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Derry v. Buffalo & Assocs., PLC

United States District Court, E.D. Tennessee

July 25, 2013

LARRY A. DERRY, Plaintiff,

For Larry A Derry, Plaintiff: Alan C Lee, Alan C. Lee, Attorney, Talbott, TN.

For Buffaloe & Associates, PLC, Defendant: Darryl G Lowe, Gregory Brown, LEAD ATTORNEYS, Christopher C Field, Lowe, Yeager and Brown, Knoxville, TN.

For Capital One Bank (USA), National Association, Defendant: John P Nefflen, Thomas K Potter , III, LEAD ATTORNEYS, Burr & Forman LLP (Nashville), Nashville, TN; Michael Jay Clemmer, LEAD ATTORNEY, Burr & Forman LLP (Birmingham), Birmingham, AL.



Page 840


Before the Court is Defendant Buffalo & Associates, PLC's (" Defendant" ) partial motion for judgment on the pleadings (Court File No. 31). Defendant seeks dismissal of some of Plaintiff Larry Derry's (" Plaintiff" ) claims under the Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. § § 1692, et seq. Plaintiff did not respond to Defendant's motion. For the following reasons, the Court will GRANT Defendant's motion (Court File No. 31).


The following factual allegations are made in the complaint. Plaintiff incurred credit card debt owned or serviced by Defendant Capital One Bank. After Plaintiff defaulted on this debt, it was " consigned, sold, or otherwise transferred" to Defendant for collection. However, Plaintiff also alleges Defendant is a " debt collector" under 15 U.S.C. § 1692a(6). Defendant sent " misleading and deceptive communications" in connection with this duty. These communications " raised the specter of potential legal action," because Defendant communicated through its law firm, although it stated it was not acting in a legal capacity. Specifically, on July 18, 2011, Defendant sent a collection letter to Plaintiff in an attempt to collect the debt. The letter contains the name " Law Office of Buffaloe & Associates, PLC," and lists the names of several attorneys. The letter, however specifically stated no attorney had " personally reviewed" the account, but if Plaintiff did not contact their office " our client

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[Capital One Bank] may consider additional remedies to recover the balance due." The letter alleged a debt of $1,394.01 and stated Plaintiff may also be liable for attorney's fees and interest.

On September 28, 2011, Defendant and Defendant Capitol One Bank filed a civil summons and affidavit in state court, which were served on Plaintiff. The summons stated the debt amount was $1,420.63 in principal, court costs of $132.50, and alleged interest accruing as of July 16, 2011 at a rate of 3.9%. Plaintiff alleges violations of the FDCPA, 15 U.S.C. § 1692e, failure to include a 15 U.S.C. § 1692e(11) disclosure, failure to send written notice containing the amount of debt in violation of 15 U.S.C. § 1692a(2), and use of unfair means to collect a debt, 15 U.S.C. § 1692f.

Plaintiff filed this case on July 18, 2012 against Defendant and co-defendant Capital One Bank (Court File No. 1). On September 5, 2012, Defendant filed a partial motion to dismiss. In Plaintiff's complaint, he alleged violations of the Truth In Lending Act (" TILA" ), 15 U.S.C. § § 1601, et seq. and a violation of the FDCPA predicated on Defendant's TILA violations. Defendant sought dismissal of these claims because it is not a " creditor" as that term is defined in the TILA. The Court granted Defendant's motion (Court File Nos. 25, 26). Subsequently, Defendant filed the instant motion, to which Plaintiff failed to respond.


A motion for judgment on the pleadings under Fed.R.Civ.P. 12(c) is considered using the same standard of review as a Rule 12(b)(6) motion. Fritz v. Charter Twp. of Comstock , 592 F.3d 718, 722 (6th Cir. 2010). A Rule 12(b)(6) motion should be granted when it appears " beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Lewis v. ACB Bus. Servs., Inc. , 135 F.3d 389, 405 (6th Cir. 1998). For purposes of this determination, the Court construes the complaint in the light most favorable to the Plaintiff and assumes the veracity of all well-pleaded factual allegations in the complaint. Thurman , 484 F.3d at 859. The same deference does not extend to bare assertions of legal conclusions, however, and the Court is " not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). The Court next considers whether the factual allegations, if true, would support a claim entitling the Plaintiff to relief. Thurman , 484 F.3d at 859. Although a complaint need only contain a " short and plain statement of the claim showing that the pleader is entitled to relief," Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Fed.R.Civ.P. 8(a)(2)), this statement must nevertheless contain " factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In other words, " to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

When considering a motion for judgment on the pleadings under Fed.R.Civ.P. 12(c), " all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment." Id. (citing JP Morgan Chase Bank, N.A. v. Winget , 510 F.3d 577, 581 (6th Cir. 2007)). The ...

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