages paid into the Fulton County court registry, and on June 28, 2013, the Gwinnett

County garnishment action was dismissed and the funds in that court’s registry were

returned to Plaintiff. [Id. ¶¶ 52-54]. Thereafter, on October 3, 2013, the Fulton

County State Court Clerk’s Office disbursed the $3,312.01 to Defendant. [Id. ¶ 27].

The class action allegations in essence assert that Defendant has engaged in the

same conduct, that is, “a pattern and practice of seeking to collect post-judgment

interest on funds paid by judgment debtors into the registry of the various courts of the

State of Georgia through a subsequently-filed additional garnishment action, when

Defendant Hanna has made no diligent effort to retrieve said funds . . . .” [Id. ¶ 59].

The remainder of the class action allegations address certification of the class. [Id. ¶¶

60-73].


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Based on the factual allegations, Plaintiff contends that (1) Defendant’s conduct

harassed, oppressed and abused consumers violating § 1692d [Id. ¶ 76]; Defendant

misrepresented the legal status of the alleged debts by filing garnishment actions for

interest on the amounts previously paid into the registry of the courts and by

misrepresenting the amounts of the alleged debts violating §§ 1692e and 1692e(2) [Id.

¶¶ 77-79]; (3) the same actions violated § 1692e(10) [Id. ¶¶ 80-81]; (4) Defendant’s

filing of garnishment actions for interest on the amount paid into court registries, mis-

stating the amount of the debts and attempting to collect debts not owed violated §

1692f [Id. ¶¶ 82-83]; and (5) Defendant’s attempt to collect interest that was not

expressly authorized by agreement or permitted by law violated § 1692f(1) [Id. ¶¶ 84-

85].

II. Standard of Law

On a motion to dismiss under Rule 12(b)(6), the complaint’s factual allegations

are assumed true and construed in the light most favorable to the plaintiff. Hardy v.

Regions Mortg., Inc., 449 F.3d 1357, 1359 (11th Cir. 2006); M.T.V. v. DeKalb County

School Dist., 446 F.3d 1153, 1156 (11th Cir. 2006). “However, conclusory allegations,

unwarranted deductions of facts or legal conclusions masquerading as facts will not

prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th

Cir. 2002) (citations omitted).


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The Federal Rules of Civil Procedure include no requirement that a plaintiff

detail the facts upon which the plaintiff bases a claim. Rule 8(a)(2) requires a

complaint to contain “a short and plain statement of the claim showing that the pleader

is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (as amended 2007). “While a complaint

attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual

allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of [her] ‘entitle[ment]

to relief’ requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do[.]” Bell Atlantic Corp. v. Twombly, 127 S.

Ct. 1955, 1964-65 (2007) (citations omitted); accord Financial Sec. Assur., Inc. v.

Stephens, Inc., 500 F.3d 1276, 1282-83 (11th Cir. 2007) (recognizing that “while notice

pleading may not require that the pleader allege a specific fact to cover every element

or allege with precision each element of a claim, it is still necessary that a complaint

contain either direct or inferential allegations respecting all the material elements

necessary to sustain a recovery under some viable legal theory”) (citations and internal

quotation marks omitted).

“Factual allegations must be enough to raise a right to relief above the

speculative level[,]” i.e., they must do more than merely create a “‘suspicion [of] a

legally cognizable right of action,’ on the assumption that all the allegations in the

complaint are true (even if doubtful in fact).” Twombly, 127 S. Ct. at 1965 (citations


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omitted) (emphasis omitted). “Stated differently, the factual allegations in a complaint

must ‘possess enough heft’ to set forth ‘a plausible entitlement to relief[.]’” Stephens,

500 F.3d at 1282 (quoting Twombly, 127 S. Ct. at 1966-67).

The court’s inquiry at this stage of the proceedings focuses on whether the

challenged pleadings “give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007)

(citations and internal quotation marks omitted). A court reviewing a motion to

dismiss must keep in mind that a “motion to dismiss for failure to state a claim upon

which relief can be granted merely tests the sufficiency of the complaint; it does not

decide the merits of the case.” Wein v. American Huts, Inc., 313 F. Supp. 2d 1356,

1359 (S.D. Fla. 2004) (citing Milburn v. United States, 734 F.2d 762, 765 (11th Cir.

1984)). “Regardless of the alleged facts, however, a court may dismiss a complaint on

a dispositive issue of law[,]” Bernard v. Calejo, 17 F. Supp. 2d 1311, 1314 (S.D. Fla.

1998), “when no construction of the factual allegations will support the cause of

action,” Marshall County Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d 1171,

1174 (11th Cir. 1993). See also Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308

(11th Cir. 2006) (same); Aque v. Home Depot U.S.A., Inc., 629 F. Supp. 2d 1336, 1350

(N.D. Ga. 2009).


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The court has applied these standards in ruling on Defendant’s motion to dismiss

the amended complaint.

III. Discussion

Defendant contends that the amended complaint seeking relief pursuant to the

FDCPA should be dismissed for the following reasons: (1) because as a matter of law,

Plaintiff cannot state a cause of action based on filing the second garnishment action,

seeking post-judgment interest on the unpaid debt, which is authorized by Georgia law,

O.C.G.A. § 7-4-12 [Doc. 9 at 9-15]; (2) because Defendant’s filing of the second

garnishment action is protected by the First Amendment’s right to petition [Id. at 20-

25]; and (3), as to the claims brought pursuant to 15 U.S.C. §§ 1692d and 1692f,

because Plaintiff has failed to state a cause of action upon which relief can be granted

[Id. at 16-19]. Plaintiff opposes the motion to dismiss arguing that (1), under the

circumstances alleged in the amended complaint, post-judgment interest does not

accrue on a debt fully satisfied by the debtor, that is, the funds paid satisfying the first

garnishment action [Doc. 13 at 4-8]; (2) Defendant is not entitled to First Amendment

immunity when filing a lawsuit that violates the FDCPA [Id. at 11-17]; and (3)

Plaintiff has stated causes of action pursuant to §§ 1692d and 1692f [Id. at 9-11]. After

consideration of the arguments of and the legal authorities cited by the parties, the


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court recommends denying Defendant’s motion to dismiss except the claim brought

pursuant to § 1692f.

a. Entitlement to Post-Judgment Interest

Relying on the Georgia Court of Appeals decision in Great Southern Midway,

Inc. v. Hughes, 223 Ga. App. 643, 478 S.E.2d 400 (1996), Defendant argues that,

irregardless of the facts (1) that as of October 11, 2010, the judgment in the

garnishment action in Fulton County State Court had been fully satisfied and (2) that

Plaintiff did not engage in any conduct that prevented Defendant from obtaining

distribution of those funds from the court’s registry, O.C.G.A. § 7-4-12 mandates that

post-judgment interest continued to accrue on the underlying judgment on the credit

card default until the funds held in the state court registry were disbursed three years

later. [Doc. 9 at 9-15]. While some amount of post-judgment interest may have

accrued from entry of the Fulton County garnishment judgment, a date not alleged in

the amended complaint, until the judgment was satisfied on October 11, 2010, the

undersigned does not find persuasive Defendant’s reliance on the cases he cites

applying O.C.G.A. § 7-4-12 to support the contention interest continued to accrue after

October 11, 2010. Those cases are factually inapposite to the facts alleged in the

amended complaint. Defendant is not entitled to dismissal of the complaint as a matter

of law.


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3See Doc. 9 at 4 n.2.

10

Defendant correctly states that, pursuant to O.C.G.A. § 7-4-12, “‘[a]ll judgments

in [Georgia] shall bear annual interest upon the principal amount recovered’ and that

‘[t]his post-judgment interest is due from the date the judgment is entered until the date

the judgment is paid.’” St. Paul Reinsurance Co., Ltd. v. Ross, 276 Ga. App. 135, 142,

622 S.E.2d 374, 380 (2005) (citations omitted). In this case, there are two judgments:

the June 6, 2006, domesticated judgment on the defaulted credit card account for

$2,401.05 [Doc. 6 ¶¶ 18-19], and the garnishment judgment, entered sometime

between May 25, 2010 (the filing of the Fulton County garnishment action) and June

28, 2010 (the first payment on the judgment) [Id. ¶ 24]. The award of post-judgment

interest on the underlying judgment began accruing on June 6, 2006, and was included

in the amount garnished, as allowed, along with the principal amount owed on the

credit card debt providing for the $3,312.01 sought in the Fulton County garnishment

action.3 See Ross, 276 Ga. App. at 143, 622 S.E.2d at 380-81. In Ross, the court noted

that “when a claim for this type of interest arises in a later-filed garnishment action, it

is more akin to a request for pre-judgment interest because the judgment creditor seeks

to recover interest running from before the trial court enters judgment in the

garnishment action and, in fact, from before the garnishment action was even

commenced.” Id. (emphasis in original).


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Post-judgment interest on the separate Fulton County State Court garnishment

action begin “to accrue on the date that final judgment was entered in the garnishment

action.” Id. at 142-43, 622 S.E.2d at 380 (“there is the post-judgment interest that

automatically accrues on the final judgment entered in the garnishment action up to the

point of actual disbursement of the garnished funds”). That post-judgment interest

only accrues on the principal amount originally owed, $2,401.05, and not on the part

of the garnishment judgment representing interest. Id. at 143 n.10, 622 S.E.2d at 380

n.10. As noted, Plaintiff’s amended complaint does not provide the date of the

judgment on the Fulton County garnishment action. [Doc. 6]. However, the complaint

does allege that the actual disbursement of the funds was October 3, 2013. [Id. at 27].

The court, as noted, does not find persuasive the argument that, as a matter of law,

Defendant was entitled file a second garnishment action seeking post-judgment interest

on the Fulton County garnishment judgment through October 3, 2013.

Defendant’s reliance on Hughes is misplaced. Although the general principles

of law are correctly stated, the appellate court in Hughes did not speak as broadly as

Defendant would like this court to believe. In Hughes, the plaintiff filed a garnishment

action against the defendant’s bank account, and the bank paid the amount sought into

the court’s registry. Hughes, 223 Ga. App. at 644, 478 S.E.2d at 401. Although the

court overruled the defendant’s traverse to the garnishment, the court stayed the


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4The court has searched but been unable to locate a case involving garnishmentactions and this statutory provision with a fact scenario similar to that before this court.Apparently, neither Plaintiff nor Defendant have been successful in locating case lawon point.

5Defendant states that Plaintiff traversed the garnishment action, which the statecourt denied. [Doc. 9 at 4-5]. This court will not consider those allegations as they arenot contained in Plaintiff’s amended complaint. However, even if true, this fact wouldnot alter the court’s recommendation.

12

plaintiff’s collection of the funds pending the defendant’s appeal of the garnishment

judgment. Id. The court rejected Hughes’ contention that the filing of the garnishment

action tolled the accrual of post-judgment interest because of the payment of the funds

into the court’s registry. Id. at 644, 478 S.E.2d at 402. The court stated:

While this scenario[, i.e., full payment of the garnished funds into thecourt’s registry,] may well satisfy the judgment if the judgment creditoris allowed to withdraw the funds and satisfy the judgment without delayand in the time prescribed by our garnishment statutes, those are not thecircumstances presented here. Rather, in the present case, Hughestraversed the garnishment and requested that the collection of funds bestayed pending the outcome of the appeal to the Supreme Court. Thus,it was Hughes’ actions that deprived Great Southern of the ability tosatisfy the judgment.

Id. (emphasis added). The scenario not before the court in Hughes is before this court.4

The amended complaint alleges that, after the garnishment action was filed, on

June 28, 2010, Plaintiff’s employer began deducting funds from his payroll and

continued to do so until the full amount was collected on October 11, 2010.5 [Doc. 6

at 22-25]. Any delay in Defendant being able to obtain the full amount of the


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garnishment judgment before October 11, 2010, is rightly attributable to Plaintiff’s

failure to pay the underlying judgment and interest. However, unlike the

circumstances in Hughes, the further delay in Defendant obtaining disbursement of the

funds from the court’s registry does not fall on Plaintiff - circumstances that the

Hughes appellate court implied may very “well satisfy the judgment” because “the

judgment creditor is allowed to withdraw the funds and satisfy the judgment without

[further] delay . . . .” Hughes, 223 Ga. App. at 644, 478 S.E.2d at 402. As long as

conduct by Plaintiff did not cause the delay, Defendant cannot invoke the decision in

Hughes to support the argument for dismissal of the complaint as a matter of law. In

JTH Tax, Inc. v. Flowers, 311 Ga. App. 495, 716 S.E.2d 559 (2011), the appellate

court stated that O.C.G.A. § 7-4-12’s requirement is “intended to deter post-judgment

delay and bring finality to judgments . . . .” Id. at 496, 716 S.E.2d at 560 (citation

omitted). The intent of the statute is not furthered by application of the provision to

circumstances in which the debtor’s conduct did not contribute to the delay in

distribution of the judgment. See Davis v. Whitford Properties, Inc., 282 Ga. App.

143, 148, 637 S.E.2d 849, 853 (2006) (“The award of post-judgment interest is

‘intended to deter post-judgment delay, motions and appeals and to bring finality to

judgments.’”) (citation omitted).


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6The majority of the cases cited by Defendant in support of this proposition areinapposite to the question before this court because those cases do not involveallegations that the filing of the law suit constituted a violation of the FDCPA. [Id.].

14

For the foregoing reasons, the court RECOMMENDS that Defendant’s motion

to dismiss the complaint as a matter of law pursuant to application of O.C.G.A. § 7-4-

12 be DENIED.

b. First Amendment Litigation Immunity

Defendant next contends that the complaint should be dismissed as a matter of

law because Defendant enjoys a First Amendment immunity from liability for bringing

a law suit. [Doc. 9 at 20-25].6 Defendant relies on a decision of the Eighth Circuit

Court of Appeals, Hemmingsen v. Messerli & Kramer, P.A., 674 F.3d 814 (8th Cir.

2012), in support of his argument; however, that case does not stand for the

proposition that attorneys engaged in litigation are immune from liability under the

FDCPA as a matter of law. And Defendant’s argument, as noted by Plaintiff [Doc. 13

at 11-17], is undermined by the Supreme Court’s decision in Heintz v. Jenkins, 115 S.

Ct. 1489 (1995), and decisions of appellate and district courts applying that decision.

In Heintz, the Supreme Court held that the FDCPA “applies to the litigating

activities of lawyers.” 115 S. Ct. at 1490. As the Supreme Court stated, “In ordinary

English, a lawyer who regularly tries to obtain payment of consumer debts through


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legal proceedings is a lawyer who regularly ‘attempts’ to ‘collect’ those consumer

debts.” Id. at 1491. The Supreme Court noted that not all unsuccessful litigation

activities would subject a lawyer to liability because “the Act says explicitly that a

‘debt collector’ may not be held liable if he ‘shows by a preponderance of evidence

that the violation was not intentional and resulted from a bona fide error

notwithstanding the maintenance of procedures reasonably adapted to avoid such any

error.’” Id. (quoting 15 U.S.C. § 1692k(c)); see McCorriston v. L.W.T., Inc., 536 F.

Supp. 2d 1268, 1274 (M.D. Fla. 2008) (noting that not every unsuccessful debt

collection action will result in a finding of liability, the court stated that “the relevant

question is whether Defendants may claim the ‘bona fide error’ defense in 15 U.S.C.

§ 1692k(c)”).

In this case, Defendant, who does not dispute that the law firm regularly

attempts to collect debts on behalf of third parties, filed the Gwinnett County

garnishment action in an attempt to collect a consumer debt. This conduct is covered

by the FDCPA. See Reyes v. Kenosian & Miele, LLP, 619 F. Supp. 2d 796, 801-02

& 804 (N.D. Cal. 2008) (finding “that the statutory language of the FDCPA does not

support a finding that state court complaints are, as a matter of law, excluded from its

reach” and citing to “numerous out-of-circuit courts” that have similarly interpreted

Heintz) (citations omitted; emphasis added). Likewise, the court in Reyes rejected the


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defendant’s assertion of a common law or first amendment immunity against liability

when engaging in litigation to collect a debt. “[A] number of courts, when faced with

this question, have found that any common law or first amendment-based litigation

immunity doctrine is trumped by the statutory language of the FDCPA and the Court’s

holding in Heintz.” 619 F. Supp. 2d at 804 (citations omitted). And to the extent that

Defendant’s argument focuses on the protections afforded for bringing law suits in

good faith and based on valid legal arguments that prove simply to be unsuccessful,

the “bona fide error” defense provides ample protection against liability in such cases.

See McCorriston, 536 F. Supp. 2d at 1274.

In fact, the case cited by Defendant, Hemmingsen, is one such case. The

decision in Hemmingsen does not stand for the proposition that attorneys posses a first

amendment litigation immunity against all law suits brought by debtors pursuant to the

FDCPA but that, as determined on a case-by-case basis, litigation conduct may not

offend the FDCPA. 674 F.3d at 818-819. In fact, the court in Hemmingsen recognized

that a “complaint alleging that the defendant debt collector lawyer routinely files

collection complaints containing intentionally false assertions of the amount owed,

serves complaints on unrepresented consumers, and then dismisses any complaint that

is not defaulted would raise far different issues of abusive, deceptive, or unfair means

of debt collection than” the case before that court which only involved “alleged false


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statements in summary judgment pleadings filed long after a debt collection lawsuit

began . . . .” Id. In essence, the court was recognizing that resolving the issue of

whether the filing of a law suit violates the FDCPA is a factual determination, to be

made on a case-by-case basis, but the court did not find that a claim premised on a

defendant lawyer’s debt collection based litigation was subject to dismissal as a matter

of law. And see Henggeler v. Brumbaugh & Quandahl, P.C., LLO, 2012 WL

2855104, at *3 (D. Neb. July 5, 2012) (“The diverse situations in which potential

FDCPA claims may arise during the course of litigation counsel against anything other

than a case-by-case approach in applying the statute’s prohibitions to attorneys

engaged in litigation.”) (citing Hemmingsen, 674 F.3d at 819).

In light of the Supreme Court’s opinion in Heintz interpreting the FDCPA, this

court finds that Defendant is not entitled to dismissal of the complaint as a matter of

law. Defendant’s claims that the filing of the garnishment action was undertaken in

good faith and based on a reasonable interpretation of Georgia statutes and legal

authority are properly brought before the court as part of a “bona fide error” defense

but do not support dismissal of the complaint for failure to state a claim. For these

reasons, the court RECOMMENDS that Defendant’s motion to dismiss the complaint

as a matter of law based on a First Amendment litigation immunity be DENIED.


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7Section 1692d provides in part: “A debt collector may not engage in anyconduct the natural consequence of which is to harass, oppress, or abuse any personin connection with the collection of a debt. Without limiting the general applicationof the foregoing, the following conduct is a violation of this section . . . .” Plaintiffdoes not rely on conduct allegedly falling within the examples listed in the statute,which include, threats of violence, use of obscene or profane language, causing atelephone to ring repeatedly with the intent to annoy or harass, communicating withthe debtor without meaningful disclosure of callers’ identity, etc., in asserting the §1692d claim against Defendant. Plaintiff only asserts that “Defendant Hanna engagedin conduct the natural consequence of which was to harass, oppress, or abuseconsumers . . . .” [Doc. 6 ¶ 76].

8Section 1692f of the FDCPA provides in pertinent part that a “debt collectormay not use unfair or unconscionable means to collect or attempt to collect any debt. . . (including any interest, fee, charge, or expense incidental to the principalobligation) unless such amount is expressly authorized by the agreement creating thedebt or permitted by law.” 15 U.S.C. § 1692f(1) (as amended 1977). Plaintiff allegesthat Defendant violated § 1692f by using unfair or unconscionable means to attemptto collect a debt by filing the garnishment actions seeking interest on satisfied debtsand attempting to collect debts not owed and § 1692f(1) by attempting to collectinterest not authorized by agreement or permitted by law. [Doc. 6 ¶¶ 82-85].

18

c. Failure to State a Claim - Sections 1692d and 1692f

Defendant, finally, contends that Plaintiff cannot state a cause of action for

violation of § 1692d7 or § 1692f or f(1)8. Defendant asserts, echoing arguments made

previously, that the mere filing of a lawsuit is not the type of conduct intended to be

covered by § 1692d, citing Sierra v. Rubin & Debski, P.A., 2010 WL 4384216 (S.D.

Fla. October 28, 2010), and Chalik v. Westport Recovery Corp., 677 F. Supp. 2d 1322

(S.D. Fla. 2009). [Doc. 9 at 16-18]. And Defendant asserts that because Plaintiff

attempts to rely on the same conduct, that is, the filing of the Gwinnett County


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garnishment action, to bring his § 1692f claim as used to support his other FDCPA

claims, he cannot state a separate cause of action generally under § 1692f. Defendant

relies on the decision in Taylor v. Heath W. Williams, L.L.C., 510 F. Supp. 2d 1206

(N.D. Ga. 2007), among others, to support his contention. [Doc. 9 at 18-19].

Acknowledging that Plaintiff also, in the amended complaint, brought a claim for

violation of a specific provision of that section, that is, § 1692f(1), Defendant argues

that claim fails because the second garnishment action was authorized by law - again

echoing arguments made previously. [Doc. 19 at 19]. Plaintiff opposes dismissal and

contends that the allegations in the amended complaint are sufficient to state causes of

action for violations of §§ 1692d and 1692f and f(1), especially in light of application

of the “least-sophisticated consumer” standard. [Doc. 13 at 9-11].

The decision of District Judge Thrash in Taylor is instructive and persuasive in

resolving the motion to dismiss the claims pursuant to §§ 1692d and 1692f. The facts

in Taylor involved a garnishment action filed against the plaintiff by the defendant law

firm. 510 F. Supp. 2d at 1208-10. After the plaintiff paid the amounts allegedly owed

on a dispossessory action for failure to pay rent, the creditor contacted the plaintiff

informing her that additional amounts were due. The plaintiff disputed the debt.

Thereafter, the defendant law firm filed a garnishment action seeking the amount of

the debt allegedly remaining due; however, the court granted the plaintiff’s traverse to


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the garnishment and dismissed the garnishment with prejudice. The defendant

continued to attempt to collect the debt and filed a suit against the plaintiff in

magistrate court seeking the amount allegedly owed. Id. The District Court found that

the allegation in the complaint that, in the garnishment action, the defendants falsely

represented the amount due on a debt already paid, see 510 F. Supp. 2d at 1211, 1217,

“sufficiently alleged that the Defendants’ debt collection activities were performed

with the intent to harass, oppress or abuse her” in violation of § 1692d, Id. at 1217. In

reaching this decision, the district court noted that claims under § 1692d should “be

viewed[ ] ‘from the perspective of a consumer whose circumstances makes him

relatively more susceptible to harassment, oppression, or abuse.’” Id. at 1216 (quoting

Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1179 (11th Cir. 1985)); and see LeBlanc

v. Unifound CCR Partners, 601 F.3d 1185, 1193-94 (11th Cir. 2010) (To evaluate

whether a debt collector’s communication constitutes a “‘false, deceptive, or

misleading representation or means in connection with the collection of any debt’” in

violation of the FDCPA, the Eleventh Circuit Court of Appeals has employed a “‘least-

sophisticated consumer’” standard.) (citation omitted). The district court stated, “What

is determinative under this statute is not the debt collector’s intent, but the natural

consequence of his actions.” Taylor, 510 F. Supp. 2d at 1216.


AO 72A(Rev.8/82)

21

Likewise, the conduct alleged in this case with respect to the debt collection

practices of Defendant in filing garnishment actions to collect post-judgment interest,

which Plaintiff in the complaint alleges Defendant knew was not due, have natural

consequences that are potentially harassing and abusive, especially in light of the class

action assertions in the complaint. Plaintiff alleges that Defendant intentionally did not

obtain disbursement of funds paid to satisfy garnishment actions and then,

subsequently, as part of a pattern and practice, filed second garnishment actions to

collect post-judgment interest that was not due to the creditor. [Doc. 6 ¶ 59]. The

complaint asserts a violation of § 1692d which is based on more than merely filing a

law suit. See Kuria v. Palisades Acquisition XVI, LLC, 752 F. Supp. 2d 1293, 1302-

03 (N.D. Ga. 2010) (rejecting the defendant’s contention that FDCPA claim rested

merely on the filing of a lawsuit to collect a debt and relying in part on fact that the

plaintiff alleged that the defendant’s conduct constituted a pattern and practice of filing

groundless law suits attempting to collect debts the defendant knew were not owed).

The court does not find persuasive the cases cited by Defendant. In Sierra, the

court stated that the “critical question for purposes of the Plaintiff’s section 1692d

claim is whether the Defendant’s conduct of filing a lawsuit to collect a debt without

providing the required documentation was harassing, oppressive, or abusive.” 2010


AO 72A(Rev.8/82)

22

WL 4384216, at *2 (emphasis added). The court found that the allegations in the

complaint were not of “the type contemplated by section 1692d.” Id. Plaintiff, herein,

does not allege that Defendant filed the garnishment action without the required

documentation or without investigation but that Defendant filed the garnishment

action, and has a pattern and practice of filing garnishment actions, knowing that the

debt upon which the garnishment was based was not due. Plaintiff provided factual

allegations stating the basis of that knowledge, that is, that Defendant knew that three

years previously Plaintiff had fully satisfied the original garnishment action such that

no additional post-judgment interest was owed to the creditor. [Doc. 6 ¶¶ 22-30, 32-

35, 59].

And in Chalik, the defendant filed a garnishment action seeking to collect on a

debt owed by the plaintiff. When the plaintiff filed a claim of exemption, the

defendant filed a sworn statement denying the plaintiff’s entitlement to the exemption.

The § 1692d claim was based on the plaintiff’s claim that “the sworn statement was

filed in bad faith because Defendants had no specific knowledge regarding the

exemption . . . .” 677 F. Supp. 2d at 1325. The court held that the conduct alleged by

the plaintiff “is not the kind of conduct that was intended to be covered by § 1692d”

as a matter of law. Id. at 1330. Assuming, without deciding, that the court was correct


AO 72A(Rev.8/82)

23

in the conclusion about the limited reach of § 1692d, again, the complaint before this

court alleges more than Defendant lacked knowledge about the debt or simply filed a

false affidavit in support of the Gwinnett garnishment action. Based on the allegations

in Plaintiff’s amended complaint, and noting that “the question of whether conduct

harasses, oppresses, or abuses will ordinarily be a question for the jury,” Id. at 1330,

the court finds that Plaintiff has stated a cause of action for violation of § 1692d.

However, with respect to Plaintiff’s allegations supporting the § 1692f cause of

action, Defendant is correct that Plaintiff has failed to state a claim. District Judge

Thrash’s decision in Taylor is, again, persuasive. As noted supra, § 1692f “includes

eight subsections providing specific conduct that violates th[e] section.” 510 F. Supp.

2d at 1217. The failure to identify one of those subsections is not fatal because “this

section ‘may provide a cause of action for conduct that is not specifically listed in that

section or any other provision of FDCPA.’” Id. (quoting Foti v. NCO Financial Sys.,

Inc., 424 F. Supp. 2d 643, 667 (S.D. N.Y. 2006)). Nevertheless, with respect to

Plaintiff’s general claim that Defendant’s conduct in filing the Gwinnett County

garnishment action constituted an unfair and unconscionable attempt to collect a debt

in violation of § 1692f - the same conduct upon which Plaintiff relies to assert his other

FDCPA causes of action, the claim is deficient because “it ‘does not identify any


AO 72A(Rev.8/82)

9And the court does not recommend allowing Plaintiff another opportunity toamend the complaint to state a cause of action. When confronted with Defendant’sfirst motion to dismiss the § 1692f claim in the original complaint [Docs. 1, 3],Plaintiff filed the amended complaint [Doc. 6], adding a claim pursuant to § 1692f(1)but otherwise not offering any other factual support for a general cause of action under§ 1692f.

24

misconduct beyond that which Plaintiff[ ] assert[s] violate other provisions of the

FDCPA.’” Id. (quoting Foti, 424 F. Supp. 2d at 667); and see Eslava v. AllianceOne

Receivables Mgmt., Inc., 2012 WL 4336012, at **3-4 (S.D. Ala. September 20, 2012)

(same); Osborn v. Ekpsz, LLC, 821 F. Supp. 2d 859, 877-78 (S.D. Tex. 2011) (same);

Chalik, 677 F. Supp. 2d at 1330 (same). The court finds the decision in Taylor and the

other district courts reaching the same conclusion persuasive and recommends that

Plaintiff’s cause of action for violation of § 1692f be dismissed.9

Finally, the court finds, contrary to Defendant’s argument, that Plaintiff has

stated a cause of action for violation of § 1692f(1). The complaint alleges that

Defendant’s attempt to collect interest, accruing while the funds in the Fulton County

garnishment action sat unclaimed, by the filing of the Gwinnett County garnishment

action was not expressly authorized by agreement or permitted by law and,

accordingly, violated § 1692f(1). [Doc. 6 ¶¶ 84-85]. A “debt collector may not use

unfair or unconscionable means to collect or attempt to collect any debt . . . (including


AO 72A(Rev.8/82)

25

any interest, fee, charge, or expense incidental to the principal obligation) unless such

amount is expressly authorized by the agreement creating the debt or permitted by

law.” 15 U.S.C. § 1692f(1) (as amended 1977). Defendant’s legal argument that the

claim fails because the garnishment action was authorized by Georgia law, as

discussed supra, is not persuasive. Plaintiff has alleged, specifically, how Defendant’s

alleged conduct was unfair and unconscionable under § 1692f(1), that is, attempting

to collect unauthorized interest amounts in violation of § 1692f(1). See Delawder v.

Platinum Financial Services Corp., 443 F. Supp. 2d 942, 948 (S.D. Ohio 2005)

(“Courts have recognized claims under Section 1692f(1) where, as here, a debt

collector files a lawsuit seeking an amount allegedly greater than the amount owed

under a debt agreement” or authorized by law.). For these reasons, the court

recommends that Defendant’s motion to dismiss the § 1692f(1) claim be denied.

IV. Conclusion

For the foregoing reasons and cited authority, the court RECOMMENDS that

Defendant’s Rule 12(b)(6) motion [Doc. 9] to dismiss be GRANTED IN PART and

that Plaintiff’s claim pursuant to 15 U.S.C. § 1692f be DISMISSED and be DENIED

IN PART as to all other claims asserted in the complaint. If the District Court adopts


AO 72A(Rev.8/82)

26

the report and recommendation, Defendant’s answer to the complaint is due within

fourteen days of notice of the District Court’s order. See Fed. R. Civ. P. 12(a)(4)(A).

SO RECOMMENDED THIS 10th day of July, 2014.


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