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CHRISTOPHER THOMPSON v. KEYBANK USA N.A. a/k/a/ KEYBANK (DRH) (AKT

December 1, 2010

CHRISTOPHER THOMPSON, PLAINTIFF,
v.
KEYBANK USA N.A. A/K/A/ KEYBANK (DRH) (AKT) N.A., GINA DESROSIERS, ALLIED INTERNATIONAL CREDIT CORP., TRICIA BALOGH, NORTHEAST MARINE LIQUIDATION, INC., TCAR, INC. AND D. PEPPER, JR., DEFENDANTS



The opinion of the court was delivered by: Hurley, Senior District Judge

MEMORANDUM & ORDER

Plaintiff Christopher Thompson ("Plaintiff") commenced this action asserting claims for violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), as well as New York State law. Presently before the Court is the motion of defendants KeyBank, N.A. ("KeyBank"), Gina Desrosiers ("Desrosiers"), and Tricia Balogh ("Balogh") to dismiss the complaint pursuant to Rules 12(b)(3) and 12(b)(6) of the Federal Rules of Civil Procedure and 28 U.S.C. 1406(a).*fn1 For the reasons set forth below, the motion is granted in part and denied in part.

Background

The following allegations are taken from the Complaint.*fn2

On or about April 2, 2004, Plaintiff filled out an application for credit with respect to the purchase of a 2004 Chaparral Signature 240 motor boat. (Compl. ¶ 13.) Other than the application Plaintiff did not execute any other documents which obligated Plaintiff to repay any funds arising from the approval or acceptance for the loan application. (Id. ¶ 14.) KeyBank "believes" that Plaintiff is obligated to pay KeyBank installment payments of $403.42 each month for a period of 180 consecutive months beginning May 19, 2004 but Plaintiff denies being obligated to KeyBank for such payments. Keybank, however, acknowledges receipt of at least 53 such monthly payments. (Id. ¶¶ 15-17.) Keybank did not receive consecutive monthly payments during the summer and fall of 2008 and as a result employed the services of Desrosiers, Balogh and non-moving defendant Allied International Credit Corp. ("Allied"). (Id. ¶¶ 18-19.) During the summer and fall of 2008, Allied called Plaintiff stating that "they (an employee of Allied) were calling on behalf of Keybank" and "failed and refused to advise [Plaintiff] that they were: 'attempting to collect a debt, any information given would be used for that purpose and that the communications was from a debt collector' all as required by federal statute." (Id. ¶ 21.) Some of the calls by Allied were made to Plaintiff's place of business, even after Plaintiff demanded Allied not call him there. Also during this period, Desrosiers and Balogh (who are co-workers)*fn3 "harassed [Plaintiff] via telephone conversations and writing without advising, among other things; that they were 'attempting to collect a debt, any information given would be used for that purpose and that the communication was from a debt collector' all as required by federal statute." (Id. ¶ 22.)

On or about April 10, 2009, Plaintiff wrote to Keybank, Desrosiers and Balogh, advising of the alleged violations of the FDCPA and offering to resolve Plaintiffs claims against them. (Compl. ¶¶ 31-32.) In response, KeyBank, Desrosiers and Balogh, by letter dated April 28, 2009, advised Plaintiff that KeyBank still held the loan and was not operating under a name other than its own. It further advised Plaintiff that Allied was "attempting to collect past due balances on behalf of KeyBank while the loan is housed within KeyBank's outstanding balances." Attached to the April 28, 2009 letter was the Note "which specifically reflects the 'Amount Financed' is $0.00'"*fn4 and Plaintiff claims to have "overpaid" KeyBank by at least $21,381.26. (Id. ¶¶ 33-35.)

On or about May 15, 2009 Plaintiff received an envelope in the mail which contained only a business card for "D. Pepper, Jr." of "TCAR," "Recovery * Remarketing * Collections". It is claimed that KeyBank, Desrosiers, Allied and Balogh employed the services of TCAR and Pepper to collect payment from Plaintiff. (Compl. ¶¶ 36-37.)

On or about July 2, 2009, Plaintiff received a communication from KeyBank which among other things acknowledged that on April 10, 2009 KeyBank learned of the "theft of its collateral in May 2007." (Compl. ¶ 39.) Plaintiff's motor boat "ha[d] been reported stolen to the Suffolk County Police Department ["SCPD"] . . . on or about May 11, 2007, and was assigned complaint number 07-243172. Thereafter, the SCPD placed a stolen vehicle alarm . . . on the boat under New York State Department of Motor Vehicle laws, rules and regulations . . . ." (Id. ¶ 40.) "[A]s a result of the stolen vehicle alarm anyone other than the owner plaintiff in possession of such boat was required to surrender same to the SCPD for impound." (Id. at 41.) KeyBank, not having been paid, hired Northeast in August 2009 to repossess the boat. On August 26, 2009, Northeast repossessed the boat (as well as Plaintiff's "assets" that were on the boat), but failed to report said repossession to the Suffolk County Police Department. (Id. ¶¶ 42-44.)

Based on the foregoing, as against moving defendants Plaintiff asserts claims under the FDCPA and the New York General Business Law, as well as for harassment and illegal conversion, legal fees, and punitive damages. Plaintiff also seeks to recover from KeyBank the $21,381.26 he "was not required to pay." (Compl. ¶ 54.)

Discussion

I. Motion to Dismiss: Legal Standards

Rule 8(a) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Supreme Court has recently clarified the pleading standard applicable in evaluating a motion to dismiss under Rule 12(b)(6).

First, in Bell Atl. Corp.v. Twombly, 550 U.S. 544 (2007), the Court disavowed the well-known statement in Conley v. Gibson, 355 U.S. 41, 45-46 (1957) that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 550 U.S. at 562. Instead, to survive a motion to dismiss under Twombly, a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Id. at 570.

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Id. at 555 (citations and internal quotation marks omitted).

More recently, in Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937 (2009), the Supreme Court provided further guidance, setting forth a two-pronged approach for courts deciding a motion to dismiss. First, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1950. "While legal conclusions can provide the framework of a complaint, they must be supported by factual assumptions." Id. Thus, "[t]hreadbare recitals of the ...


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