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Lodish v. Stellar Collection Services

October 21, 2010

LISA LODISH, PLAINTIFF,
v.
STELLAR COLLECTION SERVICES, INC., DEFENDANT.



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

MEMORANDUM-DECISION and ORDER

I. Introduction

Plaintiff, Lisa Lodish ("Plaintiff"), brings this action against defendant Stellar Collection Services, Inc. ("Defendant") alleging a violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et. seq ("FDCPA"). Presently before the court is a motion to dismiss the complaint by Defendant for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and a cross motion for summary judgment by Plaintiff pursuant to Rule 56 of the Federal Rules of Civil Procedure. Each party has submitted opposition and reply papers. Resolution of these motions is based on the papers submitted, without oral argument. In accordance with the following, both motions are denied.

II. Factual Background

Defendant is a "debt collector" within the meaning of the FDCPA. 15 U.S.C. § 1692a(6). On or about October 1, 2009, Defendant mailed a debt collection letter to Plaintiff, which Plaintiff subsequently received, regarding a $25 debt Plaintiff ostensibly owed to Lab Alliance of Central New York. The letter reads, in relevant part, as follows:

Please be advised that your account has been assigned to [Defendant].

You have thirty (30) days to make arrangements for payment or further collection efforts will commence.

You are directed to address all future correspondence and payments concerning this account to [Defendant at a specified address].

At the bottom of the letter, after the signature block, the following text appears:

This is an attempt to collect a debt, and any information obtained will be used for that purpose. Unless you notify this office within 30 days after receiving this notice that you dispute the validity of the debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing with 30 days from receiving this notice, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.

Compl., Ex. A. This was the only communication made by the Defendant to the Plaintiff.

III. Discussion

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 ...


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