United States District Court, E.D. New York
MEMORANDUM & ORDER
L. IRIZARRY, Chief United States District Judge
Sandoval (“Plaintiff”) filed a complaint in
Queens County Civil Court on May 22, 2017 against I.C.
Systems (“Defendant”) alleging violations of the
Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692 et seq. See generally, Complaint
(“Compl.”), Ex. A to Notice of Removal, Dkt.
Entry No. 1. On June 21, 2017, Defendant removed the case to
this Court. See Id. On June 29, 2017, Defendant
moved to dismiss the Complaint pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. See generally,
Def.'s Mem. of Law (“Def.'s Mem.”), Dkt.
Entry No. 7-4. Plaintiff opposed Defendants' motion.
See generally, Pl.'s Mem. of Law in Opp'n
(“Pl.'s Opp'n”), Dkt. Entry No. 10.
Defendant filed a reply in response to Plaintiff's
opposition. Def.'s Reply Mem. of Law (“Def.'s
Reply”), Dkt. Entry No. 9. For the reasons set forth
below, Defendant's motion is granted.
case arises out of a single phone call, initiated by a
third-party credit counselor, on behalf of a consumer, with a
consumer debt collector. Plaintiff alleges that on or about
February 17, 2017 he sought assistance with his credit from
Mrs. Reyes, a credit counselor. See Compl. at ¶
10. Defendant had reported one of Plaintiff's delinquent
accounts to one of the national credit bureaus. Id.
at ¶ 9. Mrs. Reyes called the Defendant, and Plaintiff
also got on the phone to verify his information and authorize
Mrs. Reyes to speak to Defendant on his behalf. Id.
at ¶¶ 11-12. Defendant relayed to Mrs. Reyes that
there was a Time Warner Cable account that showed a zero
balance. Id. at ¶ 13. Mrs. Reyes informed
Defendant that, on Plaintiff's credit report, the Time
Warner Cable account showed a balance of $139, at which point
Defendant explained to Mrs. Reyes that the account had been
recalled and was sent back to Time Warner Cable on June 14,
2016. Id. at ¶¶ 14-17.
Reyes then asked Defendant whether Plaintiff could dispute
the account over the phone or whether a dispute must be in
writing. Id. at ¶ 18. Defendant replied that
since the account was recalled it could not be disputed, but
it would be deleted from Plaintiff's credit report
between thirty and sixty days from the request. Id.
at ¶ 19. Mrs. Reyes questioned why, if the recall was in
June 2016, the account had not been corrected as of January
2017. Id. at ¶ 20. Defendant responded that the
account would be removed from the credit report within thirty
to sixty days. Id. at ¶ 21. Mrs. Reyes told
Defendant that she wanted to mark the account as disputed
because it was affecting Plaintiff's credit score, but
Defendant again stated that the account cannot be disputed
since it has a zero balance. Id. at ¶¶
22-23. Defendant then referred Mrs. Reyes to the credit
bureau if she had further questions and offered to provide
their contact information. Id. at ¶ 23. Mrs.
Reyes then asked if Plaintiff should contact Time Warner
Cable to dispute the account. Id. at ¶ 24.
Defendant informed her that it was unclear if Time Warner
Cable would have any information about Plaintiff's credit
and suggested that Plaintiff contact the credit bureaus.
Id. at ¶ 25.
alleges that Defendants responses on the February 17, 2017
phone call violated sections 1692e and 1692f of the FDCPA,
which respectively prohibit the use of any false, deceptive,
or misleading representations in connection with the
collection of a debt and the use of unfair or unconscionable
means in connection with the collection of a debt. See
generally, Compl.; 15 U.S.C §§ 1692e, f.
Defendant argues that Plaintiff's claims should be
dismissed because the FDCPA regulates communications between
consumers and debt collectors, not debt collectors and third
parties, and that: (1) referring a debt to a credit bureau;
(2) referring a debtor's representative to the original
account creditor/credit bureau; and (3) refusing to change
the status of an account to “disputed” are not
actionable under § 1692e. See generally,
Def.'s Mem. Defendant further argues that Plaintiff fails
to allege how its communications were unfair or
unconscionable. Id. In opposition, Plaintiff argues
that the FDCPA is construed broadly and adopting
Defendant's arguments will undermine the purposes of the
act by: (1) penalizing a consumer for availing himself of the
assistance of a credit counselor or other representative and
(2) excluding from protection communications initiated by the
debtor. See generally, Pl.'s Opp'n.
survive a Rule 12(b)(6) motion to dismiss, a complaint must
“state a claim of relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 561 (2007) (citations and internal quotation marks
omitted). The plausibility standard “does not require
‘detailed factual allegations, ' but it demands
more than  unadorned, the-defendant-unlawfully-harmed-me
accusation[s].” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
Iqbal requires more than “‘a formulaic
recitation of the elements of a cause of action.'”
Id. at 681 (quoting Twombly, 550 U.S. at
555). Where a complaint pleads facts that are “merely
consistent with a defendant's liability, it stops short
of the line between possibility and plausibility of
entitlement to relief.” Id. at 678 (quoting
Twombly, 550 U.S. at 557) (internal quotation marks
omitted). On a motion to dismiss, the court accepts as true
all well pled factual allegations and draws all reasonable
inferences in the plaintiff's favor. See Dangler v.
N.Y.C. Off Track Betting Corp., 193 F.3d 130, 138 (2d
1692e prohibits a debt collector from using any “false,
deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C.
§ 1692e. In analyzing whether a debt collector has
violated this section, courts use an objective test based on
the “least sophisticated consumer.” Jacobson
v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 90 (2d
Cir. 2008) (citing Clomon v. Jackson, 988 F.2d 1314,
1318 (2d Cir. 1993)). This standard “ensure[s] that the
statute protects the gullible as well as the shrewd, ”
but “carefully preserve[s] the concept of
reasonableness, ” and “protects debt collectors
from unreasonable constructions of their
communications.” Id. (citing Clomon,
988 F.2d at 1318-20). The Second Circuit and courts in this
district have recognized that section 1692e includes a
materiality requirement. See Gabriele v. Am. Home Mortg.
Servicing, Inc., 503 F. App'x 89, 94 (2d Cir. 2012)
contends that: (1) since the statements at issue were made to
a third-party and not the debtor, on a call initiated by the
third-party/debtor, the FDCPA's protections do not apply,
and (2) even if the FDCPA did apply, the statements are
immaterial as a matter of law. Def.'s Mem. at 7-9. In
opposition, Plaintiff argues that the FDCPA is interpreted
broadly to include communications initiated by the debtor or
his representative and includes statements made to a
debtor's representative. See generally,
Court's decision in Vernot v. Pinnacle Services,
L.L.C. is instructive. Vernot v. Pinnacle Servs.,
L.L.C., 2017 WL 384327 (E.D.N.Y. Jan. 26, 2017). In
Vernot, plaintiff alleged that defendant debt
collector violated sections 1692e and 1692f by
“deceptively and deceitfully [claiming] that no
information was available” and referring plaintiff to
another entity during a phone call initiated by the
consumer's representative. Id. at *1. Plaintiff
further alleged that defendant debt collector violated the
FDCPA by failing to notify the appropriate credit bureaus
that plaintiff disputed the reported debt. Id. The
Court concluded that the defendant's conduct was neither
unfair nor unconscionable, nor were its statements materially
false, misleading, or deceptive. Id. at *4-5. In
dismissing the complaint, the Court further noted that,
although the Second Circuit has not addressed whether the
FDCPA's protections apply to communications between a
debt collector and an attorney, it is likely that they do
not, since the assumption is that “[w]here an attorney
is interposed as an intermediary between a debt collector and