MALDONADO v. LYONS, DOUGHTY, & VELDHUIS, P.C.
Filing
12
MEMORANDUM OPINION FILED. Signed by Judge Joseph H. Rodriguez on 3/31/14. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_____________________________
LIDA MALDONADO,
Civil Action No. 13-1825
:
v.
Hon. Joseph H. Rodriguez
:
Plaintiff,
:
MEMORANDUM OPINION
LYONS, DOUGHTY, & VELDHUIS, P.C.,
:
Defendant.
________________________________
:
This matter is before the Court Defendant’s Motion to Dismiss the Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) [5]. The Court has considered the
submissions of the parties and has decided the motion pursuant to Federal Rule of Civil
Procedure 78(b). For the reasons set forth below, the motion will be granted.
Background
The Complaint alleges that Defendant Lyons, Doughty, & Veldhuis, P.C. violated
the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692c(a)(2) and 1692c(c), by mailing
a demand letter directly to Plaintiff when it knew of Plaintiff’s cease and desist request
and knew or could have readily ascertained that Plaintiff was represented by counsel.
(Compl. ¶ 22.) The Complaint states that on or about March 22, 2011, original creditor
HSBC Bank Nevada, N.A. was notified in writing that Plaintiff was represented by
counsel, to cease and desist all direct communication with her and solely contact
counsel. (Compl. ¶ 12.) On or about March 23, 2012, Defendant was retained by HSBC
Bank Nevada, N.A. to collect the debt owed by Plaintiff.
On or about March 23, 2012, Defendant mailed a letter to Plaintiff’s residence
referencing an alleged debt owed by Plaintiff to HSBC Bank Nevada, N.A. (Compl. ¶ 15
& Ex. A.) It stated: “Please be advised that this office represents HSBC Bank Nevada,
N.A. in connection with your account. Our client has advised us that you have requested
that you receive no further written or phone communication. The purpose of this letter
is merely to advise you of our representation and the balance set forth below. . . . If you
have any questions concerning this matter or if you wish to arrange for payment, please
contact our office.” (Compl. ¶ 17 & Ex. A.)
Applicable Standard
Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a
claim based on “failure to state a claim upon which relief can be granted.” Fed. R. Civ.
P. 12(b)(6). A complaint should be dismissed pursuant to Rule 12(b)(6) if the alleged
facts, taken as true, fail to state a claim. Fed. R. Civ. P. 12(b)(6). When deciding a
motion to dismiss pursuant to Rule 12(b)(6), ordinarily only the allegations in the
complaint, matters of public record, orders, and exhibits attached to the complaint, are
taken into consideration. 1 See Chester County Intermediate Unit v. Pa. Blue Shield, 896
F.2d 808, 812 (3d Cir. 1990). It is not necessary for the plaintiff to plead evidence.
Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). The question before the
Court is not whether the plaintiff will ultimately prevail. Watson v. Abington Twp., 478
F.3d 144, 150 (2007). Instead, the Court simply asks whether the plaintiff has
articulated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
1
“Although a district court may not consider matters extraneous to the pleadings,
a document integral to or explicitly relied upon in the complaint may be considered
without converting the motion to dismiss into one for summary judgment.” U.S.
Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002) (internal quotation
marks and citations omitted) (emphasis deleted).
2
“A claim has facial plausibility 2 when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 556). “Where there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise to an entitlement to
relief.” Iqbal, 556 U.S. at 679.
The Court need not accept “‘unsupported conclusions and unwarranted
inferences,’” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citation omitted),
however, and “[l]egal conclusions made in the guise of factual allegations . . . are given
no presumption of truthfulness.” Wyeth v. Ranbaxy Labs., Ltd., 448 F. Supp. 2d 607,
609 (D.N.J. 2006) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Kanter
v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347,
351 (3d Cir. 2005) (“[A] court need not credit either ‘bald assertions’ or ‘legal
conclusions’ in a complaint when deciding a motion to dismiss.”)). Accord Iqbal, 556
U.S. at 678-80 (finding that pleadings that are no more than conclusions are not
entitled to the assumption of truth).
Further, although “detailed factual allegations” are not necessary, “a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels
and conclusions, and a formulaic recitation of a cause of action’s elements will not do.”
Twombly, 550 U.S. at 555 (internal citations omitted). See also Iqbal, 556 U.S. at 678
2
This plausibility standard requires more than a mere possibility that unlawful
conduct has occurred. “When a complaint pleads facts that are ‘merely consistent with’
a defendant’s liability, it ‘stops short of the line between possibility and plausibility of
‘entitlement to relief.’’” Id.
3
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”).
Thus, a motion to dismiss should be granted unless the plaintiff’s factual
allegations are “enough to raise a right to relief above the speculative level on the
assumption that all of the complaint’s allegations are true (even if doubtful in fact).”
Twombly, 550 U.S. at 556 (internal citations omitted). “[W]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not ‘shown’-‘that the pleader is entitled to relief.’”
Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
The Fair Debt Collection Practice Act, 15 U.S.C. § 1692 et. seq.
Congress enacted the FDCPA “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.” 15 U.S.C. § 1692e. The
FDCPA prohibits, generally, the use of harassing oppressive, and abusive techniques in
connection with the collection of debts, 15 U.S.C. § 1692d; the use of false, deceptive, or
misleading representations in connection with the collection of debts, 15 U.S.C. § 1692e;
and the use of unfair or unconscionable means in connection with the collection of
debts, 15 U.S.C. § 1692f. Section 1692k provides a private right of action to any person
with respect to whom a debt collector has violated the statute. 15 U.S.C. § 1692k(a).
Section 1692c(a)(2) of the Act provides:
Without the prior consent of the consumer given directly to the debt
collector or the express permission of a court of competent jurisdiction, a
debt collector may not communicate with a consumer in connection with
the collection of any debt -- if the debt collector knows the consumer is
represented by an attorney with respect to such debt and has knowledge
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of, or can readily ascertain, such attorney's name and address, unless the
attorney fails to respond within a reasonable period of time to a
communication from the debt collector or unless the attorney consents to
direct communication with the consumer.
To be liable under § 1692c(a)(2), a debt collector must have actual knowledge of
the debtor's representation. Ortiz v. Malcom S. Gerald & Assoc., No. 11-5959 (CCC),
2012 WL 1831566, *3 (D.N.J. May 17, 2012) (citing Vega v. United Recovery Sys., L.P.,
No. 11–5995 (SRC), 2012 WL 458468 (D.N.J. Feb. 9, 2012); Pagan v. United Recovery
Sys., L.P., No. 11–5994 (FSH)(PS), 2012 WL 42940 (D.N.J. Jan. 6, 2012) (citing Ventura
v. Collectcorp Corp., No. 11–4576 (JLL), 2011 WL 4625365, at *2 (D.N.J. Sep.30,
2011))); Hubbard v. Nat’l Bond & Collection Assocs., 126 B.R. 422, 426–27 (D. Del.
1991). A creditor’s knowledge of representation is not “automatically imputed” to the
debt collector. Id. (citing Ventura, 2011 WL 4625365; Federal Trade Commission, Staff
Commentary on the Fair Debt Collection Practices Act, Section 805, 53 Fed.Reg. 50,097
(1988) (“The creditor's knowledge that the consumer has an attorney is not
automatically imputed to the debt collector.”)).
Plaintiff has not presented sufficient factual allegations to support the inference
that Defendant had actual knowledge of Plaintiff’s representation. The allegation that
Defendants “knew or could have readily ascertained that Plaintiff was represented by
counsel” is a “naked assertion” insufficient on its own to survive a motion to dismiss.
See Ashcroft v. Iqbal, 556 U.S. 662 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 557 (2007)). As a result, this claim will be dismissed.
Section 1692c(c) of the Act provides:
If a consumer notifies a debt collector in writing that the consumer refuses
to pay a debt or that the consumer wishes the debt collector to cease
further communication with the consumer, the debt collector shall not
communicate further with the consumer with respect to such debt, except5
(1) to advise the consumer that the debt collector's further efforts
are being terminated;
(2) to notify the consumer that the debt collector or creditor may
invoke specified remedies which are ordinarily invoked by such
debt collector or creditor; or
(3) where applicable, to notify the consumer that the debt collector
or creditor intends to invoke a specified remedy.
“The plain language of the statute requires a written communication directly to the debt
collector. Accordingly, in order to prevail on a claim pursuant to § 1692c(c), a plaintiff
must establish that he notified the defendant debt collector in writing that he refused to
pay the debt or that communications should cease.” Micare v. Foster & Garbus, 132 F.
Supp. 2d 77, 81 (N.D.N.Y. 2001). Further, it appears Defendant’s communication is in
compliance with 15 U.S.C. § 1692(c)(2) and (3), which permit the debt collector to notify
the consumer that the debt collector or creditor may invoke a specified remedy or
remedies, and with the notice requirement imposed upon debt collectors by 15 U.S.C. §
1692g(a). Therefore, the motion to dismiss will be granted.
Conclusion
For the reasons set forth here, Plaintiff’s Complaint will be dismissed without
prejudice. 1 An appropriate Order will be filed.
Dated: March 31, 2014
/s/ Joseph H. Rodriguez
JOSEPH H. RODRIGUEZ
U.S.D.J.
1
If appropriate, Plaintiff may file a motion for leave to amend the Complaint, with the
parties given the opportunity to brief the issue, but based upon the facts alleged the
Court will not automatically grant Plaintiff leave to amend. See Phillips v. County of
Allegheny, 515 F.3d 224, 236 (3d Cir. 2008); see also Foman v. Davis, 371 U.S. 178
(1962) (holding that leave to amend under Rule 12(b)(6) should be freely given in the
absence of any declared reason such as the futility of the proposed amendment).
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