United States District Court, E.D. New York
Plaintiff ABEL L. PIERRE Law Office of Abel L. Pierre,
Attorney at Law, P.C.
Defendants PETER G. SIACHOS Gordon & Rees LLP
MEMORANDUM AND ORDER
FREDERIC BLOCK SENIOR UNITED STATES DISTRICT JUDGE
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
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
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.
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
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
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).
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 ...