Jackson v. Credit Control, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-02074-NYW-KAS
JHESHUA JACKSON,
Plaintiff,
v.
CREDIT CONTROL, LLC, and
RICHARD G. SAFFER, CEO,
Defendants.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Defendants’ Motion to Dismiss [#16]1 (the
“Motion”). Plaintiff, who proceeds as a pro se litigant, 2 filed a Response [#21] 3 in
opposition to the Motion [#16], and Defendant filed a Reply [#22]. The Motion [#16] has
been referred to the undersigned for a Recommendation pursuant to 28 U.S.C. §
1 “[#16]” is an example of the convention the Court uses to identify the docket number assigned
to a specific paper by the Court’s case management and electronic case filing system (CM/ECF).
This convention is used throughout this Recommendation.
2 The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S.
519, 520-521 (1972). In doing so, the Court should not be the pro se litigant’s advocate, nor should
the Court “supply additional factual allegations to round out a plaintiff’s complaint or construct a
legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997)
(citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
3 In his Response [#21], Plaintiff states: “Please note that this letter is not intended to be an
exhaustive response to your motion but rather an initial rebuttal to the arguments you raised.” The
Federal Rules of Civil Procedure and the Local Rules of this Court do not allow for the filing of
multiple responses to motions. A party responding to a motion has “21 days after the date of
service of a motion, or such lesser or greater time as the court may allow, in which to file a
response.” D.C.COLO.LCivR 7.1(d). Here, even were the Court to accept a second response
from Plaintiff, the deadline for him to file one has passed. A pro se litigant must follow the same
procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
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636(b)(1)(B), Fed. R. Civ. P. 72(b)(1), and D.C.COLO.LCivR 72.1(c)(3). See [#18]. The
Court has reviewed these briefs, the entire case file, and the applicable law, and is fully
advised 	in 	the 	premises. 	For 	the 	reasons 	stated 	below, 	the 	Court 	respectfully
RECOMMENDS that the Motion [#16] be GRANTED in part and DENIED in part.
I. Background4
Defendant Richard G. Saffer (“Saffer”) is the Chief Executive Officer of defendant
Credit Control, LLC. Compl. [#15] at 4. 	Plaintiff alleges that Defendants contacted him
and asserted that he owes a debt of $5,596.94 upon which they are trying to collect. Id.
at 5. He states, however, that he does not owe any money to Defendants. Id. at 7. On
March 7, 2023, he verbally requested a validation of the debt from “the counter
defendant,” and he requested a validation of the debt in writing from “the counter
defendant” on March 10, 2023, and March 20, 2023. Id. at 5. He alleges that “Defendant
failed to validate its claim” as required by law. Id. In addition, Plaintiff states that
“Defendant has made false or factual[ly] incorrect claims or statements to various credit
reporting bureaus or services against the plaintiff and misrepresented material facts about
the disputed account.” Id. at 6.
As a result of these allegations, Plaintiff explicitly asserts two causes of action: (1)
violation of the Fair Debt Collection Practices Act (“FDCPA”) and (2) violation of the Fair
Credit Reporting Act (“FCRA”). Id. at 5-6. Plaintiff also may be asserting causes of action
in connection with contract law and the Uniform Commercial Code (“U.C.C.”), which the
4 For the purposes of resolving the Motion [#16], the Court accepts as true all well-pleaded, as
opposed to conclusory, allegations made in Plaintiff’s Complaint [#15]. See Shero v. City of Grove,
Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
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Court discusses in Section III.B.1. below. Plaintiff seeks monetary and injunctive relief.
Id. at 6. In the present Motion [#16], Defendants seek dismissal of all claims asserted
against them pursuant to Fed. R. Civ. P. 12(b)(6).
II. Standard of Review
Fed. R. Civ. P. 12(b)(6) permits dismissal of a claim where the plaintiff has “fail[ed]
to state a claim upon which relief can be granted.” The Rule 12(b)(6) standard tests “the
sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). “A
complaint must contain ‘enough facts to state a claim to relief that is plausible on its face.’”
Santa Fe All. for Pub. Health & Safety v. City of Santa Fe, 993 F.3d 802, 811 (10th Cir.
2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “When the
complaint includes ‘well-pleaded factual allegations, a court should assume their veracity
and then determine whether they plausibly give rise to an entitlement to relief.’” Carraway
v. State Farm & Cas. Co., No. 22-1370, 2023 WL 5374393, at *4 (10th Cir. Aug. 22, 2023)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
“A pleading that offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do . . . . [n]or does a complaint suffice if it tenders
naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (internal
quotation marks omitted). “[D]ismissal under Rule 12(b)(6) is appropriate if the complaint
alone is legally insufficient to state a claim.” Brokers’ Choice of Am., Inc. v. NBC Universal,
Inc., 861 F.3d 1081, 1104-05 (10th Cir. 2017). “The court’s function on a Rule 12(b)(6)
motion is not to weigh potential evidence that the parties might present at trial[.]” Sutton
v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).
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III. Analysis
At the outset, the Court notes that Defendants provide four documents which they
argue the Court may consider when adjudicating the present Motion [#16] without
converting it to a motion for summary judgment. Motion [#16] at 2 (citing GFF Corp. v.
Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)). The four
documents are: (1) Credit Control’s Initial Notice, sent to Plaintiff on February 15, 2023,
see Defs.’ Ex. B [#16-2]; (2) Dispute and Request for Validation Letter, received by Credit
Control on March 16, 2023, see Defs.’ Ex. C [#16-3]; (3) Dispute and Request for
Validation Letter, received by Credit Control on April 11, 2023, see Defs.’ Ex. D [#16-4];
and (4) Validation Response Letter, mailed to Plaintiff by Credit Control on March 17,
2023, see Defs.’ Ex. E [#16-5]. See Defs.’ Ex. A, Decl. of Def. Richard Saffer [#16-1] ¶ 3.
For the following reasons, the Court declines to consider any of these documents.
“[I]f a plaintiff does not incorporate by reference or attach a document to its
complaint, but the document is referred to in the complaint and is central to the plaintiff’s
claim, a defendant may submit an indisputably authentic copy to the court to be
considered on a motion to dismiss.” GFF Corp., 130 F.3d at 1384. The only written
documents to which Plaintiff explicitly refers in the Complaint [#15] are two written
validation requests made on March 10, 2023, and March 20, 2023. Compl. [#15] at 5. The
March 10, 2023 request appears to be Defendants’ Exhibit C [#16-3], the Dispute and
Request for Validation Letter, received by Credit Control on March 16, 2023, which was
postmarked on March 10, 2023. Although the Court may therefore consider this
document, the Court also finds that it has no material impact on the Motion’s resolution,
and therefore the Court declines to consider it.
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The Complaint’s reference to a March 20, 2023 validation request does not appear
to have any obvious connection to the second validation request provided to Defendants,
i.e., Exhibit D [#16-4], the Dispute and Request for Validation Letter, received by Credit
Control on April 11, 2023. All relevant dates in Exhibit D are in April 2023. Thus, the Court
finds that it may not consider this document in its adjudication of the Motion [#16] because
Plaintiff does not appear to have referenced it in the Complaint [#15].
Defendants’ Exhibit B [#16-2], the Credit Control’s Initial Notice, sent to Plaintiff on
February 15, 2023, may implicitly be referenced in the Complaint [#15] where Plaintiff
states that Defendants have “unlawfully assert[ed] a claim that plaintiff owe[s] an alleged
$5,596.84 in debt and that the defendant may collect assessment for such alleged debt.”
Compl. [#15] at 5. Regardless, the Court finds that it has no material impact on the
Motion’s resolution, and therefore the Court declines to consider it.
Finally, the Court finds that it may not consider Defendants’ Exhibit E [#16-5], the
Validation Response Letter, mailed to Plaintiff by Credit Control on March 17, 2023,
because Plaintiff does not reference it in his Complaint [#15]. In fact, he affirmatively
states that “Defendant failed to validate its claim,” and refers to no other written
communication from Defendants which could be construed to be this documentation.
Thus, the Court finds that it may not consider this document in connection with the
adjudication of the Motion [#16].
A. 	Defendant Saffer
Defendant Saffer, CEO of Defendant Credit Control, LLC, is named in this action,
but Plaintiff does not further mention him or allege any actions taken by him, in either the
Complaint [#15] or the Response [#21]. “[T]o state a claim in federal court, a complaint
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must explain what each defendant did to him or her; when the defendant did it; how the
defendant’s action harmed him or her; and, what specific legal right the plaintiff believes
the defendant violated.” See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158,
1163 (10th Cir. 2007). Plaintiff has not provided any specific allegations regarding any
specific actions taken by Defendant Saffer.
Accordingly, the Court recommends that the Motion [#16] be granted to the
extent that Plaintiff’s claims against Defendant Saffer be dismissed without prejudice.
B. 	Defendant Credit Control, LLC
1. 	Contract Law and the U.C.C.
There appears to be some confusion regarding what specific claims are being
asserted by Plaintiff, particularly with respect to contract law and the U.C.C. At one point
in his Complaint [#15], he states that Defendants committed “[v]iolations of the following
1. FDCPA, 2. FCRA, 3. Contract Law (Restatement of Law Second Contract), [and] 4.
U.C.C.” Compl. [#15] at 3. A page later, he again mentions these four causes of action.
Id. at 4. However, one page later again, in the formal, expanded statement of his claims,
he mentions only the FDCPA and the FCRA. Id. at 5-6. In his Response [#21], Plaintiff
implies that the contract and U.C.C. aspects of his lawsuit are part of his FDCPA claim.
Response [#21] at 1 (“In my complaint, I have sufficiently alleged numerous violations of
the FDCPA by Credit Control LLC, including but not limited to: . . . Contract law, C.R.S.
Title 4 (U.C.C.).”). Plaintiff otherwise does not mention contract law or the U.C.C. in his
Response [#21].
Even liberally construing Plaintiff’s Complaint [#15], the allegations in support of
such claims are exceedingly thin. For example, Plaintiff states, “there has never been any
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exchange of any money or item of value between plaintiff and defendant”; “there is no
contract in writing between the plaintiff and the defendants”; and “even if there exists an
agreement, there is no evidence on the record that would support that the defendants are
an assignee for the purported agreement.” Compl. [#15] at 5. In short, the Complaint lacks
clarity as to whether Plaintiff asserts separate breach of contract or U.C.C. claims, and, if
so, what allegations are asserted in support of those claims. Under these circumstances,
the Court finds that those claims, to the extent asserted at all, must be dismissed.
Accordingly, the Court recommends that the Motion [#16] be granted to the
extent that Plaintiff’s contract and U.C.C. claims, if any, be dismissed without prejudice.
2. 	FCRA
Plaintiff does not state which FCRA provision Defendants allegedly violated in
either the Complaint [#15] or his Response [#21]. In fact, Plaintiff does not mention the
FCRA in his Response [#21] at all. Defendants note the lack of specificity in Plaintiff’s
Complaint [#15] regarding any purported FCRA violation but they argue, even if the
Complaint identified Defendants as furnishers of information under the FCRA, Plaintiff’s
claims still fail in the absence of “any allegations regarding any disputes that Plaintiff
submitted to any consumer reporting agencies, which were subsequently relayed” to
Defendants. Motion [#16] at 9-10.
“The FCRA imposes a host of requirements concerning the creation and use of
consumer reports.” Spokeo, Inc. v. Robins, 578 U.S. 330, 335 (2016). For example, “[t]he
FCRA requires covered entities to follow reasonable procedures to assure maximum
possible accuracy of consumer reports, to notify providers and users of consumer
information of their responsibilities under the Act, to limit the circumstances in which such
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agencies provide consumer reports for employment purposes, and to post toll-free
numbers for consumers to request reports.” Laufer v. Looper, 22 F.4th 871, 876 n.2 (10th
Cir. 2022) (internal quotation marks omitted) (quoting Spokeo, Inc., 578 U.S. at 335).
The 	FCRA 	applies 	to 	three 	types 	of 	entities, 	with 	each 	having 	distinct
responsibilities under the Act: credit reporting agencies (“CRA”), users of consumer
reports, and furnishers of information to CRAs. Ward v. Trans Union, LLC, No. 21-cv-
02597-LTB-SKC, 2023 WL 4330849, at * 3 (D. Colo. May 12, 2023). “A furnisher is an
entity which transmits information concerning a particular debt owed by a particular
consumer” to CRAs. Id. (citations and internal quotation marks omitted). In connection
with this claim, Plaintiff alleges that “Defendant [sic] has made false or factual[ly] incorrect
claims or statements to various credit reporting bureaus or services against the plaintiff
and misrepresented material facts about the disputed account.” Compl. [#15] at 6. Thus,
Plaintiff appears to allege that Defendant Credit Control, LLC is the third type of entity,
i.e., a furnisher of information to CRAs.
When a furnisher of information is notified of a dispute, the furnisher must, under
15 U.S.C. § 1681s-2(b) of the FCRA: “(1) investigate the disputed information; (2) review
all relevant information provided by the CRA; (3) report the results of the investigation to
the CRA; (4) report the results of the investigation to all other CRAs if the investigation
reveals that the information is incomplete or inaccurate; and (5) modify, delete, or
permanently block the reporting of the disputed information if it is determined to be
inaccurate, incomplete, or unverifiable[.]” Pinson v. Equifax Credit Info. Servs., 316 F.
App’x 744, 750-51 (10th Cir. 2009). Importantly, however, “[t]he furnisher’s duty to
investigate arises only after a CRA notifies the furnisher of a dispute and, conversely,
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does not arise when notice is provided directly from a consumer.” Willis v. Capital One
Corp., 611 F. App’x 500, 502 (10th Cir. 2015) (citations and internal quotation marks
omitted). Here, Plaintiff provides no allegations that a CRA notified Defendant Credit
Control, 	LLC 	of 	a 	dispute. 	Rather, 	Plaintiff’s 	allegations 	only 	discuss 	Plaintiff’s
communications with Defendant Credit Control, LLC. See, e.g., Compl. [#15] at 5, 7.
Thus, Plaintiff’s FCRA claim fails.
Accordingly, the Court recommends that the Motion [#16] be granted to the
extent that Plaintiff’s FCRA claim be dismissed without prejudice.
3. 	FDCPA5
The FDCPA was enacted “to eliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged, and to promote consistent State
action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). The
statute “limits how debt collectors can pursue certain types of debt and creates a private
right of action when they violate those limitations.” Shields v. Pro. Bureau of Collections
of Md., Inc., 55 F.4th 823, 827 (10th Cir. 2022); 15 U.S.C. § 1692k.
An FDCPA claim consists of four elements: “(1) the plaintiff is a ‘consumer’ under
. . . § 1692a(3); (2) the debt at issue arose out of a transaction entered into primarily for
personal, family, or household purposes; (3) the defendant is a debt collector under . . .
§ 1692a(6); and (4) through its acts or omissions, the defendant violated the FDCPA.”
5 The Court notes that, in addition to the FDCPA, Plaintiff mentions the Colorado Fair Debt
Collection Practices Act in his Response [#21]. A cause of action based on this statute is not
included in the Complaint [#15], and therefore the Court does not further address it here. See,
e.g., Loma v. City and County of Denver, No. 21-cv-02214-NYW-KLM, 2023 WL 2574377, at *7
n.7 (D. Colo. Mar. 20, 2023) (holding that a plaintiff may not use his response to amend the cause
of actions asserted in the operative complaint).
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Tavernaro v. Pioneer Credit Recovery, Inc., 43 F.4th 1062, 1067 (10th Cir. 2022). Only
the fourth element appears to be in dispute in the present Motion [#16].
a. 	15 U.S.C. §§ 1692c, 1692e, and 1692f
In connection with the FDCPA, under the section of his Complaint titled “Summary
of Claim for Judgment,” Plaintiff states that Defendants violated “15 U.S. Code § 1692c,
§ 1692e, § 1692f, and § 1692g.” Compl. [#1] at 5. 15 U.S.C. § 1692c concerns
communications in connection with debt collection; § 1692e concerns false or misleading
representations; § 1692f concerns unfair practices; and § 1692g concerns validation of
debts. However, Plaintiff’s statement of his FDCPA claim only appears to refer to a
potential violation of § 1692g, given that he states that the FDCPA violation is based on
his allegation that “Defendant failed to validate its claim as required” by the FDCPA.
Compl. [#1] at 5. Thus, as with the potential breach of contract and U.C.C. claims
discussed in Section III.B.1. above, the Complaint lacks clarity as to whether Plaintiff
intends to assert violations of the FDCPA based on §§ 1692c, 1692e, or 1692f and, if so,
what allegations support such violations. Under these circumstances, the Court finds that
these claims, to the extent asserted at all, must be dismissed.
Accordingly, the Court recommends that the Motion [#16] be granted to the
extent that Plaintiff’s claims under §§ 1692c, 1692e, and 1692f of the FDCPA, if any, be
dismissed without prejudice.
b. 	15 U.S.C. § 1692g
Plaintiff alleges that he thrice requested a validation of his debt from Defendant
Credit Control, LLC, once verbally and twice in writing. Compl. [#15] at 5. The claim rests
on Defendant Credit Control, LLC’s purported failure to validate his claim in a timely
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manner as required by the FDCPA. Id. 15 U.S.C. § 1692g(b) provides in relevant part: “If
the consumer notifies the debt collector in writing . . . that the debt, or any portion thereof,
is disputed, . . . the debt collector shall cease collection of the debt . . . until the debt
collector obtains verification of the debt . . . , and a copy of such verification . . . is mailed
to the consumer by the debt collector.” The Court addresses Plaintiff’s verbal request
separately from his written requests, as the appropriate legal authority varies between
these two types of requests.
i. 	Verbal Request
Plaintiff alleges that he “requested a validation of the purported debt verbally” by
telephone from “the counter defendant” on March 7, 2023, around 1:30 p.m. Compl. [#1]
at 5, 7. However, § 1692g(b) explicitly requires that the consumer notify the debt collector
“in writing” when seeking debt validation to invoke the statute’s protections. Courts
considering this issue have affirmed the “in writing” requirement of § 1692g. For example,
in Robinson v. ACG Processing, No. 17-cv-02725-MSK-STV, 2018 WL 4932025, at *6
(D. Colo. Oct. 11, 2018), the plaintiff asserted a § 1692g claim that the debt collector had
failed to validate his debt “upon his verbal request.” The Court dismissed the claim, noting
that a debt collector only has a duty to validate a debt where written notice is made, not
where only oral requests for validation of the debt were made. Robinson, 2018 WL
4932025, at *7. Here, too, Plaintiff’s FDCPA claim cannot, as a matter of law, be premised
on his verbal request.
Accordingly, the Court recommends that the Motion [#52] be granted to the
extent that Plaintiff’s § 1692g FDCPA claim, premised on his verbal validation request,
be dismissed with prejudice. See, e.g., Reynoldson v. Shillinger, 907 F.2d 124, 127
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(10th Cir. 1990) (holding that a pro se litigant’s claims should not be dismissed with
prejudice unless “further investigation and development” would be unlikely to “raise
substantial issues”).
ii. 	Written Requests
Here, Defendants argue that they complied with all applicable requirements and
provided appropriate debt verification to Plaintiff. Motion [#16] at 7-8. This assertion rests
on Defendants’ Exhibit E [#16-5], the Validation Response Letter, mailed to Plaintiff by
Credit Control on March 17, 2023. Id. However, as discussed above, the Court may not
consider Exhibit E in its adjudication of the present Motion [#16]. The Complaint [#15]
alleges, in short, that Plaintiff timely notified Defendants in writing of his request for
validation of the debt, and that Defendants “failed to validate” the debt in violation of the
FDCPA. Compl. [#15] at 5. Given these circumstances, the Court finds that Defendants
have not shown that Plaintiff has failed to state a claim upon which relief can be granted.
Accordingly, the Court recommends that the Motion [#52] be denied to the extent
that Defendant Credit Control, LLC seeks dismissal of Plaintiff’s § 1692g FDCPA claim.
See, e.g., Reynoldson, 907 F.2d at 126-27.
IV. Conclusion
Based on the foregoing,
IT IS HEREBY RECOMMENDED that the Motion [#16] be GRANTED in part and
DENIED in part. The Court recommends that the Motion be denied as to Plaintiff’s §
1692g FDCPA claim against Defendant Credit Control, LLC, to the extent premised on
written requests for validation. The Court recommends that the Motion otherwise be
granted and that all other claims be dismissed as outlined above.
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IT IS FURTHER ORDERED that any party may file objections within 14 days of
service of this Recommendation. In relevant part, Fed. R. Civ. P. 72(b)(2) provides that,
“within 14 days after being served with a copy of the recommended disposition, a party
may 	serve 	and 	file 	specific 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations. A party may respond to another party’s objections within 14 days after
being served with a copy.” “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review.” United States v. 2121 E. 30th St., 73 F.3d
1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the
district court’s attention on the factual and legal issues that are truly in dispute.” Id. “[A]
party who fails to make a timely objection to the magistrate judge’s findings and
recommendations waives appellate review of both factual and legal questions.” Morales-
Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).
Dated: October 26, 2023
BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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