### 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 the ir role in the collection of debt owed to Wells Fargo Bank

. We AFFIRM. Sometime before November 2010, the Garc ias allegedly incurred a debt to Wells Fargo Bank

. On November 1 7 , 2010, the Garcias received a collection

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED May 29, 2014 Lyle W. Cayce Clerk Case: 13-10886 Document: 00512645153 Page: 1 Date Filed: 05/29/2014No. 13

- 10886 letter from the Dudley Law Firm . The attorneys were acting on behalf of Primary Financial Services . They instructed the Garcias to make prompt

arr angements 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 b egin pay ing o n 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 letter s , the Garcias replied to Jenkins/Babb with a copy to the Dudley f irm, demanding that it stop all collection action and provide them with proof of their debt

. Jenkins/Babb provided t he Garcias with documents related to their loan. On March 31, 201 1 , 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. T he Garcias responded with their own suit in federal court against the companies and individuals involved in the attempted collection of this debt. This app eal pertains strictly to Defendants Jenkins/Babb, Robert Jenkins, and Jason Babb (collectively, the “Jenkins Defendants”)

. In their initial complain t , the Garcias alle ge d 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 Practic es Act (“ T DTPA”)

. 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, 2 Case: 13-10886 Document: 00512645153 Page: 2 Date Filed: 05/29/2014No. 13

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and the Jenkins Defendants again moved to dismiss. T he district judge accepted the magistrate judge’s renewed recommendation that th e claims be dismissed with prejudice

. Appeal is proper because j udgment 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 complain t 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 cau se 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 “ p rimarily for personal , family, or household purposes” q ualify 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 o n 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). Foc using 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 method s .” Id. (emphasis in original). 3 Case: 13-10886 Document: 00512645153 Page: 3 Date Filed: 05/29/2014No. 13

- 10886 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 findi ng, 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 all egation 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 eno ugh to establish their claim. The district court was correct, though, because the third amended complaint’s recitation of Section 16 92a(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 d ebt but the original transaction is not described . E ven in their briefing, the G arcias attack the district court’s opinion but give no indication what item was purchased or what service was paid for, mu ch 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 c laims with prejudice.

1 The district court also found that Jason Babb could not be individually or vicariou sly liable for the acts of the LLC. We ch o ose not to review this issue in light of our finding that the Garcias’ FDCPA claim had another flaw. 4 Case: 13-10886 Document: 00512645153 Page: 4 Date Filed: 05/29/2014No. 13

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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

un specified violations made act ionable through the TDCPA’s tie in with the
T DTPA. See T EX

. F IN

. C ODE

. A NN

. § § 392.304(a)(19 ) & 392.404(a) . They also invoked the T DTPA’s complimentary provision granting a private right of action to consumers ha rmed by viola tions of the TDCPA. T EX

. B US

. & C OM

. C ODE A NN

. § 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. ” T EX

. F IN

. C ODE

. A NN

. § 392.001(2); see also Guajardo v. GC Serv s

. , LP , 498 F. App’x 379, 382 (5th Cir. 2012). Similarly, “t o qualify as

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

o r services by purch ase 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 representat ions” or “deceptive means” in their collection efforts. See T EX

. F IN

. C ODE

. A NN

. §§ 392.304(a)(19). The Ga r cias 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

5 Case: 13-10886 Document: 00512645153 Page: 5 Date Filed: 05/29/2014No. 13

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wa s false. After reviewing t he third amended complaint , we find a history of the defendants’ collection efforts but nothing that rise s to the level of a false, fraudulent, or deceptive collection technique.
T he Garcias ’ TDCPA stand

- alone claim s and their cl aims through its tie

in provision fail for the same r eason 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 T EX

. F IN

. C ODE

. A NN

. § 392.001(2). The T DTPA
i ndependently 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 pe rsonal or family use, the district court correctly concluded that they did not al lege facts sufficient to support their state law claims. AFFIRMED.

6 Case: 13-10886 Document: 00512645153 Page: 6 Date Filed: 05/29/2014