IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10886

Summary Calendar

ISRAEL GARCIA, JR.; MELISSA R. GARCIA,

Plaintiffs - Appellants

v.

JENKINS BABB, L.L.P.; ROBERT EDISON JENKINS; MICHAEL JASON 

BABB,

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:11-CV-3171

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Plaintiff Israel Garcia, Jr., and his wife Melissa R. Garcia appeal from 

an interlocutory judgment in favor of the Defendants arising out of their role 

in the collection of debt owed to Wells Fargo Bank. We AFFIRM.

Sometime before November 2010, the Garcias allegedly incurred a debt 

to Wells Fargo Bank. On November 17, 2010, the Garcias received a collection 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

May 29, 2014

Lyle W. Cayce

Clerk

 

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letter from the Dudley Law Firm. The attorneys were acting on behalf of 

Primary Financial Services. They instructed the Garcias to make prompt 

arrangements to pay off a debt of $17,018.68. The Garcias allegedly responded

by demanding validation of the debt but received no reply. On January 14, 

2011, a different collection agency, Jenkins/Babb, LLP, sent the Garcias a

second letter demanding they begin paying on a personal loan account with 

Wells Fargo Bank, this time indicating that $15,954.32 would satisfy their 

indebtedness. This letter, as did the first, threatened suit if the Garcias failed 

to comply.

Noticing the discrepant debt amounts cited in the two letters, the 

Garcias replied to Jenkins/Babb with a copy to the Dudley firm, demanding 

that it stop all collection action and provide them with proof of their debt. 

Jenkins/Babb provided the Garcias with documents related to their loan. On 

March 31, 2011, Jenkins/Babb initiated a collection action against the Garcias 

in state court on behalf of Wells Fargo Bank. A judgment against the Garcias 

was entered. The Garcias responded with their own suit in federal court

against the companies and individuals involved in the attempted collection of 

this debt. This appeal pertains strictly to Defendants Jenkins/Babb, Robert 

Jenkins, and Jason Babb (collectively, the “Jenkins Defendants”). 

In their initial complaint, the Garcias alleged that the Jenkins

Defendants’ attempts to collect the debt owed to Wells Fargo Bank violated the 

Federal Debt Collection Practices Act (“FDCPA”), Texas Debt Collection 

Practices Act (“TDCPA”), and a related provision of the Texas Deceptive Trade 

Practices Act (“TDTPA”). The Jenkins Defendants moved to dismiss the 

complaint, arguing that the Garcias failed to state a claim against them. The 

magistrate judge agreed and recommended dismissal of all claims. The district 

judge, however, allowed the Garcias to amend their complaint out of concern 

they had failed to present their best case. The Garcias filed another complaint, 

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and the Jenkins Defendants again moved to dismiss. The district judge 

accepted the magistrate judge’s renewed recommendation that the claims be 

dismissed with prejudice. Appeal is proper because judgment was entered 

pursuant to Federal Rule of Civil Procedure 54.

DISCUSSION

We review a district court’s grant of a motion to dismiss de novo. In re 

Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). To overcome 

a motion to dismiss, a plaintiff’s complaint must contain “enough facts to state 

a claim to relief that is plausible on its face.” Bell Atl. 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.” Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009). “Threadbare recitals of elements of a cause of action” and 

“conclusory statements” are no substitute for factual content. Id.

I. Fair Debt Collection Practices Act claims

The Garcias first alleged that the Jenkins Defendants violated the 

FDCPA. Only financial obligations incurred for purchases “primarily for 

personal, family, or household purposes” qualify as consumer “debt” subject to 

the rules and regulations of the FDCPA. 15 U.S.C. § 1692a(5). When 

determining the type of debt at issue for the purposes of the FDCPA, courts 

focus on the precise transaction for which the loan proceeds were used, not the 

purpose for which an account was opened or the label of the ongoing obligation. 

See Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, & Clark, LLC, 214 F.3d 

872, 875 (7th Cir. 2000). Focusing on the nature of the purchase or transaction 

comports with the FDCPA’s intent to regulate “debt collection tactics employed 

against personal borrowers,” who, unlike commercial borrowers, are more 

likely to fall “prey to unscrupulous collection methods.” Id. (emphasis in 

original).

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The Garcias, who are proceeding pro se on appeal, accuse the district 

court of misinterpreting their arguments and citing to inapplicable case law. 

These arguments mostly fail to address the district court’s critical finding,

which was that the third amended complaint lacked any facts to suggest that 

the Garcias’ debt was incurred through a consumer transaction.1 See 15 U.S.C. 

§ 1692a(5). The Garcias briefly argue that the district court erred by not 

relying on their allegation that their financial obligation arose out of “a 

transaction in which the money, property, insurance, or services that are the 

subject of the transaction were incurred primarily for personal, family, or 

household purposes” was enough to establish their claim. The district court 

was correct, though, because the third amended complaint’s recitation of 

Section 1692a(5)’s key phrase, without any accompanying factual content, is 

exactly the sort of “threadbare recital of a cause of action” that cannot survive 

the motion to dismiss. Iqbal, 556 U.S. at 678. 

We have reviewed the third amended complaint for facts to support the 

Garcias’ conclusory allegation. There are none. The third amended complaint 

describes the defendants’ attempt to collect the debt but the original 

transaction is not described. Even in their briefing, the Garcias attack the 

district court’s opinion but give no indication what item was purchased or what 

service was paid for, much less explain how the item or service was intended 

for personal or family use. The district court gave the pro se Garcias ample

opportunity to plead their best case, yet the Garcias fail to identify facts 

fundamental to their FDCPA claims. Accordingly, the district court did not err 

in dismissing these claims with prejudice.

1 The district court also found that Jason Babb could not be individually or vicariously 

liable for the acts of the LLC. We choose not to review this issue in light of our finding that 

the Garcias’ FDCPA claim had another flaw.

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II. Texas Debt Collection Practices Act and Texas Deceptive Trade 

Practices Act claims

The Garcias also attempted to assert a stand-alone claim against the 

Jenkins Defendants under the catch-all provision of the TDCPA, and other 

unspecified violations made actionable through the TDCPA’s tie in with the 

TDTPA. See TEX. FIN. CODE. ANN. §§ 392.304(a)(19) & 392.404(a). They also 

invoked the TDTPA’s complimentary provision granting a private right of 

action to consumers harmed by violations of the TDCPA. TEX. BUS. & COM.

CODE ANN. § 17.50(b). The TDCPA, like its federal counterpart, defines 

consumer debt as “an obligation, or an alleged obligation, primarily for 

personal, family, or household purposes and arising from a transaction or 

alleged transaction.” TEX. FIN. CODE. ANN. § 392.001(2); see also Guajardo v. 

GC Servs., LP, 498 F. App’x 379, 382 (5th Cir. 2012). Similarly, “to qualify as 

a consumer [under the TDTPA], ‘a person must have sought or acquired goods 

or services by purchase or lease’ and ‘the goods and services purchased or 

leased must form the basis of the complaint.’” Hurd v. BAC Home Loans 

Servicing, LP, 880 F. Supp. 2d 747, 765 (N.D. Tex. 2012) (quoting Cameron v. 

Terrell & Garrett, 618 S.W.2d 535, 539 (Tex. 1981)).

With respect to these state law claims, the district court determined that 

the Garcias’ reliance on Section 392.304(a)(19) of the TDCPA failed because 

they did not allege facts to support their allegation that the Jenkins 

Defendants used “false representations” or “deceptive means” in their 

collection efforts. See TEX. FIN. CODE. ANN. §§ 392.304(a)(19). The Garcias 

take issue with this finding, arguing that their reference to the different 

amounts requested in the first and second letter was a fact that qualifies as 

false or deceptive. We agree with the district court that this factual allegation

alone does not constitute deception. The Garcias do not, for instance, allege 

that the amount requested by the Jenkins Defendants in their collection letter 

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was false. After reviewing the third amended complaint, we find a history of 

the defendants’ collection efforts but nothing that rises to the level of a false, 

fraudulent, or deceptive collection technique.

The Garcias’ TDCPA stand-alone claims and their claims through its tiein provision fail for the same reason as their federal claims. For a collection 

practice to be actionable under the TDCPA, the debt at issue must arise out of 

a consumer transaction. See TEX. FIN. CODE. ANN. § 392.001(2). The TDTPA 

independently contains a similar requirement. See Hurd, 880 F. Supp. 2d at 

765. Because the Garcias never alleged facts to support their allegation that 

their financial obligation arose out of a transaction primarily for personal or 

family use, the district court correctly concluded that they did not allege facts 

sufficient to support their state law claims.

AFFIRMED.

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