United States District Court, N.D. Iowa, Central Division
JENNIFER O. BROWN, Plaintiff,
WELLS FARGO BANK, N.A., EXPERIAN INFORMATION SOLUTIONS, INC., and SAYER LAW GROUP PC, Defendants.
Leonard T. Strand, Chief Judge
case is before me on a motion (Doc. No. 9) to dismiss by
defendant Sayer Law Group PC (Sayer). Plaintiff Jennifer
Brown has filed a resistance (Doc. Nos. 13, 14). I find that
oral argument is not necessary. See Local Rule 7(c).
alleges violations of the Fair Credit Reporting Act (FCRA),
Fair Debt Collection Practices Act (FDCPA) and Iowa Debt
Collection Practices Act (IDCPA). See Doc. No. 1 at
1. She alleges that on September 17, 2012, she and her
ex-husband executed a note in favor of defendant Wells Fargo,
N.A. (Wells Fargo) and a mortgage to secure the note.
Id. at 5. She and her ex-husband defaulted on the
note following a failure to make monthly payments as required
under the note and mortgage. Id. at 6. Wells Fargo
retained Sayer, a law firm specializing in third-party debt
August 20, 2018, Sayer sent Brown a Demand for Payment
letter, requiring Brown to tender payment of an
accelerated balance of $46, 382.62 within 14 days.
Id. Brown alleges the letter identified Sayer as a
debt collector attempting to collect a debt on behalf of
Wells Fargo. Id. A Dispute and Validation Notice was
attached to the letter asserting that Brown owed $45, 354.78
plus accruing interest, fees, costs and attorney's fees.
It gave Brown 30 days to dispute the validity of the debt
owed to Wells Fargo, which Brown alleges directly contradicts
the previous remark that Brown owed the accelerated balance
within 14 days. She alleges the language in the letter
overshadows and contradicts her 30-day validation rights
under the FDCPA and that the accelerated balance in the
Demand for Payment letter overshadows and contradicts the
amount listed in the Dispute and Validation
Notice. Id. at 7.
alleges that Sayer violated multiple provisions of the FDCPA
(Count IV) including: (a) falsely represented the character,
amount or legal status of a debt, (b) used a threat of action
that could not legally be taken; (c) used false
representations in an attempt to collect a debt; (d) used
unfair or unconscionable means in an attempt to collect a
debt; (e) unfairly or unconscionably attempted to collect a
debt that was not permitted by law and (f) overshadowed
Brown's rights stated in the Dispute and Validation
Notice. Doc. No. 1 at 12-13. She also alleges that Sayer
violated the IDCPA (Count V) by: (a) taking an action
prohibited by Iowa Code § 537.7103 or any other law and
(b) misrepresenting the character, extent or amount of a
debt, or of its status in a legal proceeding. Id. at
Federal Rules of Civil Procedure authorize a pre-answer
motion to dismiss for “failure to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
The Supreme Court has provided the following guidance in
considering whether a pleading properly states a claim:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading
must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” As the
Court held in [Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)], the
pleading standard Rule 8 announces does not require
“detailed factual allegations, ” but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me
accusation. Id., at 555, 127 S.Ct. 1955 (citing
Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct.
2932, 92 L.Ed.2d 209 (1986)). A pleading that offers
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action will not
do.” 550 U.S. at 555, 127 S.Ct. 1955. Nor does a
complaint suffice if it tenders “naked
assertion[s]” devoid of “further factual
enhancement.” Id., at 557, 127 S.Ct. 1955.
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., at 570, 127 S.Ct. 1955. A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Id.,
at 556, 127 S.Ct. 1955. The plausibility standard is not akin
to a “probability requirement, ” but it asks for
more than a sheer possibility that a defendant has acted
unlawfully. Ibid. Where a complaint pleads facts
that are “merely consistent with” a
defendant's liability, it “stops short of the line
between possibility and plausibility of ‘entitlement to
relief.'” Id. at 557, 127 S.Ct. 1955
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009).
assess “plausibility” by “‘draw[ing]
on [their own] judicial experience and common
sense.'” Whitney v. Guys, Inc., 700 F.3d
1118, 1128 (8th Cir. 2012) (quoting Iqbal, 556 U.S.
at 679). Also, courts “‘review the plausibility
of the plaintiff's claim as a whole, not the plausibility
of each individual allegation.'” Id.
(quoting Zoltek Corp. v. Structural Polymer Grp.,
592 F.3d 893, 896 n.4 (8th Cir. 2010)). While
factual “plausibility” is typically the
focus of a Rule 12(b)(6) motion to dismiss, federal courts
may dismiss a claim that lacks a cognizable legal
theory. See, e.g., Somers v. Apple, Inc.,
729 F.3d 953, 959 (9th Cir. 2013); Ball v. Famiglio,
726 F.3d 448, 469 (3d Cir. 2013); Commonwealth Prop.
Advocates, L.L.C. v. Mortg. Elec. Registration Sys.,
Inc., 680 F.3d 1194, 1202 (10th Cir. 2011); accord
Target Training Intern., Ltd. v. Lee, 1 F.Supp.3d 927
(N.D. Iowa 2014).
considering a Rule 12(b)(6) motion to dismiss, ordinarily the
court “cannot consider matters outside the pleadings
without converting the motion into a motion for summary
judgment.” McMahon v. Transamerica Life Ins.,
No. C17-149-LTS, 2018 WL 3381406, at *2 n.2 (N.D. Iowa July
11, 2018); see Fed. R. Civ. P. 12(b)(6). On the
other hand, when a copy of a “written instrument”
is attached to a pleading, it is considered “a part of
the pleading for all purposes, ” pursuant to Federal
Rule of Civil Procedure 10(c). Thus, when the pleadings
necessarily embrace certain documents, I may consider those
documents without turning a motion to dismiss into a ...