Case 8:11-cv-02269-JDW-TGW Document 12 Filed 12/16/11 Page 1 of 4 PageID 42
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No.: 8:11-cv-2269-JDW-TGW
RICHARD M. DAUVAL, Trustee for the
Estate of Joseph Pietro, an individual,
PREFERRED COLLECTION AND
MANAGEMENT SERVICES, INC.,
a Florida corporation,
RESPONSE IN OPPOSITION TO DEFENDANT’S
MOTION TO DISMISS AND SUPPORTIVE MEMORANDUM
Plaintiff, RICHARD DAUVAL, as Trustee for the estate of Joseph Pietro
(hereinafter, “Plaintiff”), by and through the undersigned counsel, and pursuant to Local
Rule 3.01(b), files this Response in Opposition to Defendant’s Motion to Dismiss [Dkt.
6] as follows.
INTRODUCTION AND BACKGROUND
This case arises from a debt collection letter (hereinafter, the “Letter”) sent
to Joseph Pietro by Defendant. Complaint, paragraphs 14 and 15, Exhibit A to
The Letter violates the Fair Debt Collection Practices Act (hereinafter, the
“FDCPA”). Complaint, Count I.
The Letter was sent to Joseph Pietro on or about May 18, 2010.
Complaint, paragraph 14, Exhibit A to Complaint; Answer, paragraph 14.
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Joseph Pietro filed a Chapter 7 bankruptcy petition on March 15, 2011.
Complaint, paragraph 3; Answer, paragraph 3.
Plaintiff is the Chapter 7 bankruptcy trustee for the bankruptcy estate of
Joseph Pietro. Complaint, paragraph 3; Answer, paragraph 3.
Plaintiff filed the subject Complaint on October 6, 2011. See Complaint.
The Complaint raises four claims against Defendant. Count I of the
Complaint is an action for violation of the FDCPA.
Defendant moved to dismiss Count I of the Complaint based on the one
year limitation period set forth in 15 U.S.C. §1692k(d). Defendant filed an Answer and
raised Affirmative Defenses relating to the remainder of Plaintiff’s claims.
LEGAL STANDARD FOR A MOTION TO DISMISS
Plaintiff agrees with the legal standard for a Motion to Dismiss cited by
Defendant in its Motion to Dismiss.
III. MEMORANDUM OF LAW
Defendant moved to dismiss Count I of the Complaint based on the one year
limitation period set forth in 15 U.S.C. §1692k(d). This statute provides as follows:
An action to enforce any liability created by this title 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.
Because the Letter was sent May 18, 20101
and the action was filed October 6,
2011, Defendant reasons that Plaintiff’s FDCPA claim is untimely.
1 Plaintiff agrees with Defendant’s assertion that the cause of action accrued on May 18, 2010, the date the
Letter was sent.
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Defendant’s reasoning is sound for causes of action brought by plaintiffs who
have not filed a Chapter 7 bankruptcy petition prior to the expiration of the one-year
limitation period provided in 15 U.S.C. §1692k(d). The instant action, however, was
brought by Richard Dauval, as Trustee for Joseph Pietro’s bankruptcy estate. In this
case, the one year limitation period imposed by 15 U.S.C. §1692k(d) was extended by
operation of law, pursuant to 11 U.S.C. §108(a)(2). This section provides:
If applicable nonbankruptcy law, an order entered
in a nonbankruptcy proceeding, or an agreement “fixes a
period within which the debtor may commence an
action , and such period has not expired before the date
of the filing of the petition, the trustee may commence
such action only before the later of –
the end of such period, including any
suspension of such period occurring on or after the
commencement of the case; or
two years after the order for relief.
(Emphasis added). The date Mr. Pietro filed bankruptcy is the date of the “order for
relief” for purposes of 11 U.S.C. §108(a)(2).2
As Mr. Pietro filed his Chapter 7
bankruptcy petition on March 15, 2011, the limitation period for the subject cause of
action was extended from May 18, 2011 until March 15, 2013.
Ordinarily there is a one year limitation period to file a FDCPA claim. In this
case, the subject cause of action accrued May 18, 2011 and would have been untimely if
filed after May 18, 2012. Because Mr. Pietro filed a voluntary bankruptcy petition on
March 15, 2011, however, his bankruptcy Trustee was permitted to file the subject cause
of action any time prior to March 15, 2013. The subject cause of action was filed by
2 See 11 U.S.C. §301(b) providing, “[t]he commencement of a voluntary case under a chapter of this title
constitutes an order for relief under such chapter.”
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Plaintiff on October 6, 2011. Accordingly, the cause of action was timely brought by
Plaintiff. Defendant’s Motion to Dismiss should be denied.
LEAVENGOOD & NASH
/s/ Ian R. Leavengood
Ian R. Leavengood, Esq., FBN 0010167
LEAD TRIAL COUNSEL
Christopher C. Nash, Esq., FBN 135046
Heather M. Fleming, Esq. FBN 25971
2958 First Avenue North
St. Petersburg, FL 33713
Phone: (727) 327-3328
Fax: (727) 327-3305
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Response in Opposition to
Defendant’s Motion to Dismiss and Supporting Memorandum has been furnished
electronically or via U.S. Mail this 16th day of December 2011 to:
J. Robert McCormack
Counsel for Defendant
Lewis Brisbois Bisgaard & Smith, LLP
3812 Coconut Palm Drive, Suite 200
Tampa, FL 33619
/s/ Ian R. Leavengood