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Mooneyham v. GLA Collection Co., Inc.

United States District Court, W.D. Kentucky, Bowling Green Division

June 8, 2015



GREG N. STIVERS, District Judge.

Defendant CMRE Financial Services, Inc. ("CMRE") has moved to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(6), asserting the claims against it are barred by the applicable statute of limitations. (CMRE's Mot. to Dismiss, DN 15). The parties present a question of law left expressly unanswered in the Sixth Circuit. Because the Court finds equitable tolling appropriate in this context, however, no ruling on the discovery rule's applicability to the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. §§ 1692-1692p, is necessary. CMRE's Motion to Dismiss (DN 15) is DENIED.


Pursuant to Rule 12(b)(6), this ruling assumes the truth of all facts alleged in the Complaint, which claims that Plaintiff Christopher Mooneyham ("Mooneyham") first became aware of medical debt on his credit report when he was preparing to purchase a home. In reviewing his credit report, Mooneyham discovered listings for medical debt furnished by two "debt collectors" as defined by the FDCPA.

One debt collector, GLA Collection Co., Inc. ("GLA"), furnished information on debts attributable to Mooneyham individually in 2009 and 2010. When Mooneyham tried to pay GLA the face amount of the debt, he was told of interest charges to which the debt was purportedly subject. These interest charges, GLA informed him, ranged from 8% to 18% annually. Mooneyham claims these interest charges violate state law, and thus their assertion in 2014 violates the FDCPA.

The movant, CMRE, furnished information in 2009 and 2010 concerning four debts. When contacted, CMRE informed Mooneyham that its debt was the sole responsibility of his wife. Mooneyham contends this was a false representation in violation of the FDCPA.

Mooneyham filed suit on December 17, 2014, within a month of his conversations with GLA and CMRE. He alleges both violated Section 1692e of the FDCPA relating to false representations and Section 1692f relating to unfair practices. GLA answered the Complaint on January 22, 2015, asserting the statute of limitations as one of its defenses. (GLA's Answer ¶ 32, DN 14). In lieu of answering the Complaint, on February 6, 2015, CMRE filed this motion to dismiss, asserting the same defense. (CMRE's Mot. to Dismiss, DN 15). The allegations against both remaining defendants allege identical statutory violations, but defendants are not identically situated. Mooneyham claims GLA violated the FDCPA in asserting prohibited interest charges. These assertions, made in November 2014, bring that claim against GLA clearly within the statute of limitations. Mooneyham's claims against CMRE occurred earlier, outside the limitations period. Thus, this ruling addresses the statute of limitations only as applied to CMRE.


As Plaintiff presents a claim under the FDCPA, 15 U.S.C. §§ 1692-1692p, this Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. 15 U.S.C. § 1692k provides for civil liability for specified violations of the FDCPA.


Motions pursuant to Rule 12(b)(6) are reviewed under a lenient standard. "The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993) (citation omitted). While courts are free to make judgments of law with dispositive effect, "[a] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Mayer, 988 F.2d at 638 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Accordingly, in ruling on motions to dismiss pursuant to Rule 12(b)(6), all factual allegations in a complaint are accepted as true.

Nonetheless, "a plaintiff's obligation to provide the grounds of his 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (internal quotation marks omitted) (citation omitted). Fed.R.Civ.P. 9(b) requires pleading fraud with particularity. Wilson v. HSBC Bank, N.A., 594 F.Appx. 852, 858 (6th Cir. 2014). The particularity requirement includes allegations of fraud in violation of the FDCPA. Gulley v. Pierce & Assocs., P.C., 436 F.Appx. 662, 664 (7th Cir. 2011) (citation omitted).


The FDCPA mandates civil actions be brought "within one year from the date on which the violation occurs." 15 U.S.C. § 1692k(d). Mooneyham alleges CMRE "violated the FDCPA by attempting to collect a debt... not owe[d], falsely representing that... debt, and furnishing false negative credit information... to one or more consumer reporting agencies." (Compl. ¶ 41, DN 1). He alleges CMRE furnished the information concerning these four debts on August 19, 2009; August, 19 2009; July 22, 2010; and August 24, 2010. (Compl. ¶ 24). When contacted in 2014, however, CMRE correctly identified the debt as belonging to Mooneyham's wife. (Compl. ¶ 28). Mooneyham does not appear to allege this 2014 communication violated the FDCPA. The provision of furnishing of inaccurate information (constituting both ...

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