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Brown v. Wells Fargo Bank N.A.

United States District Court, N.D. Iowa, Central Division

January 7, 2020

JENNIFER O. BROWN, Plaintiff,
v.
WELLS FARGO BANK, N.A., EXPERIAN INFORMATION SOLUTIONS, INC., and SAYER LAW GROUP PC, Defendants.

          ORDER

          Leonard T. Strand, Chief Judge

         I. INTRODUCTION

         This 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).

         II. FACTUAL ALLEGATIONS

         Brown 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 collection. Id.

         On August 20, 2018, Sayer sent Brown a Demand for Payment letter,[1] 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.[2] Id. at 7.

         Brown 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 14.

         III. APPLICABLE STANDARDS

         The 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 (brackets omitted).

Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009).

         Courts 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).

         In 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 ...


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