KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court on Defendant's
I. Summary of the Case
Plaintiff Kristina Huffman ("Plaintiff"), brings this action pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692d, 1692e, 1692f, and 1692g. Compl. [#1] at ¶ 15. Defendant BC Services, Inc. ("Defendant") is a debt collector. Id. at ¶ 5; Motion [#5] at 1. Plaintiff is a resident of Colorado and a former debtor to Defendant. Compl. [#1] at ¶ 10, 11. On March 3, 2016, Defendant mailed a letter to Plaintiff. Id. at ¶ 11-13. The letter was Defendant's initial written communication to Plaintiff. Id. It stated, "This communication is an attempt to collect a debt by a debt collector." Id. at ¶ 10; Letter [#8-1].
Defendant moves to dismiss the Complaint with prejudice on the grounds that Plaintiff failed to state a claim upon which relief can be granted, and also requests "reasonable attorney fees and costs incurred[.]" Motion [#5] at 4, 7. Defendant argues that because the letter was sent following resolution of the debt, Plaintiff does not assert a viable cause of action. Reply [#10] at 2. Plaintiff contends that the Complaint satisfies the criteria of a viable claim because Defendant's conduct "falls squarely within the realm of conduct the FDCPA sought to protect consumers from[.]" Response [#8] at 8.
II. Legal Standard
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed. R. Civ. P. 12(b)(6) (stating that a complaint may be dismissed for "failure to state a claim upon which relief can be granted"). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), "a complaint must contain enough allegations of fact `to state a claim to relief that is plausible on its face.'" Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When deciding whether to grant a motion to dismiss, the court looks to the facts alleged in the complaint, which must be accepted as true, to determine whether they plausibly support the legal claim for relief pleaded. Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007). In order to survive a motion to dismiss, the complaint must allege facts that support each element necessary to show entitlement to relief under the proposed legal theory. Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) (citing Forrest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007)).
A. Motion to Dismiss
Plaintiff argues that Defendant violated the FDCPA when it sent the letter because "the sending of a collection letter that is explicitly collecting a debt, when there is no balance, is not only harassing but completely deceptive[.]" Compl. [#1] at ¶ 12, 13, 15. Defendant argues that Plaintiff's claim should be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a claim on which relief may be granted. Motion [#5] at 3. Specifically, Defendant asserts that "there is nothing in [Defendant's] initial written advisements that demand payment, or otherwise independently establish that a debt is actually owed." Id. at 5.
The purpose of the FDPCA is to protect consumers against abusive debt collection practices, to eliminate abusive debt collection practices, and to ensure consistent state practice against debt collection abuse. 15 U.S.C. § 1692(e). To establish a viable claim under the FDCPA, a plaintiff must show the following:
Villanueva v. Account Discovery Sys., LLC., 77 F.Supp.3d 1058, 1073 (D. Colo. 2015) (citing Sherwood v. BRT Corp., No. 12-cv-02782-RM-KMT, 2014 WL 5763191, at *5 (D. Colo. July 8, 2014)); Lucero v. Bd. of Recovery, Inc., No. CIV 09-0532 JB/WDS, 2012 WL 681797, at *12 (D.N.M. Feb. 28, 2012). Here, Plaintiff alleges in part that Defendant violated §§ 1692d, 1692e,
Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir. 2002). Plaintiff also alleges that Defendant violated § 1692g, which provides that a debt collector's initial communication in connection with the collection of debt must contain the following information: the amount of the debt, the name of the creditor, a statement that the consumer has thirty days to dispute the debt, a statement that the creditor will verify the debt within thirty days if the consumer disputes it, and a statement that the creditor will provide the name of the original creditor upon request. Compl. [#1] at ¶ 15.
In order for a plaintiff to establish a violation under these provisions, the debt collector must be engaged in prohibited conduct "in connection with the collection of a debt." Gorbaty v. Portfolio Recovery Assocs., 355 F. App'x 580, 581 (3d Cir. 2009). "A threshold requirement for application of the FDCPA is that the prohibited practices are used in an attempt to collect a `debt.'" Zimmerman v. HBO Affiliate Grp., 834 F.2d 1163, 1167 (3d Cir.1987); see also Cook v. Hamrick, 278 F.Supp.2d 1202, 1204 (D. Colo. 2003). Courts have reasoned that when there is no debt, there can be no debt collection. See e.g., Posso v. Asta Funding Inc., No. 07 C 4024, 2007 WL 3374400, at *3 (N.D. Ill. Nov. 9, 2007); Winter v. I.C. Sys., Inc., 543 F.Supp.2d 1210, 1214 (S.D. Cal. 2008) (finding no violation of the FDCPA when the alleged conduct occurred after the consumer paid off his debt); Narog v. Certegy Check Servs., 759 F.Supp.2d 1189, 1193 (N.D. Cal. 2011) (finding defendant's conduct not in connection with the collection of a debt under the FDCPA where the debt was paid in full and the debt collector acknowledged that the debt was paid in full).
In Posso, the Northern District of Illinois examined an alleged violation of the FDCPA. 2007 WL 3374400, at *1. The plaintiff argued that when a former debt collector filed a tax form with the IRS that overstated the amount for which the plaintiff settled the debt, the debt collector violated 15 U.S.C. § 1692e because filing the tax form with an incorrect and inflated amount constituted false or misleading conduct "in connection with the collection of debt." Id. at *1, 3. The court disagreed, explaining that because the tax form was filed by a former debt collector after the debt was terminated through settlement, the tax form tangentially related to the debt, rather than to the collection of the debt. Id. at 4. Because actions taken after the termination of a debt "by former debt-collectors . . . could not be deemed to be `in connection' with a present debt collection proceeding," the defendant's conduct could not constitute a violation of the FDCPA. Id. at 3. The Third Circuit Court of Appeals similarly held that a plaintiff failed to state a claim because the alleged conduct occurred after the termination of the debt. See Gorbaty, 355 F. App'x at 581-82. In Gorbaty, the plaintiff claimed that when a former debt collector sent him cancellation of debt notices and failed to respond to the plaintiff's request for verification of the debt, the debt collector violated the FDCPA. Id. at 581. The court, ruling in defendant's favor, reasoned that "[w]hen a debt is cancelled, there is no debt and there can be no debt collection." Id. at 582. Thus, because the plaintiff's debt had been cancelled prior to defendant's conduct, such conduct could not "be deemed `in connection' to a present debt collection proceeding" and therefore was "not protected by the FDCPA." Id.
Plaintiff maintains that the FDCPA is designed to protect consumers whether or not the debt is valid. Response [#2] at 4. Cases that support Plaintiff's contention that debt collectors are liable under the FDCPA for post-debt conduct are distinguishable because the debt collector conduct in those cases constituted actual attempts to collect debt. For example, in Yarney v. Ocwen Loan Servicing, the plaintiff successfully sued a debt collector defendant when the defendant sought payment on a debt previously terminated through settlement agreements. 929 F.Supp.2d 569, 572 (W.D. Va. 2013). The court determined that the defendant made false representations that the plaintiff still owed payment on the debt and had elicited payment from plaintiff in violation of § 1692e of the FDCPA. Id. at 572-73; see also Johns v. Wells Fargo Bank, No. 14-0254-KD-C, 2015 WL 143753, at *1, 7 (S.D. Ala. Jan. 12, 2015) (finding a violation of the FDCPA when the debt collector sent three collection letters demanding $38,406.13, $39,247.26, and $40,088.39 after the debt had been discharged through bankruptcy proceedings); Church v. Accretive Health, No. 14-0057-WS-B, 2014 WL 7184340, at *1, 2, 14 (S.D. Ala. Dec. 16, 2014) (denying a motion to dismiss plaintiff's FDCPA claim where a debt collector sent a collection letter showing an active balance of $1,944.80 after the debt was discharged through bankruptcy).
Here, the Court adopts the reasoning that when there is no actual or purported debt, there is no debt collection for the purpose of alleging an FDCPA violation. See Gorbaty, 355 F. App'x at 581; Posso, 2007 WL 3374400, at *3. Plaintiff acknowledges that there was no balance owed at the time the letter was sent and that the letter does not state that any debt was owed. Compl. [#1] at ¶ 11-12; Response [#8] at 2, 9. Since the balance on the letter was $0.00 and Defendant made no representations to the contrary, Defendant was not collecting or attempting to collect any debt. Therefore, Defendant's conduct was not in connection with the collection of debt, and Plaintiff thereby fails to allege a critical element of a claim pursuant to §§ 1692d, 1692e, 1692f,
Because Plaintiff fails to allege that Defendant's conduct was done in connection with the collection of debt, Plaintiff has failed to state a claim that entitles her to relief under the FDCPA. Therefore, Plaintiff's claim is
B. Attorney's Fees
Defendant requests attorney's fees and costs incurred in defending this action. Motion [#5] at 7. Pursuant to D.C. Colo. LCivR 54.3, a motion for attorney's fees must be supported by an affidavit, and the motion itself must contain a summary of qualifications and experience, a description of services rendered, time spent, rate, and total amount claimed. Defendant has not complied with these requirements. Accordingly, the Motion [#5] with respect to Defendant's request for attorney's fees is
Based on the foregoing,
IT IS HEREBY
IT IS FURTHER