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Feldheim v. Financial Recovery Services, Inc.

United States District Court, S.D. New York

June 29, 2017

FELIX FELDHEIM, Plaintiff,
v.
FINANCIAL RECOVERY SERVICES, INC., Defendant.

          Edward B. Geller, Esq. Edward B. Geller, Esq., P.C. Counsel for Plaintiff

          Michael T. Etmund, Esq. Moss & Barnett Matthew B. Spergel, Esq. Scott A. Schechter, Esq. Kaufman Borgeest & Ryan, LLP Patrick Stoltz, Esq. Landman Corsi Ballaine & Ford PC Counsel for Defendant

          OPINION & ORDER

          KENNETH M. KARAS, UNITED STATES DISIRICT JUDGE.

         Plaintiff Felix Feldheim (“Plaintiff”) brings this putative class action against Financial Recovery Services, Inc. (“FRS” or “Defendant”), alleging violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. (See Am. Compl. (Dkt. No. 17).) Before the Court is Defendant's Motion To Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (the “Motion”). (See Dkt. No. 26.) For the reasons to follow, Defendant's Motion is granted.

         I. Background

         A. Factual Background

         The following facts are taken from Plaintiff's Amended Complaint and are assumed true for the purpose of resolving the instant Motion.

         Plaintiff alleges that Defendant, “on behalf of a third-party or itself . . . began efforts to collect an alleged consumer debt from Plaintiff.” (Am. Compl. ¶ 22.) “On or about January 26[, ] 2016[, ] Plaintiff received a mass-produced notice from Defendant . . . [bearing] a heading stating: “Tax Season Settlement Reduction Offer.” (Id. ¶¶ 24-25.) The notice alerted Plaintiff that “the current creditor was Discover Bank” and that Plaintiff owed $4, 414.61. (Id. ¶ 27.) The notice also provided three reduction options to Plaintiff: (1) “a reduction of 75% for a lump sum payment of $1[, ]003[.]65”; (2) “a reduction of 68.50[%] for a [two] time payment of $1, 434[.]74”; and (3) “a reduction of 60% for a three time payment of $1, 765.83.” (Id. ¶ 28.) Finally, the notice stated that “[a]s of the date of this notice[, ] you owe [$]4, 414.61 . . . .” (Id. ¶ 29 (internal quotation marks omitted).) Plaintiff avers that this language “implie[d] that the balance w[ould] change on a daily bas[i]s and interest [wa]s being charged.” (Id.)

         As a result of Defendant's alleged violations of the FDCPA, Plaintiff seeks actual damages, statutory damages, attorney's fees and costs, and “a declaration that . . . Defendant's practices violated the FDCPA.” (Id. at unnumbered 7.)

         B. Procedural History

         Plaintiff filed the initial Complaint in this Action on May 24, 2016. (See Dkt. No. 1.) At a conference before the Court on September 13, 2016, Plaintiff was granted leave to file an Amended Complaint by no later than October 13, 2016. (See Dkt. (minute entry for Sept. 13, 2016).) Plaintiff failed to file an Amended Complaint within the time permitted and accordingly, on October 19, 2016, the Court issued an Order To Show Cause, ordering Plaintiff to show cause why the Action should not be dismissed for failure to prosecute. (See Dkt. No. 14.) In a letter filed the following day, counsel for Plaintiff notified the Court that he “did not file an Amended Complaint”-despite the Court's directive-“because [he] was waiting to first hear from Defendant regarding [a settlement] demand.” (See Dkt. No. 15.) The Court granted Plaintiff an extension of time to file an Amended Complaint, (see Dkt. No. 16), and Plaintiff filed the Amended Complaint on October 27, 2016, (see Dkt. No. 17).

         Pursuant to a Scheduling Order dated December 13, 2016, (see Dkt. No. 25), Defendant filed the instant Motion To Dismiss and accompanying memorandum of law on January 17, 2017, (see Dkt. Nos. 26-27). On February 22, 2017, two days before Plaintiff's opposition was due, Plaintiff's counsel requested an extension, (see Dkt. No. 28), which the Court granted the following day, (see Dkt. No. 29). On April 14, 2017, Defendant filed a letter informing the Court that while “[t]here was no [m]emorandum in [o]pposition filed electronically by Plaintiff . . ., a copy was e-mailed to [Defendant's counsel's] office on March 24, 2017.” (See Dkt. No. 30.) The letter also informed the Court that Defendant did not intend to file papers in reply. (See id.) Without explanation for Plaintiff's failure to timely file his opposition with the Court, Plaintiff filed his opposition on April 17, 2014. (See Dkt. No. 31.)

         II. Discussion

         A. Standard of Review

         Defendant moves to dismiss Plaintiff's Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (See Def.'s Mem. of Law in Supp. of Mot. for Dismissal Pursuant to Fed.R.Civ.P. ...


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