Summary
In Richardson v. Allianceone Receivables Mgmt, Inc., No. 03 Civ. 5519 (DLC), 2004 WL 867732 (S.D.N.Y. April 23, 2004), Judge Cote dismissed a claim alleging that a licensed debt collector's failure to include his License Number in a collection letter violated §§ 1692e(5) and (10).
Summary of this case from Wayee v. Recovery's Unlimited, Inc.Opinion
03 Civ. 5519 (DLC)
April 23, 2004
Adam J. Fishbein, Esq., Woodmere, New York, for Plaintiff
Jonathan D. Elliot, Kleban Samor, P.C., Southport, Connecticut, for Defendant
John K. Rossman, Moss Barnett, Minneapolis, Minnesota, for Defendant
OPINION AND ORDER
On July 23, 2003, Robin S. Richardson ("Richardson") filed this proposed class action against Alliance One Receivables Management, Inc. ("AllianceOne"), a debt collector, alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (the "FDCPA"). Richardson's claims arise from her receipt of a collection letter from AllianceOne that failed to include its City of New York Department of Consumer Affairs license number ("License Number"), as required by New York City ordinance, New York City Rules, Tit. 6, § 1-05. Alliance One has moved to dismiss this action on the pleadings pursuant to Rule12(c), Fed.R.Civ.P., and Richardson has filed a cross-motion for judgment on the pleadings and a motion for leave to amend the complaint. For the reasons that follow, Alliance One's motion for judgment on the pleadings is granted, and Richardson's cross-motion for judgment on the pleadings and her motion for leave to amend are denied.
Background
The following facts are taken from the complaint and the documents on which the complaint relies, unless otherwise noted. On March 19, 2003, Alliance One sent Richardson a letter (the "Letter") seeking to collect a balance of $3,583.22 that Alliance One stated she owed its client, FCNB. The Letter reads as follows:
Your account has been listed with our office for collection by the referenced client. If paid in full to this office, all collection activity will be stopped.
For your convenience we can arrange for automatic deductions from your checking account. Please feel free to call us if you wish to discuss this matter.
This communication is from a debt collector. This is an attempt to collect a debt, and any information obtained will be used for that purpose.
Unless you notify this office within 30 days after receiving this notice that you dispute the validity of the debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receipt of this notice, this office will obtain verification of the debt or obtain a copy of the judgment and mail you a copy of such judgment or verification. If you request of this office within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.
The Letter is written on Alliance One stationery and includes its address and toll-free telephone number, but does not include the debt collector's License Number.
Alliance One has attached to its Answer a copy of its City of New York Department of Consumer Affairs license as a debt collection agency. This is a public record, the authenticity of which Richardson does not dispute.
Discussion
1. Motion for Judgment on the Pleadings
The standard for evaluating a motion for judgment on the pleadings under Rule 12(c), Fed.R.Civ.P., is the same as that under Rule 12(b)(6), Fed.R.Civ.P. Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). A court may dismiss an action pursuant to Rule 12(b)(6) only if "it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts which would entitle him to relief." Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997) (citations omitted). In construing the complaint, the court must "accept all factualal legations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff."Id. "Given the Federal Rules' simplified standard for pleading, a court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 514 (2002).
In addition to the pleadings, the court may consider "documents attached to the complaint as an exhibit or in corporated in it by reference, matters of which judicial notice may be taken, or documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (citation omitted). A court may take judicial notice of a public record pursuant to Rule 201(b), Fed.R.Evid.Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir. 2000).
The FDCPA was designed to "eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15U.S.C. § 1692(e);see also Alibrandi v. Financial Outsourcing Services, Inc., 333 F.3d 82, 85 (2d Cir. 2003). Congress intended the FDCPA to encourage states, and presumably local governments, to enact stronger laws to address the problem of abusive debt collection methods. Silver v. Woolf, 694 F.2d 8, 13 (2d Cir. 1982). An alleged violation of state or local law, however, is insufficient to state a claim under the FDCPA.Wade v. Regional Credit Assoc., 87 F.3d 1098, 1100 (9th Cir. 1998);Lindbergh v. Transworld Systems, Inc., 846 F. Supp. 175, 181 (S.D.N.Y. 1994).
The FDCPA "establishes certain rights for consumers whose debts are placed in the hands of professional debt collectors for collection, and requires that such debt collectors advise the consumers whose debts they seek to collect of specified rights."Kropelnicki v. Siecrel, 290 F.3d 118, 127 (2d Cir. 2001) (citation omitted); 15 U.S.C. § 1692g (listing required contents of debt collection notice). Richardson alleges violations of Sections1692e(5) and (10) of the FDCPA ("Sections 1692e(5) and (10)"), which provide in relevant part:
A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
* * *
(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.
* * *
(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or obtain information concerning a consumer.
(Emphasis supplied.)
When determining whether the FDCPA has been violated, courts must employ an objective standard based on how the least sophisticated consumer would interpret the notice received from the debt collector.Kropelnicki, 290 F.3d at 127. The purpose of this standard is two-fold: "(1) [to] ensure the protection of all consumers, even the naive and the trusting, against deceptive debt collection practices, and (2) [to] protect debt collectors against liability for bizarre or idiosyncratic interpretations of collection notices." Id. (citation omitted). A debt collector is held to violate the FDCPA if it conveys information in a manner that is confusing or contradictory, clouding the required message with uncertainty. DeSantis v. Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir. 2001). At the same time, the least sophisticated consumer standard incorporates a "concept of reasonableness" that is presumed to guide even the most naive debtor. McStay v. I.C. System, Inc., 308 F.3d 188, 190-91 (2d Cir. 2002); Clomon v. Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993).
Richardson argues, first, that Alliance One violated Section1692e(10) by failing to publish its License Number on the Letter, preventing her from obtaining information about Alliance One from the Department of Consumer Affairs (the "Department") and from filing a complaint with that agency. Richardson's claim is without merit. It is undisputed that the Letter contains the information required by the FDCPA. See 15 U.S.C. § 1692g.Alliance One's name, address, and phone number are included in the Letter, and she has failed to explain why she could not contact the Department based on the information provided. While Alliance One's failure to list its License Number may violate a New York City ordinance, there is no basis to conclude that this minor deficiency renders the Letter false, deceptive, or misleading within the meaning of the FDCPA.
The New York City Rules provide in relevant part: "Any advertisement, letterhead, receipt or other printed matter of a licensee must contain the license number assigned to the licensee by the New York City Department of Consumer Affairs. The license number must be clearly identified as a New York City Department of Consumer Affairs number and must be disclosed and disseminated in a lawful manner." New York City Rules, Tit. 6, § 1-05 (the "City Ordinance").
Richardson's second argument is that Alliance One violated Sections 1692e(5) and (10) by threatening to continue collection activity when it was not acting in compliance with the City Ordinance. It is undisputed, however, that Alliance One is licensed as a debt collector in New York. The violation of a technical City ordinance not specific to debt collection activities resulting in no identifiable harm to Richardson is insufficient to state a claim under the FDCPA. As the Honorable Jose A. Cabranes explained, the contention that every violation of state law raises a federal claim under the FDCPA "reflects a false, narrow, and overly mechanical reading" of the statute.Lindbergh, 846 F. Supp. at 181; see also Wade, 87 F.3d at 1100 ("We disagree with Wade that debt collection practices in violation of state law are per se violations of the FDCPA.").
AllianceOne's status as a licensed debt collector distinguishes this case from all those cited by Richardson in support of her claim.Sibley v. Firstcollect, Inc., 913 F. Supp. 469, 471 (M.D. La. 1995); Russey v. Rankin, 911 F. Supp. 1449, 1459 (D.N.M. 1995);Kuhn v. Account Control Technology, Inc., 865 F. Supp. 1443, 1452 (D. Nev. 1994); Gaetano v. Payco. of Wisconsin, Inc., 774 F. Supp. 1404, 1414-15 (D. Conn. 1990).
2. Motion for Leave to Amend
While leave to amend should be freely given when justice so requires, Fed.R.Civ.P. 15(a), leave to amend need not be granted when amendment would be fufile. Oneida Indian Nation of New York v. City of Sherrill, 337 F.3d 139, 168 (2d Cir. 2003). A proposed amendment would be fufile if it could not withstand a motion for judgment on the pleadings. Id.; Patel, 259 F.3d at 126 (same standard applies to motion to dismiss and motion for judgment on the pleadings).
Richardson seeks to amend her complaint to assert that the Letter sent by AllianceOne also gives rise to a claim under Section f of the FDCPA ("Section 1692f"), which provides in relevant part: "A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt." 15 U.S.C. § 1692f. There is no merit to Richardson's argument that AllianceOne's failure to include its License Number on the Letter constitutes an unfair or unconscionable attempt to collect a debt. It is undisputed that AllianceOne is properly licensed as a debt collector, and that the Letter provides the information required of a debt collection notice by the FDCPA. Alliance One provided information by which Richardson could identify the company and seek information from the Department of Consumer Affairs. Richardson's proposed amendment would be fufile because she has failed to state a claim for unfair or unconscionable debt collection practices under Section 1692f.
Conclusion
AllianceOne's motion for judgment on the pleadings is granted. Richardson's motion for judgment on the pleadings is denied, as is her motion for leave to amend the complaint.
SO ORDERED.