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Shetiwy v. Midland Credit Mgmt.

United States District Court, S.D. New York

March 26, 2014


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


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


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]

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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.


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 FAC because plaintiffs failed to state a plausible federal claim.[12]

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I granted leave to amend except with regard to plaintiffs' legally invalid (1) federal due process claims, (2) FDCPA claims against Creditor Defendants, and (3) attempts to challenge and vacate state court judgments.[13] I also warned plaintiffs that:

[The SAC] must comply in full with Rule 8 and Rule 9(b), as well as Rule 11, which prohibits frivolous legal arguments and sets minimum standards for factual contentions. If plaintiffs' [SAC] displays the confused, unintelligible, argumentative, speculative, or rambling qualities of plaintiffs' [FAC], the [SAC] will be dismissed without leave to amend.[14]

B. The Second Amended Complaint[15]

On October 18, 2013, eight of the original plaintiffs filed the SAC, asserting putative class action claims against three Creditor Defendants and seven Debt Buyer Defendants. Although plaintiffs have abandoned several of their legally invalid claims, the bulk of the SAC remains identical to the FAC.

As with the FAC, the factual allegations and legal arguments in the SAC are difficult to discern. In plaintiffs' words, " [e]very allegation is based upon the perjury by the conspiracy group's attorneys when they falsely swore to documents (Complaints) as being true when . . . they had no knowledge as to the truth to which they were swearing." [16] The factual allegations in the SAC are still drawn mainly from newspaper articles -- often without citation -- and from decisions in unrelated cases.[17] Plaintiffs continue to allege that defendants engaged in fraudulent acts during state court debt collection proceedings.[18] The facts supporting plaintiffs' RICO and state law claims remain largely unchanged. Moreover, despite my prior ruling, plaintiffs continue to ask the Court to vacate prior state court judgments against them.[19]

Finally, plaintiffs still seek to certify a class consisting of " [a]ll persons 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." [20] The so-called " illegal tactics" are acts allegedly intended " to overburden the Courts so that judges . . . found themselves impossible to stop the onslaught of hundreds of improper complaints and default[s] that [arrived] into every court in the country." [21]


A. Motion to Dismiss

In deciding a motion to dismiss under Rule 12(b)(6), the court must " 'accept[] all

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factual allegations in the complaint as true, and draw[] all reasonable inferences in the plaintiff's favor.'" [22] The court evaluates the sufficiency of the complaint under the " two-pronged approach" suggested by the Supreme Court in Ashcroft v. Iqbal.[23] Under the first prong, a court may " begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." [24] Thus, " [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." [25]

Under the second prong, " [w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." [26] A claim is plausible " when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." [27] " The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." [28]

B. Pleading Requirements[29]

1. Rule 8

Under Rule 8, a pleading must contain " a short and plain statement of the claim showing that the pleader is entitled to relief." " Such a statement must . . . 'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" [30]

2. Rule 9(b)

" All claims sounding in fraud -- including those under RICO -- must comply with Rule 9(b)'s heightened pleading standard." [31] Under Rule 9(b), " a party must state with particularity the circumstances constituting fraud . . . ." This requires the plaintiff to: " (1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent." [32] " Allegations that are conclusory or unsupported by factual assertions are insufficient." [33]

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RICO provides a private right of action for treble damages for a " person injured in his business or property by reason of a violation of section 1962." [34] To state a RICO claim under either section 1962(a) or 1962(c), a plaintiff must at least allege: (1) the existence of an " an enterprise," (2) that engages in " a pattern of racketeering activity." [35]

An enterprise " is an entity separate and apart from the pattern of activity in which it engages" and must be proven separately.[36] It may consist of " a group of persons associated together for a common purpose of engaging in a course of conduct." [37] However, a plaintiff's " conclusory naming of a string of entities does not adequately allege an enterprise." [38] Furthermore, " under the so-called 'distinctness' requirement, . . . a plaintiff must 'allege . . . the existence of two distinct entities: (1) a 'person'; and (2) an 'enterprise' that is not simply the same 'person' referred to by a different name.'" [39]

A " pattern of racketeering activity" must include at least two predicate acts of racketeering within ten years of each other.[40] When bringing a RICO claim against multiple defendants, the plaintiff must allege that each defendant committed two or more predicate acts.[41] Plaintiff must also show that " the predicate acts are related and that they amount to, or pose a threat of, continuing criminal activity." [42] Where the conduct or predicate acts sound in fraud, they must be pled with particularity under Rule 9(b).[43]

In addition to an " enterprise" and a " pattern of racketeering activity," section 1962(c) requires the plaintiff to allege that each defendant participated in the " operation or management" of the enterprise.[44] Section 1962(a), in turn, requires the plaintiff to allege an " injury caused not by the pattern of racketeering activity itself, but rather by the use or investment of the proceeds of that activity." [45]


In enacting the FDCPA, Congress sought to " eliminat[e] abusive practices in the debt collection industry, and . . . ensure

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that 'those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged.'" [46] Not all " debts" are subject to the FDCPA.[47] For FDCPA purposes, a " debt" is " any obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance or services which are the subject of the transaction are primarily for personal, family, or household purposes." [48] Because only transactions for " personal, family, or household purposes" are covered, actions arising out of " commercial debts" are excluded.[49]

Further, section 1692e of the FDCPA prohibits debt collectors from using any " false, deceptive, or misleading representation or means in connection with the collection of any debt." The provision provides a non-exhaustive list of examples of conduct that violates the FDCPA, including " [t]he false representation of (A) the character, amount, or legal status of any debt; or (B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt." [50]

Finally, section 1692f prohibits the use of " unfair or unconscionable means to collect or attempt to collect any debt." Prohibited acts include but are not limited to: (1) " the solicitation . . . of any . . . postdated payment instrument for the purpose of threatening or instituting criminal prosecution; " and (2) " [c]ausing charges to be made to any person for communications by concealment of the true purpose of the communication." [51]


A. The RICO Claim

Plaintiffs claim that defendants violated sections 1962(a) and 1962(c) of the RICO statute.[52] Both subsections require plaintiffs to allege the existence of an enterprise and a pattern of racketeering activity.[53] Once again, plaintiffs fail to allege either.

When I dismissed the FAC, I noted that " [a]bove all, plaintiffs' conclusory allegations fail to make any concrete factual assertions as to the mechanics of the interactions among defendants." [54] The SAC is no different. Plaintiffs assert boilerplate statements, such as " [e]ach and every defendant is employed by or associated with the enterprise," and the relationships between defendants are " longstanding and ongoing." [55] Simply stating that all of the defendants form an " enterprise within the meaning" of the RICO statute is insufficient,

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in the absence of any factual support.[56]

In the alternative, plaintiffs allege that each defendant is also an enterprise unto itself.[57] But as the Supreme Court has held, a defendant -- i.e., the person -- and the enterprise must be " distinct." [58] Thus, plaintiffs have failed to allege the existence of an enterprise.

Nor have plaintiffs alleged a pattern of racketeering activity. Plaintiffs recite a number of predicate acts: (1) obstruction of justice, (2) obstruction of state law with the intent to facilitate an illegal gambling business, (3) bank fraud, (4) mail fraud, and (5) wire fraud.[59] But none are adequately pled.

First, plaintiffs rely on statutes that do not constitute predicate acts under the RICO statute. Obstruction of justice as a predicate act applies only to obstruction of justice in federal proceedings, but the SAC alleges misconduct in state court debt collection proceedings.[60] Similarly, the statute prohibiting the obstruction of state law enforcement relates to illegal gambling businesses and is completely irrelevant to plaintiffs' claims.[61] Finally, the federal bank fraud statute requires the plaintiff to show that the defendant " intended to victimize the bank by exposing it to loss." [62] The SAC contains no allegation describing how defendants -- three of whom are banks themselves -- intended to defraud a bank.

Plaintiffs' mail and wire fraud claims are also unavailing. Both are based on defendants' allegedly fraudulent litigation tactics in state debt collection proceedings.[63] However, plaintiffs fail to plead the elements of wire or mail fraud with " particularity" under Rule 9(b).[64] Specifically, Second Circuit law requires plaintiffs who plead acts of mail and wire fraud to " state the contents of the communications, who was involved, where and when they took place, and [] why they were fraudulent." [65] Plaintiffs simply assert that defendants filed state court complaints based on " false and inadequate affidavits." [66] They fail to identify a single specific mailing or phone conversation to support their claims. Such speculative and conclusory pleading is clearly inadequate to satisfy Rule 9(b).[67] Because

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plaintiffs have failed to assert an " enterprise" or a " pattern of racketeering activity," I need not determine whether they have satisfied the remaining elements of section 1962(a) or (c).[68]

B. The FDCPA Claim

Plaintiffs next allege that the " civil conspiracy group" violated sections 1692e and 1692f of the FDCPA by " making false and misleading representations and engaging in unfair and abusive practices." [69] Debt Buyer Defendants argue that no plaintiff has alleged the existence of a " debt" incurred for personal, family or household purposes, as required by the FDCPA.[70] Instead, plaintiffs vaguely state that they were sued and refer to their " debt" without describing its nature.[71] Although Shetiwy alleges that she incurred debt on " three different credit cards," she does not disclose whether her expenses were business or personal.[72] Thus, Debt Buyer Defendants contend that plaintiffs have failed to allege the existence of " debt" for purposes of the FDCPA.[73]

In response, plaintiffs point to the attorney affidavit of George Bassias, which states that each plaintiff's " debt" came from his or her personal expenses.[74] But because the affidavit was filed with plaintiffs' opposition papers and is not a part of the SAC, I cannot consider it for the truth of its contents.[75]

Moreover, even if plaintiffs had asserted the existence of a " debt," the SAC includes no facts to support their claims under section 1692e or 1692f. Section 1692e prohibits the use of " false, deceptive, or misleading representations" to collect a debt. Section 1692f prohibits use of " unfair or unconscionable means" to collect or attempt to collect a debt. The SAC includes recitations of the legal elements of an FDCPA claim and blanket conclusions that Debt Buyer Defendants violated these sections. Plaintiffs contend that:

the entire [SAC] is based upon -- only one premise and one premise only -- and that being that the Debt Buyers sent their attorneys into court with perjured documents and who then falsely testified that they knew the contents of what they were presenting to the court when they had no knowledge of the papers

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that they were presenting to the court.[76]

This general refrain is repeated throughout the SAC but never with sufficient factual support to state a plausible claim.[77]

In addition, plaintiffs allege that Debt Buyer Defendants filed complaints and affidavits without " personal knowledge" of the underlying debt.[78] But under Second Circuit law, court filings that do not " mislead a putative-debtor as to the nature and legal status of the underlying debt, or . . . impede a consumer's ability to respond to or dispute collection" do not violate the FDCPA.[79] Nothing in the SAC suggests that plaintiffs were misled or prevented from responding.

The mass filing of form affidavits and other submissions containing false or deceptive representations may -- under certain circumstance -- give rise to an actionable FDCPA claim.[80] For example, the newspaper articles cited or pasted without citation in the SAC describe debt collection practices that could constitute violations of the FDCPA.[81] But plaintiffs have failed to plead that such tactics were used against them, and lack standing to sue based on the injuries to others. As such, plaintiffs have failed to state a claim under the FDCPA.

C. State Law Claims

" [A] district court 'may decline to exercise supplemental jurisdiction over a claim' if it 'has dismissed all claims over which it has original jurisdiction.'" [82] Because I have dismissed all of plaintiffs' federal law claims, I decline to exercise supplemental jurisdiction over plaintiffs' state law claims.


For the foregoing reasons, defendants' motion is granted. The Clerk of the Court is directed to close defendants' motion [Dkt. No. 119] and this case.


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