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Case 2:15-cv-02686-JAR-TJJ Document 32 Filed 02/02/16 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS





Case No. 15-2686-JAR


Plaintiff,

ZEEHLU YANG,



vs.

MIDLAND CREDIT MANAGEMENT, INC.,







Defendant.











MEMORANDUM AND ORDER



Plaintiff Zeehlu Yang filed this action under the Fair Debt Collection Practices Act

(“FDCPA”), 15 U.S.C. § 1692 et seq., asserting claims based on the contents of a debt collection

letter sent by Defendant Midland Credit Management, Inc. (“MCM”).1 This matter is before the

Court on Defendant’s Motion to Dismiss Plaintiff’s Petition under Fed. R. Civ. P. 12(b)(1) and

(b)(6) (Doc. 8). As explained more fully below, the Court denies Defendant’s motion.

I.



Background

The following facts are alleged in the Petition and taken as true for purposes of deciding

this motion. Plaintiff is an individual consumer. Defendant is in the business of collecting

consumer debts using the mails and telephone and regularly attempts to collect debts alleged to

be due another.



On January 2, 2015, Defendant, in an attempt to collect a debt, sent a debt collection

letter to Plaintiff.2 The letter stated “[s]pecial offers are now available to help you resolve your

unpaid T-Mobile account, which is owned by MIDLAND FUNDING, LLC. Select one of the


1Plaintiff originally filed her Petition in Kansas state court and Defendant removed the action to this Court

based on federal question jurisdiction. Doc. 1.

2Doc. 1, State Court Petition Ex. A.

Case 2:15-cv-02686-JAR-TJJ Document 32 Filed 02/02/16 Page 2 of 7

three options below and get closer to having one less thing to worry about.” The letter showed

Plaintiff’s balance as $1,629.69. The options included one discounted payment in full of

$651.87, six monthly payments of $217.29, or to call an account manager for more options. The

letter further stated:

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. If you do not pay the
debt, we may continue to report it to the credit reporting agencies
as unpaid.

*If you pay your full balance, we will report your account as Paid
in Full. If you pay less than your full balance, we will report your
account as Paid in Full for less than the full balance.3

Plaintiff has not been sued on the T-Mobile account that is the subject of her Petition.






The state of Kansas has a revival statute, which states that a partial payment on a debt revives the

statute of limitations, regardless of how long the debt has been stale.4 Plaintiff alleges that if she

made one of the six partial payments as offered in the letter, the effect of such payment would

revive the statute of limitations.

II.


Discussion

To establish a violation of the FDCPA, Plaintiff must show that (1) she is a “consumer”

within the meaning of 15 U.S.C. § 1692a(3); (2) the debt at issue arises out of a transaction

entered into primarily for personal, family, or household purposes; (3) Defendant is a “debt

collector” within the meaning of 15 U.S.C. § 1692a(6); and (4) Defendant, through its acts or

omissions, violated a provision of the FDCPA.5

Plaintiff claims that MCM’s letter violated two sections of the FDCPA: 1)




3Id.
4K.S.A. § 60-520.
5See Deporter v. Credit Bureau of Carbon City Cnty., No. 14-cv-00882-KMT, 2015 WL 1932336, at *3 (D.

Colo. Apr. 28, 2015).

2

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§ 1692e(2)(A)’s prohibition on the “false representation of . . . the character . . . or legal

status” of Plaintiff’s debt; and 2) § 1692e(10)’s prohibition on the “use of any false

representation or deceptive means to collect or attempt to collect any debt.” The statute provides

for the recovery of actual damages, statutory damages of $1000, as well as costs and attorney’s

fees.6

A. Ripeness

“The question of ripeness, like other challenges to a court’s subject matter jurisdiction, is

treated as a motion under Rule 12(b)(1).”7 “In order for a claim to be justiciable under Article

III, it must be shown to be a ripe controversy.”8 Ripeness pertains to timing of a case and is

intended “to prevent the courts, through avoidance of premature adjudication, from entangling

themselves in abstract disagreements.”9 Ripeness is a component of the Article III requirement

that limits judicial review to “cases or controversies.”10 To satisfy Article III’s case-or-

controversy requirement, a claim must present an impending “injury in fact.”11 To satisfy the

injury in fact requirement, a “plaintiff must allege concrete plans rather than mere ‘some day

intentions.’”12

Defendant argues that this case is not ripe because Plaintiff has not made a partial

payment on the debt and Defendant promised in the letter that it will not sue Plaintiff on the debt.

In support, Defendant offers the Declaration of Craig Noack, Director of Legal Collections for



615 U.S.C. § 1692k.
7New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995).
8Id.
9Id. (quoting Abbott Labs v. Gardner, 397 U.S. 136, 148 (1967)).
10U.S. Const. art. III, § 2; see U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1208 (10th Cir. 1999).
11Nat’l Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996).
12Verizon Wireless (VAW) v. City of Rio Rancho, N.M., 476 F. Supp. 2d 1325, 1331 (D.N.M. 2007)

(quoting Roe #2 v. Ogden, 253 F.3d 1225, 1229 (10th Cir. 2001)).

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MCM, stating that Defendant’s corporate policy is to not pursue legal action on debts that are

time-barred, regardless of whether a subsequent payment may revive the debt under applicable

state law.13 Plaintiff responds that this case is ripe because Defendant’s letter failed to disclose

that partial payment would revive the statute of limitations on Plaintiff’s time-barred debt. The

Court agrees. The FDCPA is a strict liability statute to the extent it imposes liability without

proof of an intentional violation.14 Once Defendant sent Plaintiff the letter, the alleged injury

under the FDCPA—false representation and/or deception— transpired.15 Defendant does not

cite to, nor has the Court found authority to support the claim that a consumer must act upon a

debt collector’s representations or deceptive acts in order to suffer an injury. In fact, such a

requirement would appear to undermine the deterrent effect of strict liability. Defendant’s

motion is denied on these grounds.

B. Plausible Claim

To survive a motion to dismiss for failure to state a claim, a complaint must present

factual allegations, assumed to be true, that “raise a right to relief above the speculative level”

and must contain “enough facts to state a claim to relief that is plausible on its face.”16 Under

this standard, “the complaint must give the court reason to believe that this plaintiff has a

reasonable likelihood of mustering factual support for these claims.”17 The plausibility standard

does not require a showing of probability that “a defendant has acted unlawfully,”18 but requires


13Doc. 9, Noack Decl. at 2.
14See 15 U.S.C. § 1692k; Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 368 n.7 (3d Cir. 2011)

(collecting cases supporting the generally accepted characterization of the FDCPA as a strict liability statute).

1515 U.S.C. §§ 1692e(2)(A), 1692e(10). One of the purposes of the FDCPA is to “eliminate abusive debt

collection practices by debt collectors.” 15 U.S.C. § 1692(e).

16Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).
17Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in the original).
18Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).



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more than “a sheer possibility.”19

The Tenth Circuit has recognized that other circuit courts of appeal have applied an

objective standard when analyzing claims under the FDCPA, “measured by how the ‘least

sophisticated consumer’ would interpret the notice received from the debt collector.”20 Under

this standard, the courts consider “how the least sophisticated consumer—one not having the

astuteness of a ‘Philadelphia lawyer’ or even the sophistication of the average, everyday,

common consumer—understands the notice he or she receives.”21 The Tenth Circuit also

explained, however, that the least sophisticated consumer’” can be presumed to possess a

rudimentary amount of information about the world and a willingness to read a collection notice

with some care.’”22 Accordingly, while the test “protects the naïve and credulous,” the courts

apply this standard in a way that “protects debt collectors against liability for unreasonable

misinterpretations of collection notices.”23

The Tenth Circuit has not expressly adopted the least sophisticated consumer standard,

but it has, in an unpublished opinion, “applied an objective standard, measured by how the least

sophisticated consumer would interpret the notice received from the debt collector.”24

Accordingly, the Court will apply the least sophisticated consumer standard to Plaintiff’s

claims.25



19Id.
20Kalebaugh v. Berman & Rabin, P.A., 43 F. Supp. 3d 1215, 1220 (D. Kan. 2014) (citing Ferree v.

Marianos, 129 F.3d 130, 1997 WL 687693, at *1 (10th Cir. Nov. 3, 1997) (unpublished table opinion)).

21Id. (citation and quotation omitted).
22Id. (quoting Clomon v. Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993)).
23Id.
24Ferree v. Marianos, 129 F.3d 130, 1997 WL 687693, at *1 (10th Cir. Nov. 3, 1997) (citation and
quotation omitted); see also Fouts v. Express Recovery Servs., Inc., 602 F. A’ppx 417, 420 (10th Cir. 2015)
(discussing the “least sophisticated consumer” standard).

25See Kalebaugh, 43 F. Supp. 3d at 1220; Rachoza v. Gallas & Schultz, No. 97-2264-EEO, 1998 WL

171280, at *4 (D. Kan. Mar. 23, 1998).

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Case 2:15-cv-02686-JAR-TJJ Document 32 Filed 02/02/16 Page 6 of 7

As an additional matter, the Court notes that the material facts in this case appear to be

undisputed, as Plaintiff’s claims are premised on the contents of the letter. There is a split of

authority whether claims arising under § 1692e may be resolved as a matter of law where the

underlying facts are not in dispute. “[T]he Second, Fourth, and Ninth Circuits have determined

that the question whether a communication is false and deceptive in violation of section 1692e is

a question of law for the Court.”26 However, “the Fifth, Sixth, Seventh, and Eleventh Circuits

have come to the opposite conclusion, finding that this determination is a question of fact for the

jury.”27 Nevertheless, “even the courts adopting [the latter] view have explained that not all

cases require a jury trial if material facts are not disputed and the court is able to decide the case

as a matter of law based on the language of the collection letter.”28 Although the Tenth Circuit

has not addressed the issue of whether a claim arising under § 1692e is a question of law or fact,

Judge Crabtree recently predicted that the Tenth Circuit would decide that the determination of

whether the language in a collection letter is confusing or misleading to the least sophisticated

consumer under § 1692e is a question of law that is appropriately resolved on summary

judgment.29

Here, as already mentioned, it appears from Plaintiff’s Petition that the material facts in

this case are not disputed and that her claims under § 1692e only require a review of the letter to

determine whether it violates the FDCPA. The Court agrees with Judge Crabtree that it may

determine whether the letter violates § 1692e as a matter of law.30 The Court further concludes



26Id. at 1222 (collecting cases).
27Id. (collecting cases).
28Id. (citing Kuehn v. Cadle Co, Inc., 335 F. App’x 827, 830 (11th Cir. 2009); Evory v. RJM Acquisitions

Funding L.L.C., 505 F.3d 769, 776 (7th Cir. 2007)).

29Kalebaugh, 43 F. Supp. 3d at 1223.
30Id.; Gill v. Credit Bureau of Carbon Cnty., No. 14-cv-01888-KMT, 2015 WL 2128465, at *4 (D. Colo.

May 5, 2015) (following Kalebaugh).

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that the summary judgment stage is more appropriate to address the question of whether the

letter violates § 1692e(2)(A) or (10) because Defendant’s letter does not inform Plaintiff that any

partial payment would result in the revival of Plaintiff’s debt under Kansas law.31 Accordingly,

the Court denies Defendant’s motion to dismiss under Rule 12(b)(6), and invites the parties to

instead address in cross-motions for summary judgment the issue of whether the letter sent by

Defendant violates § 1692e as a matter of law.32

IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion to

Dismiss (Doc. 8) is DENIED.

IT IS SO ORDERED.

Dated: February 2, 2016





























S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE



31Cf. Kalebaugh v. Cohen, McNeile & Pappas, P.C., 76 F. Supp. 3d 1251, 1255 (D. Kan. 2015) (concluding

that the motion to dismiss stage is appropriate to address the contradiction/overshadowing violation in § 1692g).
32See Fed. R. Civ. P. 56(f)(3) (permitting court to invite a motion for summary judgment on its own after

identifying material facts that may not be genuinely in dispute). The Court notes that the dispositive motions
deadline has been extended to May 2, 2016. Doc. 29.

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