United States District Court, W.D. Kentucky, Louisville
Charles R. Simpson III, Senior Judge.
Stennett filed this claim alleging violations of the Fair
Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692,
et seq. Compl. ¶ 1, ECF No. 1. Midland Funding,
LLC (“Midland”) moves to dismiss for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6),
asserting that Stennett's complaint is barred by the
FDCPA's one-year statute of limitations. Mot. Dismiss 1,
ECF No. 7. Stennett responded, ECF No. 14. Midland replied,
ECF No. 16. For the reasons below, the Court will grant
Midland's motion to dismiss and will dismiss
Stennett's claims with prejudice.
Rule of Civil Procedure 12(b)(6) permits a party to move to
dismiss a cause of action for “failure to state a claim
upon which relief can be granted.” To survive a motion
to dismiss, a complaint must contain sufficient facts to
state a claim that is “plausible on its face.”
Bell Atl. Corp. v. Twombly, 55 U.S. 544, 570 (2007).
A complaint states a plausible claim for relief when the
court may “draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court
is not required to accept legal conclusions or
“threadbare recitals of the elements of a cause of
action.” Id. When resolving a motion to
dismiss, the court must “construe the complaint in the
light most favorable to the plaintiff, accept its allegations
as true, and draw all reasonable inferences in favor of the
plaintiff.” Wesley v. Campbell, 779 F.3d 421,
428 (6th Cir. 2015) (quoting Directv, Inc. v.
Treesch, 487 F.3d 471, 476 (6th Cir. 2007)). Generally,
a motion to dismiss for failure to state a claim is “an
inappropriate vehicle for dismissing a claim based upon the
statute of limitations. But, sometimes the allegations in the
complaint affirmatively show that the claim is
time-barred.” Cataldo v. United States Steel
Corp., 676 F.3d 542, 547 (6th Cir. 2012).
March 9, 2010, Midland filed suit against Stennett in the
Meade County, Kentucky Circuit Court in an attempt to collect
a charged-off credit card. Compl. ¶¶ 4, 6, ECF No.
1. On December 14, 2011, Midland obtained a default judgment
against Stennett. Id. ¶ 8. On December 27,
2011, Midland filed a judgment lien in connection with the
default judgment. Id. ¶ 12. The default
judgment awarded Midland its court costs but did not specify
an amount. Id. ¶ 15. The judgment lien included
court costs of $413.62. Id. ¶ 14. Midland did
not file a bill of costs with the court and did not serve a
bill of costs on Stennett. Id. ¶¶ 19-20.
On October 18, 2016, Stennett filed the present complaint.
Civil Cover Sheet, ECF No. 1-1.
alleges that Midland violated the FDCPA by (1)
“including court costs in the amount due in the
Judgment Lien where no Bill of Costs was filed in the Meade
Circuit Court Case, ” and (2) “maintaining a
judgment lien that misrepresents the amount due in the
Judgment Lien.” Compl. ¶ 22, ECF No. 1. Stennett
cites Currier v. First Resolution Inv. Corp., 762
F.3d 529, 535 (6th Cir. 2014) for the position that
“[m]aintaining an invalid lien against a debtor's
home falls comfortably within the kinds of practices Congress
has identified as unfair under [the FDCPA].”
now moves to dismiss Stennett's complaint. Mot. Dismiss,
ECF No. 7. Midland argues that the FDCPA's statute of
limitations bars Stennett's claim. Id. at 2. In
support of this argument, it asserts that (1) the FDCPA's
statute of limitations runs from the date the judgment lien
was filed, (2) “maintaining” a judgment lien is
not a “discrete act” that starts the running of
the FDCPA's statute of limitations each day the lien is
in place, (3) the continuing-violation doctrine does not
apply to FDCPA claims, and (4) Currier does not
apply to this case. Id. at 6, 9, 11, 14. Stennett
responded without directly addressing Midland's
arguments. He instead argues that it was Midland's
failure to file a bill of costs that created the FDCPA
violation and that the statute of limitations only began to
run after the five years passed during which Midland could
file a bill of costs. Resp. Mot. Dismiss 2-4, ECF No. 14.
Whether the FDCPA's Statute of Limitations Began to
Run from the Date Midland Filed the Judgment Lien
to Midland's first argument, it asserts that the
FDCPA's statute of limitations began to run from the date
the judgment lien was filed. Mot. Dismiss 6, ECF No. 7. The
FDCPA provides that an action to enforce liability under its
provisions may be brought “within one year from the
date on which the violation occurs.” 15 U.S.C. §
1692k(d). An FDCPA claim will not be time barred so long as
it alleges “a discrete violation of the FDCPA within
the limitations period.” Purnell v. Arrow Fin.
Servs., LLC, 303 F. App'x 297, 301 (6th Cir. 2008)
(citations omitted). A “later effect of an earlier
time-barred violation” does not constitute a discrete
violation of the FDCPA. Malone v. Cavalry Portfolio
Servs., LLC, No. 3:14-CV-00428-CRS, 2015 WL 7571881, at
*2 (W.D. Ky. Nov. 24, 2015) (citing Slorp v. Lerner,
Sampson & Rothfuss, 587 F. App'x 249,
259 (6th Cir. 2014)). Other courts outside this circuit have
held that filing an invalid judgment lien is a discrete
violation of the FDCPA. See, e.g.,
Osinubepi-Alao v. Plainview Fin. Servs., Ltd., 44
F.Supp.3d 84, 91 (D.D.C. 2014) (holding that “the act
of placing a lien on a debtor's property is its own
separate and discrete violation”); Fontell v.
Hassett, 870 F.Supp.2d 395, 404 (D. Md. 2012)
(“[I]t makes sense that the limitations period would
begin at the time the lien was placed on Plaintiff's
property, since this was the definitive action taken by
Defendants that is alleged to constitute an abusive debt
collection practice.”); Weiner v. McCoon, No.
06-CV-1328-IEG (POR), 2007 WL 2782843, at *4 (S.D. Cal. Sept.
24, 2007) (holding that the statute of limitations began to
run on the date that the lien was filed).
asserts that Stennett's FDCPA claims accrued in December
2011, when it filed the judgment lien. Mot. Dismiss 2, ECF
No. 7. Thus, Midland argues that Stennett's complaint,
filed almost five years later, is barred by the FDCPA's
statute of limitations. Id. The Court agrees that
the most recent discrete act that Midland took, according to
the complaint, was filing the judgment lien on December 27,
2011. Compl. ¶ 12, ECF No. 1. This discrete act began
the statute of limitations period. The statute of limitations
ran until December 27, 2012, before Stennett filed suit.
Whether Maintaining a Judgment Lien is a Discrete Act for