United States District Court, S.D. New York
April 23, 2004.
ROBIN S. RICHARDSON, Plaintiff, -v- ALLIANCEONE RECEIVABLES MANAGEMENT, INC., Defendant
The opinion of the court was delivered by: DENISE COTE, District Judge
OPINION AND ORDER
On July 23, 2003, Robin S. Richardson ("Richardson") filed this
proposed class action against Alliance One Receivables Management, Inc.
("AllianceOne"), a debt collector, alleging violations of the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692, et seq. (the
"FDCPA"). Richardson's claims arise from her receipt of a collection
letter from AllianceOne that failed to include its City of New York
Department of Consumer Affairs license number ("License Number"), as
required by New York City ordinance, New York City Rules, Tit. 6, § 1-05. Alliance One
has moved to dismiss this action on the pleadings pursuant to Rule12(c),
Fed.R. Civ. P., and Richardson has filed a cross-motion for judgment on
the pleadings and a motion for leave to amend the complaint. For the
reasons that follow, Alliance One's motion for judgment on the pleadings
is granted, and Richardson's cross-motion for judgment on the pleadings
and her motion for leave to amend are denied.
The following facts are taken from the complaint and the documents on
which the complaint relies, unless otherwise noted. On March 19, 2003,
Alliance One sent Richardson a letter (the "Letter") seeking to collect a
balance of $3,583.22 that Alliance One stated she owed its client, FCNB.
The Letter reads as follows:
Your account has been listed with our office
for collection by the referenced client. If paid in
full to this office, all collection activity will
For your convenience we can arrange for
automatic deductions from your checking account.
Please feel free to call us if you wish to discuss
This communication is from a debt collector. This
is an attempt to collect a debt, and any
information obtained will be used for that purpose.
Unless you notify this office within 30 days
after receiving this notice that you dispute the
validity of the debt or any portion thereof, this
office will assume this debt is valid. If you
notify this office in writing within 30 days from
receipt of this notice, this office will obtain
verification of the debt or obtain a copy of the
judgment and mail you a copy of such judgment or
verification. If you request of this office within
30 days after receiving this notice, this
office will provide you with the name and address
of the original creditor, if different from the
The Letter is written on Alliance One stationery and includes
its address and toll-free telephone number, but does not include the debt
collector's License Number.
Alliance One has attached to its Answer a copy of its City of New York
Department of Consumer Affairs license as a debt collection agency. This
is a public record, the authenticity of which Richardson does not dispute.
1. Motion for Judgment on the Pleadings
The standard for evaluating a motion for judgment on the pleadings
under Rule 12(c), Fed.R. Civ. P., is the same as that under
Rule 12(b)(6), Fed.R.Civ.P. Patel v. Contemporary Classics of Beverly
Hills, 259 F.3d 123, 126 (2d Cir. 2001). A court may dismiss an
action pursuant to Rule 12(b)(6) only if "it appears beyond doubt, even
when the complaint is liberally construed, that the plaintiff can prove
no set of facts which would entitle him to relief." Jaghory v. New
York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997)
(citations omitted). In construing the complaint, the court must "accept
all factualal legations in the complaint as true and draw inferences from
those allegations in the light most favorable to the plaintiff."
Id. "Given the Federal Rules' simplified standard for pleading,
a court may dismiss a complaint only if it is clear that no relief could
be granted under any set of facts that could be proved consistent with
the allegations." Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 514 (2002).
In addition to the pleadings, the court may consider "documents
attached to the complaint as an exhibit or in corporated in it by
reference, matters of which judicial notice may be taken, or documents
either in plaintiffs' possession or of which plaintiffs had knowledge and
relied on in bringing suit." Chambers v. Time Warner, Inc.,
282 F.3d 147, 153 (2d Cir. 2002)(citation omitted). A court may take judicial
notice of a public record pursuant to Rule 201(b), Fed.R.Evid.
Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir. 2000).
The FDCPA was designed to "eliminate abusive debt collection practices
by debt collectors, to insure that those debt collectors who refrain from
using abusive debt collection practices are not competitively
disadvantaged, and to promote consistent State action to protect
consumers against debt collection abuses." 15U.S.C. § 1692(e);
see also Alibrandi v. Financial Outsourcing Services, Inc.,
333 F.3d 82, 85 (2d Cir. 2003). Congress intended the FDCPA to encourage
states, and presumably local governments, to enact stronger laws to
address the problem of abusive debt collection methods. Silver v.
Woolf, 694 F.2d 8, 13 (2d Cir. 1982). An alleged violation of state
or local law, however, is insufficient to state a claim under the FDCPA.
Wade v. Regional Credit Assoc., 87 F.3d 1098, 1100 (9th Cir.
Lindbergh v. Transworld Systems, Inc., 846 F. Supp. 175, 181
The FDCPA "establishes certain rights for consumers whose debts are
placed in the hands of professional debt collectors for collection, and requires that such debt collectors advise the consumers
whose debts they seek to collect of specified rights."Kropelnicki v.
Siecrel, 290 F.3d 118, 127 (2d Cir. 2001) (citation omitted);
15 U.S.C. § 1692g (listing required contents of debt collection notice).
Richardson alleges violations of Sections1692e(5) and (10) of the FDCPA
("Sections 1692e(5) and (10)"), which provide in relevant part:
A debt collector may not use any false, deceptive,
or misleading representation or means in connection
with the collection of any debt. Without limiting
the general application of the foregoing, the
following conduct is a violation of this section:
* * *
(5) The threat to take any action that cannot
legally be taken or that is not intended to
* * *
(10) The use of any false representation or
deceptive means to collect or attempt to collect
any debt or obtain information concerning a
When determining whether the FDCPA has been violated, courts must
employ an objective standard based on how the least sophisticated
consumer would interpret the notice received from the debt collector.
Kropelnicki, 290 F.3d at 127. The purpose of this standard is
two-fold: "(1) [to] ensure the protection of all consumers, even the
naive and the trusting, against deceptive debt collection practices, and
(2) [to] protect debt collectors against liability for bizarre or
idiosyncratic interpretations of collection notices." Id.
(citation omitted). A debt collector is held to violate the FDCPA if it
conveys information in a manner that is confusing or contradictory,
clouding the required message with uncertainty. DeSantis v. Computer
Credit, Inc., 269 F.3d 159, 161 (2d Cir. 2001). At the same time, the least sophisticated
consumer standard incorporates a "concept of reasonableness" that is
presumed to guide even the most naive debtor. McStay v. I.C.
System, Inc., 308 F.3d 188, 190-91 (2d Cir. 2002); Clomon v.
Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993).
Richardson argues, first, that Alliance One violated Section1692e(10)
by failing to publish its License Number on the Letter, preventing her
from obtaining information about Alliance One from the Department of
Consumer Affairs (the "Department") and from filing a complaint with that
agency. Richardson's claim is without merit. It is undisputed that the
Letter contains the information required by the FDCPA. See
15 U.S.C. § 1692g.Alliance One's name, address, and phone number are
included in the Letter, and she has failed to explain why she could not
contact the Department based on the information provided. While Alliance
One's failure to list its License Number may violate a New York City
ordinance,*fn1 there is no basis to conclude that this minor deficiency
renders the Letter false, deceptive, or misleading within the meaning of
Richardson's second argument is that Alliance One violated Sections
1692e(5) and (10) by threatening to continue collection activity when it was not acting in compliance with the City Ordinance.
It is undisputed, however, that Alliance One is licensed as a debt
collector in New York.*fn2 The violation of a technical City ordinance
not specific to debt collection activities resulting in no identifiable
harm to Richardson is insufficient to state a claim under the FDCPA. As
the Honorable Jose A. Cabranes explained, the contention that every
violation of state law raises a federal claim under the FDCPA "reflects a
false, narrow, and overly mechanical reading" of the statute.
Lindbergh, 846 F. Supp. at 181; see also Wade, 87
F.3d at 1100 ("We disagree with Wade that debt collection practices
in violation of state law are per se violations of the FDCPA.").
2. Motion for Leave to Amend
While leave to amend should be freely given when justice so requires,
Fed.R.Civ.P. 15(a), leave to amend need not be granted when amendment
would be fufile. Oneida Indian Nation of New York v. City of
Sherrill, 337 F.3d 139, 168 (2d Cir. 2003). A proposed amendment
would be fufile if it could not withstand a motion for judgment on the
pleadings. Id.; Patel, 259 F.3d at 126 (same standard
applies to motion to dismiss and motion for judgment on the pleadings).
Richardson seeks to amend her complaint to assert that the Letter sent by AllianceOne also gives rise to a claim under Section f
of the FDCPA ("Section 1692f"), which provides in relevant part: "A debt
collector may not use unfair or unconscionable means to collect or
attempt to collect any debt."15 U.S.C. § 1692f. There is no merit to
Richardson's argument that AllianceOne's failure to include its License
Number on the Letter constitutes an unfair or unconscionable attempt to
collect a debt. It is undisputed that AllianceOne is properly licensed as
a debt collector, and that the Letter provides the information required
of a debt collection notice by the FDCPA. Alliance One provided
information by which Richardson could identify the company and seek
information from the Department of Consumer Affairs. Richardson's
proposed amendment would be fufile because she has failed to state a
claim for unfair or unconscionable debt collection practices under
AllianceOne's motion for judgment on the pleadings is granted.
Richardson's motion for judgment on the pleadings is denied, as is her
motion for leave to amend the complaint.