Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mascoll v. Strumpf

September 25, 2006


The opinion of the court was delivered by: Townes, United States District Judge


Plaintiff, Janet P. Mascoll, brings this pro se action against Bank of America ("BOA"), certain unnamed BOA "subsidiaries," debt collector Linda Strumpf, Esq., and her employee and husband, Hal Siegel, alleging that defendants violated, inter alia, the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and New York General Business Law ("GBL") Article 29-H and Section 349 by persisting in attempts to collect a debt which BOA had previously determined was not actually owed. Defendants Strumpf and Siegel (collectively, "Defendants") now move to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), arguing (1) that this Court lacks subject-matter jurisdiction under the Rooker-Feldman doctrine; (2) that plaintiff's FDCPA claims are time-barred and (3) that plaintiff's claims under the GBL should be dismissed. For the reasons set forth below, Defendants' motion is granted in part and denied in part.


The following facts are set forth in plaintiff's complaint, the allegations of which are assumed to be true for purposes of this motion.

In November 2001, while in the process of applying for a mortgage, plaintiff learned that defendant BOA had reported to credit reporting agencies that plaintiff owed it a "grossly delinquent debt of $5,300.00." Complaint at ¶ 10. On November 18, 2001 -- three days after a representative of F.T.D. Financial Collection Agency, ostensibly acting on BOA's behalf, contacted plaintiff's parents concerning the debt -- plaintiff faxed a letter to BOA's "Security Fraud Department." Id. at ¶¶ 11-12. In response to plaintiff's letter, BOA investigated the debt and ascertained that plaintiff did not owe BOA the money. Id. at ¶ 14. In a letter dated March 8, 2002, a BOA Fraud Investigator informed plaintiff that BOA had requested that various credit reporting agencies remove the debt from plaintiff's records. Id. at ¶ 14-15.

Despite the investigator's conclusion that plaintiff owed nothing, plaintiff was subsequently contacted by two collection agencies which sought to collect on the debt. The first collection agency -- Northland Group, Inc. ("Northland") -- contacted plaintiff soon after plaintiff received BOA's March 8, 2002, letter. Id. at ¶ 16. Plaintiff requested that Northland either "cease . . . collection of the fraudulent debt or provide proof of its existence." Id. at ¶ 17. Although plaintiff does not allege that Northland, which "did not validate the debt," id., persisted in its collection activities, plaintiff alleges that she filed an online complaint against Northland on April 24, 2003.

In October 2003, plaintiff received a summons and complaint from defendant Strumpf who, according to plaintiff, was representing "Bank of America/U.S. Equities." Id. at ¶ 19. Plaintiff alleges that she "immediately contacted Ms. Strumpf, via Hal Siegel, and faxed the documentation supporting the debt as fraudulent." Id. at ¶ 20. However, Defendants never validated the debt or otherwise responded to plaintiff's fax. Id. at ¶ 21. Rather, Strumpf proceeded with the litigation, which resulted in a default judgment being entered against plaintiff on January 12, 2004, in First District Court, Nassau County. Id. at ¶ 22.

Plaintiff's complaint implies that Defendants then took steps to execute upon this judgment. As a result of these actions, plaintiff was denied access to her money at Nassau Educators Federal Credit Union on April 28, 2004. Id. at ¶ 23. On May 5, 2004, after plaintiff complained to various public agencies, the Credit Union contacted Defendants, who apparently authorized the release of plaintiff's funds. Id. at ¶ 24-25. On June 2, 2004, however, plaintiff's employer received an "Information and Subpoena request" from Defendants. Id. at ¶ 26. Plaintiff alleges that this "ongoing harassment" has caused her "severe and intense emotional distress," as well as "severe embarrassment" and unspecified out-of-pocket expenses. Id. at ¶¶ 27-28.

On February 3, 2005, plaintiff commenced this action by filing a fee-paid, pro se complaint in this Court. This complaint contains two causes of action. The first alleges that defendants violated various provisions of the FDCPA: 15 U.S.C. §§ 1692c, 1692d, 1692e, 1692g(a) and (b) and 1692f. The second cause of action alleges that defendants violated GBL Article 29-H and Section 349 by "knowingly attempting to collect . . . on a fraudulent debt." Complaint at ¶ 38. Plaintiff seeks "[a]ctual and [s]tatutory damages pursuant to 15 U.S.C. §1692k(a)" and GBL § 602. Id. at p. 5. In addition, plaintiff requests that this Court "[p]ermanently enjoin and restrain defendants from violating the Consumer Credit Protection Act, the Fair Debt Collection Practices Act, the Fair Credit Reporting Act, and the New York General Business Law regarding this matter." Id. at pp. 4-5.

Defendants now move pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) to dismiss plaintiff's complaint against them. Defendants' motion raises three arguments: (1) that this Court lacks subject-matter jurisdiction under the Rooker-Feldman doctrine; (2) that plaintiff's FDCPA claims are time-barred and (3) that plaintiff's State-law claims should be dismissed for various reasons. The specifics of these arguments are set forth in the discussion below.


The Legal Standards for Dismissal under Rule 12(b)(6) and 12(b)(1)

In considering a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, a court must accept as true all of the factual allegations in the complaint and must draw all reasonable inferences in the plaintiff's favor. See, e.g., Board of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 479 (2d Cir. 2002), cert. denied, 537 U.S. 1227 (2003); Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). A court "may not dismiss a complaint unless '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, 131 F.3d at 329 (quoting Hoover v. Ronwin, 466 U.S. 558, 587 (1984) (Stevens, J., dissenting)).

The standard applicable to a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction is "substantively identical" to the standard relating to Rule 12(b)(6) motions, except with respect to the burden of proof. Lerner v. Fleet Bank, 318 F.3d 113, 128 (2d Cir.), cert. denied, 540 U.S. 1012 (2003). Since "[t]he burden of proving jurisdiction is on the party asserting it," Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996) (citing Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994)), the plaintiff bears the burden upon a Rule 12(b)(1) motion of proving that the court has subject-matter jurisdiction over the action. See Thompson v. County of Franklin, 15 F.3d 245, 249 (2d Cir. 1994). Upon a Rule 12(b)(6) motion, it is the defendant who has the burden of proof. Lerner, 318 F.3d at 128 (citing Thompson, 15 F.3d at 249). However, in determining either type of motion, a court must read a pro se plaintiff's pleadings liberally and interpret them as raising the strongest argument they suggest. See, e.g., McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004); Corcoran v. New York Power Auth., 202 F.3d 530, 536 (2d Cir. 1999), cert. denied, 529 U.S. 1109 (2000).

The Rooker-Feldman Argument

Defendants' first argument is that this Court lacks subject-matter jurisdiction under the Rooker-Feldman doctrine. As originally filed, Defendants' motion relied principally on Kropelnicki v. Siegel, 290 F.3d 118 (2d Cir. 2002) -- a case in which Defendants themselves were parties -- and asserted that this action is "inextricably intertwined" with the Nassau County action. Defendants' Memorandum of Law in Support of their Motion to Dismiss ("Def. Memo") at 4. At oral argument, this Court informed Defendants that Kropelnicki was abrogated by the Supreme Court's decision in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005), and granted Defendants leave to file a supplemental brief relating to this issue. Defendants filed that supplemental brief on September 19, 2006. See Defendants' Supplemental Memorandum of Law in Further Support of their Motion to Dismiss ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.