(HOA Debt on a "Quickclaim" home he stole from a Marine... in which he is using his "Pauper" status to try and sue them and to try and make them stop trying to collect the debt..... Can you say WELCHER??)
The defendant law firm, Parish Snead Franklin Simpson, PLC, was hired by a
homeowner’s association in Virginia to collect outstanding fees that plaintiff Dafinch
allegedly owed it for his Virginia home. The firm sent emails to Dafinch and called him,
asking him to pay the debt. Dafinch, who now lives in Nevada, brought this case claiming that
the firm’s communications violated the Fair Debt Collection Practices Act (“FDCPA”), the
Telephone Consumer Protection Act (“TCPA”), and Nevada law requiring debt collection
companies to register with the state. He sued the homeowner’s association (The Meadows at
England Run), the law firm, and several of the firm’s attorneys.
The defendants move to dismiss, arguing that Dafinch’s complaint is devoid of any
specific facts that might make any of his claims plausible. The homeowner’s association
additionally argues that it should be dismissed because this court has no personal jurisdiction over
it because it has never had any contact with Nevada.
I grant the defendants’ motions to dismiss. The complaint provides no specific allegations
to support a claim against the law firm’s attorneys, there are no allegations suggesting that the
homeowner’s association had any contact with Nevada that might justify personal jurisdiction here, and as to the law firm the complaint fails to allege enough specific facts to make any of
Middleton’s claims plausible.
I. BACKGROUND
Dafinch’s complaint includes only a handful of allegations.1
He received a letter about
a debt he owed from a defendant (he does not specify which).2
Dafinch faxed this single
defendant back, asking for verification of the debt.3
This mystery defendant then sent Dafinch
two additional letters, two emails, and called him four times.4
Dafinch’s complaint alleges three claims against all of the defendants: (1) violation of
the FDCPA by making false statements, using deception, failing to inform Dafinch of his
rights, and continuing to contact Dafinch after he had disputed the debt; (2) violation of the
TCPA by calling him with an “automatic telephone dialing system” despite that his number is on
a “Do Not Call” list; and (3) consumer fraud because defendants attempted to collect a debt in
Nevada without first registering as a debt collector with the state.5
Dafinch does not allege that
any of the defendants resides in Nevada or have had any contacts with Nevada. He also does not
specify which defendants committed the underlying acts for each of this three claims, simply
referring to the defendants collectively as “Defendant.”6
II. ANALYSIS
A. Legal standard for motions to dismiss.
A properly pleaded complaint must provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Even though a pro se litigant’s complaint is held “to less stringent standards than formal
pleadings drafted by lawyers,”12 it nevertheless must comply with these rules.13
B. All of Dainch’s claims fail because he did not give each defendant fair notice
of the factual allegations against them and because he otherwise fails to provide
sufficient facts to support any of his claims.
A plaintiff cannot simply offer broad allegations against all of the defendants lumped
together, but instead must give each defendant fair notice of the factual allegations asserted
against them individually.14 Middleton does not specify which defendant sent him letters or called him, and he does not otherwise provide any factual allegations from which the defendants
could divine what each of them is alleged to have done to be liable for Dafinch’s claims. This
is enough reason to dismiss the complaint.
But even if it had specified what each defendant did, the complaint does not contain
enough allegations to make any of his claims plausible. First, there are no allegations to support
Dafinch’s FDCPA claims. No specific facts are pleaded to suggest that any of the defendants is
a “debt collector” as the FDCPA requires.15 Nor are there enough allegations establishing that the
defendants were attempting to collect on the sort of consumer debt that falls within the FDCPA.16
There are also insufficient supporting facts to make plausible Dafinch’s claims that any of the
defendants violated the FDCPA by committing fraud, using deception, or failing to disclose
information to him.17
Second, as to the TCPA claims, Dafinch does not allege any specific facts that allow me
to plausibly infer that any of the defendants used an automatic dialer, a required element of a
claim under this statute.18 Dafinch also fails to provide any specific facts about what
defendants said, or failed to say, in their calls that might violate the TCPA.19 Dafinch’s
allegations also appear to fall squarely under the TCPA’s exceptions for calls made between thosewho have a business relationship or calls made for a commercial purpose other than unsolicited
advertisements.20
Finally, Dafinch fails to allege any facts to support his Nevada claims. Dafinch
seems to claim that the defendants committed consumer fraud against him by operating as debt
collectors in Nevada without properly registering in this state. To sustain a cause of action for
consumer fraud, Dafinch must show that “(1) an act of consumer fraud by the defendant (2)
caused (3) damage to [him].”21 Dafinch fails to offer any specific facts plausibly suggesting
that defendants are even operating as debt collectors in this state so that they need to register.22
Finally, Dafinch has not alleged any specific damages caused by the defendants’ alleged failure
to register.23
Because Dafinch has failed to allege sufficient facts to support any of his claims, his
complaint must be dismissed.
C. I dismiss the claims against the homeowner’s association with prejudice, but I
dismiss the claims against the law firm and individual defendants without
prejudice
The defendant law firm, Parish Snead Franklin Simpson, PLC, was hired by a
homeowner’s association in Virginia to collect outstanding fees that plaintiff Dafinch
allegedly owed it for his Virginia home. The firm sent emails to Dafinch and called him,
asking him to pay the debt. Dafinch, who now lives in Nevada, brought this case claiming that
the firm’s communications violated the Fair Debt Collection Practices Act (“FDCPA”), the
Telephone Consumer Protection Act (“TCPA”), and Nevada law requiring debt collection
companies to register with the state. He sued the homeowner’s association (The Meadows at
England Run), the law firm, and several of the firm’s attorneys.
The defendants move to dismiss, arguing that Dafinch’s complaint is devoid of any
specific facts that might make any of his claims plausible. The homeowner’s association
additionally argues that it should be dismissed because this court has no personal jurisdiction over
it because it has never had any contact with Nevada.
I grant the defendants’ motions to dismiss. The complaint provides no specific allegations
to support a claim against the law firm’s attorneys, there are no allegations suggesting that the
homeowner’s association had any contact with Nevada that might justify personal jurisdiction here, and as to the law firm the complaint fails to allege enough specific facts to make any of
Middleton’s claims plausible.
I. BACKGROUND
Dafinch’s complaint includes only a handful of allegations.1
He received a letter about
a debt he owed from a defendant (he does not specify which).2
Dafinch faxed this single
defendant back, asking for verification of the debt.3
This mystery defendant then sent Dafinch
two additional letters, two emails, and called him four times.4
Dafinch’s complaint alleges three claims against all of the defendants: (1) violation of
the FDCPA by making false statements, using deception, failing to inform Dafinch of his
rights, and continuing to contact Dafinch after he had disputed the debt; (2) violation of the
TCPA by calling him with an “automatic telephone dialing system” despite that his number is on
a “Do Not Call” list; and (3) consumer fraud because defendants attempted to collect a debt in
Nevada without first registering as a debt collector with the state.5
Dafinch does not allege that
any of the defendants resides in Nevada or have had any contacts with Nevada. He also does not
specify which defendants committed the underlying acts for each of this three claims, simply
referring to the defendants collectively as “Defendant.”6
II. ANALYSIS
A. Legal standard for motions to dismiss.
A properly pleaded complaint must provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Even though a pro se litigant’s complaint is held “to less stringent standards than formal
pleadings drafted by lawyers,”12 it nevertheless must comply with these rules.13
B. All of Dainch’s claims fail because he did not give each defendant fair notice
of the factual allegations against them and because he otherwise fails to provide
sufficient facts to support any of his claims.
A plaintiff cannot simply offer broad allegations against all of the defendants lumped
together, but instead must give each defendant fair notice of the factual allegations asserted
against them individually.14 Middleton does not specify which defendant sent him letters or called him, and he does not otherwise provide any factual allegations from which the defendants
could divine what each of them is alleged to have done to be liable for Dafinch’s claims. This
is enough reason to dismiss the complaint.
But even if it had specified what each defendant did, the complaint does not contain
enough allegations to make any of his claims plausible. First, there are no allegations to support
Dafinch’s FDCPA claims. No specific facts are pleaded to suggest that any of the defendants is
a “debt collector” as the FDCPA requires.15 Nor are there enough allegations establishing that the
defendants were attempting to collect on the sort of consumer debt that falls within the FDCPA.16
There are also insufficient supporting facts to make plausible Dafinch’s claims that any of the
defendants violated the FDCPA by committing fraud, using deception, or failing to disclose
information to him.17
Second, as to the TCPA claims, Dafinch does not allege any specific facts that allow me
to plausibly infer that any of the defendants used an automatic dialer, a required element of a
claim under this statute.18 Dafinch also fails to provide any specific facts about what
defendants said, or failed to say, in their calls that might violate the TCPA.19 Dafinch’s
allegations also appear to fall squarely under the TCPA’s exceptions for calls made between thosewho have a business relationship or calls made for a commercial purpose other than unsolicited
advertisements.20
Finally, Dafinch fails to allege any facts to support his Nevada claims. Dafinch
seems to claim that the defendants committed consumer fraud against him by operating as debt
collectors in Nevada without properly registering in this state. To sustain a cause of action for
consumer fraud, Dafinch must show that “(1) an act of consumer fraud by the defendant (2)
caused (3) damage to [him].”21 Dafinch fails to offer any specific facts plausibly suggesting
that defendants are even operating as debt collectors in this state so that they need to register.22
Finally, Dafinch has not alleged any specific damages caused by the defendants’ alleged failure
to register.23
Because Dafinch has failed to allege sufficient facts to support any of his claims, his
complaint must be dismissed.
C. I dismiss the claims against the homeowner’s association with prejudice, but I
dismiss the claims against the law firm and individual defendants without
prejudice
