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.
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
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)