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William Rozier, On Behalf of Himself and All Others Similarly Situated v. Financial Recovery Systems

June 7, 2011

WILLIAM ROZIER, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
FINANCIAL RECOVERY SYSTEMS, INC. DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:

MEMORANDUM AND ORDER

Plaintiff William Rozier filed the instant action on behalf of himself and all others similarly situated against Defendant, Financial Recovery Services, Inc.,*fn1 pursuant to the Fair Debt Collection Practices Act ("F.D.C.P.A."), 15 U.S.C. § 1692 and N.Y. GEN. BUS. LAW ("G.B.L.") § 349, alleging that Defendant engaged in unlawful and predatory consumer debt collection practices by sending a misleading debt collection letter to Plaintiff and others similarly situated. Defendant filed the instant motion seeking dismissal, pursuant to Fed. Civ. P. 12(b)(6), for failure to state a claim upon which relief may be granted. Plaintiff opposed the motion. For the reasons set forth below, Defendant's motion is denied.

BACKGROUND

Plaintiff received a collection letter, on or about March 4, 2010, from Defendant demanding payment of a debt allegedly owed to Applied Bank. (Compl. ¶ 7.) The letter stated:

AS OF THE DATE OF THIS LETTER, YOU OWE $2387.23.

INTEREST, LATE CHARGES, AND OTHER CHARGES MAY OR MAY NOT BE APPLICABLE TO THIS ACCOUNT.

IF SOME OR ALL OF THESE ARE APPLICABLE, THEY MAY VARY FROM DAY TO DAY AND THUS THE AMOUNT DUE ON THE DAY YOU PAY MAY BE GREATER. HENCE, IF YOU PAY THE AMOUNT SHOWN ABOVE, AN ADJUSTMENT MAY BE NECESSARY AFTER WE RECEIVE YOUR CHECK, IN WHICH EVENT WE WILL INFORM YOU BEFORE DEPOSITING THE CHECK FOR COLLECTION.

FOR FURTHER INFORMATION, WRITE THE UNDERSIGNED OR CALL 1-866-211-0386. (Compl. ¶ 9, Ex. A; Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss ("Opp."), Ex. A.) Plaintiff brings this action on behalf of himself and all others similarly situated.*fn2 Plaintiff alleges that Defendant violated: (i) F.D.C.P.A. § 809(a), 15 U.S.C. § 1692g(a), by failing to provide the consumer with a "validation notice" that states the actual amount of the debt, (Compl. ¶ 22-25); (ii) F.D.C.P.A. § 807(2), 15 U.S.C. § 1692e(2), by misrepresenting the amount of the debt owed, (Compl. ¶ 26-30); and (iii) G.B.L. § 349 by willfully and knowingly engaging in deceptive acts and practices, which caused damages to Plaintiff in the form of humiliation, anger, anxiety, emotional distress, fear, frustration and embarrassment, (Compl. ¶ 31-34). Defendant now moves to dismiss Plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

DISCUSSION

I.Legal Standards

A.Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedure states that a defendant may move, in lieu of an answer, for dismissal of a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To determine whether dismissal pursuant to Fed. R. Civ. P. 12(b)(6) is appropriate, "a court must accept as true all [factual] allegations contained in a complaint" but need not accept "legal conclusions." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). For this reason, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to insulate a claim against dismissal. Id. Moreover, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint . . . has not shown that the pleader is entitled to relief." Id. at 1950 (internal citations and quotation marks omitted).

B.F.D.C.P.A.

Section 1692g(a) requires that a debt collector provide the consumer with notice of the debt by "send[ing] the consumer a written notice containing[, among other things,] the amount of debt." 15 U.S.C. § 1692g(a). Section 1692e prohibits the debt collector from "us[ing] any false, deceptive, or misleading representation or means in connection with the collection of any debt . . . [including] [t]he false representation of . . . the character, amount or legal status of any debt." 15 U.S.C. § 1692e(2)(A). A communication is deceptive and, thus, in violation of 15 U.S.C. § 1692e, "when it can be reasonably read to have two or more different meanings, one of which is inaccurate." Beauchamp v. Fin. Recovery Services, Inc., 2011 WL 891320, at *2 (S.D.N.Y. Mar. 14, 2011). "Ultimately, the critical question [in determining whether a communication violates the F.D.C.P.A.] is . . . whether the notice fails to convey the required ...


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