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Lorenz v. Ge Capital Retail Bank

United States District Court, E.D. New York

May 16, 2013


Page 221

For Plaintiff: Bryan Konoski, Esq., Of Counsel, Treyvus & Konoski, P.C., New York, NY.

For Defendant: Joseph M. Pastore III, Esq., Of Counsel, Smith, Gambrell & Russell, LLP, New York, New York.


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ARTHUR D. SPATT, United States District Judge.

On July 18, 2012, the Plaintiff Christa Lorenz (" the Plaintiff" ), commenced this action against the Defendant, GE Capital Retail Bank (" GE Capital" or " the Defendant" ), alleging violations of the Fair Debt Collection Practices Act (" FDCPA" ) and the New York General Business Law § 349 (" NYGBL § 349" ), as well as causes of action for negligence, negligent supervision, negligent training, and intentional infliction of emotional distress. Presently before the Court is the Defendant's motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (" Rule 12(b)(6)" ) for failure to state a claim upon which relief can be granted. For the reasons set forth below, the Defendant's motion is granted.


The following facts are drawn from the Complaint and are construed in the light most favorable to the Plaintiff.

At some unspecified time prior to January 2012, the Plaintiff, a senior-citizen and resident of Suffolk County, New York, opened two credit card accounts--one a Lowe's credit card account, the other a Sam's Club credit card account. Although the Complaint fails to indicate the date when the credit card accounts were opened, it does state that GE Capital issued both credit cards. Subsequent to opening these credit card accounts, the

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Plaintiff received separate notices of incurred debt for each account from GE Capital (" Notices of Debt" ). The Notices of Debt referenced charges on both of the Plaintiff's accounts, which the Plaintiff could not identify as her own. Consequently, believing she may have been a victim of identity theft, the Plaintiff hired an attorney to challenge the debts that were charged to the credit cards.

On January 9, 2012, the Plaintiff's attorney sent a " Notice of Dispute" for each credit card account. One Notice of Dispute, addressed to GE Money Bank, 901 Main Avenue, Norwalk, Connecticut, 06851, referenced the Lowe's account. (Compl., Ex. B). The second Notice of Dispute, addressed to Discover Financial Services, P.O. Box 30943, Salt Lake City, Utah, 84130, referenced the Sam's Club account. Both Notices of Dispute contained the attorney's contact information, providing facsimile and phone numbers, a mailing address, and a website. The Plaintiff did not receive a response to either " Notice of Dispute", nor did she receive any proof of incurred debt as requested in the communications sent bye her attorney.

In or about May 2012, subsequent to the sending of the Notices of Dispute, the Plaintiff received a notice that GE Capital allegedly garnished the Plaintiff's Social Security Benefits (" the Benefits" ). (Id. at 4, Ex. C.) The Plaintiff never provided authorization to the Social Security Administration (" SSA" ) to electronically reroute the Benefits to GE Capital. In addition, GE Capital never obtained any judgment against the Plaintiff for the debts owed on either of her credit cards. However, according to the Complaint, the Benefits were electronically rerouted from the Plaintiff's personal bank account to a bank account owned and maintained by GE Capital.

As a result of the alleged garnishment of her Social Security Benefits, the Plaintiff did not receive the Benefits owed to her in June 2012 until July 2012. Further, the Plaintiff received the Benefits only after making inquiries to the SSA. Eventually, the SSA reversed the garnishment. Nevertheless, during the month of June, the Plaintiff borrowed money from friends to cover her living expenses and incurred debt as a result.

On June 13, 2012, six months after the Lowe's Notice of Dispute was sent and about the time the SSA reversed the garnishment, GE Capital sent a letter to the Plaintiff. The letter indicated a contact address of a P.O. Box in Canton, Ohio and stated as follows:

We are contacting you regarding the Lowe's Visa Rewards account referenced above. According to our records, the attorney contact information you provided us, was either not complete or incorrect. We need your attorney's full name, complete mailing address, phone and fax numbers. . . . Please provide use with the information requested within 30 days from the date of this letter. If the information is not received, we will resume contact with you for payment arrangements on the above referenced account.

(Id., Ex. D.) In addition, the June 13th letter provided space for the Plaintiff to provide her attorney's name and contact information. (Id.)

On July 6, 2012, seven months after the Sam's Club Notice of Dispute was sent, GE Capital sent a letter to the Plaintiff referencing the Sam's Club account and indicating a contact address of P.O. Box 103104, Roswell, Georgia. (Id., Ex. E.) The July 6th letter differed slightly in content from the June 13th letter, stating:

We are contacting you regarding the Sam's Club Discover account referenced

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above. We have not received the requested bankruptcy information on the account listed above. We have made several attempts to obtain the information on the reverse side and/or contact your attorney. If the information is not provided to us, or your attorney fails to confirm representation within 14 days of the date of this letter, your account will be placed back into collection. Provide the data listed above and send your responses to . . . . For immediate processing contact us at . . . .

(Id.) In addition to differing slightly in content from the June 13th letter, the July 9th letter included a postscript stating, " This is an attempt to collect a debt and any information obtained will be used for that purpose." (Id.)

On July 18, 2012, the Plaintiff commenced the instant action. The Complaint alleges that GE Capital's conduct violated the FDCPA, resulted in various forms of negligence, and caused the Plaintiff to " bec[o]me nervous, anxious, upset, and suffer[ ] emotional distress and mental anguish, together with shock, fright, apprehension, embarrassment, humiliation, and caused [her] to incur costs . . . ." (Id.)

On September 17, 2012, GE Capital moved to dismiss the Complaint for failure to state any claim on which relief can be granted pursuant to Rule 12(b)(6). On September 21, 2012, the Plaintiff opposed and ...

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