Angela Bashore v. Resurgent Captl Services, L.P. , 452 F. App'x 522 ( 2011 )


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  •      Case: 11-40418     Document: 00511686578         Page: 1     Date Filed: 12/06/2011
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    December 6, 2011
    No. 11-40418
    Summary Calendar                        Lyle W. Cayce
    Clerk
    ANGELA CHRISTINE BASHORE,
    Plaintiff - Appellant
    v.
    RESURGENT CAPITAL SERVICES, L.P.; LVNV FUNDING, L.L.C.;
    FINANCIAL RECOVERY SERVICES, INC.; ACADEMY COLLECTION
    SERVICE, INC.; RLI INSURANCE COMPANY,
    Defendants - Appellees
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 4:10-CV-585
    Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    Proceeding pro se and in forma pauperis, Angela Christine Bashore
    appeals the dismissal, under Federal Rule of Civil Procedure 12(b)(6) (failure to
    state a claim), of her action based on: Fair Debt Collection Practices Act
    (FDCPA); Fair Credit Reporting Act (FCRA); Texas Debt Collection Practices Act
    (TDCPA); Texas Deceptive Trade Practices Act (TDTPA); and, negligence and
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    Case: 11-40418     Document: 00511686578      Page: 2    Date Filed: 12/06/2011
    No. 11-40418
    defamation under Texas law. Bashore contends: the district court erroneously
    applied a heightened pleading standard; and, she pleaded sufficient facts to
    support her claims.
    A dismissal for failure to state a claim is reviewed de novo; all well-pleaded
    facts are accepted as true and viewed in the light most favorable to plaintiff.
    E.g., Randall D. Wolcott, M.D., P.A. v. Sebelius, 
    635 F.3d 757
    , 763 (5th Cir.
    2011). A pleading must contain “a short and plain statement of the claim
    showing that the pleader is entitled to relief”. FED. R. CIV. P. 8(a)(2). “To survive
    a motion to dismiss, a complaint must contain sufficient factual matter, accepted
    as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
    
    129 S. Ct. 1937
    , 1949 (2009) (citation and internal quotation marks omitted).
    The district court correctly applied that standard and, additionally, recognizing
    Bashore’s pro se status, allowed her to file an amended complaint, after
    determining the original complaint was conclusional.
    Bashore reiterates the allegations raised in her complaint: she owed no
    debt; appellees ignored her letters of dispute; and, they continued collection
    activities after her dispute-notification.
    First, the district court did not err in dismissing Bashore’s FDCPA claims.
    Regardless of whether a debt existed, it was not a violation of FDCPA for
    appellees to send Bashore written communications regarding the claimed debt.
    See 15 U.S.C. § 1692g. Nor does FDCPA require the debt collector to respond by
    letter of verification to the consumer’s letter of dispute; the debt collector is
    instead required only to cease collection of the debt until verification of the debt
    is obtained. 15 U.S.C. § 1692g(b). Bashore’s allegation that Financial Recovery
    Services, Inc. (FRS), failed to cease collection activities after notification of her
    dispute was rejected by the district court on the basis that Bashore did not allege
    she notified FRS of the dispute within the 30-day period established by FDCPA.
    15 U.S.C. § 1692g(a)(3), (b). Along that line, Bashore’s general allegations that
    appellees failed to cease collection efforts after notification of her dispute are
    2
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    No. 11-40418
    unsupported by specific factual allegations in her complaint that permit our
    court to infer more than the mere possibility of misconduct. See Iqbal, 
    129 S. Ct. at 1950
     (“the complaint has alleged–but it has not ‘show[n]’–‘that the pleader is
    entitled to relief’”).
    Regarding her FCRA claim, 15 U.S.C. § 1681s-2(b)(1), Bashore again has
    not alleged sufficient facts to show a violation. Her assertion that the statute
    mandates that the allegedly inaccurate information be deleted from her credit
    reports on account of her dispute is inaccurate.
    Bashore next contends TDCPA required an investigation and response by
    appellees to her letter of dispute. See TEX. FIN. CODE § 392.202(a), (b). Her
    complaint, however, verifies that Bashore received notice from TransUnion and
    Experian regarding the results of their investigation of the debt reported by
    appellee LVNV Funding, L.L.C.           Thus, the district court did not err in
    dismissing Bashore’s TDCPA claim. Moreover, as Bashore’s purported TDCPA
    claim is the sole basis on which she contends she has stated a TDTPA claim, she
    has shown no error in the dismissal of the TDTPA claim.
    Bashore’s allegations of publication of false information are conclusional
    and, thus, insufficient to defeat a motion to dismiss her defamation claim. Iqbal,
    
    129 S. Ct. at 1949
    . Finally, the dismissal of Bashore’s negligence claim was not
    error, as she pleaded no facts plausibly giving rise to an entitlement to relief on
    the basis of a breach of duty. See, e.g., Dukes v. Philip Johnson/Alan Ritchie
    Architects, P.C., 
    252 S.W.3d 586
    , 591 (Tex. Ct. App. 2008).
    AFFIRMED.
    3
    

Document Info

Docket Number: 11-40418

Citation Numbers: 452 F. App'x 522

Judges: Barksdale, Per Curiam, Smith, Southwick

Filed Date: 12/6/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023