RAWLINS v. LYONS, DOUGHTY & VELDHUIS, PC

Filing 14

MEMORANDUM OPINION. Signed by Judge Jerome B. Simandle on 7/6/2017. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ANDY RAWLINS,
Plaintiff,

HONORABLE JEROME B. SIMANDLE

v.
LYONS, DOUGHTY & VELDHUIS, PC,

Civil Action
No. 16-8598 (JBS/KMW)

Defendant.
MEMORANDUM OPINION

SIMANDLE, District Judge:
In this action, Plaintiff Andy Rawlins (hereinafter,
“Plaintiff”) alleges that Defendant Lyons, Doughty & Veldhuis,
PC (hereinafter, “Defendant”) violated the Fair Debt Collection
Practices Act, (hereinafter, the “FDCPA”), specifically 15
U.S.C. §§ 1692f and 1692i(a)(2), in its efforts to collect an
outstanding debt against Plaintiff. Defendant has filed a motion
to dismiss under Rule 12(b)(6), Fed. R. Civ. P., for failure to
state a claim.
For the reasons that follow, Defendant’s motion to dismiss
will be granted in part and denied in part.

The Court finds as

follows:
1.) Factual and Procedural Background. In 2009, Defendant
obtained a judgment on a debt against Plaintiff in Middlesex
County, New Jersey on behalf of its client, Target National

Bank. (Compl. ¶¶ 18, 20.) Plaintiff was unaware of these
proceedings as he did not receive proper notice of the lawsuit
or judgment. (Id. at ¶ 21.) On April 26, 2016 in connection with
the collection of this debt, Defendant initiated a legal action
for the garnishment of Plaintiff’s wages in the Superior Court
of New Jersey, Middlesex County. (Id. at ¶ 22; Ex. A to Compl.)
However, Plaintiff alleges that he is a resident of Middlesex
County, Massachusetts, did not sign any contract creating the
alleged debt in New Jersey, or reside in New Jersey at the time
of the initial lawsuit in 2009 or when Defendant filed the
garnishment action in 2016. (Id. at ¶¶ 13, 25, 26.) As a result,
Plaintiff alleges he was unaware of the 2009 debt collection
action taken against him, and only learned about the proceedings
when his wages were garnished in 2016. (Id. at ¶¶ 21, 24.)
Plaintiff filed a two-count Complaint in this Court on
November 17, 2016. [Docket Item 1.] Count I alleges a violation
of 15 U.S.C. § 1692f, the FDCPA provision that prohibits a debt
collector from using unfair or unconscionable means to collect
or attempt to collect any debt. Count II alleges a violation of
15 U.S.C. § 1692i(a)(2), which provides that a debt collector
shall only bring an action in the judicial district where the
consumer signed the contract, or where the consumer resides at
the commencement of the action. Defendant filed a motion to
dismiss for failure to state a claim under Rule 12(b)(6) [Docket
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Item 6.] To its motion, Defendant attaches several documents
including what purports to be Plaintiff’s driver’s license
record with the New Jersey Vehicle Commission listing an East
Brunswick address for the relevant time period, see Ex. 2 to
Def. Br. The Court will decide this motion without oral argument
pursuant to Fed. R. Civ. P. 78.
2. Standard of Review. Pursuant to Rule 8(a)(2), Fed. R.
Civ. P., a complaint need only contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” Specific facts are not required, and “the statement
need only ‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.’” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (citations omitted).

While a

complaint is not required to contain detailed factual
allegations, the plaintiff must provide the “grounds” of his
“entitle[ment] to relief”, which requires more than mere labels
and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007).
A motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P.,
may be granted only if, accepting all well-pleaded allegations
in the complaint as true and viewing them in the light most
favorable to the plaintiff, a court concludes that the plaintiff
failed to set forth fair notice of what the claim is and the
grounds upon which it rests. Id.

A complaint will survive a
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motion to dismiss if it contains sufficient factual matter to
“state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).

Although a court

must accept as true all factual allegations in a complaint, that
tenet is “inapplicable to legal conclusions,” and “[a] pleading
that offers labels and conclusions or a formulaic recitation of
the elements of a cause of action will not do.” Id. at 678. For
purposes of the pending motion, the Court accepts as true the
version of events set forth in Plaintiffs’ Complaint, documents
explicitly relied upon in the Complaint, and matters of public
record.

See Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir.

2014); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1426 (3d Cir. 1997).
3. 1692i(a)(2) claim. Defendant argues that Plaintiff’s §
1692i(a)(2) claim should be dismissed because Plaintiff has a
New Jersey driver’s license and has a legal duty to report any
change of address; therefore Plaintiff is estopped from claiming
that he is not a resident of New Jersey in his Complaint.
Section 1692i(a)(2) provides that “[a]ny debt collector who
brings any legal action on a debt against any consumer shall . .
. bring such action only in the judicial district or similar
legal entity: (A) in which such consumer signed the contract
sued upon; or (B) in which such consumer resides at the
commencement of the action.” 15 U.S.C. § 1692i(a)(2). “Congress
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adopted § 1692i(a)(2) to address ‘the problem of forum abuse, an
unfair practice in which debt collectors file suit against
consumers in courts which are so distant or inconvenient that
consumers are unable to appear,’ hence permitting the debt
collector to obtain a default judgment.” Moore v. Fein, Such,
Kahn & Shepard, PC, No. 12-1157, 2012 WL 3945539, at *7 (D.N.J.
June 13, 2012)(citations omitted).
In Moore, the plaintiff alleged in her Complaint that she
was a resident of South Carolina, and the defendant filed a
motion to dismiss plaintiff’s § 1692i(a)(2) claim because the
plaintiff maintained a joint bank account in New Jersey, had an
active voter registration in the state, and had provided an
active New Jersey telephone number to her credit card company.
Moore, 2012 WL 3945539 at *16-17. The court denied defendant’s
motion to dismiss, stating that “[a]t this early stage in the
proceedings, accepting Plaintiff’s allegations as stated in her
Complaint as true that she resided in South Carolina at the time
the civil action was filed, the Court finds that Plaintiff has
sufficiently stated a cause of action for violation of 15 U.S.C.
§ 1692i(a)(2).” Id. at 18.
The Court finds Moore instructive in this case and for
similar reasons denies Defendant’s motion to dismiss Count Two
of Plaintiff’s Complaint. Plaintiff alleges that at all relevant
times he resided in the state of Massachusetts, county of
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Middlesex, and city of Somerville. (Compl. at ¶ 13.)1 Defendant
contends that because Plaintiff maintains a New Jersey driver’s
license and never notified the New Jersey Motor Vehicle
Commission of any change in residence, Defendant is not in
violation of § 1692i(a)(2) by filing a lawsuit in New Jersey.
(Def. Br. at 5-6.)2 Taking the facts as true in Plaintiff’s
Complaint, as the Court must do at this stage in the litigation,
Plaintiff actually lived in Massachusetts and not New Jersey at
the time the debt collection suit and garnishment action were
filed. Here, as in Moore, Plaintiff’s New Jersey driver’s
license is not necessarily dispositive of his residence at this
stage of the litigation. Defendant may develop its theory of
Plaintiff’s actual residence during discovery, and Plaintiff
will have the opportunity to prove he was a Massachusetts
resident at the time the State Court action was filed, but it
would be premature for the Court to dismiss Plaintiff’s §
1692i(a)(2) claim on that basis at this point. The Court
therefore finds that Plaintiff has plausibly alleged that he is

1

The Court further notes that “residence” is defined as (1) The
act or fact of living in a certain place for some time, or (2)
The place where one actually lives. Residence, BLACK’S LAW
DICTIONARY (10th ed. 2014).
2 While Plaintiff’s Motor Vehicle Commission file (Ex. 2 to Def.
Br.) was not explicitly relied upon in the Complaint, the Court
will consider it as a public record under Schmidt, 770 F.3d at
251.
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a resident of Massachusetts, and has therefore sufficiently
stated a claim under 15 U.S.C. § 1692i(a)(2).
4. Estoppel. Relatedly, the court rejects Defendant’s
argument that because Plaintiff maintained a New Jersey driver’s
license and did not inform the New Jersey Department of Motor
Vehicles of his change of address (in violation of N.J.S.A.
39:3-36), he is estopped from claiming he is not a resident of
New Jersey for purposes of this lawsuit. In other words,
Defendant argues that Plaintiff should be estopped from
asserting that his residence was at a location other than East
Brunswick, New Jersey (Def. Br. at 5.)3
To state a claim for equitable estoppel, a party must show
(1) a material misrepresentation, (2) reasonable reliance upon
the misrepresentation, and (3) damage resulting from the
misrepresentation. McCarron v. F.D.I.C., 111 F.3d 1089, 1097 (3d
Cir. 1977) (citations omitted). “A party asserting equitable
estoppel may rely upon . . . inaction, . . . silence or
omission.” Barone v. Leukemia Soc. Of Am., 42 F. Supp. 2d 452,
464 (D.N.J. 1998). However, the reliance must be “reasonable and

3

Plaintiff correctly notes that affirmative defenses like
estoppel must normally be raised in an answer, not a motion to
dismiss, but “an exception is made where . . . the affirmative
defense clearly appears on the face of the pleading.” Oshiver v.
Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, `385 n.1 (3d
Cir. 1994). As a result, the Court will examine Plaintiff’s
Complaint to determine whether an estoppel defense “clearly
appears” on its face.
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justifiable,” and the burden of proof is on the party asserting
the estoppel. Dressler v. Energy, NO. 14-7060, 2016 WL 5886878,
at *4 (D.N.J. Oct. 7, 2006).
Here, in examining Plaintiff’s Complaint, Defendant’s
estoppel defense fails on all three elements. First, there is no
indication that Plaintiff made any representation, let alone a
material one, to Defendant by not informing the New Jersey
Department of Motor Vehicles of his address change. To the
contrary, Plaintiff did not become aware of the legal action
until his wages were garnished years after the initial suit.
(Compl. at ¶ 24); See Dressler, 2016 WL 5886878, at *5 (holding
plaintiff’s equitable estoppel claim fails because there are no
facts alleged that defendant made a representation knowing it
would induce action on the part of the plaintiff.) Second,
Defendant does not state that it relied on Plaintiff’s New
Jersey driver’s license when it commenced its debt collection
action against Plaintiff. In fact, Defendant requested
Plaintiff’s public driver’s license records on December 7, 2016,
over eight years after the debt collection proceeding against
Plaintiff began. (Ex. 2 to Def. Br.) Finally, Defendant has
failed to allege any damage as a result of Plaintiff’s alleged
misrepresentation of his residency. Defendant has failed to
adequately allege the existence of any of the three elements
needed to establish equitable estoppel based on the face of
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Plaintiff’s Complaint; therefore Plaintiff is not estopped from
claiming he is a resident of Massachusetts in his Complaint.
Furthermore, the court rejects Defendant’s reliance on
Kalamaden v. Singh, 882 2d 437, 63 A.D. 3rd 1007-08 (N.Y. Sup.
Ct. 2009), and Rudikoff v. Byrne, 242 A.2d 880, 885-886, 101
N.J. Super. 29 (N.J. Super. L. 1968) to support its position
that Plaintiff should be estopped from claiming he is not a
resident of New Jersey. Kalamaden concerned a motor vehicle
accident in which the court held that the defendant was estopped
from challenging the service of process based on personal
jurisdiction because the address where the server attempted to
deliver summons was the same address the defendant had
registered with the Department of Motor Vehicles. 882 N.Y.S. at
439. This case is factually distinguishable because in
Kalamaden, the defendant had supplied the officers with two
different addresses at the scene of the accident, and had yet a
third address registered with the Department of Motor Vehicles.
Id. at 440. The court reasoned his failure to comply with
Vehicle and Traffic Law § 505(5) raised an inference that he
deliberately attempted to avoid notice of the action. Id. There
is no such attempt to avoid any legal action here. Unlike the
defendant in Kalamaden, it was to Plaintiff’s disadvantage not
to become aware of the garnishment action and have the

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opportunity to appear in court and attempt to prevent the
garnishment of his wages.
Likewise, Rudikoff involved a motor vehicle accident where
the plaintiff attempted to forward a copy of the summons and
complaint to the address of the defendant that was on file with
the Department of Motor Vehicles. 242 A.2d at 880. The defendant
had provided his registered address to the police at the scene
of the accident and responded to a related complaint previously
sent to this address. Id. at 882. The court therefore precluded
the defendant from asserting that he was not a resident of the
address on file with the Department of Motor Vehicles. Id. at
885. Unlike the defendant in Rudikoff, here, the Complaint does
not indicate that Plaintiff made any representation about his
address on file with the Department of Motor Vehicles, nor did
Plaintiff previously hold himself out to reside in New Jersey by
acknowledging a prior complaint sent to that address. No facts
indicate that Defendant relied on Plaintiff’s New Jersey
driver’s license when deciding where to file the garnishment
action.
For these reasons, the Court disagrees with Defendant’s
argument that Plaintiff is estopped from claiming he is not a
citizen of New Jersey for failure to report his change of
address to the Department of Motor Vehicles.

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6. 1692f claim. Next, Plaintiff alleges that Defendant
violated 15 U.S.C. § 1692f by using unfair or unconscionable
means against Plaintiff in connection with an attempt to collect
an alleged debt. Defendant moves to dismiss because this claim
is duplicative of Plaintiff’s § 1692i(a)(2) claim and is
therefore barred.
Section 1692f of the FDCPA provides that “a debt collector
may not use unfair or unconscionable means to collect or attempt
to collect any debt.” 15 U.S.C. §1692f. The statute provides a
non-exhaustive list of conduct that is “unfair or
unconscionable”. See 15 U.S.C. § 1692f(1)-(8). However, it also
gives rise to liability for other unfair or unconscionable
conduct under the general provisions of 1692f that is not
specifically listed in § 1692f(1)-(8). Turner v. Prof'l Recovery
Servs., 956 F. Supp. 2d 573, 580 (D.N.J. 2013). Section 1692f is
therefore a catchall provision, which prohibits conduct that is
not already addressed by other sections of the FDCPA. Corson v.
Accounts Receivable Mgmt., Inc., No. 13-01903, 2013 WL 4047577,
at *7 (D.N.J. Aug. 9, 2013). Therefore, improper acts that are
specifically addressed by other sections cannot be the basis for
a 1692f claim. Turner, 956 F. Supp. 2d at 580.
Here, Plaintiff alleges Defendant used “unfair and
unconscionable” means in attempting to collect a debt by taking
legal action in an improper judicial district that is over 250
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miles away from Plaintiff’s residence. (Compl. at ¶ 28.)
Defendant argues that Plaintiff’s cause of action is premised on
the same conduct alleged to be in violation of the FDCPA’s venue
provision (15 U.S.C. § 1692i(a)(2)) and therefore cannot be
brought under 1692f. (Def. Br. at 3.) The Court agrees.
Plaintiff attempts to differentiate the two claims by citing
examples of states like Alaska with districts so big that a
creditor could file a suit in the proper district but so far
away that its conduct is “unfair or unconscionable”, thereby
violating § 1692f, but not § 1692i(a)(2). (Opp’n at 11.) New
Jersey is not Alaska. The purpose of § 1692i(a)(2) is to prevent
creditors from filing a suit in a district court where consumers
are unable to appear and thus obtain default judgment. Moore,
2012 WL 3945539, at *17-18. Since filing a collection suit in a
distant court is already prohibited by a different provision of
the FDCPA, Plaintiff’s claim under § 1692f is duplicative and
cannot be brought. See Turner, 956 F. Supp. 2d at 581 (holding
that plaintiff’s § 1692f claim was duplicative because defendant
calling repeatedly after 9:00 pm was covered under 1692c(a)(1)
and 1692d); see also Havison v. Williams Alexander & Assocs., NO.
15-7059, 2016 WL 7018532, at *2 (D.N.J. Nov. 30, 2016)
(dismissing plaintiff’s motion for default judgment on his 1692f
claim because placing telephone calls without meaningful
disclosure of the callers identity, and failure to disclose in
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the initial oral conversation that the debt collector is
attempting to collect a debt, are covered under 1692(d)(6) and
1692e(11) respectively).
Because Plaintiff does not show any alleged unfair or
unconscionable conduct not addressed by § 1692i(a)(2), the Court
grants Defendant’s motion to dismiss Plaintiff’s claim under §
1692f.
6. Conclusion. For all of these reasons, Defendant’s
motion to dismiss will be granted as to Plaintiff’s claim under
§ 1692f in Count I and denied as to Plaintiff’s claim under §
1692i(a)(2) in Count II. An accompanying Order will be entered.

July 6, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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