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GRIEF v. WILSON ELSER MOSKOWITZ EDELMAN & DICKER

August 19, 2002

AMY GRIEF, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
V.
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP, DEFENDANT.



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

This case arises out of claims by Amy Grief ("Grief' or the "plaintiff') that the law firm Wilson, Elser, Moskowitz, Edelman & Dicker, LLP ("WEMED" or the "defendant"), while acting in the capacity of a debt collector, mailed her a letter that violates the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1962. Presently before the Court is a motion by the defendant to dismiss the class action complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed. R.Civ.P.") for failing to state a claim upon which relief can be granted.

I. BACKGROUND

The following facts are taken from the class action complaint ("complaint") and the letter upon which it is based and which is attached to the complaint. See Rothman v. Gregor, 220 F.3d 81, 89 (2d Cir. 2000) (holding that for the purpose of deciding a motion to dismiss, the complaint includes "any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference"). On or about September 18, 2000, Greif received a letter addressed to her from WEMED on the firm's stationary. The subject line of the letter states:

Re: Creditor: HANN FINANCIAL SERVICE CORPORATION

Amount: $1,962.87 plus attorneys' fees up to $294.43

The body of the letter reads as follows:

We have received your account from our client for the collection of the balance set forth above.
Unless you notify us within thirty (30) days after the receipt of this notice that the validity of this debt, or any portion of it, is disputed, we will assume that the debt is valid. If you notify us within thirty (30) days after receipt of this notice that you dispute the validity of this debt, or any portion of it, we will obtain a verification of the debt and mail it to you.
Also, if so requested by you within thirty (30) days after receipt of this notice, we will provide you with the name and address of the original creditor if different from the current creditor above.
If you wish to discuss this matter you may telephone Mr. DeGaetano at (914) 686-5400.

The letter is not signed by an individual, but the name of the firm appears under the phrase, "Very truly yours."

The complaint alleges that the letter violates the FDCPA in three different ways. First, the complaint alleges that the letter violates Sections 1692g(a)(4) and (b) because it fails to inform Grief that she must notify WEMED in writing that the debt is disputed in order to obtain verification of the debt. Similarly, the complaint contends that the letter violates Sections 1692g(a)(5) and (b) because it does not advise Grief that her request for the identity and address of the original creditor must be in writing. Second, the complaint alleges that the letter does not definitively set forth the amount of the debt, in violation of 15 U.S.C. § 1692g(a)(1). Third, the complaint alleges that the letter falsely represents that the contact person, Mr. DeGaetano, is an attorney and, therefore, violates 15 U.S.C. § 1692e(3) and (10).

In its motion to dismiss the complaint, WEMED argues that the letter's failure to inform Greif that she can preserve certain rights only by disputing the debt in writing does not violate the act because by not requiring a writing, the letter allows the plaintiff to obtain verification of the debt as well as the identity and address of the creditor through more consumer-friendly means than the writing required by the FDCPA. WEMED also contends that the fact that the letter does not specify the exact amount of attorneys' fees that are part of the debt does not violate the act because the fees are authorized, ...


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