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Martin B. v. Fein

March 3, 2011

MARTIN B. LANE AND MAUREEN T. LANE,
PLAINTIFFS,
v.
FEIN, SUCH AND CRANE, LLP,
DEFENDANT.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

Martin and Maureen Lane, the plaintiffs in this case, assert that the defendant law firm Fein, Such and Crane, LLP ("Fein LLP") violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), as well as other laws, in connection with a legal action in New York Supreme Court, Suffolk County brought to foreclose on their property. The defendant now moves to dismiss the plaintiffs' complaint pursuant for Fed. R. Civ. P. 12(b)(6). For the reasons that follow, the Court grants the defendant's motion.

I. BACKGROUND

The following facts are either taken from the plaintiffs' complaint or are not disputed by the parties.

The plaintiffs Martin B. Lane and Maureen T. Lane have title to a property at 891 South Bay Street, Lindenhurst, New York (the "Bay Street Property"), which is encumbered by a mortgage (the "Bay Street Mortgage"). Based on documents attached to the complaint, that mortgage appears to be held by Bridgefield Mortgage Corporation ("BMC"), who is represented in foreclosure proceedings in New York Supreme Court, Suffolk County by the defendant Fein LLP. There appears to be some dispute about BMC's title to the mortgage, but the plaintiff makes no allegation in the present complaint that BMC is not entitled to enforce the mortgage contract, and, in any case, the ownership of the mortgage is not material to the outcome of this matter. The Court therefore assumes that BMC holds title to the Bay Street Mortgage.

On April 21, 2010, BMC, through their attorneys Fein LLP, filed a complaint in New York Supreme Court, Suffolk County seeking to foreclose on the Bay Street Mortgage (the "State Court Complaint"). BMC named as defendants both Martin and Maureen Lane, on the basis that (1) Martin Lane had executed the Bay Street Mortgage, and (2) both Martin and Maureen Lane held title to the Bay Street Property. Significantly in this case, the first numbered paragraph of BMC's State Court Complaint states that BMC "is a banking corporation duly licensed, organized and existing pursuant to the laws of the United States." (Compl., Ex. A, ¶ 1.) The State Court Complaint thereafter proceeds to set forth BMC's basis for foreclosure.

Sometime between April 21, 2010 and April 28, 2010, a process server retained by Fein LLP served the State Court Complaint on only Maureen Lane. On April 28, 2010, both Maureen Lane and Martin Lane then mailed letters to Fein LLP, disputing the validity of the Bay Street Mortgage. The letters do not set forth a basis for challenging the debt, but they do request validation of the mortgage. Eight days later, on May 6, 2010, a process server retained by Fein LLP served the State Court Complaint on Martin Lane.

Twenty days after the State Court Complaint was served on Martin Lane, Martin and Maureen Lane commenced the present action against Fein LLP. The plaintiffs assert causes of action pursuant to (1) the FDCPA; (2) New York State's consumer protection statute, General Business Law § 349; and (3) common law negligence. In support of their claims, the plaintiffs do not contest BMC's underlying right to foreclose on their property. Rather, they assert the following theories: First, they allege that BMC is not in fact "a banking corporation duly licensed, organized and existing pursuant to the laws of the United States", as alleged in the State Court Complaint, and that Fein LLP's statement to the contrary in that pleading is therefore false and misleading. Second, the plaintiffs allege that Fein LLP was obligated to cease its efforts to collect BMC's debt until after it responded to the Lanes' challenges to that debt's validity, and that Fein LLP violated this requirement by serving the State Court Complaint on Martin Lane on May 6, 2010. Finally, the plaintiffs assert that Fein LLP is liable because they "serv[ed] Maureen Lane with a Summons and Complaint and maintain[ed] an action against her without basis." (Compl., ¶ 19(c).)

On August 20, 2010, Fein LLP filed the present motion to dismiss the plaintiffs' complaint in its entirety for failure to state a valid claim, pursuant to Fed. R. Civ. P. 12(b)(6). According to Fein LLP, none of the alleged acts it took violates the FDCPA, GBL § 349, or Fein LLP's common law duties in negligence. The plaintiffs oppose the motion.

II. DISCUSSION

A. Standard on a Motion to Dismiss

Under the now well-established Twombly standard, a complaint should be dismissed only if it does not contain enough allegations of fact to state a claim for relief that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). The Second Circuit has explained that, after Twombly, the Court's inquiry under Rule 12(b)(6) is guided by two principles. Harris v. Mills, 572 F.3d 66 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009)).

"First, although ‗a court must accept as true all of the allegations contained in a complaint,' that ‗tenet' ‗is inapplicable to legal conclusions' and ‗threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'" Id. (quoting Iqbal, 129 S. Ct. at 1949). "‗Second, only a complaint that states a plausible claim for relief survives a motion to dismiss' and ‗[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'"

Id. (quoting Iqbal, 129 S. Ct. at 1950). Thus, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and . . . determine whether they plausibly give rise to an entitlement of relief." Iqbal, 129 S. Ct. at 1950.

B. As to the Plaintiffs' FDCPA Cause of Action

In their complaint, the plaintiffs identify three specific provisions of the FDCPA that they allege the defendant violated.

 First, the plaintiffs point to 15 U.S.C. § 1692d, which provides, in pertinent part, that "[a] debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt."

 The second section allegedly violated is 15 U.S.C. § 1962e, which states that "[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt." In particular, the plaintiffs also rely on §1962e(10), which precludes "[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer."  Finally, the plaintiff alleges a violation of 15 U.S.C. § 1962g, which limits a debt collector's right to take actions to collect a debt if a debtor challenges that debt within thirty days after receiving notice of the right to challenge that debt. For ease of analysis, the Court addresses these three sections in reverse order. However, before proceeding, the Court notes that, in seeking to dismiss the plaintiffs' causes of action under the FDCPA, the defendant does not contest that it is a "debt collector", or that the plaintiffs are "consumers", as those terms are used in the FDCPA.

1. As to Section 1962g Section 1962g states in pertinent part:

(a) Notice of debt; contents

Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall . . . send the ...


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