Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jane Kinkade, Individually and On Behalf of All Others Similarly v. Estate Information Services

September 28, 2012

JANE KINKADE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
ESTATE INFORMATION SERVICES, LLC, DEFENDANT.



The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge:

I. PRELIMINARY STATEMENT

MEMORANDUM AND ORDER

In this Fair Debt Collection Practices Act ("FDCPA") action, Plaintiff Jane Kinkade ("Plaintiff" or "Kinkade") asserts claims against Estate Information Services, LLC ("Defendant" or "EIS") pursuant to 15 U.S.C. § 1692 et seq. Defendant moves to dismiss Plaintiff's Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for lack of standing and for failure to state a claim. For the reasons that follow, Defendant's motion to dismiss is GRANTED in part and DENIED in part.

II. BACKGROUND

The following facts are taken from Plaintiff's Amended Complaint, which the Court must accept as true for purposes of this motion to dismiss, as well as from the single exhibit annexed to the Amended Complaint. Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007).

Plaintiff is a recent widow. Am. Compl. [DE 6] ¶ 1. On or about July 26, 2011, Defendant mailed a form letter seeking payment of a debt allegedly owed by Plaintiff's recently deceased husband, Gerald C. Kinkade (the "Letter"). Id. ¶¶ 13, 17, 37, Ex. A. Plaintiff received, opened, and read the Letter in her residence, where she lives alone. Id. ¶¶ 14-15.

The Letter is addressed "To the Estate of GERALD C KINKADE." Id., Ex. A. The Letter lists the debtor (Gerald C Kinkade), the amount of the debt ($3,573.95) and account information in the "Re" line and then reads as follows:

Dear Family:

We understand this may be a difficult time for the family. Estate Information Services has been hired by our client to assist the Estate in bringing to a resolution the outstanding balance owed by the decedent on the above account. Therefore, we need to receive from you pertinent estate information so that we can file an estate claim for our client. Please call this office at the number above with this information.

However, the balance may be paid by merely returning the below payment coupon, along with payment of the amount referenced above, $3,573.95 and no estate claim will be filed.

Again we extend our deepest sympathies to the family during this difficult time. You have our commitment that we will do our best to make the resolution of the payment process as quick and easy as possible.

Unless, within thirty (30) days after receipt of this notice you dispute the validity of the debt, or any portion thereof, we will assume the debt is valid. If you notify us in writing within said 30 days that the debt or any portion thereof is disputed, we will obtain verification of the debt and will mail such verification to you. In addition, upon your written request within said 30 days, we will provide the name and address of the original creditor if different from the current creditor.

This is an attempt to collect a debt from the Estate, and not from the family personally, and any information obtained will be used for that purpose.

This communication is from a debt collector.

Id. (emphasis in original).*fn1 The payment coupon referred to in the body of the Letter appears at the bottom, below a dotted line, in the middle of which is written, "Cut along this line." The coupon instructs the payer to make the check payable to "Citibank NA," and to mail payment to Defendant at the address provided. It lists the debtor as "GERALD KINKADE," and restates the amount allegedly owed. Id.

Plaintiff alleges that the Letter led her to believe that if she did not pay the Defendant, then Defendant would file a claim against her late husband's estate and that such filing would cost Plaintiff money. Id. ¶ 25. Plaintiff alleges that Defendant actually had no intention of filing an estate claim. Id. ¶ 18. Defendant has not filed an estate claim. Id. ¶ 19. Plaintiff also alleges that the Letter led her to believe that she was responsible for the debts of her late husband. Id. ¶¶ 31-32.

III. STANDARD OF REVIEW

In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the Plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). The plaintiff must satisfy "a flexible 'plausibility standard.'" Iqbal v. Hasty, 490 F.3d 143, 157 (2d Cir. 2007), rev'd on other grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563, 127 S. Ct. 1955 (2007). The Court, therefore, does not require "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Id. at 570.

The Supreme Court clarified the appropriate pleading standard in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009), in which the Court set forth a two-pronged approach to be utilized in analyzing a motion to dismiss. First, a district court "identif[ies] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." 556 U.S. at 679. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. Second, if the complaint contains "well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. "The plausibility ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.