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Kinel v. Sherman Acquisition II

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


July 13, 2007

NORMAN N. KINEL, PLAINTIFF,
v.
SHERMAN ACQUISITION II, LP, SHERMAN ACQUISITION, LP, SHERMAN FINANCIAL GROUP LLC, ALEGIS GROUP L.P., ALEGIS GROUP LLC, TRANSUNION LLC, EXPERIAN INFORMATION SOLUTIONS, INC., EQUIFAX, HOUSEHOLD BANK (SB), N.A., NORTH AMERICAN COLLECTORS, INC., WOLPOFF & ABRAMSON, L.L.P., FORSTER & GARBUS, FINANCIAL RECOVERY SERVICES, INC., AND LEVITZ FURNITURE CORPORATION, DEFENDANTS.

The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.

OPINION AND ORDER

Plaintiff Norman N. Kinel brought this action claiming that Defendants had engaged in abusive debt collection practices following his alleged purchase of a chair and matching ottoman. Defendant Wolpoff & Abramson, L.L.P. ("W&A") moved to dismiss Count Nine of the Amended Complaint (the sole count in which it is named), which claims that W&A failed to communicate the disputed status of Kinel's alleged debt, in violation of 15 U.S.C. § 1692e. By amended report and recommendation dated February 28, 2006 (the "Report"), Magistrate Judge Theodore H. Katz recommended that W&A's motion be denied. W&A objected to this recommendation. Because the Court agrees with the Report, the motion is denied.

LEGAL STANDARDS

Because W&A has objected to the Report, the Court reviews W&A's motion de novo. 28 U.S.C. § 636(b)(1).

W&A has moved to dismiss Count Nine for failure to state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6). In weighing the motion, the Court must accept as true all the factual statements alleged in the Amended Complaint and draw all reasonable inferences in favor of Plaintiff, the nonmoving party. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007).

DISCUSSION

Plaintiff alleges that W&A violated Section 807 of the Fair Debt Collection Practices Act, which bars debt collectors from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. Among the conduct prohibited by the statute is "[c]ommunicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed." Id. § 1692e(8).

Plaintiff has stated a valid claim under this section. He alleges that W&A is a debt collector within the meaning of the statute (Am. Compl. ¶ 21); that the debt was disputed (id. ¶ 35); that Plaintiff informed W&A of the disputed nature of the debt (id. ¶¶ 59-60); and that W&A, in turn, "failed to communicate that the Alleged Debt was disputed" (id. ¶ 61). The Report also found, correctly, that it can reasonably be inferred from Plaintiff's allegations that W&A communicated Plaintiff's credit information to another person: W&A's clients, the Sherman Defendants. (Report 42.)*fn1 Plaintiff has thus alleged all the elements of a claim under the statute.

Section 1692e(8) is not limited to communications with credit reporting agencies, as W&A argues.*fn2 The statute applies to communications with "any person." 15 U.S.C. § 1692e(8); accord id. § 1692a(2) (defining "communication" as "conveying of information regarding a debt directly or indirectly to any person through any medium" (emphasis added)). Nothing in the Federal Trade Commission's commentary on the statute contradicts the clarity of the statutory text.*fn3 In fact, the FTC notes that [p]rohibited actions are not limited to the sixteen subsections listed as examples of activities that violate this provision. In addition, section 807(10), which prohibits the "use of any false representation or deceptive means" by a debt collector, is particularly broad and encompasses virtually every violation, including those not covered by the other subsections. Federal Trade Commission Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed. Reg. 50,097, 50,105 (Dec. 13, 1988), available at 1988 WL 269068. If a jury accepted Plaintiff's allegations as true, it could reasonably find that W&A's communications to the Sherman Defendants were false or deceptive by virtue of their failure to state that Plaintiff's debt was disputed.


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