United States District Court, E.D. New York
MENACHEM TAUBENFLIEGEL, individually and on behalf of others similarly situated, Plaintiff,
EGS FINANCIAL CARE, INC., Defendant.
OPINION & ORDER
R. Ross, United States District Judge.
Menachem Taubenfliegel brings this putative class action
against defendant EGS Financial Care, Inc., a debt collector.
Plaintiff alleges that defendant violated the Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C. § 1692
et seq., by sending him an inaccurate and misleading
debt collection letter. Defendant has moved to dismiss the
complaint on the ground that plaintiff has failed to state a
claim under Federal Rule of Civil Procedure 12(b)(6). For the
reasons discussed below, defendant's motion to dismiss is
November 2016, defendant sent plaintiff a debt collection
letter regarding a consumer credit card debt. Compl.
¶¶ 9-10, ECF No. 1. This was defendant's first
communication with plaintiff. Id. ¶ 11. The
letter states that plaintiff's “total
balance” is $6, 834.00. Id. at 10
(“Collection Letter”); see also id.
¶ 12. It also states that plaintiff's “account
balance may be periodically increased due to the addition of
accrued interest or other charges as provided in your
agreement with the original creditor or as otherwise provided
by state law.” Id.. Finally, the letter
provides a phone number to call if the debtor “need[s]
to speak to a representative.” Collection Letter.
the FDCPA, a “debt collector may not use any false,
deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C.
§ 1692e. Specifically, a debt collector may not falsely
represent “the character, amount, or legal status of
any debt.” Id. § 1692e(2)(A). Nor may a
debt collector “use . . . any false representation or
deceptive means to collect or attempt to collect any debt or
to obtain information concerning a consumer.”
Id. § 1692e(10). Whether a collection letter
violates § 1692e is judged by the objective “least
sophisticated consumer” standard. Avila v.
Reixinger & Assocs., LLC, 817 F.3d 72, 75 (2d Cir.
2016) (quoting Clomon v. Jackson, 988 F.2d 1314,
1318 (2d Cir. 1993)). This test “ask[s] how the least
sophisticated consumer—‘one not having the
astuteness of a “Philadelphia lawyer” or even the
sophistication of the average, everyday, common
consumer'—would understand the collection
notice.” Avila, 817 F.3d at 75 (quoting
Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir.
1996)). “Under this standard, a collection notice can
be misleading if it is ‘open to more than one
reasonable interpretation, at least one of which is
inaccurate.'” Id. (quoting
Clomon, 988 F.2d at 1319).
addition, the FDCPA requires a debt collector to provide
written notice of “the amount of the debt.” 15
U.S.C. § 1692g(a)(1). This too is judged by “how
the ‘least sophisticated consumer' would interpret
the notice.” Carlin v. Davidson Fink LLP, 852
F.3d 207, 216 (2d Cir. 2017) (citing Russell, 74
F.3d at 34). The notice must state the amount of debt
“clearly and effectively, ” such that the least
sophisticated consumer is not “‘uncertain' as
to the meaning of the message.” Id. (quoting
DeSantis v. Computer Credit, Inc., 269 F.3d 159, 161
(2d Cir. 2001)).
alleges that the collection letter is misleading under §
1692e and fails to state the amount of debt under §
1692g. Compl. ¶ 50. These claims stem from the
letter's statement that the “account balance may be
periodically increased due to the addition of accrued
interest or other charges as provided in your agreement with
the original creditor or as otherwise provided by state
law.” Compl. ¶ 12. According to plaintiff, this
language raises a number of questions that render the letter
misleading under the FDCPA. Plaintiff alleges that it fails
to inform him, among other things, of “whether the
account balance listed already includes ‘accrued
interest'. . . [or] ‘other charges, '”
id. ¶¶ 22-23; “whether the account
balance listed will increase, ” id. ¶ 25;
and what the nature and amount of the interest and other
charges might be, id. ¶¶ 26-30. The least
sophisticated consumer could reasonably believe, therefore,
that the account balance listed on the letter was only
accurate as of the date of the letter. Id. ¶
31. In addition, plaintiff argues, the least sophisticated
consumer would not know the amount of debt, because the
letter lacks detail on the accrual of interest or other
charges. Id. ¶¶ 32-36 & n.1.
plaintiff alleges that the debt collection letter violates
§§ 1692e and 1692g because “it is reasonably
susceptible to an inaccurate reading by the least
sophisticated consumer” and does not inform the debtor
whether the account balance is “the actual amount of
the debt due.” Id. ¶¶ 20-21.
has moved to dismiss for failure to state a claim under Rule
12(b)(6). Def.'s Mem. in Supp. of Mot. to Dismiss 1, ECF
No. 12-1 (“Def.'s Mot.”). It argues that the
letter's language is substantially similar to language
the Second Circuit identified as acceptable in
Avila. Id. at 1-2. The letter, according to
defendant, thus does not violate the FDCPA. Id.
motion to dismiss under Rule 12(b)(6), the court must accept
all factual allegations in the complaint as true and must
draw all reasonable inferences in favor of the non-moving
party. Lundy v. Catholic Health Sys. of Long Island
Inc., 711 F.3d 106, 113 (2d Cir. 2013) (citing
Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir.
2009)). Thus in deciding defendants' motion to dismiss,
the court must accept the facts alleged in plaintiff's
amended complaint as true. The complaint's allegations
“must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Only “a
plausible claim for relief survives a motion to
dismiss.” LaFaro v. N.Y. Cardiothoracic Grp.,
570 F.3d 471, 476 (2d Cir. 2009) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009)). Courts “are not
bound to accept as true a legal conclusion couched as a
factual allegation.” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555)).
Plaintiff Has Failed to State a Claim Under 15 U.S.C.
§§ 1692e or 1692g.
claims under §§ 1692e and 1692g must be dismissed
because the debt collection letter accurately states the
amount of his debt and is not deceptive.
FDCPA requires debt collectors, when they notify consumers of
their account balance, to disclose that the balance may
increase due to interest and fees.” Avila, 817
F.3d at 76. In Avila, the Second Circuit held that a
debt collection letter violated § 1692e because it did
not reveal that interest was accruing on the debt at
issue—when, in fact, interest was accruing at a rate of
500% per year. Id. at 74. The letter was deceptive
because the least sophisticated consumer might believe that
paying the amount listed on the debt collection letter would
satisfy his debt. Id. at 76. The Avila
court held that if a debt collection letter did not
disclose that the “balance may increase due to interest
and fees, ” it still would not violate § 1692e,
provided it “either accurately inform[ed] the consumer
that the amount of the debt stated in the letter will
increase over time, or clearly state[d] that the holder of
the debt will accept payment of the amount set forth in full
satisfaction of the debt if payment is made by a specified