Case 1:11-cv-24033-JEM Document 11 Entered on FLSD Docket 01/03/2012 Page 1 of 6

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

YAUMARY MYRICK, Plaintiff, Case No.: 11-24033-CIV-MARTINEZ vs. FAIR COLLECTIONS & OUTSOURCING, INC., and FAIRWAY VIEW ASSOCIATES, LTD.,

Defendants. _____________________________________/ PLAINTIFF YAUMARY MYRICKS RESPONSE IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS PLAINTIFFS COMPLAINT Plaintiff, YAUMARY MYRICK, (Plaintiff), by and through undersigned counsel, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, hereby submits this Response in Opposition to Defendant FAIRWAY VIEW ASSOCIATES, LTD.s (Defendant FVA) Motion to Dismiss Plaintiffs Complaint. I. 1. Introduction Plaintiff filed the instant action seeking relief under the Fair Debt

Collection Practices Act, 15 U.S.C. 1692 et seq. (FDCPA), and the Florida Consumer Collection Practices Act, Fla. Stat. 559.55 et seq. (FCCPA). 2. Defendant FVA has moved to dismiss this action, pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure. 3. Defendant FVA argues that Defendant is a creditor and not a debt

collector under 15 U.S.C. 1692a(6) therefore, not subject to the FDCPA. As such,

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Defendant FVA argues that Plaintiffs supplemental claim under the FCCPA should be dismissed because the Court does not have supplemental jurisdiction over such claim. II. Memorandum of Law A. Standard of Review for Dismissal Under Fed. R. Civ. P. 12(b)(6) Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a complaint need only contain short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim tests the sufficiency of the complaint; it is insufficient to decide the merits of the case. Milburn v. U.S., 734 F.2d 762, 765 (11th Cir. 1984). A complaint must contain enough facts to indicate the presence of the required elements. Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1302 (11th Cir. 2007). As long as the allegations rise above a speculative level, a wellpleaded complaint will survive a motion to dismiss even if it appears that a recovery is very remote and unlik ely. Conley, 355 U.S. at 45-46. Therefore, the Court must accept the allegations in the complaint as true and construe them in the light most favorable to the Plaintiff, Secy of Labor v. Labbe, 319 Fed. Appx. 761, 763 (11th Cir. 2008), and the dismissal of a claim is appropriate only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994) (quoting Hinshon v. King & Spalding, 467 U.S. 69 (1984)).

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B. Fairway View Associates is subject to the FCCPA Plaintiff does not dispute that Defendant FVA does not meet the definition of a debt collector and is thus a creditor under the FDCPA. However, Plaintiff does dispute that Defendant FVA is subject to liability under the FCCPA. An individual is held liable under the FDCPA if they are found to be a debt collector under 15 U.S.C. 1692(a)(6). However, under 15 U.S.C. 1692a(6)(F), the term debt collector does not include: any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor. 15 U.S.C. 1692a(6)(F). Therefore, because Defendant is excluded from the definition of a debt collector under the FDCPA, Defendant is not liable under the FDCPA. However, Fla. Stat. 559.72(9) states that [i]n collecting consumer debts, no person shall . . . [c]laim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such person knows that the right does not exist. Fla. Stat. 559.72(9). As such, an

individual can be subject to liability under Fla. Stat. 559.72(9) for actions it took as a person or entity collecting consumer debts even if such individual is not found to be a debt collector or creditor when such individual knows that the debt is not legitimate. See Reynolds v. Gables Residential Services, Inc., 428 F.Supp.2d 1260, 1265 (M.D. Fla. 2006) (stating that a party can be held liable under the FCCPA even if that party does not meet the statutory definition of a debt collector under Florida law). In this case,

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Defendant FVA attempted to collect a debt, which included improperly added amounts, including but not limited to a $75.00 cleaning fee that Plaintiff never agreed to pay, and which Plaintiff did not owe. Pl.s Compl. 16. Thus, Plaintiffs claim under the FCCPA should not be dismissed under Fed. R. Civ. P. 12(b)(6). C. Plaintiffs Supplemental Claim under the FCCPA should not be dismissed because the Court does have supplemental jurisdiction over such claim Under 28 U.S.C. 1367(a), this Court can retain jurisdiction over a state law claim after dismissal of a federal claim. Here, Plaintiff has alleged a valid claim under the FCCPA against Defendant FVA. Additionally, Plaintiff has alleged valid claims under both the FDCPA and FCCPA against Defendant FAIR COLLECTIONS & OUTSOURCING, INC. Defendant FAIR COLLECTIONS & OUTSOURCING, INC. attempted to claim Plaintiffs alleged debt after Defendant FAIRWAY VIEW ASSOCIATES, LTD. failed to collect the alleged non-legitimate debt from Plaintiff. As such, Plaintiffs valid FCCPA claim against Defendant FAIRWAY VIEW

ASSOCIATES, LTD. is related to Plaintiffs claims against Defendant FAIR COLLECTIONS & OUTSOURCING, INC. as they form part of the same case or controversy at issue. Therefore, this Court should not dismiss Plaintiffs FCCPA claim against FAIRWAY VIEW ASSOCIATES, LTD. CONCLUSION WHEREFORE, and based upon the aforesaid, Plaintiff respectfully requests that this Court deny Defendant s Motion to Dismiss under Rule 12(b)(6) for failure to state a claim, enter an order in accordance herewith and take such other and further action as is just and proper.

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Dated: January 3, 2012

Respectfully submitted, /s Andrew I. Glenn Andrew I. Glenn E-mail: AGlenn@cardandglenn.com Florida Bar No.: 577261 J. Dennis Card, Jr. E-mail: DCard@cardandglenn.com Florida Bar No.: 0487473 Card & Glenn, P.A. 2501 Hollywood Boulevard, Suite 100 Hollywood, Florida 33020 Telephone: (954) 921-9994 Facsimile: (954) 921-9553 Attorneys for Plaintiff

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on January 3, 2012, the foregoing document is being served this day on all counsel of record identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Filing.

SERVICE LIST Ryan R. McCain, Esq. Florida Bar No. 28117 BARFIELD, MCCAIN P.A. 2809 Poinsettia Avenue West Palm Beach, FL 33407 Telephone: (561) 650-8139 Facsimile: (561) 650-8146 Attorney for Defendant, Fairway View Associates, Ltd. Served via CM/ECF Fair Collections & Outsourcing, Inc. c/o registered agent Corporation Service Company 1201 Hayes Street Tallahassee, FL 32301-2525 Attorneys for Defendant Fair Collection & Outsourcing, Inc. Served via CM/ECF