TESORA v. LYONS, DOUGHTY & VELDHUIS, PC
OPINION FILED. Signed by Judge Noel L. Hillman on 7/27/17. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SHEENA M. TESORA,
Civil No. 16-9265 (NLH/JS)
LYONS, DOUGHTY, VELDHUIS, P.C.,
RC LAW GROUP, PLLC
By: Yaakov Saks, Esq.
285 Passaic Street
Hackensack, New Jersey 07601
Counsel for Plaintiff
LYONS, DOUGHTY, VELDHUIS, P.C.
By: Stephen P. Doughty, Esq.
136 Gaither Drive, Suite 100
Mount Laurel, New Jersey 08054
Counsel for Defendant
HILLMAN, District Judge:
This is a Fair Debt Collections Practices Act (“FDCPA”), 15
U.S.C. § 1692 et seq., suit. 1
Plaintiff alleges that she received a
letter from the Defendant law firm which she claims does not comply
with the FDCPA.
Defendant moves to dismiss the complaint pursuant
to Fed. R. Civ. P. 12(b)(6).
For the reasons stated herein, the
Motion will be denied.
The Court has federal question subject matter jurisdiction
pursuant to 28 U.S.C. § 1331.
The four-page complaint reads in relevant part:
8. On information and belief, on a date better known to
Defendant, Defendant began collection activities on an
alleged consumer debt from the Plaintiff (“Alleged
9. This debt was incurred as a financial obligation that
was primarily for personal, family or household purposes
and is therefore a “debt” as that term is defined by 15
U.S.C. § 1692a(5).
10. On or around December 15, 2015, Defendant sent the
Plaintiff a collection letter.
11. The collection letter seeks to collect on a judgment
entered against Plaintiff in the amount of $821.82.
12. The Letter includes the following paragraph: “As of
today’s date the outstanding balance stated above,
remains unpaid. In addition to the balance stated above,
the Superior Court of New Jersey, Special Civil Part
requires a $35.00 fee to satisfy a judgment.”
13. New Jersey Court Rule 4:48-1 states that “upon
satisfaction of a judgment . . . a warrant shall be
executed and delivered to the party making satisfaction
. . .” (emphasis added).
14. The addition of this $35.00 collection fee by
Defendant, which was not authorized by the agreement
creating the debt or permitted by law, was an attempt to
collect an amount not owed by Plaintiff.
(Compl. ¶¶ 8-14)
When considering a motion to dismiss a complaint for failure to
state a claim upon which relief can be granted pursuant to Federal
Rule of Civil Procedure 12(b)(6), a court must accept all wellpleaded allegations in the complaint as true and view them in the
light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d
347, 351 (3d Cir. 2005).
It is well-settled that a pleading is
sufficient if it contains “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed. R. Civ. P.
Under the liberal federal pleading rules, it is not necessary
to plead evidence, and it is not necessary to plead all the facts
that serve as a basis for the claim. Bogosian v. Gulf Oil Corp., 562
F.2d 434, 446 (3d Cir. 1977).
However, “the Federal Rules of Civil
Procedure . . . do require that the pleadings give defendant fair
notice of what the plaintiff’s claim is and the grounds upon which
it rests.” Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149-50
n.3 (1984) (quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks “‘not
whether a plaintiff will ultimately prevail but whether the claimant
is entitled to offer evidence to support the claim.’” Bell Atlantic
v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting Scheuer v.
Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft v. Iqbal, 556
U.S. 662, 684 (2009)(“Our decision in Twombly expounded the pleading
standard for ‘all civil actions’ . . . .”); Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)(“Iqbal . . . provides
the final nail in the coffin for the ‘no set of facts’ standard that
applied to federal complaints before Twombly.”).
Defendant argues that “Plaintiff provides no information as to
the nature of the debt she allegedly incurred.
She has therefore
not met the Twombly and Iqbal pleading requirements.” (Moving Brief,
We would be inclined to grant Defendant’s motion if we
construed the complaint to allege a violation of the FDCPA arising
out of Defendant’s demand for the amount of the underlying judgment.
Plaintiff’s conclusory allegation that the underlying debt is one
covered by the statute – if that provided the basis for her claim would appear to be inadequate.
See e.g., in Vaquero v. Frederick J.
Hanna & Assocs., P.C., 2013 U.S. Dist. LEXIS 159192 at *5 (D.N.J.
2013)(granting motion to dismiss single, unadorned, and summary
allegation that debt arose from transactions incurred for “personal,
family, or household purposes”).
However, such an argument mischaracterizes Plaintiff’s claim.
A fair reading of the Complaint suggests Plaintiff’s claim is not
based on the attempt to collect the underlying judgment.
her complaint clearly alleges “[t]he addition of this $35.00
collection fee . . . was an attempt to collect an amount not owed by
Plaintiff.” (Compl. ¶ 14) “[T]he Twombly-Iqbal duo have not
inaugurated an era of evidentiary pleading.
Nor do factual
allegations become impermissible labels and conclusions simply
because the additional factual allegations explaining and supporting
the articulated factual allegations are not also included.” Hassan
v. City of New York, 804 F.3d 277, 295-96 (3d Cir. 2015)(internal
citations and quotations omitted).
Here, Plaintiff identifies the $35.00 fee, explains its
relation to the underlying judgment and the Court rule from which it
arises, and alleges, in essence, that Defendant sought to collect
that fee, not the underlying judgment amount, by demand letter
without legal or contractual justification in violation of the
As it relates to the $35.00 fee, Plaintiff has alleged
sufficient facts to put Defendant on notice of the nature of her
See Twombly, 550 U.S. at 555 (“Federal Rule of Civil
Procedure 8(a)(2) requires only ‘a short and plain statement of the
claim showing that the pleader is entitled to relief,’ in order to
‘give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests[.]’”).
Defendant also argues that the letter concerning the $35.00 fee
is neither: (1) false, deceptive or misleading, see 15 U.S.C. §
1692e; nor (2) an unfair or unconscionable means to collect the
$35.00 fee, see 15 U.S.C. § 1692f.
According to Defendant, the
sentence, “[i]n addition to the balance stated above, the Superior
Court of New Jersey, Special Civil Part requires a $35.00 fee to
satisfy a judgment” (Compl. ¶ 12), “is a true, accurate and correct
statement of the law.” (Moving Brief, p. 6)
The problem with Defendant’s argument is that a statement can
be literally true and still be misleading, and therefore unfair or
“A debt collection letter is deceptive where it can
be reasonably read to have two or more different meanings, one of
which is inaccurate.” Brown v. Card Serv. Ctr., 464 F.3d 450, 455
(3d Cir. 2006)(internal citation and quotation omitted).
reasonable reading of the letter, from the viewpoint of the least
sophisticated debtor, Brown, 464 F.3d at 455, is that $821.82 plus
$35.00 is the amount that must be paid to satisfy the judgment,
which undisputedly is inaccurate. 2
Additionally, Defendant argues that § 1692f is a “catch-all
provision” that cannot be the basis of a separate claim for conduct
that is already explicitly addressed by other sections of the FDCPA.
Assuming, arguendo, that this is an accurate statement of the law,
it is not a basis for dismissal at this early stage of the case.
Rule 8 expressly allows alternative, and even inconsistent,
pleading. Fed. R. Civ. P. 8(d).
For the reasons stated above, Defendant’s Motion to Dismiss
will be denied.
An appropriate order accompanies this opinion.
Dated: July 27, 2017
At Camden, New Jersey
__s/ Noel L. Hillman____
NOEL L. HILLMAN, U.S.D.J.
To be clear, we express no opinion on whether such a claim will
ultimately prevail, only that Plaintiff has pled her claim with the
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