Opinion
No. CIV-00-211-T
April 5, 2001
ORDER
Before the court is the motion of defendant Credit Collections, Inc. ("CCI") to dismiss plaintiffs' claims arising under the Oklahoma Consumer Protection Act, Okla. Stat. tit. 15 § 751 et seq. ("OCPA"), set forth in plaintiffs' third cause of action. Also before the court is the motion of Lakeside Women's Center of Oklahoma City ("Lakeside"), named in the amended complaint as Renaissance Women's Center, to dismiss plaintiffs' OCPA claim against it, set forth in plaintiffs' second cause of action. Pursuant to Fed.R.Civ.P. 12(b)(6), both Lakeside and CCI argue that the second and third causes of action fail to state a claim for relief. Plaintiffs have timely responded to the separate motions. Because the motions raise substantially similar arguments, both are addressed in this order.
Lakeside initially seeks dismissal because it is incorrectly named in the amended complaint; however, it acknowledges that this defect can readily be cured, and seeks dismissal on the merits of the claim asserted against it. The parties do not dispute that Lakeside is the proper name of the hospital to whom plaintiffs owe a debt. The court deems the amended complaint to be amended to substitute Lakeside as the proper party defendant in place of Renaissance.
Lakeside suggests that its motion should be treated as one for summary judgment because Lakeside has referred to matters outside the pleadings. However, the court concludes that the issues raised by its motion do not require reference to matters other than the allegations in the amended complaint. The issue is whether those allegations, taken as true for purposes of a motion to dismiss, can state a claim for relief against Lakeside. Accordingly, the court need not examine materials outside the scope of the pleadings, and the motion need not be converted to a motion for summary judgment. Fed.R.Civ.P. 12(b).
Plaintiffs' action is based on efforts by CCI to collect a debt which plaintiffs admittedly owe to defendant Lakeside. The debt was incurred while plaintiff Lorrie Melvin was hospitalized during the birth of her daughter in 1998. Plaintiffs' daughter was later diagnosed with leukemia; she was hospitalized almost continuously from January, 1999 until her death in August, 1999. After Lakeside unsuccessful sought to collect the plaintiffs' debt, it was referred to CC1 for collection. Plaintiffs' claims are based on CCI's conduct in its collection efforts, which it claims violate both the federal Fair Debt Collection Practices Act ("FDCPA") and the OCPA. Plaintiffs' claims against Lakeside are limited to the OCPA; plaintiffs do not assert an FDCPA claim against Lakeside and agree that it is not a "debt collector" for FDCPA purposes.
CCI's motion is directed only at the OCPA claim it contends that the plain language of the statutes and the rules of statutory construction establish that the OCPA does not apply to collection agencies. Plaintiffs argue that the OCPA can and should be interpreted to apply to collection agencies.
CCI does not seek dismissal of the FDCPA claims; it does not dispute that the federal act applies to it, although it denies liability under that act. The court previously ruled on CCI's motion for summary judgment on plaintiffs' federal claims, granting its motion in part and denying it in part.
The parties acknowledge the absence of Oklahoma law on this question. Plaintiffs rely on decisions from other states interpreting the provisions of their respective consumer protection laws. CCI notes that, in an action brought by these same plaintiffs against another collection agency, the Honorable David L. Russell held that the OCPA does not apply to collection agencies. Melvin v. Nationwide Debt Recovery, Inc. et al., No. CIV-00-212-R (August 24, 2000).
The OCPA is designed to provide "for protection to buyers against fraud and certain other practices by sellers." Okla. Stat. tit. 15 § 751. Plaintiffs expressly allege that CCI violated § 732 (20) of the OCPA, which provides in pertinent part:
A person engages in a practice which is declared to be unlawful under the Oklahoma Consumer Protection Act, Section 751 e seq. of this title, when, in the course of the person's business, the person: . . .20. Commits an unfair or deceptive trade practice as defined in Section 752 of this title;
According to the definition in § 752:
"Deceptive trade practice" means a misrepresentation, omission or other practice that has deceived or could reasonably be expected to deceive or mislead a person to the detriment of that person. Such a practice may occur before, during or after a consumer transaction is entered into and may be written or oral;
Okla. Stat. tit. 15 § 752 (11). An "unfair trade practice" is defined as "[A]ny practice which offends established public policy or if the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers." Okla. Stat. tit. 15 § 752 (12). The word "consumer" is not defined in the OCPA. However, "consumer transaction" is defined as follows:
"Consumer transaction" means the advertising, offering for sale or purchase, sale purchase, or distribution of any services or any property, tangible or intangible, real, personal, or mixes, or any other article, commodity, or thing of value wherever located, for purposes that are personal, household, or business oriented.
Okla. Stat. tit. 15 § 752(2). The OCPA contains no reference to debt collection practices. It contains one reference to the federal Fair Debt Collection Practices Act. That reference is included in a provision, added in 1991, which addresses the use of automatic dialing announcing devices, and expressly restricts the time periods in which such devices can be used. It provides, inter alia, that such calls are not to be made ". . . at any hour that collection calls would be prohibited under the federal Fair Debt Collection Practices Act . . . when the device is used for collection purposes." Okla. Stat. tit. 15 § 755.1. No other provision of the OCPA contains any reference to collection agencies, debt collection activities, or any other practice that arguably could be interpreted as a collection effort.
Defendant notes the absence of such language and also points to the OCPA's repeated reference to a "consumer transaction" as the basis for potential liability under the act. See Okla. Stat. tit. 15 § 761.1(B). Although this provision includes the use of the words "consumer" and "customer" in addition to "consumer transaction," neither this subsection nor any other provision of the OCPA defines these terms.
In contrast, the federal Fair Debt Collection Practices Act contains a definition of consumer as "any natural person obligated or allegedly obligated to pay any debt." 15 U.S.C. § 1692a(3). It further expressly states that its purpose is to eliminate "abusive debt collection practices" and to "protect consumers against debt collection abuses." 15 U.S.C. § 1692(e).
Plaintiffs contend that the OCPA may nevertheless be interpreted to apply to collection efforts as a part of the consumer transaction on which the debt is based. The statute provides in part that a deceptive trade practice which may occur, inter alia, "after a consumer transaction is entered into." § 752 (11).
The primary goal of statutory construction is to determine legislative intent, which is ascertained from the statute in light of its general purpose and object. TXO Production Corp. v. Oklahoma Corp. Comm'n, 829 P.2d 964, 968-69 (Okla. 1992). In examining the statute for this purpose, words utilized are to be understood in their ordinary sense, except when a contrary intention plainly appears. Okla. Stat. tit 25 § 1.
Although some states have interpreted their respective consumer protection acts to apply to debt collection activities, there is no authority interpreting Oklahoma's statute in this manner. Applying the rules of statutory construction, the OCPA is intended to apply to consumer transactions. Plaintiffs did not engage in a consumer transaction with CCI; the only transaction in which they engaged involved the services provided by defendant Lakeside. Absent an expression of legislative intent to extend the OCPA to debt collection activities, the court finds that the language of the statute does not permit that construction.
Accordingly, the court concludes that the OCPA does not apply to debt collection activities by a third party. Therefore, CCI's motion to dismiss plaintiffs' third cause of action is GRANTED.
Lakeside also contends that the OCPA does not apply to its conduct in these circumstances. Plaintiffs' OCPA claim against it is as follows:
Defendant Womens Renaissance Center's failure to communicate to Defendant Credit Collections, Inc. information necessary to enable it to comply with the Fair Debt Collection Practices Act constitutes an "unfair trade practice" and is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers in violation of 15 U.S.C. § 752 (12) and § 753 (20).
The court construes the "U.S.C." statutory reference to be a drafting error, as the language quoted by plaintiffs does not appear in the federal statute. The OCPA is found at title 15 of the Oklahoma statutes, and the language quoted by plaintiffs is found in sections 752 (12) and 753 (20) of the OCPA. Furthermore, plaintiffs are not attempting to assert a federal claim against Lakeside.
Amended Complaint, ¶ 21. According to plaintiffs' allegations, CCI telephoned them concerning the debt, notwithstanding the fact that plaintiffs had expressly asked Lakeside to refrain from contacting plaintiffs at work or by telephone in connection with efforts to collect the debt owed to Lakeside. Amended Complaint, ¶ 6. Plaintiffs allege that this request was made pursuant to 15 U.S.C. § 1692 (a)(3), which requires that a debt collector refrain from such communications upon the debtors' request; they allege that CCI continued to contact them by telephone, in violation of the statute. Amended Complaint ¶¶ 9, 11, 12, 15. Plaintiffs allege that CCI did so despite having knowledge of their request or, alternatively, that Lakeside failed to communicate their request to CCI. Amended Complaint, ¶ 10. Plaintiffs allege that Lakeside's failure to communicate their request constitutes an unfair trade practice which is actionable under the OCPA. Amended Complaint, ¶ 21.
CCI contends that Lakeside did not inform it that plaintiffs had made this request. Because plaintiffs allege a basis for relief against Lakeside in the alternative. CCI's denial does not affect the court's determination of the motions.
As noted above, the OCPA contains no provisions which may be construed as including debt collection practices as a part of its prohibited actions. The act does, as plaintiffs note, apply to conduct before, during and after a consumer transaction. Okla. Stat. tit. 15 § 752 (11). However, plaintiffs offer no persuasive authority to support their construction of this subsection as applying to a creditor's efforts to collect a debt resulting from the consumer transaction. Here, plaintiffs attempt to bring within the scope of the OCPA an alleged omission of Lakeside when it communicated with a third party, CCI, in an effort to collect the debt. The court concludes that, absent persuasive authority, this construction of the statute is not supported by the statutory language or the rules of statutory construction. Consequently, the court concludes that the second cause of action in the amended complaint fails to state a claim for relief against Lakeside under the OCPA. Lakeside's motion to dismiss is GRANTED.
In accordance with the foregoing, the motion of defendant CCI to dismiss the third cause of action in the amended complaint [Docket No. 39] is GRANTED. The motion of Lakeside to dismiss the second cause of action [Docket No. 41] is GRANTED. The action will proceed on plaintiffs' remaining claims arising under the FDCPA against defendant CCI.