IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION

LAKEASHA SMITH, *

Plaintiff, *

vs. * CASE NO. 4:19-CV-25 (CDL) PORTFOLIO RECOVERY ASSOCIATES, * LLC, * Defendant. *

O R D E R Lakeasha Smith brought this putative class action alleging that Portfolio Recovery Associates, LLC (“PRA”) sent her a collection letter that violates the Fair Debt Collection Practices Act (“FDCPA”),

, et seq. Presently pending before the Court is PRA’s motion to dismiss (ECF No. 7). As discussed below, the motion is granted.1 MOTION TO DISMISS STANDARD “To survive a motion to dismiss” under Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). The complaint must include sufficient factual

1 Smith also sued “John Does 1-25.” For the same reasons explained in this Order, Smith’s claims against any fictitious parties are also dismissed. allegations “to raise a right to relief above the speculative level.” Twombly,

. In other words, the factual allegations must “raise a reasonable expectation that discovery will reveal evidence of” the plaintiff’s claims. Td. at 556. But “Rule 12(b) (6) does not permit dismissal of a well-pleaded complaint simply because ‘it strikes a savvy judge that actual proof of those facts is improbable.’” Watts v. Fla. Int/’l Univ.,

(11th Cir. 2007) (quoting Twombly,

). FACTUAL ALLEGATIONS Lakeasha Smith (also known as Lakeasha Brown) owes a debt to PRA based on her use of a credit card she got from Comenity Capital Bank. PRA, the debt servicer, sent a collection letter that contained the following details about the debt: Portfolio Recovery Associates, LLC UE) ry Associates, Lea \elb ie |i! February 13, 2018 Se Dear LAKEASHA BROWN. Reme: LAKEASHA BROWN Account Number qReeaggiibeeatiingss We know life happens, Seller: COMENITY CAPITAL BANK FORMERLY KNOWN AS And, at ines, ae may fall behind on financial © WORLD FINANCIAL CAPITAL BANK commitments. We under pea Merchant: DAVIDS BRIDAL You may have debt, but you also have options. Please Original Creditor: COMENITY CAPITAL BANK contact us. We are standing by and ready to help. Creditor to Whom Debt is Owed: Portfolio Recovery sincerely, Associates, LLC Portfolio Recovery Associates, LLC Current Balance Due: $1,066.82

Compl. Ex. A, Collection Letter (Feb. 13, 2018), ECF No. 1-1. The letter contained the following “account offers”:

oe ea aEAN oe OR <a.

* 1 Payment of $1,066.82* 4 Payment(s) of $586.75 and Save S400." ® 6 Monthly Payments of $177.80* e Pay $197.54 for 3 consecutive months and □□□ □ Sa.00 * 12 Monthiy Payments of $88.90" ® Pay $99.51 for 6 consecutive months and Se S460. 75 Your account will be considered “Paid in Full’ after your The savings will be applied to the balance and your account will be final payment is successfully posted. considered "Settled in Full" after your final payment is successfully posted. Your first payment must be received by: 04/02/2018 *We are not obligated to renew this offer. ff 2 | } | ea | nee Visit us online at: | all Toll- Free 1-800-772-1413 to Portfolio Heoety Associates, LLC www.prapay.com i i ith us. .O. Box 12914 prapay discuss your account with us | Norfolk, VA 23544 The law limits how long you can be sued on a debt. Because of the age of your debt, we will not sue you for it.

At the time of the letter, Smith’s debt was more than six years old, so a lawsuit to recover the debt was time-barred under Georgia law.?

* PRA’s disclosure regarding the statute of limitations comes directly from a consent decree between PRA and the U.S. Consumer Financial Protection Bureau. See Consent Decree { 126, CFPB Administrative Proceeding No. 2015-CFPB-0023 (Sept. 8, 2015), http://files.consumerfinance.gov/f/201509 cfpb consent-order- portfolio-recovery-associates-llce.pdf. The consent decree further states that PRA is “permanently restrained and prohibited from ... [mjaking any representation or statement, or taking any other action that interferes with, detracts from, contradicts, or otherwise undermines the disclosures required in” J 126.

@ 127. The consent decree also prohibits resale of debt except in limited circumstances.

7 118.

Smith does not allege that she selected any of the payment options. Smith does allege that if she were to make a partial payment, she “could unknowingly cause the statute of limitations to restart.” Compl. ¶ 32, ECF No. 1. Smith further alleges that PRA’s letter is misleading and deceptive because it “fails to inform the consumer that making a partial payment with some form

of written acknowledgement will restart the statute of limitations for a lawsuit to occur.” Id. ¶ 30. Smith does not allege facts to suggest that PRA would sue her following a partial payment. In fact, Smith alleged that PRA unequivocally stated that it will not sue her. See id. ¶ 29. DISCUSSION To prevail on her FDCPA claim, Smith must establish that: (1) she was the object of collection activity arising from consumer debt; (2) PRA is a debt collector under the FDCPA; and (3) PRA engaged in a practice prohibited by the FDCPA. See LeBlanc v. Unifund CCR Partners,

(11th Cir. 2010) (per curiam) (explaining that a “debt collector” engaging

in “collection activity” to recover an outstanding “consumer debt” “is subject to the FDCPA”). Here, PRA does not dispute that Smith was the object of collection activity arising from consumer debt or that it is a debt collector under the FDCPA. The dispositive question is whether Smith adequately alleged an FDCPA violation. The Court previously examined a debt collection letter that also sought to collect a time-barred debt, offered partial payment options, and contained a disclosure regarding the statute of limitations that is nearly identical to the one in the letter Smith received. See generally Cooper v. Midland Credit Mgmt., Inc., No. 4:18-CV-82 (CDL),

(M.D.

Ga. Dec. 11, 2018), appeal docketed, No. 19-10120 (11th Cir. Jan. 10, 2019).3 The Court concluded that the plaintiff in that action failed to state a claim under 15 U.S.C. § 1692e or 15 U.S.C. § 1692f because the plaintiff did not allege facts to suggest that the statute of limitations would be revived in the event of a partial payment, so he did not adequately allege that the letter he received was misleading. Cooper,

, at *4. In reaching this conclusion, the Court noted that the defendant’s collection letter contained a promise not to sue the plaintiff because of the age of his debt and that the plaintiff did not allege any facts to suggest that the defendant would

disregard its promise not to sue. The Court also distinguished the cases Smith relies on in her response brief. See

at *3- *4 (distinguishing Pantoja v. Portfolio Recovery Assocs., LLC,

(7th Cir. 2017), Buchanan v. Northland Grp., Inc.,

3 Like the language in Smith’s letter, the language in the Cooper letter came directly from a consent decree between the debt collector and the U.S. Consumer Financial Protection Bureau. Cooper,

, at *1 n.1.

(6th Cir. 2015), and Daugherty v. Convergent Outsourcing, Inc.,

(5th Cir. 2016)). Here, the Court studied the letter Smith received in its entirety and considered the parties’ arguments regarding the implications of the disclosure language. This case is indistinguishable from Cooper. And, the Court is not convinced

that the Eleventh Circuit’s recent decision Holzman v. Malcolm S. Gerald & Associates, Inc.,

(11th Cir. 2019), requires a different conclusion than the one the Court reached in Cooper. In Holzman, the collection letter sought to collect a time-barred debt by making an “offer” to “resolve” the plaintiff’s debt, but the letter did not disclose that the debt was time-barred.

. The Eleventh Circuit concluded that the letter could mislead an unsophisticated consumer as to the legal status of the debt.

. In addressing the defendant’s argument that it would be required to give legal advice to debtors if its letter were found to be misleading, the

Eleventh Circuit noted that if a debt collector was “unsure about the applicable statute of limitations, it would be easy to include general language about that possibility, correcting any possible misimpression by unsophisticated consumers without venturing into the realm of legal advice.”

at 1273 (quoting Buchanan,

). The Eleventh Circuit further suggested that any misimpression could be cured by incorporating the following language into its collection letters: “The law limits how long you can be sued on a debt. Because of the age of your debt, [the creditor] will not sue you for it[.]”

(quoting Shields v. J.C. Christensen & Assocs., Inc., No. 1:16- CV-01548-SEB-DML,

, at *1 (S.D. Ind. Mar. 24, 2017)). The language in the letter here comes mighty close to

the curative language suggested by the Court of Appeals in Holzman. For these reasons, the Court finds that Holzman is distinguishable. And, for the reasons the Court articulated in Cooper, Smith did not allege sufficient facts to make out an FDCPA violation. CONCLUSION For the reasons set forth above, PRA’s motion to dismiss (ECF No. 7) is granted. IT IS SO ORDERED, this 23rd day of May, 2019. S/Clay D. Land CLAY D. LAND CHIEF U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF GEORGIA