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FRANCESCHI v. MAUTNER-GLICK CORP.

October 8, 1998

CHRIS FRANCESCHI, Plaintiff,
v.
MAUTNER-GLICK CORP., and KING ENTERPRISES, LTD., Defendants.



The opinion of the court was delivered by: COTE

OPINION & ORDER

 DENISE COTE, District Judge:

 Plaintiff Chris Franceschi ("Franceschi") commenced this action against defendants King Enterprises, Ltd. ("King") and Mautner-Glick Corp. ("MGC") on April 23, 1998, alleging that both defendants violated the Fair Debt Collection Practices Act ("FDCPA" or the "Act"), 15 U.S.C. ยง 1692, et seq., while attempting to collect from him an overdue rent payment. The defendants have moved to dismiss Franceschi's Complaint for failure to state a claim pursuant to Rule 12(b)(6), Fed. R. Civ. P., on the ground that neither King nor MGC are "debt collectors" under the FDCPA, rendering the Act inapplicable. For the reasons set forth below, the defendants, motion is granted.

 BACKGROUND

 According to the Complaint, Franceschi was a tenant in a building owned by King. At some time during the course of his tenancy, the plaintiff incurred a debt to King by failing to pay the rent due under the terms of his rental agreement with MGC, King's management agent. According to the management agreement in effect during the time the alleged debt was incurred, MGC was under contract with King to select and enter into lease agreements with tenants, and to collect rent from tenants residing in several buildings owned by King, including the premises leased by plaintiff.

 On January 8, 1998, Franceschi, through his attorney, reportedly mailed payment to King's attorney pursuant to a settlement agreement reached to resolve the plaintiff's debt. It is the plaintiff's contention that this payment constituted a final and complete settlement of his debt to King.

 On January 9, 1998, MGC sent a letter to Franceschi that read as follows:

 
TAKE NOTICE: THAT YOU ARE JUSTLY INDEBTED TO THE LANDLORD OF THE ABOVE PREMISES IN THE SUM OF $ 134.62 FOR RENT OF SAID PREMISES WHICH YOU ARE HEREBY REQUESTED TO PAY ON OR BEFORE THE EXPIRATION OF THREE DAYS FROM RECEIPT OF THIS NOTICE, IN DEFAULT OF WHICH THE LANDLORD WILL EXERCISE HIS LEGAL REMEDY, THE COST OF WHICH MAY BE ADDED TO YOUR BALANCE DUE.
 
PAYMENTS MADE WITHIN THE LAST 3 DAYS MAY NOT BE REFLECTED ON THIS NOTICE.

 Franceschi claims that in sending this letter, MGC was acting as a "debt collector" as defined in the FDCPA, and violated the Act Specifically, Plaintiff contends that MGC, through its letter, violated the FDCPA by: (1) directly contacting a party known to be represented by counsel; (2) failing to disclose clearly that it was attempting to collect a debt, and that any information obtained would be used for that purpose; (3) failing to provide adequate information concerning notice and validation of the debt required by the FDCPA; and (4) falsely representing the character, amount, or legal status of the debt by not recognizing that the debt had been previously settled with King. Plaintiff also requests class certification.

 King is alleged to have violated the FDCPA as well by using a name other than its own -- MGC's name -- in attempting to collect a debt, and thereby losing the protection from liability afforded to creditors by the Act. King is further alleged to be liable under Section 1692j of the Act.

 The primary issue presented on this motion is whether the plaintiff's allegations as presented in the complaint suffice to establish that the FDCPA applies to MGC and to King. In addressing this issue, the Court must first decide whether either MGC or King may be considered a "debt collector" for purposes of the Act.

 DISCUSSION

 1. The Standard and Scope of Review

 A court may dismiss an action pursuant to Rule 12(b)(6), Fed. R. Civ. P., only if "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which will entitle him to relief.'" Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). In considering the motion, the court must take "as true the facts alleged in the complaint and draw[] all reasonable inferences in the plaintiff's favor." Jackson Nat. Life Ins. v. Merrill Lynch & Co. 32 F.3d 697, 699-700 (2d Cir. 1994). The Court can dismiss the claim only if, assuming all facts alleged to be true, plaintiff still fails to plead the basic elements of a cause of action.

 The parties have included numerous documents with their their submissions to the Court on this motion, including a management agreement between King and MGC and the rental agreements between Franceschi and MGC. *fn1" Although Franceschi did not attach the management or rental agreements to his complaint, he referred to each of them in his pleading and relied on their contents in stating his claim. As the Court informed the parties at an April 24, 1998 conference, the rental agreement in particular appears to be integral to the complaint. There was, therefore, "undisputed notice to plaintiffs of the[] contents [of the two agreements] and they were integral to plaintiff['s] claim." Cortec Industries, Inc. v. Sum Holding, L.P., 949 F.2d 42, 48 (2d Cir. 1991). In these circumstances, it is well ...


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