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Schaefer v. IC System, Inc.

United States District Court, E.D. New York

June 22, 2018

DARLENE SCHAEFER, Plaintiff,
v.
IC SYSTEM, INC., Defendant.

          For Plaintiff ABEL L. PIERRE Law Office of Abel L. Pierre, Attorney at Law, P.C.

          For Defendants PETER G. SIACHOS Gordon & Rees LLP

          MEMORANDUM AND ORDER

          FREDERIC BLOCK SENIOR UNITED STATES DISTRICT JUDGE

         Darlene Schaefer (“Schaefer”) sued IC System, Inc. (“ICS”), a debt collector, claiming that ICS violated the Fair Debt Collection Practices Act (“FDCPA”), the Telephone Consumer Protection Act (“TCPA”), the New York General Business Law, and the U.S. Bankruptcy Code by calling her cell phone to collect a debt during the pendency of an automatic bankruptcy stay. ICS moves to dismiss Schaefer's Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). For the reasons discussed below, the motion is granted as to Schaefer's claim under 15 U.S.C. § 1692d and denied in all other respects.

         I

         On a motion to dismiss under Rule 12(b)(6), the Court accepts the factual allegations in the complaint as true and draws all reasonable inferences in the plaintiff's favor. See Krys v. Pigott, 749 F.3d 117, 128 (2d Cir. 2014). The Court limits its consideration “to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Israel Disc. Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999).

         Schaefer alleged as follows. On September 20, 2016, she filed a Chapter 7 bankruptcy petition in the U.S. Bankruptcy Court for the Eastern District of New York. Am. Compl. ¶ 18. Prior to that date, she had incurred a debt, which an unspecified creditor submitted to ICS for collection. Id. ¶¶ 15-17, 27. Although Schaefer does not know the exact date ICS assumed responsibility for collecting the debt, other debt collectors routinely check credit reports and public court records to determine whether a debt is subject to bankruptcy proceedings. Id. ¶¶ 27-30. ICS either took such measures and ignored the results or failed to take such measures despite a responsibility to do so under federal law. Id. ¶¶ 28-31.

         Notwithstanding the automatic bankruptcy stay imposed by 11 U.S.C. § 362, ICS called Schaefer's cell phone to collect the debt using an automatic telephone dialing system (“ATDS”) on December 1 and 2, 2016. Id. ¶¶ 20-26. When Schaefer answered the phone, she heard a pause followed by a pre-recorded voice. Id. ¶ 25. Schaefer's bankruptcy proceeding terminated in December 2016.[1]

         On April 4, 2017, Schaefer brought this action, claiming violations of the FDCPA, 15 U.S.C. §§ 1692d, 1692e, and 1692f; the TCPA, 47 U.S.C. § 227; New York General Business Law § 349; and the automatic bankruptcy stay. She alleged injury in the form of emotional distress and sought declaratory, monetary, and preliminary and permanent injunctive relief.

         II

         A. FDCPA Claims

         Courts analyze FDCPA claims under a “least sophisticated consumer” standard, “measur[ing] the questioned conduct ‘by how the least sophisticated consumer would interpret it.'” Jacobson v. Healthcare Fin. Servs., Inc., 434 F.Supp.2d 133, 137 (E.D.N.Y. 2006), rev'd in part on other grounds, 516 F.3d 85 (2d Cir. 2008) (alterations omitted) (quoting Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir. 1996)). Given its remedial nature, the Act must be construed liberally. Hart v. FCI Lender Servs., Inc., 797 F.3d 219, 225 (2d Cir. 2015).

         1. Section 1692d

         Section 1692d prohibits a debt collector from engaging in “conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d. The statute gives a list of prohibited conduct, but the list is not meant to “limit[] the general application of the foregoing” prohibition. Id. Schaefer does not cite any of these examples but instead seeks to proceed under the general ...


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