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POWERS v. PROFESSIONAL CREDIT SERVICES

August 1, 2000

CLAIRE POWERS, PLAINTIFF,
V.
PROFESSIONAL CREDIT SERVICES, INC., DEFENDANT



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

DECISION AND ORDER

Plaintiff alleges that the Defendant violated the Fair Debt Collection Practice Act, ("FDCPA") 15 U.S.C. § 1692, which prohibits debt collectors from engaging in abusive, deceptive, and unfair collection practices.

Presently before this Court is Defendant's motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6), and for fees, costs and sanctions pursuant to § 1692(k) of the FDCPA. For the reasons set forth below, Defendant's motion is denied.

I. BACKGROUND

By letter, on or about July 3, 1998, the Law Office of Andrew F. Capoccia, LLC notified Defendant's client, World Financial Network Bank/Lane Bryant, Inc., that it had been retained to represent Plaintiff with respect to an account Plaintiff maintained with World Financial Network Bank/Lane Bryant, Inc. The letter instructed the bank to close the referenced account, direct all further communication to the Capoccia Firm, and refrain from directly contacting Plaintiff either at her home or place of business. On January 28, 1999, Plaintiff's account was settled with World Financial Network Bank/Lane Bryant, Inc. by the Capoccia Firm in full for $324.65.

II. DISCUSSION

A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) must be denied "unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief." See Conley v. Gibson, 355 U.S. 41. 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In assessing the sufficiency of a pleading, "all factual allegations in the complaint must be taken as true," LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991), and all reasonable inferences must be construed in favor of the Plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Bankers Trust Co. v. Rhoades, 859 F.2d 1096. 1099 (2d Cir. 1988), cert. denied sub now., Soifer v. Bankers Trust Co., 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989).

[C]onsideration is limited to the factual allegations in [the] complaint, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in Plaintiffs' possession or of which Plaintiffs had knowledge and relied on in bringing suit.

See Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993).

The Rules do not require the Plaintiff to set out in detail the facts upon which the claim is based, but only that a defendant be given "fair notice of what the claim is and the grounds upon which it rests." See Conley v. Gibson, 355 U.S. 41, 45-46. 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Individual allegations, however, that are so baldly conclusory that they fail to give notice of the basic events and circumstances of which the Plaintiff complains are meaningless as a practical matter and, as a matter of law, insufficient to state a claim. See Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987).

A. FDCPA

1. First Cause of Action

Plaintiff's first cause of action relies upon ยง 1692c(a)(2)'s requirement that the debt collector may not communicate with a consumer in connection with the collection of any debt if the debt collector knows the ...


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