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Lotito v. Recovery Associates Inc.

United States District Court, E.D. New York

September 17, 2014

JANET LOTITO, individually and on behalf of a class, Plaintiff,
v.
RECOVERY ASSOCIATES INC., Defendant.

OPINION & ORDER

SANDRA J. FEUERSTEIN, District Judge.

On October 22, 2013, plaintiff Janet Lotito ("plaintiff") commenced this putative class action against defendant Recovery Associates Inc. ("defendant") pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692, et seq. Pending before the Court are: (1) defendant's motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim for relief; and (2) plaintiff's application for leave to amend the complaint. For the reasons set forth below, defendant's motion is granted in part and plaintiff's application is denied.

I. BACKGROUND

A. Factual Background

On or about May 17, 2013, defendant sent, or caused to be sent, through the mail a form debt collection letter addressed to plaintiff ("the May letter"), (Complaint ["Compl."], ¶ 8), indicating, inter alia:

COURTESY NOTE
This will notify you that our above named client has referred your seriously past due account to us for collection.
While it is possible that your non-payment reflects a misunderstanding or oversight, we wish to advise that this balance as shown on the books and records of our client is long past due and must be paid at once.
You are advised that unless you notify the office within 30 days that you dispute the validity of the debt or any portion thereof, we will assume that this debt is valid. If you notify this office in writing within 30 days of receipt of this notice, we will obtain verification of this debt or obtain judgment and mail you a copy of of [sic] such judgment or verification. If you request this office in writing within 30 days of receipt of this notice, we will provide you with the name and address of the original creditor, if different.

(Compl., Ex. A).

Defendant sent plaintiff a second letter, dated June 18, 2013 ("the June letter"), (Compl., ¶ 12), indicating, inter alia:

We have received no communication from you in response to our previous letter. We urge you to review your records as soon as possible so that you may advise us if our information is incorrect.
If you require additional information concerning this matter please do not hesitate to contact the undersigned. If you wish, you may use the back of this letter to communicate with us. If you would like to talk about it, feel free to contact us at the number above.
Be advised that should you not dispute this matter in writing within 30 days of our first communication to you, we will assume that our information is correct and proceed accordingly.

(Compl., Ex. B).

The back of both the May and June letters also contain the following validation notice in bold type:

UNLESS YOU NOTIFY U.S. THIS OFFICE [sic] WITHIN 30 DAYS AFTER RECEIVING THIS NOTICE THAT YOU DISPUTE THE VALIDITY OF THIS DEBT OR ANY PORTION THEREOF, THIS OFFICE WILL ASSUME THIS DEBT IS VALID. IF YOU NOTIFY THIS OFFICE IN WRITING WITHIN 30 DAYS FROM RECEIVING THIS NOTICE, THIS OFFICE WILL OBTAIN VERIFICATION OF THE DEBT OR OBTAIN A COPY OF A JUDGMENT AND MAIL YOU A COPY OF SUCH JUDGMENT OR VERIFICATION.. [sic] IF XYOU [sic] REQUEST THIS OFFICE IN WRITING WITHIIN [sic] 30 DAAYS [sic] AFTER RECEIVING THIS NOTICE THIS OFFICE WILL PROVIDE YOU WITH THE NAME AND ADDRESSOF [sic] THE ...

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