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Tocco v. Real Time Resolutions, Inc.

United States District Court, S.D. New York

August 13, 2014

ANGELIQUE TOCCO, Plaintiffs,
v.
REAL TIME RESOLUTIONS, INC., Defendant

Page 536

For Angelique Tocco, individually and on behalf of a class, Plaintiff: Abraham Kleinman, Kleinman LLC, Uniondale, N.Y. USA; Cathleen M. Combs, PRO HAC VICE, Tiffany Nicole Hardy, Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL USA.

For Real Time Resolutions, Inc., Defendant: Geoffrey Garrett Young, LEAD ATTORNEY, Casey Devin Laffey, Reed Smith LLP (NYC), New York, N.Y. USA.

Page 537

MEMORANDUM & ORDER

WILLIAM H. PAULEY III, United States District Judge.

Plaintiff Angelique Tocco brings this putative class action against Defendant Real Time Resolutions, Inc. (" Real Time" ) seeking statutory damages for violation of the Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. § 1692 et seq. Real Time moves to dismiss the Complaint for failure to state a claim and for lack of subject matter jurisdiction. For the reasons that follow, Real Time's motion is denied.

BACKGROUND

Real Time is a debt collector. (Compl. ¶ 10.) On July 31, 2013, Real Time sent Tocco a form letter (the " July 31 Letter" ) notifying her that servicing of her mortgage had been transferred to Real Time. (Compl. ¶ ¶ 12, 14.) The document " purport[ed] to contain the disclosures required by 15 U.S.C. § 1692g," (Compl. ¶ 17,) but Tocco alleges it was deficient in that it (i) did not disclose the current owner of the debt and (ii) required Tocco to give notice of dispute within thirty days of the transfer date rather than thirty days of receipt of the July 31 Letter. (Compl. ¶ ¶ 17-18.) On October 1, 2013, Real Time sent a second letter (the " October 1 Letter" ) advising her of options to resolve her past due account. Tocco alleges this letter also failed to comply with section 1692g because it (i) did not disclose the amount of the debt, (ii) identify the creditor to whom the debt was owed, or (iii) inform Tocco of her right to dispute the debt. (Compl. ¶ ¶ 20-21.)

In February 2014, Tocco filed this action on behalf of herself and similarly situated New York residents, seeking statutory damages under the FDCPA. (Compl. at 7.) Tocco also filed a letter motion requesting a pre-motion conference in anticipation of moving for class certification. (See Letter Motion dated Feb. 21, 2014, ECF No. 4.)[1] Soon thereafter, Real Time made Tocco an offer of judgment for $1,100 plus reasonable costs and attorneys' fees. (See Decl. of Casey D. Laffey, ECF No. 21, Ex. B, at ¶ 1.) Tocco declined that offer. Real Time then moved to dismiss the Complaint.

DISCUSSION

I. Legal Standard

To survive a motion to dismiss, a complaint must contain sufficient factual matter,

Page 538

accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal,556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). To determine plausibility, courts follow a " two-pronged approach." Iqbal, 556 U.S. at 679. " First, although a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Second, a court determines " whether the 'well-pleaded factual allegations,' assumed to be true, 'plausibly give rise to an entitlement to relief.'" Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010) (quoting Iqbal, 556 U.S. at 679). On a motion to dismiss, courts may consider " facts stated on the face of the complaint, in ...


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