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Avila v. Riexinger & Associates, LLC

United States District Court, E.D. New York

April 14, 2015

ANNMARIE AVILA, on behalf of herself and all others similarly situated, Plaintiffs,
v.
RIEXINGER & ASSOCIATES, LLC, STEPHEN P. RIEXINGER, and CROWN ASSET MANAGEMENT, LLC, Defendants. SARA ELROD, on behalf of herself and all others similarly situated, Plaintiffs,
v.
RIEXINGER & ASSOCIATES, LLC, STEPHEN P. RIEXINGER, and BUREAS INVESTMENT GROUP PORTFOLIO NO. 15, LLC, Defendants.

MEMORANDUM & ORDER

RAYMOND J. DEARIE, District Judge.

In these consolidated class actions, plaintiffs Annmarie Avila ("Avila") and Sara Elrod ("Elrod") allege that defendants Riexinger & Associates, LLC ("Riexinger & Associates"), Stephen P. Riexinger ("Mr. Riexinger"), Crown Asset Management, LLC ("Crown Asset Management"), and Bureaus Investment Group Portfolio No. 15, LLC ("Bureaus Investment Group") sent them debt collection letters, the terms of which violate the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. [1] Additionally, Avila alleges in her first amended complaint that defendants have also violated New York General Business Law § 349, New York General Obligations Law § 5-501, et seq., and the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, et seq. Defendants have moved to dismiss these class actions, pursuant to Fed.R.Civ.P. 12(b)(6), on the grounds that plaintiffs have failed to plead a violation of the FDCPA or other unlawful act as a matter of law. For the reasons stated below, defendants' motions to dismiss are granted.

BACKGROUND

Sometime prior to August 2, 2012, Avila incurred a financial obligation to non-party Wells Fargo, which she defaulted on. After her default, Wells Fargo deemed her debt uncollectable, and the debt was transferred to Crown Asset Management, which is in the business of collecting defaulted debts. Apparently acting on behalf of Crown Asset Management, Riexinger & Associates sent Avila the following letter on August 2, 2012:

The firm of Riexinger & Associates, LLC is a law firm representing CROWN ASSET MANGEMENT, LLC, the current creditor of the above referenced account which originated with WELLS FARGO. In this regard, the above referenced matter has been placed with us for collection and such action as necessary to protect our client.
At this time, no attorney with this firm has personally reviewed the particular circumstances of your account. However, if you fail to contact this office, our client may consider additional remedies to recover the balance due.
If you have any questions regarding this matter, please contact this office at 678-205-1597 or toll free at 800-713-7780 between the hours of 8:00 A.M. and 8:00 P.M. on Monday through Friday.
CONSUMER NOTICE PURSUANT TO 15 U.S.C. SECTION 1692(G)
You are hereby given notice of the following information concerning the above referenced debt: 1. Unless, within 30 days after receipt of this notice you dispute the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the creditor and by this Firm. 2. If you notify us in writing within said 30 days that the debt, or any portion therefore is disputed, we will obtain verification of the debt, or a copy of any judgment against you, and we will mail such verification to you. 3. In addition, upon your written request within said 30 days, this Firm will provide the name and address of the original creditor if the original creditor is different from the current creditor. 4. This firm is attempting to collect a debt on behalf of the creditor and any information obtained will be used for that purpose. YOUR RIGHTS UNDER FEDERAL LAW TO REQUEST VERIFICATION OF YOUR OBLIGATION TO OUR CLIENT WITHIN 30 DAYS MUST BE ASSERTED IN WRITING AND IS NOT AFFECTED BY OUR REQUEST THAT YOU CONTACT OUR OFFICE BY TELEPHONE.
Sincerely,
Stephen P. Riexinger Attorney at Law Riexinger & Associates, LLC
Riexinger & Associates, LLC is acting as a debt collector and this is a communication from a debt collector, as defined by U.S.C. 1692(A)(6). This is an attempt to collect a debt and any information obtained will be used for that purpose.
PLEASE REFER ALL CORRESPONDENCE TO RIEXINGER & ASSOCIATES, LLC

The entirety of the letter is printed on a single page, and a single font size is used throughout the body of the letter.

Like Avila, Elrod incurred a financial obligation-in her case, to Capital One Card Services, Inc. ("Capital One"). Capital One determined that the debt was uncollectible and the debt was transferred to Bureaus Investment Group, which in turn hired Riexinger & Associates to attempt to collect the debt. On May 3, 2013, Riexinger & Associates sent Elrod a letter nearly identical to the collection letter sent to Avila. The letters only differ in a few respects: (1) the letter is addressed to Elrod and states that her current balance is $6, 815.73; (2) the letter names Capital One instead of Wells Fargo and Bureaus Investment Group instead of Crown Asset Management; and (3) at the bottom of the letter it states "NY License Number 1414772." According to the plaintiffs' complaints, Mr. Riexinger is not admitted to practice law in New York and there are no associates employed by Riexinger & Associates. Neither plaintiff has alleged that defendants took any other action against them regarding their debts.

On July 31, 2013, Avila filed a class action complaint on behalf of New York residents that were sent letters substantially similar to the letter quoted above. On May 1, 2014, Elrod filed a class action complaint seeking to represent the same class. Both complaints allege that the letter violates the FDCPA by (i) making false or misleading representations regarding the involvement of a New York-licensed attorney, in violation of sections 1692e(3), (5) and (10), (ii) failing to indicate that the debt may increase due to interest, in violation of sections 1692e(2)(A) and 1692g, and (iii) providing that the creditor will assume the debt is valid if not disputed within 30 days, in violation of section 1692g(a)(3). Additionally, Avila alleges in her first amended complaint, dated March 3, 2014, that defendants are charging an undisclosed usurious interest rate, in violation of section 1692f, that defendants failed to name Avila's creditor to which the debt is owed, in violation of 1692g, and that defendants are flat-rating in violation of section 1692j. Further, Avila alleges that defendants have violated New York General Business Law § 349, New York General Obligations Law § 5-501 and RICO. Defendants in the Avila action moved to dismiss on April 18, 2014, and the defendants in the Elrod action moved to dismiss on October 10, 2014.

DISCUSSION

To survive a Rule 12(b)(6) motion, the complaint must plead "enough facts to state a claim to relief that is plausible on its face." Brown v. Daikin Am. Inc., 756 F.3d 219, 225 (2d Cir. 2014) (quoting Bell Atl. Corp. v. Twombly. 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Nonetheless, while the "plausibility standard is not akin to a ...


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