Shipton v. Diversified Consultants, Inc.
2:15-cv-00496
M.D. Fla.Mar 29, 2016Background
- Plaintiff Brian Shipton incurred a DirecTV debt that DirecTV retained DCI to collect.
- DCI’s first communication was a January 25, 2015 dunning letter; the letter instructed payments be sent to DirecTV.
- Shipton alleged DCI never gave him written notice of assignment as required by Fla. Stat. § 559.715 and sued.
- Count I: Claim under the FDCPA § 1692(e) alleging DCI’s letter was misleading because DCI attempted to collect without being the assignee.
- Count II: Claim under the FCCPA § 559.72(9) alleging DCI asserted a legal right (to collect) it knew it did not possess.
- DCI moved to dismiss under Rule 12(b)(6) arguing it was a collector retained by DirecTV, not an assignee with a property interest, so § 559.715 did not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DCI was an "assignee" required to give notice under Fla. Stat. § 559.715 | Shipton: DCI was the assignee and thus had to give assignment notice before collecting | DCI: It was only retained as a collector; DirecTV remained the party in interest and payments were to DirecTV | Court: DCI was not an assignee; no property interest existed and payments were directed to DirecTV |
| Whether DCI’s dunning letter violated FDCPA § 1692(e) by misleadingly attempting to collect without assignment | Shipton: The letter was misleading and an improper attempt to collect because no assignment notice was given | DCI: Letter was a valid collection attempt on behalf of DirecTV, not misleading | Court: No FDCPA violation; without an assignment there was nothing to notify and the letter was valid |
| Whether DCI violated FCCPA § 559.72(9) by asserting a legal right it did not have | Shipton: By collecting without notice, DCI asserted a non-existent right to collect | DCI: DCI legitimately sought collection for DirecTV and did not assert a non-existent right | Court: No FCCPA violation; DCI did not assert a right it lacked because it acted as DirecTV’s collector |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for complaints)
- Erickson v. Pardus, 551 U.S. 89 (2007) (accept factual allegations as true on a motion to dismiss)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (legal conclusions must be supported by factual allegations)
- Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276 (11th Cir. 2007) (limits on materials considered on 12(b)(6) motions)
- Crews v. State, 183 So. 3d 329 (Fla. 2015) (statutory interpretation begins with the statute's plain text)
- Lee Cty. Elec. Co-op., Inc. v. Jacobs, 820 So. 2d 297 (Fla. 2002) (plain meaning rule for common words in statutes)