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Delfonce v. Eltman Law, P.C.

United States District Court, E.D. New York

February 15, 2017

ERIC DELFONCE also known as ELIE DEFONCE, Plaintiff,
v.
ELTMAN LAW, P.C., Defendant.

          MEMORANDUM DECISION AND ORDER

          Ann M. Donnelly United States District Judge.

         The plaintiff filed this lawsuit on November 30, 2016 seeking monetary damages, in connection with a March 9, 2016 collection letter related to a default judgment against the plaintiff. The plaintiff claims that the defendant violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et. seq., because the letter was misleading and deceptive. (ECF No. 5.) After the plaintiff submitted the March 9, 2016 letter at issue, I published a detailed order requiring the plaintiff to show cause why his complaint should not be dismissed in its entirety for failing to state a claim upon which relief could be granted. The plaintiff responded to this order on December 15, 2017. I heard oral argument on February 15, 2017. Now, for the reasons set out below, the plaintiff’s complaint is dismissed in its entirety.

         BACKGROUND

         The plaintiff had an outstanding debt of nearly $36,000. The defendant sent the plaintiff a letter advising him that the defendant had been retained to collect this debt. While the plaintiff claimed that the letter was deceptive and misleading, he neglected to attach it to his complaint. However, because it was incorporated into the complaint by reference, I instructed the plaintiff to file the letter electronically. (Nov. 30, 2016 Docket Order.) The letter reads in relevant part:

Judgment Dated: 10/20/2008
Dear Mr./Ms. Delfonce:
Please be advised that Eltman Law, P.C. has been retained by LVNV Funding LLC, . . . for collection of this Debt.
. . . [T]his letter should not be taken as . . . a threat of legal action. However, if you fail to contact this office, our client may consider the availability of additional remedies to recover the balance due.
Unless you notify this office within thirty (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, within thirty (30) days after your receipt of this notice, you notify us in writing that the debt, or any portion thereof, is disputed, we will obtain verification of the debt or a copy of any judgment, and we will mail to you a copy of such verification or judgment. If you request of this office in writing within thirty (30) days after receiving this letter, this office will provide you with the name and address of the original creditor, if different from the current creditor.
As of the date of this letter you owe a balance of $35,856.24. Because of interest that may vary from day to day, the amount due on the day you pay may be greater. Hence, if you pay the amount shown above, an adjustment may be necessary after we receive your check, in which event we will inform you before your check is deposited.

(March 10, 2016 Letter (ECF No. 5).) The “Account Summary” inset provides that the original creditor was Citibank USA, N.A., and that the creditor to whom the plaintiff owes the debt is LVNV Funding LLC. The Account Summary lists the “Eltman File #” and represents that $35,856.24 is due. (March 10, 2016 Letter.)

         On December 1, 2016, I issued a detailed order to show cause, which identified the deficiencies in the complaint for each provision of the FDCPA listed in the pleading, and instructed the plaintiff to show cause why the action should not be dismissed. (Dec. 1, 2016 Order to Show Cause (ECF No. 6).) The plaintiff responded on December 15, 2016. (ECF No. 7.) I heard oral argument on February 15, 2017.

         The plaintiff concedes, as he must, that the defendant’s letter contains the notices required by 15 U.S.C. § 1692g. He also acknowledges that the letter cautions that it is “not a threat of legal action.” Nevertheless, the plaintiff argues that this information is “overshadowed” by a single line at the top of the page: “Judgement Dated: 10/20/2008.” The word “judgment,” says the plaintiff, could delude the “least sophisticated consumer” into thinking that a “legal action” exists, despite the explicit statement to the contrary.

         For the reasons stated on the record and discussed below, the plaintiff’s complaint is dismissed.

         DISCUSSION

         The plaintiff contends that the defendant violated the “various provisions of the FDCPA, including but not limited to 15 U.S.C. §§ 1692g, 1692e, 1692e(2), 1692e(5), 1692e(10), 1692f, and 1692f(1).” (Compl. ¶ 23.) Each of the provisions identified specifically ...


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