District Court (Cal.) Finds No FDCPA Violation for Use of "Warning Notice"
In Elliott v. Credit Control Services, Inc., 2010 WL 1495402 (S.D.Cal. 2010) Judge Sabraw applied the more stringent pleading standard of Iqbal and Twombly to find that a debt collector's use of the term "Warning Notice" with its debt validation letter neither overshadowed the debtor's validation rights nor constituted an unfair debt collection practice.
In two recent opinions, the Supreme Court established a more stringent standard of review for 12(b)(6) motions. See Ashcroft v. Iqbal, —U.S. —-, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To survive a motion to dismiss under this new standard, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). "Determining whether a complaint states a plausible claim for relief will … be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950 (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007)). In Iqbal, the Court began this task "by identifying the allegations in the complaint that are not entitled to the assumption of truth." Id. at 1951. It then considered "the factual allegations in respondent's complaint to determine if they plausibly suggest an entitlement to relief." Id. at 1951.
CEB Prac. Guide § 2A.40 -- Communications with the Debtor -- Validation of the Debt -- Debt Collector's activities within 30 day period FDCPA (Fed & State) Pleading Requirements