UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

FORT LAUDERDALE DIVISION 

JASON GARSON, 

Plaintiff, 

v. 

PORTFOLIO RECOVERY 

ASSOCIATES, LLC, 

Defendant. 

/

CASE NO.: 0:22-cv-62074-AHS 

DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT AND 

MEMORANDUM OF LAW IN SUPPORT THEREOF 

Defendant, Portfolio Recovery Associates, LLC (“Defendant”), by and 

through its undersigned counsel and pursuant to Rule 12 of the Federal Rules of 

Civil Procedure, hereby files this, its Motion to Dismiss Plaintiff’s Complaint, and 

in support thereof, states as follows: 

1. This case arises from alleged attempts by Defendant to collect an 

unpaid account balance owed by the Plaintiff. 

2. Defendant is a company that purchases charged-off debt from original 

creditors for collection. 

3. On or about February 1, 2022, Defendant purchased Plaintiff’s 

delinquent loan account from the original lender, Citibank N.A. 

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4. In keeping with Defendant’s established procedures and the 

requirements of the Fair Debt Collections Practices Act, 15 U.S.C. §§ 1692 et seq.

(“FDCPA”), and Consumer Financial Protections Bureau - Regulation F, 12 C.F.R. 

§ 1006 (“Reg F”), Defendant sent Plaintiff a validation notice on or about April 4, 

2022. Compl., Exhibit “A” 

5. The format and information contained in the validation notice mirror 

the format and information in Model Form B-1 contained in 12 C.F.R. Part 1006 

Appendix B. 

6. Plaintiff filed a Complaint on or about September 7, 2022, alleging a 

single count that Defendant violated provisions of the FDCPA, specifically 15 

U.S.C. §§ 1692e, 1692f, and 1692g, as well as Reg F, specifically 12 C.F.R. 

1006.34(c)(2)(iii). 

7. However the Complaint fails to state a claim upon which relief may be 

granted. The “Collection letter” identified by the Plaintiff in the Complaint is fully 

compliant in form and information with the requirements identified in 12 C.F.R. § 

1006.34(c)(2) and, therefore, the letter does not constitute a violation of Reg F or the 

FDCPA. 

8. Accordingly, this Court should dismiss Plaintiff’s Complaint for failure 

to state a claim and award Defendant its attorney’s fees and costs pursuant to the 

applicable statutory sections of the FDCPA. 

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STANDARD OF REVIEW 

To survive a motion to dismiss under Rule 12(b)(6), 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) (quoting Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." Iqbal, 129 S. Ct. 

at 1949. This "requires more than labels and conclusions, and a formulaic recitation 

of the elements of a cause of action." Wilchombe v. Tee Vee Toons, Inc., 555 F.3d 

949, 958 (11th Cir. 2009) (citing Twombly, 550 U.S. at 555). Moreover, "[f]actual 

allegations must be enough to raise a right to relief above the speculative level . . 

." Twombly, 550 U.S. at 555. 

Additionally, "[t]he court may consider a document attached to a motion to 

dismiss without converting the motion into one for summary judgment if the 

attached document is (1) central to the plaintiff's claim and (2) undisputed. In this 

context, 'undisputed' means that the authenticity of the document is not 

challenged." Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005). Model Form B-1 

contained in 12 C.F.R. 1006 Appendix B (“Model Form B-1”) is central to this 

dispute and undisputed because it is contained in the federal regulation central to 

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Plaintiff’s claim. A copy of the Model Form B-1 is attached as an Exhibit 1 for ease 

of reference. 

MEMORANDUM OF LAW 

I. Plaintiff Fails to State a Claim Upon Which Relief May Properly be 

Granted 

Congress enacted the FDCPA to: (a) stop debt collectors from using abusive 

debt collection practices; (b) insure that debt collectors who refrain from such 

practices are not competitively disadvantaged; and (c) promote consistent State 

action to protect consumers from such practices. 15 U.S.C. § 1692(e). To that end, 

“[t]he FDCPA imposes liability on ‘debt collectors’ who fail to comply with its 

provisions when collecting a ‘debt.’” Buckman v. Am. Bankers Ins. Co. of Fla., 115 

F.3d 892, 894-95 (11th Cir. 1997) (citing 15 U.S.C. § 1692k). 

To prevail on a FDCPA claim, a plaintiff must prove that: (1) the plaintiff has 

been the object of consumer debt collection activity; (2) the defendant is a “debt 

collector” under the FDCPA; and (3) that “the defendant has engaged in an act or 

omission prohibited by the FDCPA.’” Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 

1360–61 (S.D.Fla. 2000). 

II. Plaintiff Fails to Allege Defendant Violated Reg F 

Defendant’s alleged violation of Reg F contained in the complaint is based 

entirely on the content of the letter Defendant sent to Plaintiff on or about April 4, 

2020 as a verification notice. Compl. ¶ 50. This letter was sent in accordance with 

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the requirements of 12 C.F.R. 1006.34(c). In doing so Defendant used a form letter 

that is in all material respects identical to Model Form B-1. Vt. Pure Holdings, Ltd. 

v. Nestle Waters N. Am., Inc., No. 03-11465-DPW, 2006 U.S. Dist. LEXIS 13683, 

at *15 (D. Mass. Mar. 28, 2006) (holding items such as statutes and regulations are 

identical if the language is substantially the same and any difference between the 

two items does not create dissimilar requirements). The purpose of this letter was to 

provide the consumer with information regarding the debt and ensure they are not 

being held liable for the debt of another. Huckfeldt v. BAC Home Loans Servicing, 

LP, Civil Action No. 10-cv-01072-MSK-CBS, 2011 U.S. Dist. LEXIS 111581, at 

*20 (D. Colo. Sep. 29, 2011). Additionally, 12 C.F.R. § 1006.34(d)(2) clearly states, 

if a debt collector uses Model Form B-1 as its verification notice, the debt collector 

“complies with both information and form of the requirements” contained in 12 

C.F.R. § 1006.34(c). 12 C.F.R. § 1006.34(d)(2)(emphasis added). 

It is axiomatic that the use of a form that complies with both the information 

and form requirements of the pertinent Rules would include compliance with the 

requirement that a debt collector provide “the name of the creditor to whom the debt 

was owed on the itemization date” which is required by 12 C.F.R. § 1006.34(c)(iii). 

Thus, based on Defendant’s use of a form letter identical to Model Form B and the 

clear safe harbor contained in 12 C.F.R. 1006.34(d)(2), Defendant was in 

compliance with the information requirements contained in 12 C.F.R. 

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1006.34(c)(3)(iii) and did not violate Reg F, and the Plaintiff has failed to state a 

claim upon which relief may be granted. 

To the extent that Plaintiff may argue that Defendant’s form letter is deficient 

under the requirements of 12 C.F.R. 1006.34(c)(2)(iii) because it does not explicitly 

identify CITIBANK N.A. as the “creditor to whom the debt was owed on the 

itemization date.” It is first reasonable to point out that such an interpretation flies 

in the face of the clear wording of the Model Form, as discussed above. Simply put, 

if the Rule required additional disclosures, then the Model Form for which a safe 

harbor provision exists, would also include those disclosures. Otherwise, the use of 

the Model Form itself creates a violation or Reg F and the FDCPA which is clearly 

not the intent of the Rule which creates the Model Form. 

Further, such an interpretation misreads the plain language of the statute. Reg 

F requires the debt collector to “provide” the requirements listed in 12 C.F.R. 

1006.34(c), and does not require debt collectors to specifically label or highlight the 

holder of the debt on the itemization date. 12 C.F.R. 1006.34(c). That was what was 

done in this instance, as the name of the creditor is provided and there are no 

allegations to the contrary. 

In fact, 12 C.F.R. 1006.34 only uses the word “identify” a single time, it is 

found in 12 C.F.R. 1006(d)(3)(ii), a section that deals with “optional disclosures” by 

the debt collector in the validation notice. If Plaintiff believes Reg F requires 

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something more than the simple plain language meaning of the word “provide” as 

written in the Rule and as disclosed on the Model Form, then Plaintiff must plead 

sufficient facts to support a reasonable inference of this requirement. Iqbal, 129 S. 

Ct. at 1949. However, no such factual basis is provided in the Complaint. Thus, 

assuming this was Plaintiff’s assertion in the Complaint, it again fails for failure to 

state a claim upon which relief can be properly granted. 

III. Plaintiff Fails to Allege that Defendant Did Not Identify the Correct 

Creditor and Correct Itemization Date 

A discussed in the previous section, Defendant used the Model Form to 

conduct its verification notice. Plaintiff does not dispute this fact and, in fact, 

attaches the letter to the Complaint. Compl. Exhibit “A.” On the letter it clearly 

states “You had a WAWA account from CITIBANK N.A.” Id. Furthermore, the 

paragraph at the top of the verification notice clearly identifies CITIBANK N.A. as 

the previous creditor. Id. Even based on the “least sophisticated consumer standard” 

used to interpret the FDCPA it is clear that the holder of the debt was identified as 

CITIBANK N.A. Pinson v. JPMorgan Chase Bank, Nat'l Ass'n, 942 F.3d 1200, 1210 

(11th Cir. 2019) (holding that the FDCPA’s “least sophisticated consumer” 

possess[es] a rudimentary amount of information about the world and a willingness 

to read a collection notice with some care). If the Plaintiff is claiming that 

CITIBANK N.A. was not the holder of the debt on the itemization date, then Plaintiff 

must plead those facts in order to state a claim. To the contrary, the complaint 

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provides no allegations at all that CITIBANK N.A. did not hold the Plaintiff’s debt 

on the itemization date. Instead, Plaintiff simply makes the repeated conclusory 

accusation that Defendant failed to “identify the creditor to whom the Consumer 

debt was owed on December 30, 2021.” Compl. 45-54. Such conclusory accusations 

are insufficient to substantiate a claim. Wilchombe, 555 F.3d at 955, 958 (holding 

that conclusory accusations do not provide a factual basis for inferring a claim); 

Iqbal, 129 S. Ct. at 1949 (holding plaintiff is required to “state factual content that 

allows the court to draw the reasonable inference”). Thus, the Complaint completely 

fails to offer any factual basis for the claim at all, and, the Plaintiff fails to make a 

claim upon which relief can be granted. 

IV. All Alleged Violations of the FDCPA are Fatally Flawed 

Plaintiff alleges Defendant violated provisions of the FDCPA, specifically, 15 

U.S.C. §§ 1692e, 1692f, and 1692g. 15 U.S.C. § 1692e prohibits debt collectors from 

using “false, deceptive, or misleading representation[s] ... in connection with the 

collection of any debt.” 

Sheriff v. Gillie, 136 S. Ct. 1594, 1598 (2016). 15 U.S.C. § 1692f prohibits debt 

collectors from engaging in means of collection considered unfair and 

unconscionable. Midland Funding, LLC v. Johnson, 137 S. Ct. 1407, 1410 (2017). 

Finally, 15 U.S.C. § 1692fg sets out the information requirements a debt collector 

must provide to a consumer in an initial notice, Sheriff, 136 S. Ct. at 1598. Proving 

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any of these violations is an essential element of the Plaintiff’s claim. Kaplan, 88 

F.Supp.2d at 1360–61. 

However, as stated above, the entire basis of each of the Plaintiff’s claims 

regarding the FDCPA is that the letter sent on April 4, 2022, was not in compliance 

with the requirements of 12 C.F.R. 1006.34(c)(2)(iii). Compl. ¶ 54. In the complaint, 

Plaintiff conditions all alleged violations of the FDCPA with the phrase “by failing 

to identify in the Collection Letter the name of the creditor to whom the debt was 

owed on December 30, 2021, because Defendant is required by 12 C.F.R. § 

1006.34(c)(2)(iii) to make such an identification in the Collection Letter[.]” Compl. 

¶¶ 51-53. 

As set forth more fully above, Defendant did not violate Reg F and Plaintiff 

has failed to plead the necessary facts to support the allegations that underlie all of 

the claims. Thus, all alleged violations of the FDCPA lack any factual content to 

support a “reasonable inference that the defendant is liable for the misconduct 

alleged.” Iqbal, 129 S. Ct. at 1949 (holding that for a defendant’s alleged misconduct 

to be facially plausible a Plaintiff must plead factual content). Indeed, the statement 

that Defendant failed to provide the name of the creditor on the itemization date is a 

demonstrably false statement, as demonstrated above, and this critically undermines 

the Plaintiff’s claims that Defendant violated 15 U.S.C. §§ 1692e, 1692f, and 1692g. 

Id. Essentially, each of Defendant’s FDCPA violation claims fails to provide a 

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factual basis for the court to draw a reasonable inference as required by Iqbal. 129 

S. Ct. at 1949. Therefore, the allegations contained in paragraphs 50-54 of the 

Complaint fail to state a claim upon which relief may properly be granted and 

Plaintiff’s complaint must be dismissed. 

II. Conclusion 

For the foregoing reasons, the Defendant submits that the Plaintiff fails to state 

any claim against the Defendant upon which relief can properly be granted, under 

either Reg F or the FDCPA, and the complaint must be dismissed. 

WHEREFORE, Defendant respectfully requests that this Court enter an order 

granting this motion, dismissing Plaintiff's Complaint with prejudice, awarding 

Defendant its reasonable attorney's fees and costs, and granting Defendant such other 

and further relief as the Court deems just and proper. 

s/ Robert E. Sickles, Esq. 

Robert E. Sickles, Esq. 

Florida Bar No. 167444 

robert.sickles@dinsmore.com

DINSMORE & SHOHL LLP 

201 North Franklin Street, Suite 3050 

Tampa, FL 33602 

Phone: (813) 543-9848 

Counsel for Defendant 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on November 17, 2022, a true and correct copy of 

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this document was electronically filed via the Court’s CM/ECF Filing System on the 

following: 

Thomas Patti, Esq. 

Victor Zabaleta, Esq. 

Patti Zabaleta Law Group 

3323 NW 55th Street 

Fort Lauderdale, FL 33309 

tom@pzlg.legal

victor@pzlg.legal

s/ Robert E. Sickles, Esq. 

Robert E. Sickles, Esq. 

Florida Bar No. 167444 

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