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Shetiwy v. Midland Credit Management

United States District Court, Second Circuit

September 19, 2013

AMAL SHETIWY, LOUIS C. YEOSTROS, JOHN MURPHY, PLAMEN PANKOFT, PATRICIA R. DIFFLEY, SPIROS ARGYROS, JOHANNA ARBELAEZ, NICHOLAS DOUDALIS, NICOLE GAGNON, SAFET KOLJENOVIC, MAGDI ABDALLA, AHMED HASSAN, EKATEREINE SKOTEDIS, VIELKA VARGAS, ROSE VILLANEUVA, and others similarly situated, Plaintiffs,
v.
MIDLAND CREDIT MANAGEMENT, a/k/a MIDLAND FUNDING LLC, CALVARY PORTFOLIO SERVICE, DEBTONE, LLC, CACH, LLC, NCO FINANCIAL SYSTEMS, LVNV FUNDING, LLC, ASSET ACCEPTANCE, LLC, FIA CARD SERVICES, N.A., PORTFOLIO RECOVERY, CHASE BANK, N.A., AMERICAN EXPRESS COMPANY, BANK OF AMERICA, N.A., CAPITAL ONE FINANCIAL ADVISORS, LLC, ASSOCIATED RECOVERY SYSTEMS, CITIGROUP INC., CITIBANK, N.A., CAPITAL MANAGEMENT SERVICES, GE CAPITAL CONSUMER LENDING, INC., and EQUABLE ASSENT FINANCIAL, LLC, Defendants.

Phillip Jaffe, Esq. New York, NY, George Bassias, Esq. Astoria, NY, for Plaintiffs.

Andrew A. Ruffino, Esq., Covington & Burling LLP, New York, NY, Robert D. Wick, Esq. Laura Brookover, Esq., Henry Liu, Esq. Covington & Burling LLP, Washington, DC for Defendant Chase Bank USA, N.A.

Casey D. Laffey, Esq., Brian S. Goldberg, Esq., Reed Smith LLP, New York, NY, for Defendant Midland Credit Management, Inc.

Donald S. Maurice, Jr., Esq., Rachel Marin, Esq., Thomas R. Dominczyk, Esq., Maurice & Needleman, PC, Flemington, NJ, For Defendants Cavalry Portfolio Services, LLC and Equable Ascent Financial, LLC.

Jonathan J. Greystone, Esq., Spector Gadon & Rosen, PC, Philadelphia, PA, for Defendant CACH, LLC.

W. Raley Alford, III, Esq., Stanley, Reuter, Ross, Thornton & Alford LLC, New Orleans, LA, for Defendant Debt One, LLC.

Concepcion A. Montoya, Esq., Hinshaw & Culbertson LLP, New York, NY, for Defendant LVNV Funding, LLC.

Aaron R. Easley, Esq., Sessions, Fishman, Nathan & Israel, LLC, Flemington, NJ, Kevin Barry McHugh, Esq., Law Offices of Edward Barfinkel, Brooklyn, NY, for Defendants NCO Financial Systems, Inc., and Capital Management Services.

Jill M. Wheaton, Esq., Dykema Gossett PLLC, Ann Arbor, MI, Richard David Lane, Jr., Esq., Marshall, Dennehey, Warner, Coleman & Goggin, New York, NY, for Defendant Asset Acceptance LLC.

Gillian I. Biron, Esq. S. Elaine McChesney, Esq. (pro hac vice) Jonathan M. Albano, Esq. (pro hac vice) Bingham McCutchen LLP, New York, NY, for Defendants Bank of America, N.A. and FIA Card Services, N.A.

Christopher W. Madel, Esq., (pro hac vice) Jennifer M. Robbins, Esq., (pro hac vice) Robins, Kaplan, Miller & Ciresi LLP, Minneapolis, MN, Oren D. Langer, Esq., Robins, Kaplan, Miller & Ciresi LLP, New York, NY, for Defendant Portfolio Recovery Associates, LLC.

Carmine D. Boccuzzi, Jr., Esq., Lauren K. Handelsman, Esq., Cleary Gottlieb Steen & Hamilton LLP, New York, NY, for Defendant American Express Company.

John E. Brigandi, Esq., The Salvo Law Firm, PC, Fairfield, N.J. Defendant ARS National Services, Inc.

Michael D. Hynes, Esq., DLA Piper LLP (US), New York, NY, for Defendant GE Capital Consumer Lending, Inc.

Mark P. Ladner, Esq., David J. Fioccola, Esq., Jessica L. Kaufman, Esq. Morrison & Foerster LLP, New York, NY, for Defendants Capital One Financial Corp. and Capital One Financial Advisors, LLC.

Stephen C. Robinson, Esq., Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, for Defendants Citigroup, Inc. and Citibank, N.A.

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge.

I. INTRODUCTION

Plaintiffs in this putative class action begin their Amended Complaint with the following statement:

The purpose of this lawsuit is to correct the Fifth and Fourteenth Amendment Due Process abuses that have occurred over many years in the State Courts throughout the United States Court systems by principals, the debt collection companies that the principals have sold the debt to and the attorneys who represent those entities. In the debt collection process the Defendants have made the court systems of this country appear as if the courts were the O.K. Corral complete with Wild West shows, robo-signing, and an anything goes approach and other adjectival descriptions that are morally reprehensible, indefensible and vomitous.
More repugnant than the above, other than some outspoken judges, the impropriety has been well known and tolerated within the legal community for a lengthy period of time and has up to this point in time has not been addressed or confronted. Whether this Class Action Lawsuit is successful or not is secondary to the overall purpose of this action which is to expose the criminal and civil violations and those violations which have caused great suffering to the victims by the principals, the debt collectors and their attorneys against citizens of the United States. [1]

Many of the legal arguments and factual allegations in plaintiffs' eighty-eight page Amended Complaint are difficult to discern. A significant portion of the Amended Complaint consists of text copied and pasted, sometimes without citation, from newspaper articles.[2]

Defendants now move collectively to dismiss plaintiffs' claims pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6).[3] For the reasons stated below, defendants' ...


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