In Ambriz v. Patenaude and Felix, A.P.C., 2013 WL 2444648 (S.D.Cal. 2013), Judge Whelan allowed an FDCPA action to proceed against debt collection law firm who dismissed a state court collection claim without prejudice.

Defendant argues that a state court collection complaint cannot form the basis for an FDCPA claim. Defendant cites Heintz v. Jenkins, 514 U.S. 291, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995), for the proposition that one cannot use an opposing party’s loss at trial as the sole basis for an FDCPA claim. The Court is not persuaded by this argument for several reasons. ¶  First, while it may be true that one cannot use an opposing party’s loss at trial as the sole basis for an FDCPA suit, it does not follow that no state court litigation may serve as the basis for an FDCPA claim. As an initial matter, Defendant fails to point to a single case in which a court dismissed a claim under the FDCPA because it arose from state court litigation. Defendant instead relies on Hemmingsen v. Messerli & Kramer, P.A., 674 F.3d 814 (8th Cir.2012), for the proposition that “collection complaint allegations were never intended to provide a basis for FDCPA violations.” (MTD at 8.) However, Hemmingsen affirmed the dismissal of FDCPA claims because the court found that the defendant’s actions in the underlying state court action were not false or misleading, not because the case arose out of state court litigation. ¶  Second, Plaintiff does not allege that his claim is based solely on the fact that Defendant’s state court suit was dismissed. Instead, Plaintiff alleges that he never entered into an account stated with American Express and thus, that the underlying basis for Defendant’s state court action is false. On a motion to dismiss, the court must accept as true the allegations in the complaint. Vasquez, 487 F.3d at 1249.