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Weber v. Professional Claims Bureau, Inc.

United States District Court, E.D. New York

July 14, 2017

MOSHE WEBER, Plaintiff,


          GLASSER, Senior United States District Judge


         Plaintiff Moshe Weber commenced this action against Professional Claims Bureau, Inc. (“PCB”), the Defendant, seeking damages and declaratory relief for alleged violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq, and a common law claim for invasion of privacy by intrusion upon seclusion. Pending before the Court is PCB's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, which Plaintiff opposes. For the following reasons, as well as those set forth in Jones v. Professional Claims Bureau, No. 16-CV-1250 in which the Complaint is nearly identical to that herein, Defendant's motion is GRANTED.


         Defendant PCB is in the business of collecting debts owed to others. ECF 8, Amended Complaint, (“Am. Compl.”) ¶¶ 3, 4. Plaintiff is a New York resident who incurred a debt primarily for personal, family or household purposes. Id. ¶¶ 2, 9. On or about December 30, 2015, PCB mailed a letter to the Plaintiff seeking to recover on the unpaid financial obligation. Id. ¶ 10; ECF 18 Exh. A. The letter begins “THIS ACCOUNT IS SERIOUSLY PAST DUE.” ECF 18 Exh. A. As the letter continues, “Payment is expected within 10 days of this notice. If this account is not resolved we will assume you have no intention of settling this outstanding debt.” Id. ¶ 11; ECF 18 Exh. A. Reading this letter caused the Plaintiff to “become extremely upset and disheartened” due to his “extremely difficult financial struggle.” Am. Compl. ¶ 14. Plaintiff did not make a payment within 10 days of receiving the letter, and “nothing changed.” Id. ¶¶ 12-13.


         Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are closed-but early enough not to delay a trial-a party may move for judgment on the pleadings.” In deciding a 12(c) motion, the Court applies the same standard applicable to dismissals pursuant to Fed.R.Civ.P. 12(b)(6). Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). To survive a 12(c) motion, Plaintiffs must plead “sufficient factual matter, accepted as true” to state a claim that is plausible on its face, from which the Court can draw the reasonable inference that the Defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).


         I. The Fair Debt Collection Practices Act

         The FDCPA was enacted in response to a “serious national problem” of debt collection abuse, “including obscene or profane language, threats of violence, telephone calls at unreasonable hours, misrepresentation of a consumer's legal rights, disclosing a consumer's personal affairs to friends, neighbors, or an employer, obtaining information about a consumer through false pretense, impersonating public officials and attorneys, and simulating legal process.” S. REP. 95-382, 2, 1977 U.S.C.C.A.N. 1695, 1696. The enacted purpose of the statute was to eliminate such “abusive debt collection practices.” 15 U.S.C. § 1692(e). In pursuit of its objective, the statute restricts, inter alia, the use of false or misleading representations and the harassment or abuse of any person in connection with collection of a debt, and broadly prohibits “unfair” and “unconscionable” debt collection practices. See §§ 1692d, 1692e, 1692f.

         In analyzing whether a particular communication runs afoul of the FDCPA, courts apply an objective “least sophisticated consumer” standard. Greco v. Trauner, Cohen & Thomas, L.L.P., 412 F.3d 360, 363 (2d Cir. 2005) (citation omitted). In so doing, a defendant's communication is viewed “from the perspective of a debtor who is uninformed, naïve, or trusting, but is making basic, reasonable and logical deductions and inferences.” Dewees v. Legal Servicing, LLC, 506 F.Supp.2d 128, 132 (E.D.N.Y. 2007). “It should be emphasized that in crafting a norm that protects the naive and the credulous the courts have carefully preserved the concept of reasonableness.” Clomon v. Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993).

         II. Plaintiff's Claims

         To recover under the FDCPA, a plaintiff must satisfy three threshold requirements: (1) the plaintiff must be a “consumer, ” (2) the defendant must be a “debt collector;” and (3) the defendant must have committed some act or omission in violation of the FDCPA. Oscar v. Prof'l Claims Bureau, Inc., No. CV11-5319 SJF WDW, 2012 WL 2367128, at *3 (E.D.N.Y. June 1, 2012), report and recommendation adopted, No. CV-11-5319 SJF WDW, 2012 WL 2367136 (E.D.N.Y. June 19, 2012). The parties do not dispute the satisfaction of the first two requirements.

         The statute claimed to be offended by the Defendant provides as follows: a “debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d. The letter claimed to violate that statute, as reported above, advises, in essence, that Plaintiff's debt is seriously past due, it is important that it be resolved, and it is suggested that he contact the sender by telephone or mail immediately. It goes ...

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