Richard v. Santander Consumer USA, Inc., No. 4:2011cv00643 - Document 8 (N.D. Tex. 2011)
Court Description: Memorandum Opinion and Order granting 7 Motion to Dismiss for Lack of Subject Matter Jurisdiction filed by Santander Consumer USA, Inc. [see Order for specifics] (Ordered by Judge John McBryde on 12/13/2011) (klm)
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Richard v. Santander Consumer USA, Inc. Doc. 8 I s DI J STRI COURT CT NORTHEkN DI I rOF TEXAS ST uc' . l;y ) r,; , #รจ. ' ( ' I THE UNI N DISTRICT OF TE COURT N NORTHER STATES DISTRICT ).) TED ,. XA )'. . ; , FORT WORTH DIVISION CATHY RICHARD , 5 5 5 5 Plaintiff , VS. SANTANDER CONSUMER USA , INC . Defendant . FI D LE ). .. . . q' % . j) . ' . . 2E . 3 g j s I gj j;' ' ) q' '. : ) ) ( c' COURT r , CLERI V' DI TRI Q S' S f Y ; , p eput y NO . 4 :l1-CV -643-A j 5 5 MEMORANDUM OPINION and ORDER Now before the court for consideration is the motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12 ( ( of the Federal Rules of Civil Procedure, filed in the b) 1) above-captioned action by defendant , Santander Consumer USA , Inc . Plaintiff , Cathy Richard, filed nothing in response to the motion . Having now considered the motion , plaintiff 's original complaint , and applicable legal authorities , the court concludes that the motion should be granted . 1. Plaintiff's Claims and Defendant 's Motion Plaintiff initiated this action by the filing on September 14 , 2011, of her original complaint , alleging claims and causes of action against defendant for v iolations of the Fair Debt Collection Practices Act ('FDCPA' , 15 U . C. 5 1692 et seq. The A Q S. presence of a federal question pursuant to the FDCPA is the only Dockets.Justia.com basis in the complaint for this court's jurisdictionx Both parties are identified in the complaint as citizens of Texas; thus, the court would have no jurisdiction over this action save for plaintiff 's claims pursuant to the FDCPA . Defendant in the motion argues that dismissal is required because it is not a ndebt collector' as defined by the FDCPA , and ' therefore plaintiff's claims against it must fail. II. Factual Alleqations in the Complaint Plaintiff 's complaint contains the following factual allegations : Plaintiff alleged that in 2009 she incurred a financial obligation in the amount of $15,638. to an entity known as HSBC 29 Consumer Lending (ucreditor' in connection with an automobile ') loan . Plaintiff also alleged that the debt 'was purchased , ' assigned or transferred to E defendant) for collection, or ( defendant) was employed by the Creditor to collect the debt.' ' P1 .'s Verified Compl . at 2-3 . Plaintiff contended that defendant attempted to collect the debt and so has engaged in ncommunications' as contemplated by the FDCPA . ' Id . at 3 . Plaintiff alleged that defendant violated the FDCPA by engaging in certain abusive and harassing tactics, such as by l an ifas s ug td clrt r r le pu s n t teDe lrt r J dg ntAc, U. C.j plitf lo o h e a ao y eif rua t o h ca ao y u me t 28 S. 2201& 2202. However t Decl a or JudgmentActpr desno i , he ar t y ovi ndependentbasi f t cour' s or he ts j iditon J ne v. e a e ,6 F.d 7 ,7 1( t Ci.1 ) urs ci . o s Alx nd r 09 2 78 8 5h r 980 . 2 contacting her at her place of employment despite her requests for defendant not to do so ; by causing her telephone to ring nrepeatedly and continuously with the intent to annoy , abuse, and harass' her , id . at 4 ; by communicating with her at a place and ' time which it knew or should have known Was inconvenient to plaintiff; and by communicating a false impression of the character, amount , or legal status of the alleged debt . 111 . Applicable Legal Principles Under Rule 12 ( ( of the Federal Rules of Civil Procedure, b) 1) a case is properly dismissed when the court 'lacks the statutory ' or constitutional power to adjudicate the case.' Home Builders Ass ' of Miss .. Inc . v . Citv of Madison , M iss ., 143 F . n 3d 1006 , - - 1010 ( 5th Cir . 1998) ( citations omitted). The court should grant a motion to dismiss pursuant to Rule 12 ( ( lonly if it appears b) 1) ' certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief .' Id . The ' court may dismiss a complaint for lack of subject matter jurisdiction upon consideration of n( the complaint alone; ( ) 1) 2 the complaint supplemented by the undisputed facts ev idenced in the record; or ( the complaint supplemented by undisputed facts 3) plus the court 's resolution of disputed facts .' Lane v . ' Halliburton, 529 F .3d 548, 557 ( 5th Cir . 2008) ( citing Barrera-Montenegro v . United States, 74 F . 657, 659 ( 3d 5th Cir . 3 1996)). Upon a defendant's challenge to the court's subject matter jurisdiction, nthe plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.' Ramminq v . ' United States, 281 F .3d l58, l61 ( 5th Cir. 2001); Menchaca v . Chrysler Credit Corp ., 613 F . 507, 5l1 ( 2d 5th Cir . 1980). IV . Analvsis The basis of plaintiff 's claims is that defendant is a ndebt collector' as defined by the FDCPA , and in that capacity , ' defendant engaged in certain conduct prohibited by the statute . The FDCPA defines a 'debt collector' as : ' ' any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts , or who regularly collects or attempts to collect , directly or indirectly , debts owed or due or asserted to be owed or due another . Notwithstanding the exclusion provided by clause ( of the last sentence of this paragraph, the F) term includes any creditor who, in the process of collecting his own debts , uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts . For the purpose of section 1692f ( ) of this title , such term 6 also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests . 15 U . . . 5 1692a ( ). The act also contains certain exclusions, S C 6 specifically prov iding that it does not apply to ( any officer or employee of a creditor while , in the A) name of the creditor, collecting debts for such creditor ; 4 ( any person collecting or attempting to collect any F) debt owed or due or asserted to be owed or due another to the extent such activity ( is incidental to a bona i) 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 . Id . Thus , a ndebt collector' does not include a consumer 's ' creditors , nor does it include an assignee of the debt if the debt was not in default at the time of the assignment . Perrv v . Stewart Title Co ., 756 F .2d 1197 , 1208 ( 5th Cir . 1985). Stated differently, only debt collectors, not creditors, are subject to the FDCPA . Pollice v . Nat 'l Tax Fundinq , L . ., 225 F .3d 379 . 403 P - ( Cir . 2000). 3d In support of the motion defendant provided the affidavit of Mark Mooney (nMooney), its Vice President of Loss Mitigation . A ccording to Mooney , defendant is in the automobile finance business . As part of its bu siness , defendant in 2008 began to acquire the loan portfolios of other auto f inance businesses . A fter plaintiff f inanced her vehicle w ith the Creditor , defendant began servicing plaintiff 's account on the Creditor 's behalf , thus requiring plaintiff to make pan ents to defendant for the vehicle . However , according to Mooney , on or about August 27 . 2 01O , defendant purchased plaintiff 's account , and plaintiff continued making payments on the account to defendant . 5 Thus , at the time defendant purchased plaintiff 's account it was not past due . Further , when defendant began collection activ ities on plaintif f 's account , defendant was the owner of the account , and so was making collection ef forts on its own behalf , rather than any debt owed or due another . Plaintiff filed nothing to controvert defendant 's assertions . The court agrees with defendant . Defendant became the owner of plaintiff 's account in August 2010 . Plaintiff alleged that defendant began its harassing and abusive collection activities in June 2011 . Thus , at the time of the alleged violations , any collection activity engaged in by defendant was for the collection of its own debt , rather than a debt owed to another . Under these circumstances , defendant is not a 'debt collector' as ' ' contemplated by the FDCPA . 15 U .S . . 5 1692a ( ); Perry, 756 F .2d C 6 at 1208 . Likewise , because plaintiff 's account was not in default at the time defendant acquired the account , the FDCPA does not app ly to defendant 's collection activities . 15 U .S . . 5 C 1692a ( ) ( . As defendant is not a debt collector under the 6 F) FDCPA , plaintiff cannot sustain any claim or cause of action against defendant under that statute . Because plaintiff has alleged no other basis for the court's subject matter jurisdiction, her claims against defendant must be dismissed . 6 V. Order Therefore, The court ORDERS that defendant's motion to dismiss be, and is hereby , granted , and that al1 claims and causes of action brought by plaintiff , Cathy Richard, against defendant, Santander Consumer UsA , Inc w be , and are hereby , dismissed for want of subject matter jurisdiction. . z P .. W . V , / ' SIGNED December l3, 2011 . ' Z # ' .% . . z ' J MCBRYDE ted States District % 7 udge
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