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GOLDSTEIN v. HUTTON

March 18, 1999

SARAH GOLDSTEIN, PLAINTIFF,
v.
HUTTON, INGRAM, YUZEK, GAINEN CARROLL & BERTOLOTTI, DEFENDANT.



The opinion of the court was delivered by: Cedarbaum, District Judge.

OPINION

Plaintiff Sarah Goldstein commenced this putative class action suit against defendant Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti ("Hutton"), a New York City law firm, for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692-1692o ("FDCPA"). Hutton moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. For the reasons that follow, Hutton's motion is denied.

Background

According to the complaint, plaintiff incurred a personal debt to Stahl York Avenue Co. ("Stahl") by failing to make certain rent payments on her apartment. She received a notice, dated January 7, 1998, demanding payment of $2,583.02 for past due rent (the "Notice"). The Notice, which is attached to the complaint and incorporated by reference thereto, has the heading "THREE DAY NOTICE," and it states:

  PLEASE TAKE NOTICE that you are hereby required to pay
  to Stahl York Avenue Co landlord of the above
  described premises, the sum of $2,583.02 for rent of
  the premises [from August

  1997 through January 1998 at the rate of $430.27 per
  month].
  You arc required to pay within three days from the day
  of service of this notice, or to give up possession of
  the premises to the landlord. If you fail to pay or to
  give up the premises, the landlord will commence
  summary proceedings against you to recover possession
  of the premises.

(Compl.Ex. 2). The Notice is signed by a vice president of Charles H. Greenthal Management Corp. as agent for Stahl*fn1. Even though the Notice is signed by an agent of Stahl, it appears that Hutton is involved in the collection of the rent arrears because the top of the Notice reads as follows:

  Hutton, Ingram, Yuzek, Gainen, Carrol & Bertolotti
  Attorneys For Landlord 250 Park Avenue 6th Fl. New
  York, New York 10177

In addition, Hutton's name and return address appear on both the envelope in which the Notice was mailed and the certified mail receipt for the Notice. (Compl.Ex. 2).

According to the complaint, Hutton is a "(lebt collector" as defined by the FDCPA, 15 U.S.C. § 1692a(6), "in that it regularly attempts to directly or indirectly collect debts owed to [Stahl] and other landlords" (Compl.¶ 4), and the Notice, allegedly the initial communication from Hutton to plaintiff, (1) violates 15 U.S.C. § 1692g because it lacks a thirty day validation notice (Compl.¶ 14) and is inconsistent with the requirement that the plaintiff be advised of and be given a thirty day period in which to dispute the bill (Compl.¶ 15); (2) fails to disclose clearly that Hutton was attempting to collect a debt and that any information obtained would be used for that purpose, as required by 15 U.S.C. § 1692e(11) (Compl.¶ 19); and (3) contains threats to take actions that could not legally be taken, or that were not intended to be taken, in violation of 15 U.S.C. § 1692e(5). (Compl.¶ 20).

Hutton moves to dismiss the complaint on the grounds that (1) Hutton is not a "debt collector" under the FDCPA; (2) the service of the Notice is legal process and therefore Hutton is excluded from the definition of a debt collector under the legal process exemption in 15 U.S.C. § 1692a(6)(D); (3) rent arrears are not a "debt" within the meaning of the FDCPA; (4) the Notice is not a "communication" within the meaning of the FDCPA; (5) the FDCPA should be narrowly construed to avoid preempting New York's landlord-tenant procedures; (6) the rent arrears arose out of an illegal sublet, and are therefore excluded from the FDCPA's definition of debt (15 U.S.C. § 1692a(5)); and (7) the FDCPA represents an unconstitutional taking. In its reply memorandum, Hutton also argues that the Notice is not the initial communication to plaintiff.

Discussion

On a motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6), the court must take the allegations of the complaint as true and draw all reasonable inferences in plaintiff's favor. The motion may then be granted only if it appears beyond a doubt that plaintiff does not have a claim entitling her to relief. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied, 513 U.S. 816, 115 S.Ct. 73, 130 L.Ed.2d 28 (1994).


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