United States District Court, S.D. New York
LUKE CLARK, on behalf of himself and all others similarly situated, Plaintiff,
CAVALRY PORTFOLIO SERVICES, LLC, CAVALRY SPV I, LLC, and SCHACHTER PORTNOY, LLC, Defendants.
OPINION AND ORDER
Vincent L. Briccetti United States District Judge
Luke Clark brings this putative class action against
defendants Cavalry Portfolio Services, LLC
(“CPS”), Cavalry SPV I, LLC (“CSI”),
and Schachter Portnoy, LLC (“SP”), alleging
violations of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et
seq., and New York General Business Law § 349
(“GBL § 349”).
28, 2017, plaintiff voluntarily dismissed his claims against
SP pursuant to Rule 41(a)(1)(A)(ii). (Doc. #34).
the Court is CPS and CSI's motion to dismiss pursuant to
Rule 12(b)(6). (Docs. ##20, 35).
reasons set forth below, defendants' motion is GRANTED IN
PART and DENIED IN PART.
Court has subject matter jurisdiction under 28 U.S.C.
§§ 1331 and 1367.
purposes of ruling on a motion to dismiss, the Court accepts
all factual allegations in the amended complaint as true and
draws all reasonable inferences in plaintiff's favor.
Although the amended complaint is not a model of clarity, the
pertinent facts seem to be as follows.
had a credit card issued by HSBC Bank Nevada, N.A.
(“HSBC”). Plaintiff recalls using his HSBC credit
card to purchase personal items, but does not aver whether he
eventually failed to pay the balance. In any event, in 2009,
HSBC “charged-off” $3, 188.22 of plaintiff's
debt (the “underlying debt”). (Am. Compl. ¶
2010, CSI acquired plaintiff's debt. According to the
amended complaint, CSI is a wholly-owned subsidiary of CPS,
and both entities are debt collectors. Plaintiff was not
notified by HSBC, CSI, or CPS about the assignment of his
March 12, 2012, either CSI or CPS engaged SP, a law firm, to
pursue a collection action against plaintiff.
August 15, 2012, SP filed a complaint on CSI's behalf in
Supreme Court, Sullivan County, to collect on plaintiff's
debt (the “state court action”). According to
plaintiff, the summons and complaint in the state court
action were served at his parents' address in Barryville,
New York. At the time, plaintiff was estranged from his
parents and living in California. Thus, plaintiff never
received the service documents, nor was he made aware of the
action against him. As such, plaintiff never appeared in the
state court action.
January 14, 2013, CSI obtained a default judgment against
plaintiff in the amount of $4, 294.80, which accounted for
the underlying debt, plus interest, costs, and disbursements.
August 25, 2015, plaintiff received a copy of his credit
report and discovered CSI's judgment against him.
August 24, 2016, plaintiff timely commenced this action in
Supreme Court, Westchester County. On January 5, 2017,