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Twombly and Iqbal case makes it easier for Debt Collections Firms to file motions to dismiss


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The Supreme Court’s decisions in Twombly and Iqbal provide district court judges with a powerful screening device to help weed out FDCPA claims that lack facial plausibility.  Collectors should consider filing motions to dismiss when they are served with FDCPA complaints that do little more than track the language of the Act and claim that the collector violated it.

 

http://www.insidearm.com/opinion/getting-fdcpa-complaints-dismissed-using-twombly-and-iqbal/

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When that first came down (couple years ago), it raised some concerns but we've gotten past that. As long as the complaint includes "a short plain statement of the facts" entitled the plaintiff to relief, rather than a "formulaic recitation" of the statutes*, you should be fine. No case I've ever been associated with has been shot down on Iqbal/Twombley. Even if a complaint is deficient under the I/T standard, courts generally lean toward granting leave to amend if it appears remotely plausible that plaintiff has a claim.

 

*For example, "debt collector sent letter that violated 1692d" is probably not sufficient. On the other hand "debt collector violated 1692d by sending me a letter threatening to break my kneecaps" is good. 

 

Funny how every time I read InsideArm debt collector spin on anything, it's always doom and gloom for deadbeat consumer and knight in shining armor debt collector prevails again. Makes me want to hurl.

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When that first came down (couple years ago), it raised some concerns but we've gotten past that. As long as the complaint includes "a short plain statement of the facts" entitled the plaintiff to relief, rather than a "formulaic recitation" of the statutes*, you should be fine. No case I've ever been associated with has been shot down on Iqbal/Twombley. Even if a complaint is deficient under the I/T standard, courts generally lean toward granting leave to amend if it appears remotely plausible that plaintiff has a claim.

 

*For example, "debt collector sent letter that violated 1692d" is probably not sufficient. On the other hand "debt collector violated 1692d by sending me a letter threatening to break my kneecaps" is good. 

 

Thanks for this.  It makes me feel better. 

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Admin,

 

I'll chime in on the non attorney side and assure you that it's no big deal !!  It just keeps complaints like "they violated my rights by breaking the FDCPA" and very boilerplate complaints from moving forward.  Pretty much everything this board is about would keep anybody from having their FDCPA case dismissed under the new (really not so new) pleading standards.

 

It just sets a plausibility standard, which is really great and fine.   If you are suing and it's not plausible you would win then you don't need to be suing. 

 

It's like on the criminal side, where the state can't say, Admin broke the law and bring you to trial.   They have to say Admin broke the law by XXXXX, on or about XXXXX date and it violated XXXXX statute of the law.  

 

On a side note, maybe not for attorney's, but I've said it and stick by it, when you file a FDCPA case or any other similar action, you should act like you are the state (or prosecutor) prosecuting a criminal case.   Frame your pleading and make your arguments using the proof beyond a reasonable doubt standard (every step of the way, not just at trial) and you win 100% of the time. 

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And for our posters who want to plead a laundry list of meaningless special defenses unsupported by any facts, be aware of this:

 

 

The majority of courts addressing the issue, however, have applied the heightened pleading standard announced in Twombly, and further clarified in Iqbal, to affirmative defenses. In United States v. Quadrini, the Eastern District of Michigan court specifically addressed whether Twombly's standard for pleading sufficiency applied to pleading affirmative defenses. It reasoned that:

 

“This clarification by the Supreme Court that a plaintiff must plead sufficient facts to demonstrate a plausible claim, or one that has a "reasonably founded hope" of success, cannot be a pleading standard that applies only to plaintiffs. It must also apply to defendants in pleading affirmative defenses, otherwise a court could not make a Rule 12(f) determination on whether an affirmative defense is adequately pleaded under Rules 8 and/or 9 and could not determine whether the affirmative defense would withstand a Rule 12(B)(6) challenge. Thus, a wholly conclusory affirmative defense is not sufficient. Like the plaintiff, a defendant also must plead sufficient facts to demonstrate a plausible affirmative defense, or one that has a "reasonably founded hope" of success…. In this case, the Court agrees with the reasoning of the courts applying the heightened pleading standard to affirmative defenses. It makes no sense to find that a heightened pleading standard applies to claims but not to affirmative defenses.”

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When that first came down (couple years ago), it raised some concerns but we've gotten past that. As long as the complaint includes "a short plain statement of the facts" entitled the plaintiff to relief, rather than a "formulaic recitation" of the statutes*, you should be fine. No case I've ever been associated with has been shot down on Iqbal/Twombley. Even if a complaint is deficient under the I/T standard, courts generally lean toward granting leave to amend if it appears remotely plausible that plaintiff has a claim.

 

*For example, "debt collector sent letter that violated 1692d" is probably not sufficient. On the other hand "debt collector violated 1692d by sending me a letter threatening to break my kneecaps" is good. 

 

Funny how every time I read InsideArm debt collector spin on anything, it's always doom and gloom for deadbeat consumer and knight in shining armor debt collector prevails again. Makes me want to hurl.

which is the reason that they don't have alot of articles. I think that however the T/I decisions make for better cases generally as they limit the "Fishing expeditions" in other kinds of cases.

 

This is actually better for debtors because it codifies an area which a lot of judges were ruling outside of the box discretion wise and throwing out good cases which later was brought to the reviewing court and the Supreme Court basically overturned the judges ruling and then basically a spanking to not over step their discretion.

 

I think the Twombly/Iqbal decision makes it better to get cases in because the facts have to be tighter and then it is less a SJ case and more like a real deal case.

 

You see how this can also be used against debt collectors in states that incorporate the federal statutes into their civl procedure and evidence statutes like Arizona, Utah, and others that mimic the federal statutes and rules.

 

Under the Twombly decision, in for instance Arizona if a JDB or an OC for that matter files a vague complaint you can do the steps from that decision and get it dismissed in a motion to dismiss, or a motion to quash for lack of jurisdiction.

 

The real thing that we must consider and I think I have lifted the lid on this, Is this a better weapon FOR US than it is against us.

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And for our posters who want to plead a laundry list of meaningless special defenses unsupported by any facts, be aware of this:

 

 

The majority of courts addressing the issue, however, have applied the heightened pleading standard announced in Twombly, and further clarified in Iqbal, to affirmative defenses. In United States v. Quadrini, the Eastern District of Michigan court specifically addressed whether Twombly's standard for pleading sufficiency applied to pleading affirmative defenses. It reasoned that:

 

“This clarification by the Supreme Court that a plaintiff must plead sufficient facts to demonstrate a plausible claim, or one that has a "reasonably founded hope" of success, cannot be a pleading standard that applies only to plaintiffs. It must also apply to defendants in pleading affirmative defenses, otherwise a court could not make a Rule 12(f) determination on whether an affirmative defense is adequately pleaded under Rules 8 and/or 9 and could not determine whether the affirmative defense would withstand a Rule 12( B)(6) challenge. Thus, a wholly conclusory affirmative defense is not sufficient. Like the plaintiff, a defendant also must plead sufficient facts to demonstrate a plausible affirmative defense, or one that has a "reasonably founded hope" of success…. In this case, the Court agrees with the reasoning of the courts applying the heightened pleading standard to affirmative defenses. It makes no sense to find that a heightened pleading standard applies to claims but not to affirmative defenses.”

and to go in the vein, for affirmative defenses we have to tighten them up like this to plead them. You can use affirmative defenses and make them plausible because you can show during discovery via negative inference(a theory based on they don't produce something because they know it will show they are in the wrong) and prove the claim.

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