MEMORANDUM OPINION AND ORDER ON KEVIN O’BRIEN & ASSOCIATES CO., L.P.A.’S MOTION TO DISMISS
The matters before the Court are: (1) Kevin O’Brien & Assоciates Co., L.P.A.’s Motion to Dismiss (“Motion”) (Doc. 11); (2) Plaintiffs Response in Opposition to Motion to Dismiss Filed by Kevin O’Brien & Associates Co., L.P.A. (“Response”) (Doc. 12); and (3) Reply Memorandum to Margaret Odell Gunter’s Response in Opposition to Kevin O’Brien & Associates Co., L.P.A.’s Motion to Dismiss (Doc. 18). The Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§ 157 and 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2).
I. Standard of Review
In the Motion, Defendant Kevin O’Brien
&
Associates Co., L.P.A. (“Defendant”) moves for an order dismissing all of the Plaintiff Margaret Odell Gunter’s (“Plaintiff’ or “Debtor”) claims against it for failure to state a claim upon which relief can be granted. The Defendant brings its Motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which is incorporated in bankruptcy adversary proceedings by Rule 7012 of the Federal Rules of Bankruptcy Procedure.
See
Fed. R. Bankr.P. 7012(b) (“Rule 12(b)-(h) F.R. Civ. P. applies in adversary proceedings.”);
see also Rieser v. Milford (In re Chari),
Under Rule 12(b)(6) the Court will accept all well-pleaded factual allegations in the Plaintiffs complaint as true and construe the allegations in a light most fаvorable to the Plaintiff.
See Benzon v. Morgan Stanley Distribs., Inc.,
II. Factual Allegations
Plaintiff initiated this adversаry proceeding by filing a complaint 'against the Defendant and Columbus Check Cashiers, Inc. (“CCC”); the Court will consider the following allegations as true and construe them in a light most favorable to the Plaintiff.
In May 2002, Plaintiff executed a loan agreement with CCC. For payment, CCC took a post-dated, personal check in the amount of $345.00. Plaintiff could not perform under the loan agreement when the payment became due. CCC attempted to negotiate the check, and the check was returned unpaid on or around May 21, 2002. See Complaint (Doc. 1), ¶ 5. On July 3, 2002, Plaintiff filed a voluntary Chapter 7 bankruptcy case. Both CCC and the Defendant received notice of Plaintiffs bankruptcy case. Plaintiff scheduled CCC as a creditor on Schedule F and the Creditors’ Matrix. Plaintiff also listed the Defendant, CCC’s counsel, on Schedule F and the Creditors’ Matrix. On October 31, 2002, the Court entered an order discharging the Debtor without opposition from any creditor. See id., ¶¶ 6-7.
On February 6, 2004, the Defendant and CCC directed a certified letter tо Plaintiff, in which they accused her of committing theft based on her non-payment of the discharged debt associated with the loan agreement. The Defendant and CCC demanded payment in the amount of $1,020.25, including attorney fees, court costs, and administrative costs. On November 4, 2004, the Defendant and CCC sued Plaintiff in the Franklin County, Ohio Municipal Court (“Municipal Court”). See id., ¶¶ 8-9 (citing Columbus Check Cashers, Inc. v. Gunter, No. 2004 CVI 45789) (“Civil Action”).
After Plaintiff received service of process on November 11, 2004, she immediately notified her former bankruptcy attorney, Stephen E. Schafer. On December 1, 2004, Mr. Schafer filed a notice of the bankruptcy proceeding with the Municipal Court, which stated that Debtor had received a Chapter 7 bankruptcy discharge, and that both CCC and the Defendant received notification of her bankruptcy filing. Mr. Schafer also sent a copy of the notice to the Defendant on the same date. See id., ¶¶ 10-11.
The Municipal Court’s small claims division held a hearing in the Civil Action. A representative of the Defendant appeared at the hеaring. Plaintiff did not appear, because she believed the debt had been discharged. On December 6, 2004, the Municipal Court issued a judgment against the Plaintiff in an amount of $970.25, plus costs and interest. See id., ¶ 12.
On March 15, 2005, Plaintiffs present counsel sent a demand letter to the Defendant, outlining her alleged claims against CCC and the Defendant for willful violаtion of the “Discharge Injunction” and against the Defendant for multiple violations of the Fair Debt Collection Practices Act (“FDCPA”). In response to Plaintiffs demand, the Defendant filed an entry in the Municipal Court vacating the $970.25 judgment against Plaintiff. In the entry, the Defendant alleged that neither it nor CCC were aware of Plaintiffs bankruptcy dischаrge. See id., ¶¶ 13-14.
*903 Based on these allegations, Plaintiff asserts three counts in her Complaint filed on May 26, 2005. In count one, she asks that the Defendant and CCC be held in contempt and sanctioned for violating the discharge injunction set forth in 11 U.S.C. § 524(a)(2). In count two, Plaintiff avers that the Defendant violated her consumer rights under the FDCPA. Lastly, in count three, Plaintiff asserts that both defendants invaded her privacy. See id., ¶¶ 15-25. While the Defendant has asked this Court to dismiss the Plaintiffs Complaint, CCC filed an answer. See Doc. 13.
III. Arguments of the Parties
The Defendant argues that Plaintiffs FDCPA claim should be dismissed in its entirety. The Defendant relies primarily on the Ninth Circuit case of
Walls v. Wells Fargo Bank, N.A.,
Plaintiff respоnds arguing that the Bankruptcy Code does not preclude her FDCPA claim. Plaintiff relies on a Seventh Circuit decision,
Randolph v. IMBS, Inc.,
Assuming the Court finds that the Bankruptcy Code does not facially preclude Plaintiffs FDCPA claim in its entirety, the Defendant alternatively moves to dismiss portions of Plaintiffs FDCPA claim on three separate grounds. First, the Defendant argues that any FDCPA claims stemming from the Civil Action should be dismissed because neither the summons nor the complaint served in the Civil Action constitute a “communication” under the FDCPA. Plaintiff responds that the summons and complaint served in the Civil Action are deemed “communications” under the FDCPA because of the broad definition given to that term in the statute.
Second, the Defendant contends that all of Plaintiffs FDCPA claims under 15 U.S.C. § 1692d should be dismissed because Plaintiff has failed to allege any facts that could establish “abusive or oppressive” collection practices under 15 U.S.C. § 1692d. Plaintiff asserts that she alleged abusive practices when she described the Defendant’s continuing action against her after the firm had been repeatedly put on notice to cease and desist. Lastly, the Defendant asserts that the FDCPA’s one-year statute of limitations bars any claims allegedly arising out of the February 6, 2004 certified letter, because the Plaintiff did not file the present case until May 26, 2005. Plaintiff does concede that the February 6, 2004 letter falls outside the FDCPA’s one-year statute of limitations bar.
IV. Law and Analysis
A. Preclusion of FDCPA Claim by the Bankruptcy Code
There is a circuit split on the issue of whether the Bankruptcy Code precludes FDCPA claims. The Seventh Circuit and the Ninth Circuit have each addressed this particular question; the Sixth Circuit has
*904
not. In the more recent opinion, the Seventh Circuit held that the Bankruptcy Code does not preclude or impliedly repeal the FDCPA.
See Randolph,
Looking to U.S. Supreme Court precedent, the Seventh Circuit found that for one federal statute to preclude another, there must be “either irreconcilable conflict between the statutes or a clearly expressed legislative decision that one replace the other.”
Randolph,
In addition to noting a lack of clearly expressed legislation on the topic, the Seventh Circuit also found no irreconcilable conflict between the Bankruptcy Code and the FDCPA but merely overlap between the statutory prоvisions. See id. A district court recently commented on the overlap identified in Randolph, as follows:
For example, if a plaintiff shows a willful violation, then punitive damages would be available under the Bankruptcy Code. However, if a debt collector did not act willfully, but only negligently, a plaintiff could still proceed under the FDCPA, which has no scienter requirеment. As the [Seventh Circuit] succinctly stated: “It is easy to enforce both statutes, and any debt collector can comply with both simultaneously.”
Drnavich v. Cavalry Portfolio Serv., LLC,
Conversely, the Ninth Circuit holds that the Bankruptcy Code precludes FDCPA claims such as Plaintiffs.
See Walls,
The Court agrees with the conclusion in
Randolph
that the Bankruptcy Code and the FDCPA do not irreconcilably conflict with each other as to repeal the FDCPA by implication. The “operational differences” between the statutes do not “add up to irreconcilable conflict.”
Randolph,
In addition to relying on
Walls
and its progeny
1
, the Defendant incorrectly cites the Sixth Circuit in
Pertuso v. Ford Motor Credit Co.,
An irreconcilable conflict does not exist between the Bankruptcy Code and the FDCPA, and no legislative intent has been identified showing that the Bankruptcy Code preempts the FDCPA. For these reasons, the Court finds that the Bankruрtcy Code does not preclude Plaintiffs FDCPA claim. Therefore, the Court rejects the Defendant’s argument that Plaintiffs FDCPA claim should be dismissed in its entirety.
B. Communications under the FDCPA
The summons and complaint served on the Plaintiff in the Civil Action are “communications” under the FDCPA. It is well established that the FDCPA applies to attorneys who regularly engage in debt collection.
See Heintz v. Jenkins,
Further, Congress defined “communication” broadly to mean “the conveying of information regarding a debt directly or indirectly to any person through any medium.” 15 U.S.C. § 1692a(2). “A lawsuit initiated to collect debts is certainly included within that definition.”
Sprouse v. City Credits Co.,
Congress also certainly knew how to except “pleadings” from the definition of “communication” where it intended to, and *906 as it did in § 1692e(ll) of the FDCPA. ,See id. Section 1692e(ll) provides that a debt collector must disclose in its initial communication with the debtor that “the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose,” except that the provision does “not apply to formal pleadings made in connection with a legal action.” 15 U.S.C. § 1692e(ll). Based on the broad definition of the term “communication” in the FDCPA, the Court rejects the Defendant’s argument that the FDCPA does not apply to the Civil Action, including the summons and complaint served on Plaintiff.
C. Harassing, Oppressive or Abusive Conduct under the FDCPA
The Defendant contends that all of Plaintiffs FDCPA allegations under 15 U.S.C. § 1692d should be dismissed because Plaintiff has failed to allege any facts that could establish “abusive or oppressive” collection practices under 15 U.S.C. § 1692d. This section provides that “[a] debt colleсtor may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d (includes a non-exclusive list of the conduct that would violate the section). Construing the Plaintiffs allegations in a light most favorable to her,
see Benzon,
Plaintiff has pled that the Defendant continued to try to collect the discharged debt from her after repeatedly being put on notice to cease and desist, including Defendant’s filing the Civil Action and receiving a judgment against Plaintiff. Dismissal of the allegations is only proper at this point if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. See id. The Court cannot say at this time, based on the allegations set forth, that the Defendant’s conduct was not harassing, oppressive or abusive under 15 U.S.C. § 1692d. Therefore, the Court rejеcts the Defendant’s argument that Plaintiffs FDCPA allegations under 15 U.S.C. § 1692d should be dismissed.
D. FDCPA Statute of Limitations
Lastly, the Defendant asserts that the FDCPA’s one-year statute of limitations bars any FDCPA claim arising out of the February 6, 2004 certified letter, because the Plaintiff did not file the present case until May 26, 2005. The FDCPA provides that “[a]n action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d).
Plaintiff does concede that the February 6, 2004 letter falls outside the FDCPA’s one-year statute оf limitations bar. Accordingly, Plaintiffs allegation of a FDCPA violation arising from the February 6, 2004 letter is dismissed as it is barred by the statute of limitations contained in the FDCPA. 2 All the other FDCPA allegations in Plaintiffs complaint are legally cognizable and thus survive dismissal at this early stage of the litigation.
V. Conclusion
For the foregoing reasons, the Court DENIES the Defendant’s Motion. All rеlief requested in the Motion is denied, *907 except to note that any claim made by Plaintiff under the FDCPA arising from the February 6, 2004 letter is dismissed as it is barred by the statute of limitations contained in the FDCPA (a point Plaintiff has conceded).
IT IS SO ORDERED.
Notes
. Other than
Wan v. Discover Fin. Servs., Inc.,
. This finding does not suggest that Plaintiff will be prevented from asserting that the letter violated the discharge injunction under 11 U.S.C. § 524(a)(2).