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Jonathan Broughman v. Chiari & Ilecki

November 16, 2012

JONATHAN BROUGHMAN, PLAINTIFF,
v.
CHIARI & ILECKI, LLP, DEFENDANT.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

I. INTRODUCTION

Plaintiff Jonathan Broughman commenced this action on February 13, 2012, alleging that Defendant Chiari & Ilecki violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. ("FDCPA"), when, in attempting to collect a debt, it threatened to take action that cannot legally be taken.

Now before the Court is Defendant's Motion for Judgment on the Pleadings. The motion is fully briefed and the Court has determined that oral argument is unnecessary. For the reasons set forth below, Defendant's motion is granted and this case is dismissed.

II. BACKGROUND

A. Facts

Defendant is a law firm located in Buffalo, New York. On or about February 9, 2011, Defendant, on behalf of a client, filed a summons and complaint in New York State Supreme Court, County of Erie, naming Plaintiff as the defendant in an action based on a consumer credit transaction. The summons, served on Plaintiff on or about February 16, 2011, states it "is an attempt to collect a debt by a debt collector." Compl. Ex. A. The debt in question involves the sum of $9,006.57 allegedly owed to WSG Fox Valley IV, LLC a/k/a The Fox Valley Club. Compl. Ex. B.

At issue in this action is the summons's warning that: "If you do not respond to the attached Complaint within the applicable time limitation stated above a Judgment will be entered against you, by default, for the relief demanded in the Complaint, without further notice to you." Compl. Ex. A (emphasis added). According to Plaintiff, this statement is contrary to New York Civil Practice Law and Rules 3215(g)(3)'s requirement that, in actions based upon nonpayment of a contractual obligation, "an affidavit shall be submitted that additional notice has been given . . . before the entry of such judgment."

B. The Claims

Plaintiff now maintains that, because Defendant could not, in fact, obtain a judgment against him in the state court suit without giving "further notice," the threat to do so violated the FDCPA. He specifically asserts that Defendant violated sections 1692e, 1692e(5), 1692e(10) and 1692f of Title 15 of the United States Code, and seeks statutory damages for the alleged violations, which he claims caused him to become "annoyed, irritated, anxious and upset." Compl. ¶ 21.

Defendant moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure on the ground that the language of the summons does not violate the FDCPA and, in any event, does not constitute a "material" violation of the Act.

III. ANALYSIS

A. Standard of Review

In determining whether judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure is warranted, courts employ the same standard applicable to a Rule 12(b)(6) motion to dismiss for failure to state a claim. L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d ...


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