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Carlin v. Davidson Fink LLP

United States District Court, E.D. New York

September 23, 2014

ANDREW CARLIN, individually and on behalf of a class, Plaintiff,
v.
DAVIDSON FINK LLP, Defendant.

Abraham Kleinman, Esq., Kleinman, LLC, Uniondale, NY, Tiffany N. Hardy, Esq., Cathleen M. Combs, Esq., Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL, for Plaintiff.

Matthew J. Bizzaro, Esq., L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, NY, Defendant.

MEMORANDUM & ORDER

JOANNA SEYBERT, District Judge.

Plaintiff Andrew Carlin ("Plaintiff") commenced this putative class action against defendant law firm Davidson Fink LLP ("Davidson"), alleging that Davidson violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq., in connection with a residential foreclosure proceeding filed in New York State Supreme Court, Nassau County. Presently before the Court are: (1) Plaintiff's motion for class certification pursuant Federal Rule of Civil Procedure 23 (Docket Entry 4); (2) Plaintiff's motion to "enter and continue" the motion for class certification (Docket Entry 6); and (3) Davidson's motion to dismiss the Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) (Docket Entry 15). For the following reasons, each motion is DENIED.

BACKGROUND[1] Plaintiff is the owner of real property in Sea Cliff,

New York. (Compl. ¶ 4.) According to documents attached to the Complaint, the property is encumbered by a mortgage currently held by Deutsche Bank National Trust Company ("Deutsche"). (See Compl. App. A at 10-47[2].) Davidson is a law firm with practice areas that include debt collection and legal representation in New York State foreclosure proceedings. (Compl. ¶¶ 5-6, 8.)

On June 24, 2013, Deutsche, through Davidson, filed a summons and complaint against Plaintiff in New York State Supreme Court, Nassau County, seeking to foreclose on Plaintiff's Sea Cliff property (the "Foreclosure Complaint"). (Compl. ¶ 13, App. A.) Included as an attachment to the Foreclosure Complaint was a notice labeled "NOTICE REQUIRED BY THE FAIR DEBT COLLECTION PRACTICES ACT (THE ACT), 15 U.S.C. SECTION 1601 AS AMENDED" (the "Debt Collection Notice"). (Compl. App. A at 20.) The Debt Collection Notice reads as follows:

1. THE AMOUNT OF THE DEBT IS STATED IN THE COMPLAINT HERETO ATTACHED.
2. THE PLAINTIFF AS NAMED IN THE ATTACHED SUMMONS AND COMPLAINT IS THE CREDITOR TO WHOM THE DEBT IS OWED.
3. THE DEBT DESCRIBED IN THE COMPLAINT ATTACHED HERETO WILL BE ASSUMED TO BE VALID BY THE CREDITOR'S LAW FIRM, UNLESS THE DEBTOR, WITHIN THIRTY (30) DAYS AFTER THE RECEIPT OF THIS NOTICE, DISPUTES THE VALIDITY OF THE DEBT OR SOME PORTION THEREOF.
4. IF THE DEBTOR NOTIFIES THE CREDITOR'S LAW FIRM WITHIN THIRTY (30) DAYS OF THE RECEIPT OF THIS NOTICE THAT THE DEBT OR ANY PORTION THEREOF IS DISPUTED, THE CREDITOR'S LAW FIRM WILL OBTAIN A VERIFICATION OF THE DEBT AND A COPY OF THE VERIFICATION WILL BE MAILED TO THE DEBTOR BY THE CREDITOR'S LAW FIRM.
5. IF THE CREDITOR NAMED AS PLAINTIFF IN THE ATTACHED SUMMONS AND COMPLAINT IS NOT THE ORIGINAL CREDITOR, AND IF THE DEBTOR MAKES A REQUEST TO THE CREDITOR'S LAW FIRM WITHIN THE THIRTY (30) DAYS FROM THE RECEIPT OF THIS NOTICE, THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR WILL BE MAILED TO THE DEBTOR BY THE CREDITOR'S LAW FIRM.
6. REQUESTS SHOULD BE ADDRESSED TO DAVIDSON FINK LLP, 28 EAST MAIN STREET, 1700 FIRST FEDERAL PLAZA, ROCHESTER, NEW YORK 14614, (585) 760-8218.
7. THE ABOVE-REFERENCED THIRTY (30) DAYS TIME PERIOD IN WHICH THE DEBTOR MAY DISPUTE THIS DEBT SHALL IN NO WAY AMEND OR EXTEND SAID DEBTOR'S STATUTORY TIME PERIOD, AS STATED IN THE ATTACHED SUMMONS, TO INTERPOSE AN ANSWER TO THE COMPLAINT IN THIS MATTER.

(Compl. App. A at 20 (capitalization in original).) Attached to the Foreclosure Complaint was a schedule that listed an "original loan amount" of $200, 000 and a "principal balance owing" of $179, 005.01. (Compl. App. A at 23.) Additionally, the summons included a notice that states, inter alia, "WE ARE ATTEMPTING TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE." (Compl. App. A at 12 (capitalization in original).) Plaintiff alleges that he had not received any other communication from Davidson prior to receiving the Foreclosure Complaint. (Compl. ¶ 16.)

On July 12, 2013, Plaintiff sent Davidson a letter, stating, "I am in receipt of the Notice Required by the Fair Debt Collection Practices Act" (the "July 12th Letter"). (Compl. ¶ 20, App. B, at 43.) The July 12th Letter enclosed a copy of the Debt Collection Notice, disputed the debt, and requested verification of the amount of the alleged debt and the creditor's name. (Compl. App. B.)

On August 9, 2013, Davidson responded by letter (the "August 9th Letter"), stating:

Pursuant to your Debt Validation Request... the following information has been provided:
1. Your original Request
2. Pay off statement
3. Endorsed ...

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