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Setton v. Tenenbum

United States District Court, E.D. New York

September 22, 2014

EFRAIM SETTON AND SARA MINA SETTON on behalf of themselves and all other similarly situated consumers, Plaintiffs,


ROSLYNN R. MAUSKOPF, District Judge.

On August 16, 2012, plaintiffs Efraim Setton and Sara Mina Setton ("the Settons") commenced this action against defendant-law firm Cohen Hurkin Ehrenfeld Pomerantz & Tenenbum, LLP ("the Firm"). The complaint alleges that a written notice that the Firm mailed to the Settons as part of a state eviction action violated the Fair Debt Collection Practices Act ("FDCPA"). Before this Court is the Firm's motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."). For the reasons set forth below, the motion is DENIED.


I. The Settons's Allegations and the Relevant Procedural History

In the original complaint, filed on August 16, 2012, the Settons alleged that the Firm, which represented the Settons's landlord, Mivzah Realty Corp. ("Mivzah"), attempted to collect a debt from the Settons in the form of past-due rent. The Firm sent a letter to the Settons's Brooklyn home, dated May 25, 2011, demanding payment of $2, 503.72 by five days after service of that notice ("the five-day notice"). The Settons claimed that the five-day notice ran afoul of multiple FDCPA provisions, including failing to state that any information obtained from the Settons would be used for the purpose of collecting a debt. (Doc. No. 1.)[1]

On December 27, 2012, the Firm filed its answer. (Doc. No. 9.) In a letter filed the next day, December 28th, the Firm requested a conference before the Court to address its proposed motion to dismiss the complaint on statute-of-limitations grounds. (Doc. No. 10.) The Firm emphasized that, by the Settons's own allegations, the actionable notice was dated May 25, 2011, and the Settons did not commence the instant lawsuit until August 16, 2012 - more than two months after the lapse of the FDCPA's one-year statute of limitations. ( Id. )

On January 1, 2013, the Settons amended their complaint, alleging that the Firm had "intentionally failed" to send them the five-day notice "as part of its scheme to affect [sic] sewer service and obtain a judgment by default" in the eviction action. (Am. Compl. (Doc. 11) ¶¶ 20, 26.) The Settons maintained that, as a result, the Firm did not "communicate" that five-day notice to them under the FDCPA until the Settons inspected the state-court file in the eviction action, whereupon they learned of the notice for the first time. According to the Settons, this transpired on August 17, 2011 - one day before the statute of limitations expired. ( Id. ¶¶ 13, 15.)

In the amended complaint, the Settons referred to an affidavit of service that was created and filed during the eviction proceedings. That document, dated May 31, 2012, reflected that the Firm's process server had delivered copies of the five-day notice to the Settons's residence, and mailed copies of the notice to that same address by United States Postal Service ("USPS") Certified Mail, on May 27 or 31, 2011. ( Id. ¶¶ 17, 21.) The Settons claimed that they never received the five-day notice by mail, that the Firm "never actually used certified mail, " and that the document was "patently false." ( Id. ¶¶ 18, 22, 26.)

II. The Current Motion Practice

On August 21, 2013, the Firm moved to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. No. 24.) The Firm attached several exhibits that included: (1) a notarized affidavit of service evincing that copies of the five-day notice were affixed to the door of the Settons's home on May 31, 2011, and that copies were mailed that same day to the Settons via both first-class and Certified Mail (Doc. No. 24-4); (2) two Certified Mail receipts addressed to Efraim and Sara Setton, which the USPS date-stamped on May 31, 2011 ( id. ); (3) an order to show cause filed by the Settons in the eviction action, dated August 17, 2011 (Doc. No. 24-5); and (4) an August 17, 2011 affidavit of Sara Setton, which had been attached to that order to show cause, alleging, inter alia, that she and her husband never received the five-day notice by mail and only learned of the pending eviction upon receiving a Notice of Eviction on August 11, 2011, whereupon their attorney, Levi Huebner, [2] obtained a copy of the "complete file" from the state court clerk's office.[3] ( Id. )

The Firm raises two arguments in support of its motion to dismiss.[4] First, that the Settons's FDCPA claim is time-barred by the one-year statute of limitations. (Def.'s Mem. of Law (Doc. 24-11) at 8-9.) Second, that the Settons fail to state a claim for relief because the five-day notice was never "communicated" to them as that term is defined under the FDCPA. ( Id. at 9-14.) Alternatively, the Firm requests that Huebner be disqualified as plaintiffs' counsel because, at a trial, he would likely be called as a witness on a key issue of fact - namely, the timing and circumstances in which the notice was communicated to the Settons. ( Id. at 15-18.)[5]

The Settons oppose the defense motion. At the outset, the Settons annex several of their own exhibits to their responsive papers. Those exhibits include: (1) an order of a New York City Housing Court judge, dated February 6, 2012, granting the Settons's motion to vacate the default judgment and scheduling a traverse hearing on the issue of service of process (Doc. No. 25-3);[6] (2) a second Housing Court order, dated September 27, 2012, staying the warrant of eviction and setting forth conditions for the Settons's continued occupation of the premises (Doc. No. 25-4); (3) a copy of a receipt for $10, 928.31, dated October 5, 2012, received by Mivzah's managing agent from the Settons (Doc. No. 25-5); and (4) unsigned declarations by the Settons stating that they would defer to their attorney, Huebner, regarding the necessity of him being offered as a trial witness. (Doc. Nos. 25-6, 25-7.)

In their responsive memorandum of law, the Settons challenge the authenticity of the Firm's proffered affidavit of service and Certified Mail receipts. They stress, among other things, that the affidavit does not cross-reference the Certified Mail receipt numbers, and that the Certified Mail receipts do not indicate which documents were mailed. The Settons further maintain that the Firm's attorney lacks the requisite personal knowledge to allege that those exhibits pertain to the five-day notice at issue in this lawsuit, and that, at best, such exhibits create a triable issue of fact. The Settons add that the Certified Mail receipts were "never produced in the Underlying Matter" and were not part of the record in the eviction litigation. (Pl.'s Mem. of Law (Doc. No. 25-8) ...

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