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Shetiwy v. Midland Credit Mgmt.

United States District Court, S.D. New York

March 26, 2014

AMAL SHETIWY, LOUIS C. YEOSTROS, JOHN MURPHY, PLAMEN PANKOFF, SPIROS ARGYROS, NICOLE GAGNON, VIELKA VARGAS, ROSE VILLANEUVA, and others similarly situated, Plaintiffs,
v.
MIDLAND CREDIT MANAGEMENT, a/k/a MIDLAND FUNDING LLC, CALVARY SPV LLC, CACH, LLC, LVNV FUNDING, LLC, FIA CARD SERVICES, N.A., PORTFOLIO RECOVERY ASSOCIATES LLC, ASSOCIATED RECOVERY SYSTEMS, EQUABLE ASSENT FINANCIAL, LLC, CHASE BANK, N.A., and BANK OF AMERICA, N.A., Defendants

Page 438

For Plaintiffs: Phillip Jaffe, Esq., New York, NY; George Bassias, Esq., Astoria, NY.

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

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

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

For Bank of America, N.A. and FIA Card Services, N.A., Defendants: Gillian I. Biron, Esq., S. Elaine McChesney, Esq., Jonathan M. Albano, Esq., Bingham McCutchen LLP, New York, NY.

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

For Portfolio Recovery Associates, LLC, Defendant: Christopher W. Madel, Esq., Jennifer M. Robbins, Esq., Robins, Kaplan, Miller & Ciresi LLP, Minneapolis, MN; Oren D. Langer, Esq., Robins, Kaplan, Miller & Ciresi LLP, New York, NY.

For Chase Bank, N.A., Defendant: 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 Associated Recovery Systems, Defendant: John E. Brigandi, Esq., Salvo Law Firm, Fairfield, NJ.

Page 439

OPINION AND ORDER

Shira A. Scheindlin, U.S.D.J.

I. INTRODUCTION

Plaintiffs are eight individuals who claim that defendants obtained tens of thousands of state court debt collection judgments against them using false affidavits, misleading evidence, and other improper litigation tactics. Defendants consist of two groups: creditors or their affiliates (" Creditor Defendants" ); [1] and businesses that collect or buy debts (" Debt Buyer Defendants" ).[2]

In their Second Amended Complaint (" SAC" ), plaintiffs request injunctive relief and damages based on a wide variety of legal theories, including: (1) the Racketeer Influenced and Corrupt Organizations Act (" RICO" ); (2) the Fair Debt Collection Practice Act (" FDCPA" ); (3) unjust enrichment; (4) intentional infliction of emotional distress; (5) Section 349 of the New York General Business Law; and (6) Section 487 of the New York Judiciary Law.[3]

Page 440

Plaintiffs also seek class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure.[4]

Defendants now move to dismiss plaintiffs' claims with prejudice under Rule 12(b)(6) and to strike the class allegations under Rule 12(f).[5] For the reasons stated below, defendants' motion is granted.

II. BACKGROUND

A. Procedural History

Plaintiffs filed their initial Complaint on September 19, 2012 and their First Amended Complaint (" FAC" ) on December 6, 2012. The FAC was filed by fifteen individuals purporting to sue on behalf of all " unknowledgeable citizens" in the United States who " were brought to Court and had their money taken (stolen) from them using illegal tactics -- under the cover of so-called legality of process." [6]

The FAC alleged that twenty defendants -- nine Creditor Defendants and eleven Debt Buyer Defendants -- conspired to collect debts through " fraudulently obtained judgments of default" in state courts throughout the country.[7] Specifically, Creditor Defendants allegedly sold debt that they had previously written off for tax purposes.[8] Debt Buyer Defendants then allegedly obtained default judgments through various fraudulent acts, including: (1) submitting affidavits containing false statements or facts beyond the affiant's personal knowledge; (2) failing to disclose how defendants calculated the amount of debt owed; (3) neglecting to notify plaintiffs that their debt had been assigned; (4) suing on the full amount of debt despite having " already charged off a good portion of the debt for [defendants'] tax advantage; " and (5) amending " the terms of [their] contract[s] with . . . consumer[s] after the litigation [had] begun." [9] Finally, plaintiffs allege that defendants' conduct is part of a larger pattern whereby debt collectors and creditors harass debtors and overwhelm courts by filing thousands of debt collection suits based on false and inadequate documentation.[10]

On July 12, 2013, I granted a motion by four Creditor Defendants to compel arbitration and stay all remaining proceedings against them pending the completion of that arbitration.[11] On September 20, 2013, I granted the remaining defendants' motion to dismiss the ...


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