The opinion of the court was delivered by: Seybert, District Judge
Plaintiff Eric Pifko ("Pifko") commenced an action on July 16, 2009, alleging that Defendant, CCB Credit Services, Inc. ("CCB") violated the Fair Debt Collection Practice Act, 15 U.S.C § 1692 ("FDCPA"), specifically §§ 1692e(10) and 1692g. (Pifko v. CCB, 09-CV-3057.) Pifko next commenced an action against Defendant, Mercantile Adjustment Bureau, LLC, ("MAB") on September 30, 2009, alleging similar violations of the FDCPA. (Pifko v. MAB, 09-CV-4216.) Plaintiff Nathan Spira ("Spira") commenced an action against MAB on September 20, 2009, alleging similar FDCPA violations. (Spira v. MAB, 09-CV-3422.) Plaintiffs commenced two other actions against two other defendants, but those cases were later discontinued. On November 30, 2009, this Court consolidated the three actions Pifko v. CCB, Spira v. MAB, and Pifko v. MAB.
Presently, there are several motions before the Court. On November 26, 2009, Pifko filed a Motion for Judgment on the Pleadings in Pifko v. CCB. Pifko and CCB cross-moved for Judgment on the Pleadings on December 14, 2009 for all three matters, Pifko v. CCB, Spira v. MAB, and Pifko v. MAB. Pifko cross-moved seeking to amend the Complaint in Pifko v. MAB on December 29, 2009. For the reasons set forth herein, Pifko's Motion for Judgment on the Pleadings is DENIED for Pifko v. CCB. CCB's Cross-Motion for Judgment on the Pleadings is GRANTED.
MAB's Cross-Motion for Judgment on the Pleadings is GRANTED for Spira v. MAB. MAB's Cross-Motion for Judgment on the Pleadings is GRANTED in part and DENIED in part for Pifko v. MAB. Additionally, Pifko's Cross-Motion for Leave to Amend the Complaint is DENIED in part and GRANTED in part for Pifko v. MAB. Pifko may proceed with his claim against MAB for the alleged telephone message and for violations of §§ 1692e(11) and 1692e(10).
Pifko received an initial collection letter from CCB, dated February 2, 2009, seeking to collect a balance allegedly owed to HSBC Bank. (Pifko v. CCB Compl. ¶ 10.) Pifko claims that the letter failed to accurately set forth the amount of the debt and failed to set forth that the balance could increase over time. CCB sent another letter to Pifko dated March 25, 2009, stating the balance of the debt as $4207.03. (Id. ¶ 14-15.) Pifko contends this increased amount reflects normal and customary increases in a revolving credit card balance. He claims the February 2, 2009 letter violates the FDCPA, sections 1692e(10) and 1692g. (Id.)
Pifko also received an initial collection letter from Main Street Acquisitions Corp., dated February 2, 2009, seeking to collect the same debt as CCB. This letter sets forth an amount owed of $4,056.12. (Pifko v. MAB Compl. ¶ 1.2-1.5.) Pifko later received a letter from a second collection agency dated March 25, 2009, which stated the amount owed as $4207.03. MAB then sent a letter to Pifko, dated July 20, 2009, which set forth the total balance as $4336.09. (Id. ¶ 1.6-1.11.) This last balance was higher than the prior two letters from other collection agencies. Pifko asserts that the increased amount is due to interest or other charges, and that the letter failed to set forth that the amount may increase due to interest or other charges. Pifko claims this July 20, 2009 letter violates FDCPA sections 1692e(10) and 1692g.
Pifko also alleges that a debt collector named Steven Donaldson called him on behalf of MAB "on or about the latter two weeks of July on a Tuesday, at or about 4:54 p.m." (Pifko v. MAB Compl. ¶ 1.16.) Pifko alleges that the debt collector left a message on his answering machine and failed to disclose that the message was from a debt collector. (Id.) Plaintiff's proposed amended Complaint contains a purported transcript of the alleged message, wherein the caller identifies himself as calling from the MAB's office, but fails to disclose that he is attempting to collect a debt. (Pifko v. MAB Proposed Am. Compl. ¶ 1.17.) Plaintiff contends this is in violation of FDCPA sections 1692e(11) and 1692e(10).
Spira received an initial collection letter from MAB dated February 12, 2009. (Spira v. MAB Compl. ¶ 10.) The letter set forth the amount of the debt at $9044.52 and failed to explain that the balance could increase over time. Plaintiff alleges that the letter failed to accurately set forth the amount of the debt. Spira received a further letter from MAB dated May 8, 2009. That letter set forth the balance as $9399.41. The parties now acknowledge that the $354.80 increase was due to interest and other charges. Spira claims the balance suggests normal and customary increases in a revolving credit card balance. Spira alleges defendant had a duty to set forth language in the initial letter that the amount of the debt is subject to increases and that the Defendant failed to include such language. (Id. ¶ 14-20.) Spira alleges this is a violation of FDCPA sections 1692e(10) and §1692g. (Id.)
I. Pifko, CCB, and MAB's Motions for Judgment on the Pleadings
A. Standard of Review Under Rule 12(c)
Rule 12(c) of the Federal Rules of Civil Procedure allows for either party to move for judgment on the pleadings, "after the pleadings are closed but within such time as not to delay the trial." FED. R. CIV. P. 12(c). This is similar to a Rule 12(b)(6) motion to dismiss for failure to state a claim, except that a Rule 12(b)(6) motion comes before the close of pleadings. See FED. R. CIV. P. 12(b)(6). In either case, the Court applies the same standard. Irish Lesbian & Gay Org. v. Guiliani, 143 F. 3d 638, 644 (2d Cir. 1998).
For both 12(b)(6) and 12(c) motions, the district court must accept the factual allegations contained in the complaint as true and draw all reasonable inferences in favor of the non-moving party. Id. The factual allegations contained in the complaint must satisfy a flexible plausibility standard, which obliges a pleader to amplify a claim with enough factual allegations to render the claim plausible. Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). In other words, plaintiff's complaint must raise a right to relief above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed. 2d 1965 (2007). For the purpose of Rules 12(c) and 12(b), the complaint includes any written instrument attached to it or any statements or documents incorporated in it by reference, as well as any document on which the complaint relies heavily. Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002).
B. Lease Sophisticated Consumer Test
Congress enacted the FDCPA to eradicate abusive debt collection practices by debt collectors. See Russell v. Equifax, 74 F.3d 30, 33 (2d Cir. 1996). To further this purpose, the FDCPA grants a private right of action to consumers who receive communications that violates the Act. 15 U.S.C. § 1692k. In the Second Circuit, courts use the "least sophisticated consumer" test, in determining whether debt collection letters are deceptive or misleading, and therefore, violate the FDCPA. Clomon v. Jackson, 988 F.2d 1314, 1318-19 (2d Cir. 1993). The purpose of this standard is to "ensure that the FDCPA protects all consumers, the gullible as well as the shrewd." Id. at 1318. The test also serves the ...