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Timoshenko v. Mullooly, Jeffrey, Rooney & Flynn, LLP

United States District Court, E.D. New York

March 30, 2018

OKSANA TIMOSHENKO, on behalf of herself and all other similarly situated consumers Plaintiff,
v.
MULLOOLY, JEFFREY, ROONEY & FLYNN, LLP, Defendant.

          MEMORANDUM AND ORDER

          I. LEO GLASSER, Senior United States District Judge

         Plaintiff Oksana Timoshenko (“Timoshenko” or “Plaintiff”) brings this putative class action against Mullooly, Jeffrey, Rooney & Flynn LLP (“Defendant”) alleging violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. Specifically, Timoshenko alleges that Defendant violated § 1692e of the FDCPA, which prohibits the use of “false, deceptive, or misleading representation or means in connection with the collection of any debt.” Id. § 1692e. Incredibly, the very language that Timoshenko alleges was deceptive-and the only language she alleges was deceptive-is language the Second Circuit has identified as a “safe harbor” provision, the use of which shields a debt collector from § 1692e liability. The Court therefore grants Defendant's motion for judgment on the pleadings and orders Plaintiff's counsel to show cause why he should not be sanctioned.

         BACKGROUND

         Defendant Mullooly, Jeffrey, Rooney & Flynn LLP is a debt-collection firm located in Syosset, New York. ECF No. 1 (“Compl.”) ¶¶ 3-5; ECF No. 7 (“Answer”) ¶¶ 4-6. Plaintiff Oksana Timoshenko is a citizen of New York who resides in the Eastern District of New York. Compl. ¶ 1; Answer ¶ 2. On or about July 11, 2017, Defendant sent Timoshenko a letter (the “Collection Letter”) regarding a debt she owed (and, presumably, still owes) Velocity Investments, LLC. See Compl. ¶ 9; ECF No. 1-1; Answer ¶ 8.[1] The Collection Letter stated, in relevant part, as follows:

As of this date your balance is $2, 435.48. Because of the interest or fees that may vary from day to day, the amount due on the day you pay may be greater. Hence if you pay the amount shown above, an adjustment may be necessary after we receive your check, in which event we will inform you before depositing the check for collection. For further information, please write or call G. BRICKMAN- (516) 656-5339.

Compl. ¶ 10; ECF No. 1-1; Answer ¶ 9. Timoshenko alleges that this language was false, misleading, and deceptive-in violation of § 1692e of the FDCPA-because it could reasonably be read to have two or more meanings concerning the actual balance due. Compl. ¶¶ 43-44. More specifically, she alleges that the Collection Letter was unclear regarding the amount due because it failed to indicate whether the amount listed already included interest or fees and because it failed to provide sufficient information regarding the interest or fees that might apply going forward. See Id. ¶¶ 18-38. She also alleges that Defendant purposefully fails to provide additional information regarding interest and fees in order to induce payments that would not otherwise be made if consumers had full information. Id. ¶¶ 39-41.

         Timoshenko filed her complaint on July 28, 2017. Compl. On August 9, 2017, Defendant's counsel contacted Plaintiff's counsel Igor Litvak and advised him that the Collection Letter did not violate the FDCPA because the language at issue conforms to the safe-harbor language endorsed by the Second Circuit in Avila v. Riexinger & Associates, LLC, 817 F.3d 72 (2d Cir. 2016). ECF No. 8-1 at 12. And indeed the language in the Collection Letter does conform to the safe-harbor provision endorsed in Avila, which reads as follows:

As of the date of this letter, you owe $ [the exact amount due]. Because of interest, late charges, and other charges that may vary from day to day, the amount due on the day you pay may be greater. Hence, if you pay the amount shown above, an adjustment may be necessary after we receive your check, in which event we will inform you before depositing the check for collection. For further information, write the undersigned or call 1-800-[phone number].

Avila, 817 F.3d at 77 (quoting Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, & Clark, L.L.C., 214 F.3d 872, 876 (7th Cir. 2000)). Defendant's counsel also advised Litvak that the two post-Avila cases cited in the complaint-Carlin v. Davidson Fink LLP, 852 F.3d 207 (2d Cir. 2017), and Balke v. Alliance One Receivables Management, Inc., No. 16-CV-5624, 2017 WL 2634653 (E.D.N.Y. June 19, 2017)-did not involve collection letters containing the Avila safe-harbor language. ECF No. 8-1 at 12. In light of these facts, Defendant's counsel asked Litvak to confirm that Timoshenko would be dismissing the case. Id. Instead, Litvak responded with an email (i) saying he saw “no merit” in the argument that Carlin and Balke did not concern letters containing the Avila safe-harbor language and (ii) making clear that Timoshenko would not be dismissing the case. Id. at 12-13.

         On August 18, 2017, Defendant filed its answer to the complaint, ECF No. 7, and contemporaneously filed a motion for (i) judgment on the pleadings, under Rule 12(c) of the Federal Rules of Civil Procedure, and (ii) attorneys' fees and costs, under § 1692k(a)(3) of the FDCPA. ECF No. 8.

         LEGAL STANDARD

         Rule 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.” Fed.R.Civ.P. 12(c). In deciding a Rule 12(c) motion, the Court applies the same standard as it does for Rule 12(b)(6) motions to dismiss. Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). Thus, to survive a Rule 12(c) motion, a plaintiff must plead “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “On a 12(c) motion, the court considers ‘the complaint, the answer, any written documents attached to them, and any matter of which the court can take judicial notice for the factual background of the case.'” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d. Cir. 2011) (quoting Roberts v. Babkiewicz, 582 F.3d 418, 419 (2d Cir. 2009)).

         DISCUSSION

         The Collection Letter does not contain any false, deceptive, or misleading representations, even viewed from the perspective of the hypothetical “least sophisticated consumer, ” and Plaintiff's protestations to the contrary do not withstand scrutiny. We need not parse the Collection Letter in any great detail, however, nor Timoshenko's facially implausible allegations, because the Avila safe harbor plainly applies and is dispositive of this case. Timoshenko should not have filed this action in the first place, and Litvak, once directed to Avila by Defendant's counsel, should have advised his client to dismiss the lawsuit. Since they instead pressed on, forcing Defendant ...


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