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Wood v. Capital One Services

June 18, 2010

GARETH D. WOOD, IN HIS OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
CAPITAL ONE SERVICES, LLC; NCO FINANCIAL SYSTEMS, INC.; AND CAPITAL ONE BANK (USA), N.A., DEFENDANTS.



The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge

MEMORANDUM-DECISION and ORDER

I. Introduction

Plaintiff, Gareth D. Wood ("Plaintiff"), brought this action against defendants Capital One Bank (USA), N.A. ("Capital One Bank"), Capital One Services, LLC ("Capital One Services") and NCO Financial Systems ("NCO") alleging violations of the Fair Debt Collection Practices Act ("FDCPA") and New York General Business Law § 349 ("NYGBL § 349").*fn1 Presently before the court is a motion by defendants Capital One Bank and Capital One Services (collectively, "Movants") to dismiss the claims against them for failure to state claims upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff opposes and Movants reply. Resolution of this motion is based on the papers submitted, without oral argument.

II. Factual Background

The court accepts, as it must, the following allegations in Plaintiff's complaint as true for purposes of deciding the present motion to dismiss. See Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007) (citing Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002)).

Plaintiff, a resident of Pennellville, NY, holds a consumer credit account with Capital One Bank. Around October 2009, Plaintiff received a letter entitled "PRE-LEGAL NOTICE" ("Letter") from Capital One Services. The Letter indicated that Plaintiff's account is delinquent and that legal action may be taken if Plaintiff does not make a payment toward the balance. The reverse side of the Letter stated that Capital One Services, an affiliate of Capital One Bank, is the servicer of Plaintiff's account. The Letter further provided a telephone number for information or payment options. This number routes callers to an operator for NCO, an alleged debt collector.

III. Discussion

Plaintiff professes to allege nine separate causes of action, including eight claims under the FDCPA and one claim under NYGBL § 349. Movants seek dismissal of all claims against them for failure to state claims upon which relief may be granted.

A. Legal Standard

When deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept the factual allegations in the complaint as true, drawing all inferences in favor of the plaintiff. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003) (quoting Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001)). The court is generally "required to look only to the allegations on the face of the complaint." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). However, in addition to the complaint's factual allegations, the pleading includes any written instrument or exhibit attached to a complaint and incorporated by reference. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152--53 (2d Cir. 2002) (citing Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)).

Plaintiffs must allege enough facts "to raise a right of relief above the speculative level." See Bell Atl. Corp. V. Twombly, 550 U.S. 544, 555--56, 127 S.Ct. 1955, 1965 (2007). But a plaintiff need not plead specific facts. See Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 2200 (2007). Where certain "facts are peculiarly within the possession and control of the defendant," plaintiffs are not prevented from "pleading facts alleged upon information and belief." See Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (internal quotations omitted) (quoting Boykin v. Keycorp, 521 F.3d 202, 215 (2d Cir. 2008)). The complaint must contain sufficient factual allegations, accepted as true, to state a facially plausible claim. See Ashcroft v. Iqbal, - U.S. -, -, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007)). However, assessing whether a complaint states a facially plausible claim for relief is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950.

B. The Claims under the FDCPA

Movants argue that the FDCPA claims against them should be dismissed because Plaintiff failed to sufficiently plead that Movants are "debt collectors" under the FDCPA. (See Defs.' Reply Mem. Supp. Mot. Dismiss 1.) Plaintiff alleges violations of 15 U.S.C. §§ 1692(e)--(g) (2006). (Compl. ¶¶ 38--71.) Each of these provisions apply only to debt collectors. See §§ 1692(e)--(g); Williams v. Citibank, N.A., 565 F. Supp. 2d 523, 528 (S.D.N.Y. 2008). Therefore, the issue necessary to deciding the motion to dismiss all FDCPA claims is whether Plaintiff sufficiently alleged that Movants are debt collectors subject to the FDCPA.

The FDCPA defines "debt collectors" as persons who use "any instrumentality of interstate commerce or the mails" to engage in debt collection as a principal business, or "who regularly collect[] . . . debts owed or due . . . another." ยง 1692(a)(6). However, an "affiliate" exception applies to any entity acting as debt collectors for another entity related by common ownership or corporate affiliation, so long as the party acting as a debt collector does so only for its affiliates and if its principal ...


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