United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
Webber Wright UNITED STATES DISTRICT JUDGE
Beavers brings this action against Midland Funding, LLC,
Midland Credit Management, Inc., and Lloyd & McDaniel
alleging these defendants violated the Fair Debt Collection
Practices Act (FDCPA), 15 U.S.C. § 1692 et
seq., the Arkansas Fair Debt Collection Practices Act
(AFDCPA), Ark. Code Ann. § 17-24-501 et seq.,
and the Arkansas Deceptive Trade Practices Act (ADTPA), Ark.
Code Ann. § 4-88-101 et seq., in their attempts
to collect an alleged credit card debt she owed.
matter is before the Court on motion [doc.#7] of defendants
to dismiss Beavers' complaint on several grounds,
including that her FDCPA claim is time-barred. Beavers has
responded in opposition to defendants' motion and
defendants have replied to Beavers' response. For the
reasons that follow, the Court grants defendants' motion
to dismiss Beavers' FDCPA claim as time-barred and
declines to exercise supplemental jurisdiction over her state
law AFDCPA and ADTPA claims.
action under the FDCPA must be brought “within one year
from the date on which the violation occurs.” 15 U.S.C.
§ 1692k(d). This one-year limitations period is
triggered when the debt collector had “its last
opportunity to comply with the FDCPA.” Mattson v.
U.S. West Communications, Inc., 967 F.2d 259, 261
(8th Cir. 1992).
filed this action alleging violations of the FDCPA on
December 8, 2016. In her complaint, Beavers alleges that over
one year earlier, on December 2, 2015, defendants filed a
debt collection action against her in state court on a credit
card debt she does not owe and that the filing of the
collection action violated the FDCPA, the AFDCPA, and the
ADTPA. Beavers was served with the complaint, which included
an alleged false affidavit, on December 10, 2015, within one
year of filing this action.
argue that any alleged false statements in its debt
collection action were made and communicated when the action
was filed and as that was the last opportunity for defendants
to comply with the FDCPA, the statute of limitations began to
run on the date when the collection action was filed.
Beavers, in turn, argues that an FDCPA claim based on the
filing of a debt collection action begins to run on the date
the complaint is served, not filed, and that because she was
not served with the complaint until December 10, 2015, her
FDCPA claim is timely.
are split as to when the FDCPA's one-year statute of
limitations in cases based on an underlying debt collection
action begins to run (and, apparently, are split about
Mattson). Some courts hold that the limitations
period in such cases begins to run upon the filing date of
the collection action. See, e.g., Naas v. Stolman,
130 F.3d 892, 893 (9th Cir. 1997) (relying, in
part, on Mattson and holding that the
“[f]iling a complaint is the debt collector's last
opportunity to comply with the Act, and the filing date is
easily ascertainable”); Tyler v. DH Capital
Management, Inc., 736 F.3d 455, 463 (6th Cir.
2013) (citing Mattson and holding that violation of
FDCPA that arose through debt collection action occurred at
filing of complaint rather than when debtor was served with
complaint). Other courts hold that the limitations period
begins to run when the complaint is served, as opposed to
when the complaint is filed. See, e.g., Johnson v.
Riddle, 305 F.3d 1107, 1113-14 (10th Cir.
2002) (holding that where the plaintiff's FDCPA claim
arises from the instigation of a debt collection action, the
plaintiff does not have a complete and present cause of
action and thus no violation occurs within the meaning of
§ 1692k(d) until the plaintiff has been served, noting
that if the statute of limitations began to run when the
complaint was filed, the debt collector could effectively
block any action under the federal statute by filing suit and
then delaying service); Serna v. Law Office of Joseph
Onwuteaka, P.S., 732 F.3d 440, 445 (5th Cir.
2013) (comparing Mattson and noting that “when
a debt collector files suit against an alleged debtor in
contravention of § 1692i(a)(2), no harm immediately
occurs because the debtor likely has no knowledge of the suit
and has no need to act” and “[b]ecause the harm
of responding to a suit in a distant forum arises only after
receiving notice of that suit, a ‘violation' does
not arise under § 1692i(a)(2) until such time as the
alleged debtor receives notice of the suit.”).
courts within the Eighth Circuit also appear to be split as
to when the FDCPA's statute of limitations in cases based
on a debt collection action begins to run. Cf. Boldon v.
Riverwalk Holdings, Ltd, Civ. No. 15-2105, 2016 WL
900639, at *4 (D. Minn. March 9, 2016) (determining that a
new FDCPA limitations period began to run on the date
complaint was filed as that was defendants' last
opportunity to comply with the FDCPA), and Knobbe v. Bank
of America, N.A., No. 8:05cv489, 2007 WL 2822750, at *7
(D. Neb. Sept. 26, 2007) (rejecting plaintiff's argument
that any attempt to engage in a collection, including any
court action, is a continuing violation and citing
Naas as holding that “one-year statute of
limitations began to run on judgment debtors' FDCPA claim
against judgment creditor and its attorneys as of filing of
judgment creditor's complaint in state court debt
collection suit, on which claim was based”), with
Anderson v. Gamache & Myers, P.C., No.
4:07cv336, 2007 WL 1577610, at *8 (E.D. Mo. May 31, 2007)
(finding Johnson's reasoning and interpretation
of Mattson persuasive and noting that “[i]f
the statute of limitations were to run while a defendant
delayed service, the result would be absurd and in
contradiction of the policy behind the FDCPA” and that
“the date of service is a precise and easily
ascertainable date.”), and Wyles v. Excalibur I,
LLC, No. Civ. 05-2798JRTJJG, 2006 WL 2583200, at *3 (D.
Minn. Sept. 7, 2006) (finding, under the reasoning in
Mattson, that plaintiff's cause of action
accrued the date she was served with the collection action,
because that was the last opportunity for the debt collector
to comply with the FDCPA).
the most detailed analysis of the limitations issue before
the Court was set forth by the Sixth Circuit in
Tyler, 736 F.3d 455. In finding that a violation of
the FDCPA that arose through a debt collection action
occurred at the filing of the complaint rather than when the
debtor was served with the complaint, the Sixth Circuit
reasoned as follows:
First, filing a complaint may cause actual harm to the
debtor: a pending legal action, even pre-service, could be a
red flag to the debtor's other creditors and anyone who
runs a background or credit check, including landlords and
employers. The debt collector may also use the pending legal
action to pressure a debtor to pay back the debt informally,
without serving the complaint-precisely the type of unfair
practice prohibited by the FDCPA. See 15 U.S.C. §
1692e(5) (“The threat to take any action that cannot
legally be taken or that is not intended to be
Second, the alternative to dating violations from the filing
of the complaint can become factually complicated. An
“attempt to collect” will often occur before
service of process. A debt collector who attempts to serve
process but does not follow proper procedure or fails to find
the debtor at all is surely attempting to collect a debt. The
debt collector's procedural failures or the debtor's
success in escaping service should not be relevant to the
viability of an FDCPA claim. Dating the violation to the
filing of the action is more easily administrable …
and, in the vast majority of cases, will accord with the debt
collector's intent at the time of filing. Courts have
applied a similar bright-line-rule approach in determining
when the statute of limitations accrues for harassing
collection letters. Instead of running from the date of
receipt, the statute runs from the mailing date, as it is
“fixed by objective and visible standards” and
“easy to determine.” Mattson v. U.S. West
Commc'ns, 967 F.2d 259, 261 (8th Cir.1992).
Third, there is no good reason to protect debt collectors who
have filed complaints but not yet served process. As the
purpose of the FDCPA “is to regulate the actions of
debt collectors, ” Naas, 130 F.3d at 893, the
focus should be on the debt collector's actions, not on
the awareness of the debtor. Filing suit is good evidence of
an attempt to collect, and the complaint is good evidence of
the details of that attempt. If the debt collector truly
filed accidently or prematurely, the FDCPA's “bona
fide error” exception is better suited ...