District Court (Miss.) Finds Counter-Claim on Debt Permissive rather than Compulsory to FDCPA Claim

In Jobe v. Alliance Collection Service, 2012 WL 3985182 (N.D.Miss. 2012), Judge Aycock held that a debt collector’s counter-claim to an FDCPA claim to collect on the debt itself was permissive, rather than compulsory, and declined to exercise jurisdiction over it.

Although the Fifth Circuit has not directly addressed the question of whether an action to collect on an underlying loan transaction arises from the same aggregate of operative facts as does an FDCPA claim based on the creditor’s attempt to make good on that loan, at least two district courts in our Circuit have confronted this question. Those courts both held that such a counterclaim does not arise from the same aggregate of operative facts, and thus fails to meet the “logical relationship test.” See Barcena v. TAM Fin. Corp., 2007 WL 1452587, *3 (W.D.Tex. May 8, 2007), Hurtado v. TAM Fin. Corp., 2007 WL 1746884, * 2 (W .D. Tex. June 5, 2007). ¶  These holdings are additionally widely supported by various other courts. See, e.g., Peterson v. United Accounts, Inc., 638 F.2d 1134, 1136 (8th Cir.1981) (finding that because a counterclaim for the underly-ing debt was merely permissive, defendant had not waived it by failing to bring it in response to plaintiff’s FDCPA claim); Bakewell v. Federal Fin. Group, Inc., 2006 WL 739807, *1 (N.D.Ga. Mar. 21, 2006) (holding FDCPA responsive counterclaim merely permissive); Sparrow v. Mazda Amer. Credit, 385 F.Supp.2d 1063, 1063 (E.D.Cal.2005) (finding the counterclaim too distinct to be compulsory); Hart v. Clayton–Parker and Assoc. Inc., 869 F.Supp. 774, 774 (D.Ariz.1994) (summarizing pertinent case law and finding all published decisions to find FDCPA counterclaims permissive); Leatherwood v. Universal Business Serv. Co., 115 F.R.D. 48, 49 (W.D.N.Y.1987). In Hart, for instance, the court also found the facts giving rise to the FDCPA violation and those of the underlying defense to be too discrete. 869 F.Supp. at 777. The court in Hart concluded that the plaintiff’s claim turned exclusively on the content of defendant’s demand for payments, rendering inapposite any consideration of the validity of the actual debt. Id. Moreover, the defendant’s counterclaim required broad proof of facts regarding state contract law. Id. ¶ . . . Because Defendant’s counterclaim for the un-derlying debt obligation is permissive rather than compulsory and the Court declines to exercise § 1367 Supplemental Jurisdiction, the Plaintiff’s Motion to Dismiss is hereby GRANTED.