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Simmons v. Roundup Funding

October 5, 2010

LAMONT B. SIMMONS, MELISSA R. SIMMONS, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-CROSS-DEFENDANTS -APPELLANTS,
v.
ROUNDUP FUNDING, LLC, DEFENDANT-COUNTER-CLAIMANT -APPELLEE, MALEN & ASSOCIATES, P. C., DEFENDANT-APPELLEE.*FN1



SYLLABUS BY THE COURT

Appeal from a judgment of the United States District Court for the Southern District of New York (Sweet, J.), dismissing on the pleadings a Fair Debt Collection Practices Act claim. We hold that a proof of claim filed in bankruptcy court cannot form the basis for a claim under the Fair Debt Collection Practices Act, and therefore affirm the dismissal. We vacate the award of costs and attorneys' fees in favor of defendants.

The opinion of the court was delivered by: Dennis Jacobs, Chief Judse

Argued: May 11, 2010

Before: JACOBS, Chief Judse, WINTER and McLAUGHLIN, Circuit Judses.

Lamont and Melissa Simmons ("the Simmons") allege that an inflated proof of claim filed by a creditor in their bankruptcy proceeding constituted a violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 m. They appeal from a judgment of the United States District Court for the Southern District of New York (Sweet, J.), dismissing their complaint on the pleadings. We hold that such a proof of claim cannot form the basis for a claim under the FDCPA, and therefore we affirm.

The Simmons sought protection in bankruptcy in October 2007. In December 2007, Roundup Funding, LLC ("Roundup") filed a proof of claim for a debt in the claimed amount of $2,039.21. The Simmons filed an objection, and Roundup's counsel, Malen & Associates ("Malen"), filed a response (which, it is alleged, included no relevant information).

At a hearing on April 17, 2008, the bankruptcy court reduced the Roundup claim to $1,100, the amount the Simmons conceded they owed.

On July 10, 2008, the Simmons brought a putative class action against Roundup and Malen, alleging that they had violated the FDCPA by misrepresenting the amount of the Simmons's debt. An amended complaint reflected the same underlying theory.

Malen and Roundup moved to dismiss under Rule 12(b)(6) on the ground that an inflated proof of claim in bankruptcy court cannot form the basis for an FDCPA action as a matter of law, and also sought costs and attorneysf fees pursuant to 15 U.S.C. § 1692k(a)(3). Their motions to dismiss and their requests for attorneys' fees and costs were granted by the district court, Simmons v. Roundu~ Funding, LLC, No. 08-CV-6263, 2009 U.S. Dist. LEXIS 87383 (S.D.N.Y. Sept. 22, 2009), and the Simmons's appeal followed.*fn2

II.

A.

"We review a district court's grant of a motion to dismiss under Rule 12 (b) (6) de novo." Vietnam Ass'n for Victims of Auent Oranse v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008) (internal quotation marks omitted).

"A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. Among other things, the FDCPA bars misrepresentation of "the character, amount, or legal status of any debt." Id. § 1692e (2)(A).

"Congress acted with the aim of eliminating abusive practices in the debt collection industry, and also sought to ensure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged. These purposes inform the FDCPA's many provisions." Jacobson v. Healthcare Fin. Servs., 516 F.3d 85, 89 (2d Cir. 2008) (internal quotation marks omitted) (citing 15 U.S.C. ยง 1692 (e) ...


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