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Wong v. Alternative Claims Management, LLC

United States District Court, S.D. New York

November 22, 2017

JOSHUA WONG, for himself and all others similarly situated, Plaintiff,


          Edgardo Ramos, U.S.D.J.

         Joshua Wong (“Plaintiff” or “Wong”) brings a class action against Alternative Claims Management LLC (“ACM” or “Defendant”) alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”). Before this Court is Defendant's motion to dismiss the First Amended Complaint (“FAC”) in its entirety pursuant to the Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

         For the reasons set forth below, Defendant's motion is GRANTED in part and DENIED in part.

         I. BACKGROUND

         A. Factual Background[1]

         On June 25, 2016, Wong rented a 2016 Cadillac XTS (the “Vehicle”) at Los Angeles International Airport from Sixt Rent A Car, LLC (“Sixt”). FAC ¶ 8 & Ex. A. This rental was subject to a standard form car rental agreement. Id. ¶ 9. On July 2, 2016 at 12:07 p.m., Wong returned the Vehicle, and examined it with a Sixt attendant for any damage. Id. ¶¶ 10-11. At that time, they determined that there was no new damage to the vehicle, and Wong was not charged for any damages. Id. ¶ 11. Later that day, Wong received an automated email from Sixt, which confirmed the Vehicle's return and attached a receipt indicating that the total due was $497.56. Id. ¶¶ 12-13.

         On July 21, 2016, almost three weeks after Wong returned the Vehicle, Sixt sent him an email stating, inter alia: “After your drop off it has been noted/you have informed us that the vehicle you rented had sustained a new damage.” Id. ¶ 14. The next day, Sixt emailed Wong a “Return Checksheet, ” purporting to show the damage the Vehicle incurred while it was in his possession. Id. ¶ 15. Specifically, it listed six existing scratches or dents and eleven new scratches or dents to the Vehicle. See FA C E x . A (“Checksheet”). This Checksheet was dated July 2, 2016, but Wong alleges that he was not previously shown the Checksheet and that the date is “mistaken.”[2] FA C ¶ 16.

         Wong asserts that Sixt initiated at least two additional communications with him regarding the purported damage to the Vehicle in July 2016 and again in October 2016, seeking to collect money or obtain information to submit an insurance claim, but does not further allege the exact content of those communications. Id. ¶ 17. He claims that he refused to cooperate with Sixt on the grounds that he was not responsible for any damage to the Vehicle. Id. ¶ 18.

         Thereafter, Wong received a letter from ACM dated March 28, 2017 regarding damage to the Vehicle (“March Letter”). Id. at ¶ 19. Wo n g avers that ACM is a “debt collector” as defined in Section 1692a(6) o f t h e F D C P A, and that ACM presented itself as such to him. Id. ¶¶ 6, 21. In the March Letter, ACM stated that it had been retained by Sixt to handle the processing of a claim concerning damage to the Vehicle. March Letter at 1. It further stated that according to its information, the Vehicle was in Wong's possession on the date of the loss. Id. ACM then asked Wong to pay the total amount due or to report the claim to his insurance company. Id. Specifically, ACM sought $3, 352 for the car's repair, and $150 as an administrative fee. Id. Attached to the March Letter was an estimate from a repair shop which listed 32 line items of repair that needed to be performed on the Vehicle. Id. at 2-4. Notably, this estimate was dated March 10, 2017-eight months after Wong had returned the Vehicle to Sixt. Id. at 2. The March Letter also included the following language:

Pursuant to 15 USC Section 1692g, be advised that Alternative Claims Management is attempting to collect a debt and any information obtained will be used for that purpose. Within thirty (30) days after receipt of this notice you must dispute the validity of this debt, or any portion thereof, or this debt will be assumed to be valid by the debt collector. Upon your written request within thirty (30) days after receipt of this notice, we will furnish you with the name and address of the original creditor, if different from the “Creditor/ACM Client” listed above. If you notify us, in writing, within thirty (30) days after receipt of this notice that the above debt, or any portion thereof, is disputed, we will obtain verification of the debt and a copy of such verification will be mailed to you.

Id. at 1.

         Wong does not allege that he disputed the debt to ACM within thirty days after he received the March Letter. Instead, he disputes for the first time in the instant action that he is responsible for the damage and notes that even Sixt's Checksheet conflicts with the March Letter. Id. ¶ 22. For example, amongst the thousands of dollars of damages ACM sought were hundreds of dollars for labor to repair the rear bumper, but the Checksheet expressly noted that no damage occurred to the rear bumper during Wong's rental. Id.

         B. Procedural Background

         On April 28, 2017, Plaintiff filed the Complaint against ACM and Sixt, alleging that ACM violated the FDCPA and that both ACM and Sixt violated the Florida Deceptive and Unfair Trade Practices Act.[3] Doc. 1. On July 20, 2017, Plaintiff voluntarily dismissed Sixt from the instant action with prejudice. Doc. 15. On July 31, 2017, Plaintiff filed the FAC, alleging that Defendant violated Sections 1692e(2)(A), 1692e(10) and 1692f of the FDCPA. Doc. 17. On August 28, 2017, Defendant filed the instant motion to dismiss. Doc. 18.


         A. Motion to Dismiss

         Under Rule 12(b)(6), a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012). However, the Court is not required to credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Id. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). If the plaintiff has not “nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Twombly, 550 U.S. at 570.

         B. ...

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