The opinion of the court was delivered by: Thomas C. Platt, United States District Judge.
Defendants Ronald Forster and Mark Garbus, d/b/a Forster & Garbus ("F&G"), and First Select, Inc. ("FSI") (collectively "Defendants") jointly move to dismiss the Complaint of Esther Lerner ("Lerner" or "Plaintiff"), in its entirety, pursuant to Federal Rule of Civil Procedure 12(b)(6).
For the reasons discussed infra, Defendants' motion is hereby GRANTED and Plaintiff's Complaint is dismissed in full.
Plaintiff brings this action on behalf of herself, and all others similarly situated, for damages and declaratory and injunctive relief arising from Defendants' alleged violation of 15 U.S.C. § 1692 et seq., the Fair Debt Collections Practices Act ("FDCPA"), which prohibits debt collectors from engaging in abusive, deceptive and unfair practices.
Plaintiff is a resident of the State of New York. Defendant F&G is a law firm engaged in the business of collecting debts with its principal place of business in Farmingdale, New York. Defendant FSI is a Delaware corporation and a subsidiary of Providian Financial Corporation. FSI, a creditor and the owner of Plaintiff's obligation, is located in Pleasanton, California.
On or about December 20, 2001, Plaintiff received a debt collection notice ("the Letter") from F&G at her home address. (Compl., Ex. A.) The Letter advised Plaintiff of her options should she wish to resolve her $9,363.52 debt and outlined the steps she should take if she wished to dispute the debt.
The Letter contained four (4) separate paragraphs. The first paragraph introduced F&G as attorneys engaged by FSI to make a demand for payment of Plaintiff's debt.
Plaintiff's Complaint is based in part on the language in the second paragraph of the Letter, which stated:
If you want to resolve this matter you may take one of
the following actions: You may either pay the balance
in full or contact my client at 1-800-280-0559 and
work out an arrangement for payment that is acceptable
to my client. Not withstanding partial payments made
directly to our client, your entire balance is due in
full. Acceptance of partial payments made directly to
our client in no way nullifies their contractual right
to demand the entire balance once the account is in
(Compl., Ex. A) (emphasis added).
The third paragraph of the Letter provided the required notice pursuant to § 1692g should the debtor wish to dispute the debt:
Federal law gives you 30 days after you receive this
letter to dispute the validity of this debt or any
part of it. If you do not dispute the validity of the
debt, or any part of it, within that period, we will
assume that the debt is valid. If you do dispute it,
by mailing us a written notice to that effect on or
before the 30th day following the date you receive
this letter, we will obtain and mail to you
verification of the debt. If, within the same period,
you request in writing the name and address of the
original creditor (if different from the current
creditor), [we] ...