In Hambrick v. Wells Fargo Bank, N.A., 2009 WL 1532676 (N.D.Miss. 2009), Judge Pepper required a Plaintiff to plead each element of the definition of “debt collector”, denying the Plaintiff the right to conduct discovery in order to be able to plead one of the elements. The issue involved whether, when Wells Fargo took assignment of the debt, the debt was not in default. The Court required Plaintiff to plead that issue under FRCP 11, explaining:
[T]he plaintiffs argue that ruling upon the eighth cause of action, breach of the Fair Debt Collection Practices Act, 15 U. S .C. § 1692, et seq., would be premature because discovery has not yet been complete which would verify whether or not the debt in question was in default at the time it was assigned to Wells Fargo. The plaintiffs maintain that this question is material because the Fifth Circuit in Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.1985) ruled that with regard to the FDCPA, “a debt collector does not include the consumer’s creditors, a mortgage service company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned.” ¶ Citing Motley v. Homecomings Financial, LLC, 557 F.Supp.2d 1005, 1009 (D.Minn.2008), Wells Fargo contends in its reply that under the new Rule 12(b)(6) standard announced Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the plaintiff’s FDCPA claim cannot meet the beyond-speculation standard based on the hope that discovery might establish that the debt in question was in default when transferred to Wells Fargo. Indeed, as the defendant points out, the plaintiff does not even allege that the debt was in default. Furthermore, it remains undisputed that Wells Fargo has established that it was not in default. Agreeing with the district court in Motley, the court concludes that the plaintiff cannot meet the Twombly standard regarding count eight. Accordingly, pursuant to Rule 12(b)(6), the court concludes that this claim should be dismissed for failure to state a claim.