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MCDOWALL v. LESCHACK & GRODENSKY

August 13, 2003

KENDRA MCDOWALL, ON BEHALF OF HERSELF AND ALL, OTHERS SIMILARLY SITUATED, PLAINTIFF -AGAINST- LESCHACK & GRODENSKY, P.C., AND STEVEN GRODENSKY, DEFENDANT


The opinion of the court was delivered by: Robert Carter, Senior District Judge [ Page 1]

OPINION

Plaintiff Kendra McDowall commenced this putative class action against defendants Leschack & Grodensky, P.C. and Steven Grodensky, alleging violations of 15 U.S.C. § 1692 (e), (f), and (g) of the Fair Debt Collection Protection Act ("FDCPA"). Defendants now move to dismiss, pursuant to Rule 12(b)(6), F.R.Civ.P.

BACKGROUND

On December 11, 2002, defendants sent a letter to plaintiff demanding payment of a credit card debt. The letter stated, in relevant part:

Re: First North American National Bank and Kendra T. McDowall
File Number: 02-01268-0 Account Number: 1727204102455704 Balance Due: $2,942.27 plus interest and attorney's fees *
DEMAND FOR PAYMENT
We are writing to you regarding your unpaid credit card account on behalf of First North American National Bank.
On their behalf, we hereby demand payment in full of the balance due of $2,942.27 plus interest. * Please be advised that pursuant to your credit card agreement, you agreed, to the extent permitted by law, to pay all reasonable attorney's fees.
(Compl. Ex A.)

Plaintiff claims that this letter falsely represented the amount of her debt by demanding unspecified interest and attorney's fees, in violation of § 1692(e) of the FDCPA, that it was unfair or unconscionable in violation of § 1692(f), [ Page 2]

and that it constituted inadequate notice of the amount of the debt, in violation of § 1692(g).

DISCUSSION

I. 12(b)(6) Standard

The court is to grant a motion to dismiss for failure to state a claim only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of her complaint which would entitle her to relief. King v. Simpson, 189 F.3d 284, 286 (2d Cir. 1999). The court must confine its consideration to "the facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Grief v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 217 F. Supp.2d 336, 338 (E.D.N.Y. 2002) (quoting Leonard F. v. Israel Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999)).

II. FDCPA Claims

The purpose of the FDCPA is to protect consumers from abusive, harassing, threatening, misleading and otherwise unscrupulous debt collection practices. Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d. Cir. 1996). Toward this end, the Act requires that when a debt collector solicits payments from a consumer, it must provide a written validation notice stating, among other things, the amount of [ Page 3]

the debt. 15 U.S.C. § 1692 (g). Section 1692(e) prohibits the "false representation of . . . the character, amount, or legal status of any debt," and § 1692(f) is a general prohibition of the use of "unfair or unconscionable means to collect or attempt to collect any debt." In determining whether the FDCPA has been violated, the Second Circuit uses an objective standard, measured by how the "least sophisticated consumer" would interpret the debt collector's notice. McStay v. I.C. System, Inc., 174 F. ...


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