Fajolu v. Portfolio Recovery Assocs., LLC
Fajolu v. Portfolio Recovery Assocs., LLC
Opinion of the Court
Basirat Fajolu alleges that Portfolio Recovery Associates, LLC violated the Fair Debt Collections Practices Act,
Standard
A Rule 12(b)(6) motion challenges the "sufficiency of the complaint." Berger v. Nat. Collegiate Athletic Assoc. ,
Background
Portfolio, a collection agency, sent a letter dated August 7, 2017 to Fajolu, an insolvent individual, regarding the collection of an alleged $ 1,632.94 debt. R. 1 ¶¶ 9, 15-17, 20; id. 1-1, Exhibit C. Fajolu, through counsel, responded with a letter dated August 14, 2007, indicating both that Fajolu "regrets being unable to pay" due to insolvency, and that "the debt reported on the credit report is not accurate." Id. 1 ¶ 22; id. 1-1, Exhibit D. Portfolio then sent Fajolu a second letter dated September 26, 2017 indicating that he did not owe any debt and that it had "concluded its investigation of [his] dispute and is closing [his] account." Id. 1 ¶ 24-25; id. 1-1, Exhibit E. Each of the letters are attached to and referenced in the complaint. See id. ¶ 1. Fajolu's complaint indicates neither when *901he received Portfolio's letters, nor when he had reason to believe, and ultimately determined, that he did not owe Portfolio the debt alleged. See generally R. 1.
Fajolu filed suit on August 14, 2018 alleging that Portfolio's August 7, 2017 letter violated Sections 1692e and 1692f of the FDCPA because it "attempt[ed] to collect a debt that was not owed" and that he "owed no debt to [Portfolio]." Id. 1 at ¶¶ 14-35. Sections 1692e and 1692f prohibit a debt collector from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt," and prevent a debt collector from using "unfair or unconscionable means to collect or attempt to collect any debt." 15 U.S.C. §§ 1692e and 1692f.
Analysis
Portfolio moves to dismiss the complaint pursuant to Rule 12(b)(6) as untimely. R. 28. "Dismissing a complaint as untimely at the pleading stage is an unusual step, since a complaint need not anticipate and overcome affirmative defenses, such as the statute of limitations." Cancer Found., Inc. v. Cerberus Capital Mgmt., LP ,
The FDCPA provides that a claim must be brought "within one year from the date on which the violation occurs." 15 U.S.C. § 1692k(d). Portfolio contends that Fajolu's FDCPA claim accrued on August 7, 2017, the date of the letter Fajolu asserts as the basis for the complaint, and that the statute of limitations expired one year later on August 7, 2018.
The Seventh Circuit has not yet addressed the accrual date for a claim based upon the mailing of a letter alleged to violate the FDCPA. Other courts addressing the subject have held that the statute of limitations generally will accrue on the date of mailing. See, e.g. , Panko v. Pellettieri & Assoc., P.C. ,
*902However, the resolution of Portfolio's motion turns on whether the statute of limitations should commence not on August 7, 2017 when Portfolio's first letter was sent, but on some later date, up to and including August 14, 2017, when Fajolu responded to Portfolio's first letter, or even September 26, 2017, when Fajolu alleges he discovered his FDCPA claim through Portfolio's letter of the same date. R. 23 at 2-4. The discovery rule "starts the statute of limitations running only when the plaintiff learns that he's been injured, and by whom." Johnson-Morris v. Santander Consumer USA, Inc. ,
The Seventh Circuit has not addressed whether Congress intended to preclude the application of the discovery rule to the FDCPA, but the majority of district courts have found no intent to preclude its application, and have applied the doctrine on appropriate facts. See, e.g., Johnson-Morris ,
Portfolio would have the Court follow the dicta in Butler and decline to apply the discovery rule to the FDCPA generally, but particularly in this case, because it concerns the "isolated event" of mailing a letter, as opposed to an ongoing scheme. See R. 24 at 3-5. The Court finds that the discovery rule should apply to the FDCPA, and is persuaded by the decisions applying the discovery rule in the analogous cases addressing a court filing to apply it here.
Just as here, the cases involved a single, triggering event of which plaintiffs were unaware: here, that the August 7, 2017 letter outlined a debt not owed, and there, that a lawsuit was filed against the plaintiffs, in each case in contravention of the FDCPA. See Greenfield ,
*903McDermott v. Barton, III ,
Fajolu contends that the date of Portfolio's September 26, 2017 letter indicating a $ 0.00 account balance should control as the limitations accrual date. R. 23 at 2-4. The Court is skeptical, including because Fajolu's August 14, 2017 letter to Portfolio contested the accuracy of the debt in addition to expressing regret over Fajolu's inability to pay. R. 1-1, Exhibit D ("the debt reported on the credit report is not accurate"). It is therefore unclear from the face of the complaint and its exhibits when Fajolu can fairly be said to have discovered the alleged violation. But the Court can imagine a number of scenarios consistent with the allegations in the complaint in which it would be plausible for Fajolu - an insolvent individual whose debt was in default - to initially believe he did owe the debt outlined in Portfolio's August 7, 2017 letter. Accordingly, the Court does not find that the contents of the August 14, 2017 letter, or any other part of the complaint or its attachments, necessarily precludes the possibility that he did not understand his injury until that or even some later date.
Thus, whether the discovery rule ultimately allows Fajolu to overcome the statute of limitations is yet to be determined. But at this stage, the Court will allow it to proceed. The Court notes that, provided the date of discovery was August 14, 2017 or later, the complaint was timely; even assuming an August 14, 2017 accrual date, Fajolu filed his complaint exactly 365 days later. See Johnson-Morris ,
Though the argument is not fully developed, Portfolio contends that Federal Rule of Civil Procedure 6 is not applicable to Section 1692k(d) because it is a jurisdictional statute, and that even if Fajolu's claim accrued on August 14, 2017, his August 14, 2018 complaint is time-barred because it was not "within" one year as Section 1692k(d) requires. R. 14 at 6-7; R. 24 at 6. Portfolio relies upon the Eighth Circuit's decision in Mattson v. U.S. West Commc'ns., Inc. ,
Mattson is also distinguishable in any event since here, assuming an August 14, 2017 discovery date, Fajolu's action was filed on the 365th day, and the action in *904Mattson on day 366. Mattson ,
Conclusion
In sum, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in Fajolu's favor, the Court finds that the complaint supports an inference that Fajolu may be able to establish a defense to the statute of limitations, and dismissal on that ground at this stage is not appropriate. Whether Fajolu can ultimately establish the defense requires consideration of evidence outside of the pleadings, and is more amenable to resolution on a motion for summary judgment. Hillman ,
However, by not taking into consideration the date on which a letter is received, this approach results in an injustice to the would-be plaintiff who does not receive the letter promptly, effectively shortening the one-year statute of limitations period.
In Butler , the court declined to decide the issue, applying the doctrine of equitable tolling instead. Butler ,
For example, it may be that Fajolu's attorneys initially dispute debt as a matter of course and with respect to all client cases.
Reference
- Full Case Name
- Basirat FAJOLU v. PORTFOLIO RECOVERY ASSOCIATES, LLC
- Cited By
- 3 cases
- Status
- Published