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Abramov v. I.C. Sys., Inc.

United States District Court, E.D. New York

October 14, 2014

ELMAN ABRAMOV, individually, and on behalf of all others similarly situated, Plaintiff,
v.
I.C. SYSTEM, INC. and JOHN DOES 1-25, Defendants

Page 271

For the Plaintiffs: Joseph K. Jones, Esq., Benjamin J. Wolf, Esq., Of Counsel, Law Office of Joseph K. Jones, LLC, New York, NY; Ari H. Marcus, Esq., Of Counsel, Marcus Law, LLC, Asbury Park, NJ.

For the IC Systems, Inc., Defendant: Concepcion A. Montoya, Esq., Of Counsel, Hinshaw & Culbertson LLP, New York, NY.

Page 272

DECISION AND ORDER

ARTHUR D. SPATT, United States District Judge.

On June 26, 2014, the Plaintiff Elman Abramov (the " Plaintiff" ) brought this class action lawsuit on behalf of himself and a proposed nationwide class seeking redress for certain actions taken by the Defendants I.C. System, Inc. (" I.C. System" ) and John Does 1-25 (collectively the " Defendants" ) allegedly in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (the " FDCPA" ).

" The FDCPA imposes liability on 'debt collectors' for certain prohibited debt collection practices." Abrahmov v. Fid. Info. Corp., No. 12-CV-345 (NGG)(SMG), 2013 WL 5352473, at *2 (E.D.N.Y. Sept. 23, 2013)(citation omitted). Congress enacted the FDCPA " with the aim of eliminating abusive practices in the debt collection industry, and also sought to ensure that 'those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged.'" Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 89 (2d Cir. 2008)(quoting 15 U.S.C. § 1692e).

To state a claim under the FDCPA, a plaintiff must satisfy the following threshold requirements: " (1) [t]he plaintiff must be a 'consumer; ' (2) the defendant

Page 273

must be a 'debt collector; ' and (3) the defendant must have committed some act or omission in violation of the FDCPA." Abrahmov, 2013 WL 5352473, at *2 (citation omitted); accord Suquilanda v. Cohen & Slamowitz, LLP, No. 10-CV-5868 (PKC), 2011 WL 4344044, at *6 (S.D.N.Y. Sept. 8, 2011).

By way of background, on May 26, 2014, I.C. System -- a company that operates with the alleged principal purpose of collecting debts alleged to be due another -- caused to be delivered to the Plaintiff a letter (the " Letter" ) in an attempt to collect an alleged obligation owed to a third party, AT& T, by the Plaintiff. On the front of the letter, the following notice was provided, in relevant part:

NOTICE
Unless you notify this office 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 that you dispute the validity of this debt or any portion thereof, 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. If you request of this office in writing within 30 days after receiving this notice this office will provide you with the name and address of the original creditor, if different from the current creditor.
If you feel you are or have been a victim of Theft of Identity, please follow the instructions above to dispute the debt to us in writing within 30 days of this notice and please call AT& T at 1-866-718-2011.

(Montoya Decl., Exh. B).

The Plaintiff alleges violations on the part of the Defendants of the provisions of 15 U.S.C. § 1692e and 1692g.

On August 19, 2014, I.C. System moved pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted.

On August 28, 2014, I.C. System served the Plaintiff with a Rule 68 Offer of Judgment, which provided as follows:

Pursuant to Fed.R.Civ.P. 68, defendant I.C. System, Inc. hereby offers to allow judgment to be taken against it in this action as to the individual Fair Debt Collection Practices Act (" FDCPA" ) claim of plaintiff Elman Abramov in the amount of (a) One Thousand Five Hundred and One Dollars ($1,501.00) payable to Elman Abramov plus (b) reasonable attorney's fees and costs to be determined by the Court, payable to Elman Abramov for the benefit of all attorneys in this matter, including counsel of record. Any judgment entered pursuant to this offer will be in full satisfaction of the plaintiff's individual claims under the FDCPA for damages, costs, and attorney's fees in this action. See Compl. [Dkt. #1], ¶ ¶ 39-47.
If this Offer of Judgment is not accepted in writing within fourteen (14) days after its services, it shall be deemed withdrawn.

(The Pl's Exh. C.)

That day, the Plaintiff's counsel e-mailed I.C. System's counsel advising that " said Offer is improper at this time and therefore Plaintiff can neither accept nor reject said Offer." (Pl's Exh. D.) The Plaintiff also contended that an Offer of Judgment could not moot a putative class action ...


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