IN THE UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

In re: Ernestine Robinson Case No. 16-30817-KLP

Debtor Chapter 13

______________________________________________________________________________

ERNESTINE ROBINSON, individually and on behalf of a

class of similarly situated individuals,

Plaintiff, 

v. Adv. Pro. No. 17-03023-KLP

PORANIA, LLC, and

BILTMORE ASSET MANAGEMENT, LLC

Defendants.

______________________________________________________________________________

MEMORANDUM IN SUPPORT OF DEFENDANT, 

BILTMORE ASSET MANAGEMENT, LLC’S, MOTION TO DISMISS

AMENDED CLASS ACTION COMPLAINT

Defendant Biltmore Asset Management, LLC (“Biltmore”), by counsel, submits this

Memorandum in Support of its Motion to Dismiss the Amended Class Action Complaint

(“Amended Complaint”) (Document 20) filed by Plaintiff Ernestine Robinson (“Plaintiff” or 

“Robinson”), individually and on behalf of a class of similarly situated individuals, and states as 

follows: 

INTRODUCTION

Plaintiff, a debtor in Chapter 13 bankruptcy, filed this action against Biltmore and 

Porania LLC (“Porania”) (collectively, “Defendants”). Plaintiff’s Amended Complaint asserts 

that Biltmore violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (e) & (f) 

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(“FDCPA”) by filing a proof of claim (the “POC”) in Plaintiff’s bankruptcy case that failed to 

comply with the applicable Federal Rules of Bankruptcy Procedure 3001(c)(1) & (2). See (Doc.

20, ¶¶ 1, 24, 25, 26, 27, 28, 41-52). 

In Count I, the only count alleged against Biltmore, Plaintiff alleges Biltmore violated the 

FDCPA by using “false, deceptive, and/or misleading representations” and “unfair and 

unconscionable means” to collect a debt. (Doc. 20, ¶¶ 41, 42). Plaintiff’s assertions that the 

POC does not comply with Fed. R. Bankr. P. 3001(c)(1) & (2) are upended by her allegations

and exhibits in the Amended Complaint , which establish that the required form was completed 

and attached to the POC describing the circumstances of the loss or destruction of the writing 

upon which the POC was based. (Doc. 20, ¶ 20). 

Second, Plaintiff alleges that the POC is false because in addition to there being no 

documentation attached, “it is not reasonable to believe that the amount owed on a defaulted 

payday loan would have no interest or fees.” (Doc. 20, ¶ 43). Plaintiff’s conclusory assumption 

fails to support a cause of action. 

Additionally, Plaintiff’s claim is meritless because Plaintiff fails to identify unique 

factual support for Biltmore’s alleged violations of the FDCPA § 1692(f) and § 1692(e). Plaintiff 

simply restates the same alleged misrepresentations and alleges failure to comply with 

bankruptcy procedure. Those unsupported allegations fail to make the claim plausible. 

Finally, Plaintiff claims without support that Biltmore failed to produce any legal 

document showing that it is entitled to enforce the debt. However, Plaintiff does not identify any 

legal or factual basis for her assertion that additional documents are required to show that 

Defendants are entitled to enforce the debt. (Doc. 20, ¶ 24). See also F.R.B.P. 3001(b). 

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Accordingly, Plaintiff’s Amended Complaint fails to overcome the legal and factual 

deficiencies that plagued her initial complaint against Biltmore. See Doc. 1. Equally, Plaintiff’s 

Amended Complaint relies heavily upon conclusory allegations and, on its face, lacks legal 

authority for its claims. Plaintiff’s Amended Complaint should be dismissed with prejudice. 

RELEVANT FACTUAL ALLEGATIONS

Plaintiff alleges that on February 24, 2016, she filed for relief under Chapter 13 of title 11 

U.S. Code in the Bankruptcy Court for the Eastern District of Virginia. (Doc. 20, ¶ 12). On July 

12, 2016, Defendants filed the POC for $800 in Plaintiff’s bankruptcy case. (Id. at 13). Plaintiff 

asserts that Defendants are debt collectors. (Id. at ¶¶ 7-11). Plaintiff alleges that the POC 

identifies Defendant, Porania, as the current creditor, (Id. at ¶14), and that Biltmore regularly 

collects or attempts to collect debts that are owed or due or asserted to be owed or due another. 

(Id. at ¶11). Plaintiff asserts Biltmore identified itself in the POC as the creditor’s attorney or 

authorized agent. (Id. at 17). 

Plaintiff asserts that Defendants affixed three attachments to the proof of claim: the claim 

form; a “Statement Under Fed. R. Bankr. P. 3001(c)(1) of the Circumstances of the Loss or 

Destruction of the Writing Upon Which the Claim is Based”; and an account summary. (Doc 20,

at ¶¶ 17-21). The POC states that the $800 payday loan does not include interest or other 

charges. (Doc 20, at ¶¶ 15, 16). Plaintiff contends that she did not list a debt owed to 

Defendants in her bankruptcy schedules and denies owing this debt to Defendants. (Id. at ¶¶ 23, 

24). Plaintiff also alleges that the Defendants’ Statement under Rule 3001(c)(1) states that the 

debt was purchased from a seller who has a document retention policy of not keeping copies of 

the underlying agreements, applications, or other writings upon which the claim is based. (Id. at 

¶ 25). 

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Plaintiff alleges that Defendants knew or reasonably should have known when they 

purchased the debt and when they filed the POC that they were not entitled to enforce this debt in 

a United States Bankruptcy Court. (Id. at ¶ 26). Plaintiff asserts that Defendants knew or 

reasonably should have known when they filed the POC that it contained false statements of fact 

and that they did not possess sufficient data to comply with the requirements of the Bankruptcy 

Code and Federal Rules of Bankruptcy Procedure. (Id. at ¶¶ 27, 28). 

ARGUMENT

I. Standards of Review 

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the 

complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A plaintiff's 

complaint need only satisfy the standard of Rule 8(a), which requires a “short and plain 

statement of the claim showing that the pleader is entitled to relief.” Federal Rule of Civil 

Procedure 8(a)(2). “Rule 8(a) (2) still requires a ‘showing,’ rather than a blanket assertion, of 

entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n. 3 (2007). That showing 

must consist of more than “a formulaic recitation of the elements of a cause of action” or “naked 

assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(internal citations omitted).

At this stage, all well-pleaded allegations in a complaint must be considered as true, 

Albright v. Oliver, 510 U.S. 266, 268 (1994), and all factual allegations must be construed in the 

light most favorable to plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 

776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). 

In evaluating the complaint, however, unsupported legal allegations need not be accepted. 

Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989). Legal conclusions 

couched as factual allegations are insufficient, as are conclusory factual allegations devoid of any 

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reference to actual events. United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979)

citing Iqbal, 556 U.S. at 678.

II. Count I’s Conclusory Allegations Fail to Support Plaintiff’s Claim that Biltmore 

Violated the FDCPA. 

Plaintiff’s Amended Complaint is peppered with generalized allegations of wrongdoing 

that lack factual foundation. To establish a prima facie case for violation of the FDCPA, a 

plaintiff must allege or prove that (1) the defendant was a debt collector, (2) the defendant's 

conduct in attempting to collect a debt was prohibited by the Act and (3) the debt was a 

consumer debt. In re Meadows, 425 B.R. 806, 809 (Bankr. W.D. Va. 2010). Going further, in 

order to successfully claim a violation of § 1692(e), Plaintiff must show that the collection effort 

involved false or misleading representations. In re Meadows, 425 B.R. 806, 810 (Bankr. W.D. 

Va. 2010).

1

 With regard to § 1692(f), a plaintiff must also allege or prove that the collection 

effort was unfair or unconscionable. Id. Plaintiff fails to allege any facts establishing these 

elements of her claim. Instead, Plaintiff’s Amended Complaint contains little more than 

formulaic recitations of the elements of the causes of action, as prohibited by Twombly. 

Twombly, 127 S.Ct. at 1965. See also Doc. 20, ¶¶ 41-42. 

As in Meadows, Plaintiff merely paraphrases the language of 15 U.S.C. §§ 1692(e) and 

(f), and alleges that Defendants violated those portions of the statute. In re Meadows, 425 B.R. 

at 810–11. (Doc. 20, ¶¶ 41-43). Specifically, Count I alleges that Defendants violated the 

FDCPA by using “false, deceptive, and/or misleading representations or means,” and that 

Defendants used “unfair and unconscionable means” to collect a debt. Id. Plaintiff leaves it up 

to the Court and Defendants to deduce from the unsupported allegations precisely what was 

 1 In Meadows, the court dismissed the complaint of a Chapter 13 debtor brought via adversary proceeding where 

allegations that an agency violated the FDCPA were conclusory in nature and were not entitled to presumption of 

truth in determining whether the debtor stated claim upon which relief could be granted, and the debtor's few nonconclusory allegations did not state plausible claims that the agency violated the FDCPA.

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false, deceptive, or misleading within the POC and what unfair and unconscionable means were 

utilized, since none were specifically alleged.

Plaintiff’s only allegation of “wrongdoing” is a mere assumption by Plaintiff that “it is 

not reasonable to believe that the amount owed on a defaulted payday loan would have no 

interest or fees.” (Doc. 20, ¶ 43). Plaintiff’s belief, however, fails to render plausible a claim of 

wrongdoing under the FDCPA. Accordingly, Plaintiff’s Count I must be dismissed. 

III. Notwithstanding its factual deficiency, Count I fails to state a claim because 

F.R.B.P. 3001(c) does not provide Plaintiff with a basis for objecting to a POC.

Despite Plaintiff’s best efforts to piggyback a claim against Biltmore under F.R.B.P.

3001(c) in conjunction with the FDCPA, there is no separate cause of action, nor is there a basis 

under the FDCPA for alleging failure to comply with bankruptcy procedure. (Doc. 20, ¶¶ 24-

28). Thus, Plaintiff’s allegations regarding F.R.B.P. in support of Count I are equally untenable. 

11 U.S.C. § 501(a) provides that a creditor may file a proof of claim, stating its legal claims. 

Fed.R.Bankr.P. 3001(a). Rule 3001(c) provides that if a proof of claim is based on a writing, 

then the party making the claim shall file the original or a duplicate with the proof of claim, if it 

exists. Fed.R.Bankr.P. 3001(c). If the original was lost or destroyed, however, Rule 3001(c) 

requires the party making the claim to attach a statement of the circumstances of the loss or 

destruction to the proof of claim. Id. See Meral, Inc. v. Xinergy, Ltd., 2016 WL 7235846, at *3 

(W.D. Va. Dec. 13, 2016) citing In re Falwell, 434 B.R. at 783. See also Fed. R. Bankr. P. 

3001(f) (“A proof of claim executed and filed in accordance with these rules shall constitute 

prima facie evidence of the validity and amount of the claim.”). “The burden then shifts to the 

debtor to object to the claim,” and to “introduce evidence to rebut the claim's presumptive 

validity.” In re Hartford Sands Inc., 372 F.3d 637, 640 (4th Cir. 2004). Such evidence “must be 

sufficient to demonstrate the existence of a true dispute and must have probative force equal to 

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the contents of the claim.” Falwell, 434 B.R. at 784. “If the debtor offers such evidence, the 

burden shifts back to the creditor to produce evidence meeting the objections and establishing the 

claim.” Id. As Plaintiff acknowledges in her Amended Complaint, the POC includes a statement 

regarding Biltmore’s authority to collect the debt; the required documentation of the loss or 

destruction of the document upon which the claim is based; and the account summary stating the 

details of the claim. (Doc. 20, ¶¶ 14-21). On the face of the Amended Complaint, it is clear that 

Plaintiff’s Count I is unsupported. 

Moreover, because Biltmore complied with Rule 3001(c), its POC is prima facie

evidence of the validity and amount of the claim. Specifically, despite Plaintiff’s objection to the 

lack of documentation “showing that Defendants are entitled to enforce the debt”, she concedes 

that Biltmore filed the appropriate statement pursuant to F.R.B.P. 3001(c)(1) explaining the 

absence of the documentation. (Doc. 20, ¶¶ 24, 25). Paragraph 20(b) of the Amended 

Complaint, therefore, negates Plaintiff’s claim, in that it establishes that Biltmore filed and 

completed the necessary form to explain the “Circumstances of the Loss or Destruction of the 

Writing Upon Which the Claim is Based,” as required by F.R.B.P. 3001(c)(1). (Doc. 20, ¶¶

20(b), 25). 

Notably, Rule 3001(c) does not provide Plaintiff with an independent basis for objecting 

to a proof of claim. In re Falwell, 434 B.R. at 783. The grounds for the disallowance of a proof 

of claim are specifically listed in 11 U.S.C. § 502 – not in the Bankruptcy Rules. Therefore, it is 

not enough for the Chapter 13 debtor to merely complain that the proof of claim filed by a 

creditor lacks sufficient documentation under the Bankruptcy Rules, the debtor must also assert a 

grounds for disallowance under § 502, as for example, by contesting the amount claimed to be 

owed. In re Falwell, 434 B.R. at 784. Also see In re Heath, 331 B.R. 424, 435 (9th Cir. BAP 

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2005) (“Noncompliance with Rule 3001(c) is not one of the statutory grounds for 

disallowance.”). Nor is there authority to suggest that it rises to the level of a violation of §§ 

1692(e) or (f). Even so, Plaintiff simultaneously complains that no debt is owed because she did 

not list it in her bankruptcy schedules and claims that the POC must be false because there are no 

fees or interest charged. (Doc. 20, ¶¶ 23, 24). Thus, the precise nature of her objection is 

unclear. Again, Plaintiff’s Count I is fundamentally deficient and must be dismissed. 

IV. Plaintiff’s claim under Section 1692(e) is based upon the same alleged misconduct as 

her Section 1692(f) claim and must be dismissed. 

Plaintiff’s Amended Complaint improperly alleges the same basis for both of her claims 

under the FDCPA. In Biber v. Pioneer Credit Recovery, Inc., the court granted a motion to 

dismiss pursuant to F.R.C.P. 12(b)(6) where the plaintiff’s claims were conclusory and failed to 

identify clearly the wrongdoing that undergirded each of his claims under the FDCPA. The court 

concluded: 

This claim fails to pass muster under Rule 12(b)(6), as it is axiomatic that 

a § 1692(f) cause of action may not be based on the “same alleged 

misconduct that undergirds [a] § 1692(e) claim.” Thus, courts routinely 

dismiss § 1692(f) claims where the plaintiff “does not allege any conduct 

in [a § 1692(f) claim] separate from the conduct that forms the basis of the 

§1692(e) claims.

Biber v. Pioneer Credit Recovery, Inc., No. 1:16-CV-804, 2017 WL 118037, at *11 (E.D. Va. 

Jan. 11, 2017). (internal citations omitted). In reaching its decision, the court reasoned that the 

plaintiff failed to allege facts unique to his § 1692(f) claim. Id. “Put differently, Biber does not 

identify which of Pioneer's actions were “unfair and unconscionable,” in violation of § 1692(f), 

as opposed to ‘false, deceptive, or misleading,’ in violation of § 1692(e).” Id. 

Here, Plaintiff alleges that Biltmore made false representations in its POC. (Doc. 20, ¶¶

41-44). The pleading of both claims is so vague, in fact, that it is difficult to discern which act is 

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being alleged in support of each alleged violation. See Id. It is evident, however, that the core of 

the claims is focused upon the alleged misrepresentations and that they are used as the basis for 

both § 1692(f) and § 1692(e). (Doc. 20, ¶¶ 41, 42). The only potentially “unique” allegation to 

the § 1692(f) claim is the alleged failure to provide sufficient information to comply with Rule 

3001, which, as discussed previously, is a fundamentally flawed claim in its own right. Thus, 

Plaintiff’s Count I is likewise deficient in that it fails to identify unique bases for its allegations 

of wrongdoing by Biltmore pursuant to § 1692(f) and § 1692(e). Count I must be dismissed. 

V. Plaintiff asserts no legal basis for her claim that Biltmore failed to prove its 

entitlement to enforce the debt. 

Last, Plaintiff claims with no factual basis that Biltmore failed to produce any legal 

document showing that it is entitled to enforce the debt. Again, the exhibits attached to the 

Amended Complaint belie Plaintiff’s allegations, as a proof of claim “shall be executed by the 

creditor or the creditor’s authorized agent.” F.R.B.P. 3001(b). On page 3 of Exhibit 1, Biltmore, 

by its President, identifies itself under penalty of perjury, as the “creditor’s attorney or authorized 

agent.” See also Doc. 20, ¶ 19. Contrary to Plaintiff’s unsupported contention, there is no 

additional requirement in the applicable bankruptcy rules that necessitates attaching a document 

showing that Defendants are entitled to enforce the debt. (Doc. 20, ¶ 24). See also F.R.B.P. 

3001(b). Accordingly, Plaintiff’s assertion lacks foundation. Count I must be dismissed with 

prejudice, as it fails on all fronts. 

CONCLUSION

For the foregoing reasons, Defendant requests that the Court grant the instant Motion to 

Dismiss Plaintiff’s Amended Class Action Complaint with prejudice.

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Dated: April 12, 2017 Respectfully Submitted,

BILTMORE ASSET MANAGEMENT, LLC

/s/ Charles M. Sims

Charles M. Sims (VSB No. 35845)

O’Hagan Meyer, PLLC

411 East Franklin Street, Suite 500

Richmond, Va. 23219

Tel.: 804-403-7100

csims@ohaganmeyer.com

Counsel for Biltmore Asset Management, LLC

CERTIFICATE OF SERVICE

I hereby certify that on the 12th day of April, 2017, I electronically filed the foregoing 

with the Clerk of the Court using the CM/ECF system, which will then send a notification of 

such filing (NEF) to the following counsel of record:

Mark C. Leffler, Esq.

Boleman Law Firm, P.C.

P.O. Box 11588

Richmond, Va. 23230

Counsel for Plaintiff

/s/ Charles M. Sims

Charles M. Sims (VSB No. 35845)

O’Hagan Meyer, PLLC

411 East Franklin Street, Suite 500

Richmond, Va. 23219

Tel.: 804-403-7100

csims@ohaganmeyer.com

Counsel for Biltmore Asset Management, LLC

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