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Wright v. Phillips & Cohen Associates, Ltd.

United States District Court, E.D. New York

September 10, 2014

ERROL WRIGHT, on behalf of himself individually and All others similarly situated, Plaintiff,
v.
PHILLIPS & COHEN ASSOCIATES, LTD., Defendant.

Novlette Rosemarie Kidd, Esq., FAGENSON & PUGLISI, New York, NY, Attorneys for Plaintiff.

Aaron R. Easley, Esq., Michael D. Slodov, Esq., SESSIONS FISHMAN NATHAN ISRAEL LLC, Flemington, NJ, Attorneys for Defendant.

MEMORANDUM AND ORDER

DENIS R. HURLEY, District Judge.

Plaintiff Errol Wright ("Plaintiff") brings this action against Defendant Philips & Cohen Associates ("Defendant")[1], alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. Before the Court is Defendant's Motion to Dismiss the Plaintiff's Amended Complaint ("Motion") pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) for failure to state a claim upon which relief may be granted. For the reasons set forth below, Defendant's Motion is granted.

BACKGROUND

The following facts are taken from Plaintiff's First Amended Class Action Complaint ("Amended Complaint") and are presumed to be true for purposes of Defendant's present Motion. At some point in time Plaintiff incurred a debt "for personal purposes" to Fingerhut Direct Marketing ("Fingerhut"). (Am. Compl. ¶ 9.) It is thus undisputed that Plaintiff is a "consumer" under 15 U.S.C. § 1692a(3), which defines "consumer" as "any natural person obligated or allegedly obligated to pay any debt." Plaintiff later defaulted on the debt to Fingerhut. ( Id. ¶ 10.)

On July 6, 2012, Defendant, who "regularly collects or attempts to collect, directly or indirectly, debts owed or due or alleged to be owed or due to others, " wrote to Plaintiff in an attempt to collect the debt Plaintiff had incurred to Fingerhut. ( Id. ¶¶ 4, 5, 11.) Defendant addressed the letter to "ERROL WRIGHT C/O FAGENSON & PUGLISI, " at the address of Fagenson & Puglisi, Plaintiff's attorneys. ( Id. ¶ 15.) In the letter, Defendant labeled Portfolio Asset Group ("PAG") as its "Client, " labeled Fingerhut as the "Original Creditor, " and provided Plaintiff's original account number ("Orig. Acct#") ending in "6123." ( Id. ¶ 12.) Plaintiff had not previously conducted any business with PAG, nor had he held any account with PAG. ( Id. ¶ 34.) The letter, the salutation of which was addressed to Plaintiff, stated:

Your account has been referred to our office for collection on behalf of our above referenced client. To resolve this matter and prevent any further collection activity, full payment should be sent to this office at the address above. IT IS NOT IN YOUR BEST INTEREST TO NEGLECT THIS ACCOUNT! YOU MAY CONTACT OUR OFFICE AT THE ABOVE TELEPHONE NUMBER.

( Id. ¶ 13.) After the July 6, 2012 letter was delivered to the office of Fagenson & Puglisi, the letter was forwarded to Plaintiff, who subsequently read it. ( Id. ¶¶ 16, 18, 19.)

Plaintiff received no further communication from Defendant until Defendant again wrote to Plaintiff in a letter dated August 22, 2012. ( Id. ¶ 22.) Like the July 6, 2012 letter, the August 22, 2012 letter was addressed to Plaintiff, care of Fagenson & Puglisi, at the address of Fagenson & Puglisi, and contained the name of Defendant's client, PAG. ( Id. ¶¶ 23, 24, Ex. 2.) Unlike the July 6, 2012 letter, the August 22, 2012 letter did not contain the name of the original creditor or the original account number. ( Id. Ex. 2.) The August 22, 2012 letter did, however, contain a client account number ("Clinet Acct #") that, like the original account number contained in the July 6, 2012 letter, ended in "6123." ( Id. ¶ 27.) After the August 22, 2012 letter was delivered to the office of Fagenson & Puglisi, the letter was forwarded to Plaintiff, who subsequently read it. ( Id. ¶¶ 24, 25, 26.)

Plaintiff alleges that the communications received from Defendant violate two provisions of the FDCPA. First, Plaintiff alleges that the July 6, 2012 letter constitutes a violation of the FDCPA because it does not contain "the name of the creditor to whom the debt is owed" as required by § 1692g(a)(2). Additionally, Plaintiff alleges that Defendant's failure to disclose the name of the creditor to whom the debt is currently owed in the July 6, 2012 letter constitutes a violation of 15 U.S.C. §§ 1692e and 1692e(10), which prohibit the use of "false, deceptive, or misleading representation[s] or means in connection with the collection of any debt." Furthermore, Plaintiff claims that Defendant's deception was further compounded by the inclusion of an original account number ending in 6123 in the July 6, 2012 letter and a client account number ending in 6123 in the August 22, 2012 letter. ( Id. ¶¶ 39, 44.)

DISCUSSION

I. Standard of Review for Motion to Dismiss

Rule 8(a) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). In recent years, the Supreme Court has clarified the pleading standard ...


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