Summary
applying Rule 9(b) to an FDCPA claim without explaining why
Summary of this case from Consumer Fin. Prot. Bureau v. Frederick J. Hanna & Assocs., P.C.Opinion
Case No. 03-CV-1497.
August 11, 2004
LAWRENCE KATZ, ESQ., Katz and Kleinman, Uniondale, NY, for the Plaintiff.
MICHAEL LAMBERT, ESQ., Gilmartin, Poster Shafto LLP New York, NY, for the Defendant.
MEMORANDUM AND ORDER
Pursuant to Fed.R.Civ.P. 12(b)(6), defendant RCS Centre Corp. ("RCS"), a debt collection agency, moves to dismiss the complaint of plaintiff Chaim Kupferstein ("Kupferstein"), who received a dunning letter from RCS allegedly in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA" or "the Act"). On June 16, 2004, the Court issued an Order notifying the parties that it would treat RCS's motion to dismiss as one for summary judgment because the parties had submitted, and the Court accepted, materials outside the pleadings. See Order at 1; see also Fed.R.Civ.P. 12(b). In accordance with Rule 12(b), the Court afforded the parties an opportunity to submit "any additional materials concerning the interest claim made pertinent by Rule 56" by July 16, 2004. Order at 1. Neither party submitted additional materials. For the reason set forth below, the Court grants summary judgment in RCS's favor and dismisses Kupferstein's claims.
I.
RCS's dunning letter claimed that Kupferstein owed ATT $164.86 for telephone services provided but not paid for, as well as an additional $1.02 in accrued interest. The letter provided, in pertinent part, that
Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt, or any portion thereof, we will assume that this debt is valid.
Compl., Exhibit A at 1.
Kupferstein alleges that RCS's letter violates the Act in three respects: (1) "[t]he letter violated 15 U.S.C. § 1692f(1) by attempting to collect interest which is not expressly authorized by the agreement creating the debt or permitted by law"; (2) "[t]he letter violated numerous provisions of the FDCPA by the failure of defendant RCS to send the plaintiff written notice containing a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid"; and (3) "upon information and belief . . . the defendant used false representations and deceptive means to collect a debt." Compl. at ¶¶ 17-19.
II.
1. Claim One: Interest
The Act proscribes "[t]he collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law." 15 U.S.C. § 1692f(1). In support of its motion to dismiss Kupferstein's allegation that RCS's demand for $1.02 in interest was not authorized by agreement or by law, RCS submitted an affidavit from Peter Silva ("Silver"), an ATT manager. Silver avers that his search of ATT's records disclosed that ATT had suspended Kupferstein's phone service in 1998 for non-payment of long distance service that ATT had provided in June through September 1998 and that ATT had assigned the debt to a collection agency. According to Silver, Kupferstein's account "was subject to Tariff F.C.C. No. 27 filed by ATT with the Federal Communications Commission" and that the tariff "authorize[d] the imposition of a 1.5% per month charge on unpaid amounts." Silver Affidavit at ¶ 3. Kupferstein has not denied that he incurred the underlying $164.86 debt or that Tariff No. 27 authorized ATT to impose interest on overdue bills. Rather, Kupferstein points to a July 25, 2001 FCC press release that he attached to his opposition detailing that agency's plans to "detariff" the long distance telephone industry as of July 31, 2001.
That the FCC changed its tariff policy as of July 31, 2001 is irrelevant to whether ATT was permitted to impose late charges in 1998. There being no genuine disputed issue of material fact regarding ATT's authorization to collect a late charge on overdue bills, it is plain that RCS did not violate the Act when it sought $1.02 in interest on Kupferstein's unpaid telephone bill; accordingly, RCS is entitled to judgment as a matter of law on Kupferstein's interest claim.
2. Claim Two: Validity of the Debt Statement
The Act requires that letters seeking to collect a debt must include, inter alia, "a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector." 15 U.S.C. § 1692g(a)(3). RCS's letter tracks the statutory language virtually verbatim and is plainly not violative of the Act. Indeed, in opposing RCS's motion to dismiss, Kupferstein has not even attempted to defend his claim, which is arguably frivolous. The Court dismisses this claim.
3. Claim Three: "False Representations and Deceptive Means"
Kupferstein alleges that RCS's letter employed "false representations and deceptive means." Compl. at ¶ 19. He does not specify how RCS allegedly did so, relying simply upon his "information and belief." Id.
The Court's June 16, 2004 Order advised Kupferstein that his fraud claim did not satisfy the pleading requirements of Fed.R.Civ.P. 9(b), which requires that such claims "shall be stated with particularity." See Order at 1 (citing Rule 9(b)); see also Knowles v. I.C. System, Inc., 1991 WL 5182 at *2 (W.D.N.Y. 1991) ("this Court agrees with the defendant that [plaintiff alleging `false representations and/or deceptive means' under the Fair Debt Collection Practices Act] has failed to set forth enough particularity to sustain such a charge"). In recognition of the deficient pleading, the Court afforded Kupferstein an opportunity to file an amended complaint. See Order at 1 ("If Kupferstein still seeks to assert the fraud claim, he shall file an amended complaint that satisfies the pleading requirements of Rule 9(b) no later than Thursday, July 1, 2004."). Kupferstein has not amended his fraud claim. Because his claim does not satisfy Rule 9(b)'s pleading requirements, it is dismissed.
CONCLUSION
RCS is entitled to judgment as a matter of law. The complaint is dismissed.
SO ORDERED.