United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE
Smith ("Smith") has filed this lawsuit under the
Fair Debt Collections Practices Act ("FDCPA"). She
proceeds pro se and in forma pauperis
("IFP"). Smith has named as Defendants Nationwide
Mutual Insurance and Investment ("Nationwide") and
The McHughes Law Firm, LLC ("McHughes"). The case
is before the Court for screening pursuant to 28 U.S.C.
to the allegations of the Complaint and attachments thereto,
Smith was involved in a motor vehicle accident on January 20,
2006. Smith was given a traffic citation because of the
accident. Thereafter, on September 12, 2008, Nationwide
obtained a default judgment against Smith in the amount of
$2, 518.16. Nationwide was represented by McHughes.
the judgment was related to an automobile accident, McHughes
provided the State of Arkansas, Department of Finance and
Administration, Driver Services, Safety Responsibility
("Driver Services"), a copy of the default
judgment. A case, UJ 11668, was opened. On a number of
occasions over the next several years, McHughes would notify
Driver Services when Smith failed to make payments on the
judgment, and her license would be suspended. When Driver
Services was notified that payment arrangements had been
made, Smith was allowed, for a fee, to get her license
reinstated. This process occurred multiple times.
August 20, 201-2, McHughes notified Driver Services that the
judgment had been paid in full. The only activity that
occurred after that date was a letter from McHughes dated
January 28, 2013, to Driver Services stating that Smith was
behind on her payments. As the judgment had been satisfied,
this letter was in error.
Court is obligated to screen an IFP case prior to service of
process being issued. A claim is frivolous when it
"lacks an arguable basis either in law or fact."
Neitzke v. Williams, 490 U.S. 319, 325 (1989). A
claim fails to state a claim upon which relief may be granted
if it does not allege "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). The Court
bears in mind, however, that when "evaluating whether a
pro se plaintiff has asserted sufficient facts to
state a claim, we hold 'a pro se complaint,
however inartfully pleaded, ... to less stringent standards
than formal pleadings drafted by lawyers.'"
Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 20.14)
(quoting Erickson v. Pardus, 551 U.S. 89, 94
maintains Nationwide and McHughes violated the FDCPA by using
deceptive, coercive, and harassing methods of collection on
an insurance claim by means of a default judgment and the
repetitive suspension of her driver's license. A
plaintiff alleging a violation of the FDCPA, 15 U.S.C. §
1692 et seq., must demonstrate: (1) she has been the
object of collection activity arising from a consumer debt;
(2) the defendant attempting to collect the debt qualifies as
a debt collector under the Act; and (3) the defendant has
engaged in a prohibited act or has failed to perform a
requirement imposed by the Act. See, e.g., Pace v.
Portfolio Recovery Assocs., LLC, 872 F.Supp.2d 861, 864
(W.D. Mo. 2012).
first question is whether the collection activity arose from
a consumer debt. The term "consumer" is defined as
"any natural person obligated or allegedly obligated to
pay any debt." 15 U.S.C. § 1692a(3). The term
"debt" is defined as "any obligation or
alleged obligation of a consumer to pay money arising out of
a transaction in which the money, property, insurance, or
services which are the subject of the transaction are
primarily for personal, family, or household purposes,
whether or not such obligation has been reduced to
judgment." 15 U.S.C. § 1692a(5). A civil judgment
arising out of an automobile accident is not a consumer debt
within the meaning of the FDCPA. See, e.g., Antoine v.
State Farm Mut. Auto. Ins. Co., 662 F.Supp.2d 1318, 1326
(M.D. Fla. 2009) (concluding a judgment obtained by an
insurer as the result of an automobile accident was not a
consumer debt and applying the same analysis to the Florida
Consumer Collection Practices Act and the FDCPA). Clearly,
the debt at issue was not a debt incurred by a consumer for
primarily personal, family, or household purposes.
none of the facts alleged in the Complaint and attachments
describe deceptive debt collection practices that are
prohibited under the law. While threatening legal action when
no such action will be filed can amount to a violation of the
FDCPA, the use of legal action does not violate the FDCPA.
Duffy v. Landberg, 215 F.3d 871, 873 (8th Cir. 2000)
("[l]t is a violation of the FDCPA to threaten to
'take any action that cannot legally be taken.' 15
event, any claims under the FDCPA are barred by the one-year
statute of limitations. 15 U.S.C. § 1692k(d) ("[A]n
action . . . may be brought. . . within one year from the
date on which the violation occurs"). In Mattson v.
U.S. West Communications, Inc., 997 F.2d 259, 261 (8th
Cir. 1992), the Eighth Circuit treated the one-year statute
of limitations as jurisdictional in nature. In Hageman v.
Barton, 817 F.3d 611, 616 (8th Cir. 2016), the Eighth
Circuit was presented with the argument that equitable
tolling applied to the FDCPA statute of limitations. The
Eighth Circuit noted that "[i]t is well established, as
a general matter in the Eighth Circuit, that jurisdictional
limitations periods are not subject to equitable
tolling." Id. The court concluded that it was
required to follow the earlier ruling set forth in
Mattson despite the court's failure to explain
its conclusion that the limitation period was jurisdictional.
Id. at 617. Here, the last act identified by the
Smith was the letter sent by McHughes on January 28, 2013.
Clearly, Smith's claims under the FDCPA are time-barred.
Arkansas Deceptive Trade Practices Act