BARATA et al v. NUDELMAN, KLEMM & GOLUB, P.C.

Filing 49

OPINION. Signed by Judge Kevin McNulty on 2/19/15. (DD, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

BARATA, et al.,

Civ. No. 2:13-4274
(KM)(MAH)

Plaintiffs,
V.

OPINION

NUDELMAN, KLEMM & GOLUB, P.C.,
Defendant.

KEVIN MCNULTY, U.S.D.J.:

This matter comes before the court on the motion (ECF No. 20) of
Defendants to dismiss the First Amended Complaint (“Complaint”) (ECF
No. 18). Plaintiffs Isilda Barata and Rosinete Trabach bring this action
individually and on behalf of a putative class of similarly situated
individuals against Defendant Nudelman, Klemm & Golub, P.C. (“NKG”),
for a violation of §1692e(3) of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. §1692, et seq.’ Plaintiffs allege that Defendant’s
debt collection letters to them falsely represented that there was
meaningful attorney involvement in reviewing debtor files prior to the
letters being sent.
For the reasons set forth below, the motion to dismiss is
GRANTED.
I.

BACKGROUND

Plaintiffs Isilda Barata and Rosinete Trabach are New Jersey
residents who are each obligated, or allegedly obligated, to pay a debt to
This Opinion does not address any issues regarding class certification,
consideration of which would be premature.
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a creditor. (Compi. ¶‘j{ 1—4, ECF No. 18). As such, Barata and Trabach are
consumers as defined by 15 U.S.C. §1692a(3). (Id. ¶5). Barata and
Trabach sue on behalf of themselves and all those similarly situated
(collectively, “Consumers”).
Defendant Nudelman, Klemm & Golub, P.C. is a New Jersey
corporation that collects debts on behalf of creditors. (Id. ¶6). NKG is a
law firm and a debt collector within the meaning of 15 U.S.C. §1692a(6).
(Id. ¶J8, 32).
Barata and Trabach have defaulted on personal debts owed to
Capital One Bank (USA), N.A. (“Capital One”). (Id. ¶22—25). Capital One
sent both Barata and Trabach letters on July 11, 2012 in an attempt to
collect their debts. (Id. ¶J28—29). The letters are printed on NKG
letterhead. The law firm’s name, “Nudelman, Klemm & Golub, P.C.” is
printed in bold capitalized text at the top of the page, along with the
names of seven of the firm’s attorneys. The letter is signed in the firm’s
name. (Id. ¶J32—35).
The letter contains no disclaimer of attorney involvement. The
Complaint alleges, however, that “no licensed attorney was directly or
personally involved in reviewing materials sufficient to make a
professional judgment with regards to the validity of the [debts].” (Id.
¶36). That being the case, NKG necessarily “was acting solely as a debt
collector and not in any legal capacity.” (Id. ¶37). The complaint also
states that these “factual contention[s are] made on the belief that after
inquiry that [sic] will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery.” (Id. ¶J36—37).
The Consumers allege that the letters are misleading because they
imply attorney review but NKG in fact was acting solely as a debt
collector and not in any legal capacity. (Id. ¶‘jj38—39). The Consumers
allege that the letters misleadingly imply that an attorney has reviewed

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each debtor’s file and determined that the debtor is a candidate for legal
action. (Id. ¶J40—42).
The Consumers allege that, because of the sheer number of
collection letters sent by NKG to the Consumers, “it is virtually
impossible for NKG to undertake the attorney involvement required
under the FDCPA.” It follows, they say, that NKG must be sending the
letters without sufficient attorney involvement, a fraudulent practice
under 15 U.S.C. §1692e(3). (Id. ¶J43—44). The letters, they say, would be
read by the consumer as falsely representing “that there was meaningful
attorney involvement by a licensed attorney prior to the letters being
sent.” (Id. ¶50).
NKG now moves to dismiss the Complaint under Federal Rule of
Civil Procedure 12(b)(6). This Court has subject matter jurisdiction
pursuant to 28 U.S.C. §1331, 1337, and 1367.
II.

APPLICABLE STANDARDS
a. Standard
Rule 12(b)(6) provides for the dismissal of a complaint, in whole or

in part, if it fails to state a claim upon which relief can be granted. The
defendant, as the moving party, bears the burden of showing that no
claim has been stated. Animal Science Products, Inc. v. China Minmetals
Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011). For the purposes of a
motion to dismiss, the facts alleged in the complaint are accepted as true
and all reasonable inferences are drawn in favor of the plaintiff. N.J.
Carpenters & the Trustees Thereof v. Tishman Const. Corp. of N.J., 760
F.3d 297, 302 (3d Cir. 2014).
Federal Rule of Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiff’s obligation
to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Thus, the complaint’s factual allegations must be sufficient to
raise a plaintiff’s right to relief above a speculative level, so that a claim
is “plausible on its face.” Id. at 570; see also Umland v. PLANCO Fin.
Seru., Inc., 542 F.3d 59, 64 (3d Cir. 2008). That facial-plausibility
standard is met “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). While “[tjhe plausibility standard is not akin
to a ‘probability requirement’.

.

.

it asks for more than a sheer

possibility.” Iqbal, 556 U.S. at 678.
b. FDCPA

Congress enacted the FDCPA “to eliminate abusive debt collection

§ 1692(a). To effectuate that

practices by debt collectors.” 15 U.S.C.

purpose, the Act allows for a private cause of action by debtors against
debt collectors. See 15 U.S.C.

§ 1692k. “When such a suit is filed, courts

within this Circuit evaluate collection letters and notices for compliance
with the Act ‘from the perspective of the least sophisticated debtor.”
Smith v. Lyons, Doughty & Veldhuius, P.C., No. CIV.A. 07-5139, 2008 WL
2885887 at *3 (D.N.J. July 23, 2008) (quoting Wilson v. Quad ramed
Corp., 225 F.3d 350, 354 (3d Cir. 2000) (internal quotation and citation
omitted)). The Third Circuit has explained how this standard is applied:
The basic purpose of the least-sophisticated debtor standard
is to ensure that the FDCPA protects all consumers, the
[Tjhis standard is less
gullible as well as the shrewd.
than one that inquires whether a particular
demanding
communication would mislead or deceive a reasonable
debtor. Nevertheless, the standard does not go so far as to
provide solace to the willfully blind or non-observant. The
debtor is still held to a quotient of reasonableness, a basic
level of understanding, and a willingness to read with care,
and the debt collector accordingly cannot be held liable for
bizarre or idiosyncratic interpretations. For example, even
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.

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the least sophisticated debtor is expected to read any notice
in its entirety.
Caprio v. Healthcare Revenue Recovery Grp., LLC, 709 F.3d 142, 149 (3d
Cir. 2013) (internal quotations and citations omitted).
Often, the parties dispute do not dispute the actual contents of a
collection letter, but the legal consequences thereof. A Rule 12(b)(6)
motion may thus be a suitable vehicle for a court to decide whether the
least sophisticated debtor would be deceived or misled by the debt
collector’s communications. See Capi-io v. F-Iealthcare Revenue Recovery
Grp., LLC, 709 F.3d 142, 147 (3d Cir. 2013) (“whether language in a
collection letter contradicts or overshadows the validation notice is a
question of law.”); Wilson, 225 F.3d at 353 n.2 (“The majority of courts to
held that this determination
involves a question of law.”); Smith, 2008 WL 2885887 at *3 (“whether

have considered this question have

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.

.

the least sophisticated debtor would be misled by a particular
communication is a question of law that may be resolved in a Rule
12(b)(6) motion.”).
III.

ANALYSIS

NKG moves to dismiss the complaint because it does not plead any
facts tending to suggest that there is any foundation for the allegation
that no attorney reviewed the letters before they were sent. (Def. Mot. 7).
The Consumers argue that they have stated a claim for a violation of
§1692e(3) based on the sheer number of letters sent. (P1. Opp. 10).
Because the Consumers have not pled sufficient facts to raise the
inference that the letters were sent without meaningful attorney
involvement, their complaint will be dismissed.
Section 1692e(3) of the FDCPA prohibits “[t]he false representation
or implication that any individual is an attorney or that any
communication is from an attorney.” I recently discussed at length the

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legal standards governing such a claim, including the effect, if any, of a
written disclaimer of attorney involvement. See Bock v. Pressler and
Pressler, LLP, 30 F. Supp. 3d 283 (D.N.J. 2014).2

Judge Cavanaugh has previously dismissed a §1692e(3) claim
where the plaintiff “failed to allege what in the Letter was false, or what
about the Letter was misleading to Plaintiff.” Vargas v. Frederick J.
Hannah&Assoc., No. 12-3802, slip op. at4 (D.N.J. Feb. 14, 2013). In
that case, the plaintiff only pled that the debt collection letter was sent
by the defendant and that it was on law firm letterhead. Id. The
contention that the defendant was not acting in a legal capacity he found
to be conclusory, not factual. Id. at 2. Vargas held that without any
sufficient factual allegation of what in the letter was false, plaintiff could
not sustain a claim for a violation of1692e(3).
Here, the Consumers summarily assert that NKG did not act in a
legal capacity, but sent out letters suggesting that it did. The only factual
basis for this allegation is the “number of collection letters” sent by NKG,
a circumstance that supposedly implies that meaningful attorney review
was “impossible.” (Compi.

¶ 36)

To be sure, there may be an extreme case in which a single
attorney or group of attorneys produced an impossibly large number of
letters in a short time. That fact, in combination with others, might
suggest that no attorney gave the letters meaningful attorney review. See
Bock, supra (awarding summary judgment where, among other factors,

Bock discussed Lesher v. Law Offices Of Mitchell N. Kay, PC, 650 F.3d
993 (3d Cir. 2011), the case primarily relied on by the Consumers here. As NKG
points out, the Consumers’ analysis of the Lesher opinion is actually an
extended, unacknowledged quotation from Chief Judge Simandle’s opinion in a
separate case. (Def. Reply 7 n.3); compare (P1. Opp. 7—10) with Eddis v. Midland
Funding, L.L.C., No. CIV. 11-3923 JBS/AMD, 2012 WL 664812, at *6_7 (D.N.J.

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Feb. 28, 2012). The Consumers have, without citation, copied word-for-word

more than two pages of prose, a departure from accepted standards of writing,
let alone legal advocacy.

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the evidence showed that a single attorney gave an average of 4 seconds
of review before signing each collection complaint). To be remotely
plausible, however, such an allegation would have to give some notion of
how many letters were produced, how many attorneys produced them,
and the length of time involved.
The complaint in this case falls short of even suggesting such
facts. It simply posits that discovery will turn up the necessary facts, and
then doubles back and uses those hypothetical facts to corroborate its
hypothetical claims. There is no allegation as to how many collection
letters NKG actually sent to debtors. The complaint does not even
suggest an order of magnitude, referring to the volume of letters as
simply a “number,” implying that it must be a large “number.” But that
number, whatever it is, is simply said to be the subject of future
“inquiry,” presumably in discovery. There is no allegation as to how many
attorneys may have worked on the letters, over what period of time. The
Complaint is based on nothing more than the “belief that after inquiry
that [sic] it will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery.” (Compl. ¶36).
To be sure, the Federal Rules permit allegations made on
information and belief. See Fed. R. Civ. P. 11. But such pleading “does
not relieve litigants from the obligation to conduct an appropriate
investigation into the facts that is reasonable under the circumstances; it
is not a license to

...

make claims

...

without any factual basis or

justification.” Id., Notes of Advisory Committee on 1993 Amendments;
see also Bock, supra, 30 F.3d at 304. There is no indication that the
Consumers conducted any pre-complaint investigation at all. This
Complaint, on its face, as much as admits that the Consumers possess
no information concerning the single, central factual allegation that

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underlies their cause of action.
A complaint cannot go forward based on unsupported allegations,
coupled with the hope that something will turn up in discovery.
“Discovery

...

cannot serve as a fishing expedition through which plaintiff

searches for evidence to support facts he has not yet pleaded.” Giovanelli
v. D. Simmons Gen. Contracting, No. CIV.A O91O82NLHAMD, 2010 WL
988544, at *5 (D.N.J. Mar. 15, 2010) (citing Bell Atlantic v. Twombly, 550
U.s. 544, 577 (2007)).
This Complaint asserts an unsupported “belief’ that discovery may
reveal that there was no meaningful attorney review of these collection
letters. That is not enough. The motion to dismiss the Complaint for
failure to state a claim is granted.
IV.

CONCLUSION
For the foregoing reasons, the motion to dismiss is GRANTED, and

the First Amended Complaint is DISMISSED without prejudice.
Dated: February 19, 2015

Kevin McNulty
United States District Judge

The class action allegations, too, contain an indirect admission that
plaintiff has no notion of how many letters were produced, or by how many
attorneys, or over how long a period of time: “Upon information and belief, the
Class is so numerous that joinder of all members is impracticable because
there are hundreds and/or thousands of persons who have received debt
collection letters and/or notices from NKG.” (Id. ¶48; see also ¶36).

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