LOPEZ v. LAW OFFICES OF FALONI & ASSOCIATES, LLC et al

Filing 45

LETTER OPINION. Signed by Judge Susan D. Wigenton on 06/02/2017. (ek)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CHAMBERS OF

MARTIN LUTHER KING COURTHOUSE
50 WALNUT ST.
NEWARK, NJ 07101
973-645-5903

SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE

June 2, 2017

Eric N. Aglow
1600 Parker Ave., Suite 2D
Fort Lee, NJ 07024
Attorney for Plaintiff
Yongmoon Kim
Kim Law Firm LLC
411 Hackensack Ave., 2 Fl.
Hackensack, NJ 07601
Attorney for Plaintiff
Peter George Siachos, Yevgeny Roymisher, and Matthew Paul Gallo
Gordon & Rees LLP
18 Columbia Turnpike, Suite 200
Florham Park, NJ 07932
Attorneys for Defendants
LETTER OPINION FILED WITH THE CLERK OF THE COURT
Re:

Lopez v. Law Offices of Faloni & Associates, LLC, et al.
Civil Action No. 16-01117 (SDW) (SCM)

Litigants:
Before this Court is the Motion to Dismiss of Defendants Alegis Group, LLC; David A.
Faloni, Sr.; David A Faloni, Jr.; Law Offices of Faloni & Associates, LLC; LVNV Funding LLC;
Resurgent Capital Services, L.P.; and Sherman Originator, LLC (collectively “Defendants”), for
lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). (Dkt. No. 38.) As the
parties are familiar with this case, this Court will reference only those facts relevant to the current
Motion.

On September 14, 2016, this Court granted in part and denied in part, Defendants’ initial
Motion to Dismiss Plaintiff’s Amended Complaint. (See Dkt. Nos. 31-32.) Plaintiff’s only claim
which survived Defendant’s initial Motion to Dismiss is that Defendants violated 15 U.S.C.
§§ 1692e(2) and e(10) by misrepresenting the legal status of a debt Plaintiff allegedly owed, and
by using false or deceptive means to attempt to collect that debt, by filing a collection complaint
when defendants were not licensed to purchase the debt in the first place. See Lopez v. Law Offices
of Faloni & Assocs., LLC, No. 16-CV-01117-SDW-SCM, 2016 WL 4820629, at *5 (D.N.J. Sept.
14, 2016). Defendants now seek dismissal of the Amended Complaint on the basis that it fails to
sufficiently allege that Plaintiff suffered an injury in fact and that Plaintiff, therefore, lacks
standing under Article III of the United States Constitution.

For the reasons that follow,

Defendants’ Motion is DENIED.
DISCUSSION
A. Legal Standard for Motion to Dismiss Under Fed. R. Civ. P. 12(b)(1)
A defendant may move to dismiss a complaint for lack of subject-matter jurisdiction under
Fed. R. Civ. P. 12(b)(1) by challenging jurisdiction facially or factually. Constitution Party of
Pennsylvania v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014). A facial challenge to subject-matter
jurisdiction “considers a claim on its face and asserts that it is insufficient to invoke the subjectmatter jurisdiction of the court because, for example, it does not present a question of federal law
. . . .” Id. at 358. In contrast, a factual challenge “is an argument that there is no subject matter
jurisdiction because the facts of the case . . . do not support the asserted jurisdiction.” Id. Drawing
this distinction is important because it “determines how the pleading must be reviewed.” Id. at
357-58 (citing In re Schering Plough Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012)). In analyzing
a facial challenge, “the court must only consider the allegations of the complaint and documents

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referenced therein and attached thereto . . . .” Constitution Party of Pennsylvania, 757 F.3d at 348
(citing In re Schering Plough Corp. Intron, 678 F.3d at 243). Whereas in considering a factual
challenge to subject-matter jurisdiction, the court “may look beyond the pleadings to ascertain the
facts.” Constitution Party of Pennsylvania, 757 F.3d at 348. Furthermore, in considering a factual
challenge to subject matter jurisdiction, “the plaintiff’s allegations enjoy no presumption of
truthfulness, and [the plaintiff] bears the burden of establishing jurisdiction.” Meehan v. Taylor,
No. CIV. 12-4079, 2013 WL 4517943, at *2 (D.N.J. Aug. 26, 2013) (first citing CNA v. United
States, 535 F.3d 132, 139 (3d Cir. 2008); then citing Mortensen v. First Fed. Sav. Loan Ass’n.,
549 F.2d 884, 891 (3d Cir. 1977)).
B. Plaintiff Has Alleged Sufficient Factual Matter to Establish Article III Standing
Article III of the U.S. Constitution requires plaintiffs to establish standing in order to sue.
To establish standing, a plaintiff must allege sufficient factual matter to show he or she has “(1)
suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136
S. Ct. 1540, 1547, 194 L. Ed. 2d 635 (2016), as revised (May 24, 2016) (citing Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992)). In this instance,
Defendants contend Plaintiff failed to sufficiently allege that she suffered an injury in fact. (See
Defs.’ Br. Supp. Mot. Dismiss at 6-23.) This Court disagrees.
To satisfy the injury-in-fact requirement, the alleged injury to the plaintiff must be ‘“an
invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or
imminent, not conjectural or hypothetical.”’ Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504 U.S.,
at 560, 112 S. Ct. 2130. A particularized injury is one which “affect[s] the plaintiff in a personal
and individual way.” Spokeo, 136 S. Ct. at 1548 (citations and internal quotation marks omitted).

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A concrete injury is one which “actually exist[s],” though it need not be tangible. Id. at 1548-49
(citations omitted).

Here, the alleged injury is particularized insofar as Plaintiff accuses

Defendants of misrepresenting the legal status of a debt which Plaintiff allegedly owed. 1 The
alleged injury is also concrete.
According to Defendants, Plaintiff has alleged a bare procedural violation which cannot
satisfy the concreteness requirement. However, intangible harms, such as “the violation of a
procedural right granted by statute can be sufficient in some circumstances to constitute injury in
fact . . . . [A] plaintiff in such a case need not allege any additional harm beyond the one Congress
has identified.” Spokeo, 136 S. Ct. at 1549 (citations omitted). This is because “Congress has the
power to define injuries and articulate chains of causation that will give rise to a case or
controversy where none existed before.” Id. (citation and internal quotation marks omitted).
Therefore, this Court must determine “whether the particular procedural violation[] alleged in this
case entail[s] a degree of risk [of real harm] sufficient to meet the concreteness requirement.” Id.
at 1550.
Although the Third Circuit has not addressed the question of whether a violation of the Fair
Debt Collection Practices Act can give rise to a concrete injury since the U.S. Supreme Court
issued its decision in Spokeo, Inc. v. Robins, judges within this district have. For example, in

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Although Defendants argue that “Plaintiff has not . . . allege[d] that the Defendants represented to Plaintiff
that any of the Defendants are licensed by the New Jersey Department of Banking and Insurance,” (Defs.’
Br. Supp. at 10), that is exactly how this Court construed Plaintiff’s Amended Complaint in this Court’s
initial Opinion:
Plaintiff does not contend that Defendant’s lack of a consumer lender license itself violates
the FDCPA. Instead, Plaintiff argues that Defendants misrepresented the legal status of
the Debt and used false or deceptive means to attempt to collect the Debt, by filing the
collection complaint when they were not licensed to purchase the debt in the first place.
Lopez, 2016 WL 4820629, at *5.

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Fuentes v. AR Res., Inc., U.S. District Judge Freda L. Wolfson found the concreteness requirement
satisfied where a plaintiff alleged a defendant misrepresented “that it was entitled to charge a fee
that . . . [was] neither authorized by law nor permitted by [contract].” No. CV157988FLWLHG,
2017 WL 1197814 (D.N.J. Mar. 31, 2017). Similarly, in Carney v. Goldman, U.S. District Judge
Brian R. Martinotti explained that “[b]ecause Plaintiffs have a personal statutory right [under the
FDCPA] to be free from abusive debt-collection practices, and because Plaintiffs have alleged
facts plausibly showing Defendant violated that right, Plaintiffs ‘need not allege any additional
harm.’” No. CV 15-260-BRM-DEA, 2016 WL 7408849, at *5 (D.N.J. Dec. 22, 2016) (citation
omitted). What these cases recognize, along with “the ‘overwhelming majority of courts’ that
have” addressed this issue, is that § 1692e of the FDCPA provides a “substantive, statutory
right . . . to be free from false or deceptive information in connection with the collection of a debt.”
Fuentes, 2017 WL 1197814 at *5. Violations of this right “give rise to concrete, substantive
injuries sufficient to establish Article III standing.” Id. Accordingly, Plaintiff’s allegations that
Defendants violated her substantive rights under the FDCPA by misrepresenting the legal status
of the debt at issue are sufficient to satisfy the concreteness requirement. Moreover, this Court
finds that Plaintiff has alleged sufficient factual matter to satisfy the Article III standing
requirements at this stage in the proceedings.
CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss is DENIED.
appropriate order follows.
s/ Susan D. Wigenton
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE

Orig:

Clerk
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An

cc:

Steven C. Mannion, U.S.M.J.
Parties

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