Miles v. Retrieval-Masters Creditor's Bureau, Inc.
MEMORANDUM AND ORDER granting 24 Motion for Judgment as a Matter of Law: For the reasons stated in the attached Memorandum and Order, Retrieval-Masters' Motion for Judgment as a Matter of Law is GRANTED, and this action is dismissed. The Clerk of Court is directed to enter Judgment accordingly, and to close this case. Ordered by Judge Roslynn R. Mauskopf on 3/29/2016. (Mauskopf, Roslynn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
14-CV-6607 (RRM) (RER)
- against RETRIEVAL-MASTERS CREDITOR’S
BUREAU, INC. d/b/a AMCA OR AMERICAN
MEDICAL COLLECTION AGENCY,
ROSLYNN R. MAUSKOPF, United States District Judge.
Plaintiff Daniel Miles filed this putative class action against defendant Retrieval-Masters
Creditor’s Bureau, Inc. d/b/a AMCA or American Medical Collection Agency (“RMCB”) on
November 10, 2014, alleging violations of the of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq., and the New York General Business Law, N.Y. G.B.L.
§ 349(a). (Compl. (Doc. No. 1) at ¶ 1.) Before the Court is RMCB’s motion for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure or, in the alternative,
summary judgment pursuant to Rule 56.1 (Def.’s Mot. for J. on the Pleadings (“Mot. for J.”)
(Doc. No. 24).) For the reasons discussed below, RMCB’s motion is GRANTED.
RMCB is a corporation engaged in the business of debt collection. (Id. at ¶ 3.) In an
October 2, 2014 letter (“Collection Letter”), RMCB began its efforts to collect an alleged debt
from Miles. (Id. at ¶¶ 22–23.) The letter states, in pertinent part:
The Court declines to convert defendant’s motion into one for summary judgment. In deciding RMCB’s motion
for judgment on the pleadings, the Court considers the complaint, documents incorporated by reference in the
complaint, and documents of which the Court may take judicial notice. Chambers v. Time Warner, Inc., 282 F.3d
147, 153 (2d Cir. 2002); Diamond v. Local 807 Labor-Mgmt. Pension Fund, No. 12-CV-5559, 2014 WL 527898, at
*1 n.1 (E.D.N.Y. Feb. 7, 2014).
We have been authorized to contact you regarding your past due account with our client,
Sunrise Medical Laboratories, for laboratory tests ordered by your physician. Their
records indicate that your payment has not been received for the following accounts:
Date of Service
SML DB 320618
Your total balance due is $120.00.
See the reverse side of this letter for important information about your rights. If you do
not respond, you will be subject to additional collection efforts which may include
reporting your accounts to one or more national credit bureaus.2
(Collection Letter (Doc. No. 25-1); Compl. at ¶ 24.) The Collection Letter also includes
RMCB’s contact information, a notice of rights, and the procedures to contest the debt.
Miles makes two claims based on RMCB’s inclusion of a charge attributed to “other
accounts.” He first alleges that RMCB’s use of the term “other accounts” violates § 1692e of the
FDCPA by making a false representation that RMCB was entitled to receive compensation for
payment “with no explanation or information about what such charges reflect.” (Compl. at ¶¶ 1,
8, 27.) He further alleges that the Collection Letter violates § 1692f of the FDCPA because
RMCB includes a $40.00 charge for the “other accounts” and fails “to attribute such charge to
any laboratory testing or other service.” (Id. at ¶ 31.)
Miles also points to additional language in the letter which he claims is violative of the
FDCPA. He contends that because the trade name that RMCB used in the letter, American
Medical Collection Agency, “does not exist in the database of corporations registered in New
York,” RMCB has “falsely identifie[d] itself as a legitimate corporation authorized to conduct
Miles did not include the complete language of the Collection Letter in his complaint. Instead, he only included
the chart listing the dates of service, account numbers, amounts due and total balance owed. (Compl. at ¶ 24.) The
additional language in the letter, quoted above, was included in a copy of the Collection Letter filed with RMCB’s
business in the State of New York” and thus violated § 1692e. (Id. at ¶ 27) As support for this
theory, he continues that “[d]efendant’s address, street number, suite number, city and zip code
are attributed to [Retrieval-Masters Creditors Bureau, Inc.]” and not American Medical
Collection Agency. (Id.) He also contends that the use of the trade name violates § 1962e(14).
(Id. at ¶ 29.) Finally, he argues that the trade name American Medical Collection Agency and its
positioning on the letter above the words “NATIONAL COLLECTION AGENCY”3 “suggest
association with medical providers nationally and thereby intimidate[s] and mislead[s]
consumers into attributing a national and/or medical authority to [d]efendant.” (Id. at ¶ 27.) He
requests actual and statutory damages as well as attorneys’ fees and costs under §§ 1692k(a)(1),
1692k(a)(3), 1692k(2)(A)–(B). (Compl. at 8 (ECF pagination).)
RMCB has moved to dismiss the action pursuant Federal Rule of Civil Procedure 12(c)
and raises two primary arguments in support. (See generally Def.’s Mem. of Supp. (“Def.’s
Mem.”) (Doc. No. 27) at 5–15.) First, RMCB contends that its use of the trade name American
Medical Collection Agency does not violate the FDCPA, specifically § 1692e(14). (Id. at 5–10.)
Second, RMCB argues that Miles’ interpretation of the Collection Letter is unreasonable,
“bizarre and idiosyncratic.” (Id. at 12.)
STANDARD OF REVIEW
Judgment on the pleadings is appropriate only where all material facts are undisputed and
“a judgment on the merits is possible merely by considering the contents of the pleadings.”
Mennella v. Office of Court Admin., 938 F. Supp. 128, 131 (E.D.N.Y. 1996), aff’d, 164 F.3d 618
(2d Cir. 1998) (citing Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988)). In
all other respects, a motion brought pursuant to Federal Rule of Civil Procedure 12(c) is analyzed
Contrary to Miles’ assertion, the Collection Letter does not include the term “National Collection Agency.” As
the language that Miles references is not contained in the Collection Letter, the Court does not reach his argument
that its use in conjunction with the trade name intimidates and misleads consumers.
under the same standard applicable to a motion under Rule 12(b)(6). See Burnette v. Carothers,
192 F.3d 52, 56 (2d Cir. 1999). Thus, the Court’s review is limited to the facts alleged or
incorporated by reference in the complaint, documents attached to the complaint, and matters of
which the Court may take judicial notice. See Chambers, 282 F.3d at 153; Diamond, 2014 WL
527898, at *1 n.1. The Court assumes the truth of the facts alleged, and draws all reasonable
inferences in the nonmovant’s favor. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).
In order to withstand a motion brought under Rule 12(c), the complaint “must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)); Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Although the complaint
need not contain “‘detailed factual allegations,’” simple “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 555); Harris, 572 F.3d at 72. But “[u]nless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his or her claim which could entitle
the plaintiff to relief, the court cannot grant a defendant’s motion for a judgment on the
pleadings.” Mennella, 938 F. Supp. at 131 (citing Sheppard v. Beerman, 18 F.3d 147, 150 (2d
Cir. 1994)); cf. Al-Kaysey v. L-3 Servs. Inc., No. 11-CV-6318, 2013 WL 5447686, *8 (E.D.N.Y.
Sept. 27, 2013).
One of the FDCPA’s principal objectives is “to eliminate abusive debt collection
practices by debt collectors.” 15 U.S.C. § 1692(e). The question of whether a debt collector’s
action violates the FDCPA is determined objectively from the viewpoint of the “least
sophisticated consumer.” Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 90 (2d Cir.
2008). This standard is intended to protect “the gullible as well as the shrewd.” Id. (citing
Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993)). However, even in “crafting a norm
that protects the naïve and the credulous,” courts must “carefully preserve the concept of
reasonableness.” Id. As such, the FDCPA does not provide relief for claims that are based on
“bizarre or idiosyncratic interpretations of collection notices.” Clomon, 988 F.2d at 1320. The
FDCPA provides that “any debt collector” who fails to comply with its provisions with respect to
any person is liable to such person for damages. 15 U.S.C. § 1692k. Here, Miles specifically
claims that RMCB violated the preface of § 1692e, § 1692e(14), and § 1692f. (Compl. at ¶¶ 26–
Miles’ Claims Fail Under 15 U.S.C. § 1692e and § 1692e(14).
Section 1692e of the FDCPA prohibits “any false, deceptive, or misleading
representation or means in connection with the collection of any debt,” and provides a nonexhaustive list of violations. See 15 U.S.C. § 1692e. “[C]ommunications and practices that
could mislead a putative-debtor as to the nature and legal status of the underlying debt, or that
could impede a consumer’s ability to respond to or dispute collection, violate the FDCPA.”
Gabriele v. Am. Home Mortg. Serv., Inc., 503 Fed. App’x 89, 94 (2d Cir. 2012). For example,
the Second Circuit has held that a debt collector “could be liable under the FDCPA for a false
statement that a borrower’s debt was ineligible for bankruptcy . . . and for falsely representing
that the collector had the authority to initiate legal proceedings against the debtor.” Id. (internal
citation omitted). Additionally, the Second Circuit has held that “debt collection practices that
are contradictory, vague, or threatening create FDCPA liability.” Id. at 95.
Courts within the Second Circuit have read a materiality requirement into the FDCPA’s
prohibition of false, deceptive, or misleading practices in the collection of debt. See Gabriele,
503 Fed. App’x at 93–94 (collecting cases). Thus, in determining whether a plaintiff has stated a
claim under § 1692e of the FDCPA, courts have considered whether the “alleged false or
misleading statement . . . is ‘material,’ meaning that the statement would ‘influence a consumer’s
decision or ability to pay or challenge a debt.’” Walsh v. Law Offices of Howard Lee Schiff,
P.C., No. 3:11-CV-1111, 2012 WL 4372251, at *4 (D. Conn. Sept. 24, 2012) (quoting Klein v.
Solomon & Solomon, P. C., No. 3:10-CV-1800, 2011 WL 5354250, at *2 (D. Conn. Oct. 28,
2011)) (adopting materiality requirement).
Miles’ claim that using the term “other accounts” without further explanation in the
Collection Letter violates § 1692e fails as a matter of law. (Compl. at ¶ 27.) “There is no
language in the FDCPA that requires a debt collector to provide a complete breakdown of the
debt owed.” Wilson v. Trott Law, P.C., 118 F. Supp. 3d 953, 963 (E.D. Mich. 2015); see also
Hahn v. Triumph P’ships LLC, 557 F.3d 755, 756–57 (7th Cir. 2009) (“[A] debt collector need
not break out principal and interest; it is enough to tell the debtor the bottom line. . . . A dollar
due is a dollar due.”); Moran v. Greene & Cooper Attorneys LLP, 43 F. Supp. 3d 907, 914–15
(S.D. Ind. 2014) (“A debt collector need not ‘itemize’ the debt, so long as its statement of the
total is clear and accurate.”); Scioli v. Goldman & Warshaw P.C., 651 F. Supp. 2d 273, 281 n.15
(D.N.J. 2009) (“[T]he Court does not hold that a debt collector must itemize the fees and costs it
seeks in order to comply with the FDCPA.”). The Collection Letter clearly provides the amount
of the debt owed. (Collection Letter.) Furthermore, the Collection Letter explicitly states the
name of the entity to whom the debt is owed (“Sunrise Medical Laboratories”), the type of
services that the debt is owed for (“laboratory tests”), as well as Miles’ right to dispute the
charges. (Id.) The Court thus finds that use of the term “other accounts” by RMCB is not false,
deceptive or misleading.
Miles next alleges false representation under § 1692e because RMCB used the name
American Medical Collection Agency. He claims that use of the name also violates § 1692e(14),
which prohibits debt collectors from using a name other than the true name of the debt
collector’s business. (Id. at ¶ 29.) RMCB responds that American Medical Collection Agency is
a licensed trade name, and thus, the name qualifies as a true name under the statute. (Def.’s
Mem. at 6–10.)
Courts in this Circuit have found that use of a licensed trade name does not violate the
FDCPA, and that in particular, RMCB’s use of the trade name American Medical Collection
Agency does not violate the statute. E.g., Bieder v. Retrieval Masters Creditors Bureau, Inc.,
No. 14-CV-6563, 2015 WL 7454119, at *4 (E.D.N.Y. Nov. 24, 2015) (finding that the use of the
trade name American Medical Collection Agency by RMCB did not violate the FDCPA);
Orenbuch v. N. Shore Health Sys., Inc., 250 F. Supp. 2d 145, 151–52 (E.D.N.Y. 2003) (“The
defendants correctly argue that there is nothing misleading about a debt collector . . . using the
name by which it is known to the public where, as here, that name is a registered trade name with
the New York Department of State.”); Kizer v. Am. Credit & Collection, No. B-90-70, 1990 WL
317475, at *6 (D. Conn. Dec. 17, 1990) (“[T]he court holds that the name under which a debt
collector is licensed to do business in the state of Connecticut is the debt collector’s true name
for purposes of the FDCPA.”); see also Mahan v. Retrieval-Masters Credit Bureau, Inc., 777 F.
Supp. 2d 1293, 1301 (S.D. Ala. 2011) (finding that use of the trade name American Medical
Collection Agency did not violate the FDCPA). Here, the Court takes judicial notice of a copy
of a license from the New York City Department of Consumer Affairs and a certificate from the
New York Corporations and State Records Division demonstrating that American Medical
Collection Agency is a licensed trade name. (Decl. of Jonathan D. Elliot (Doc. No. 12) at 4–7
(ECF pagination).) See Bieder, 2015 WL 7454119, at *3 (taking judicial notice of a “a license
from the New York City Department of Consumer Affairs and a certificate from the New York
Corporations and State Records Division demonstrating that American Medical Collection
Agency is licensed to do business in New York” in order to establish that [RMCB’s] use of a
licensed trade name does not violate § 1692e). As American Medical Collection Agency is
RMCB’s licensed trade name, it constitutes RMCB’s true name under § 1692e(14). Orenbuch,
250 F. Supp. 2d at 151–52. Miles has not plead any facts that support an inference that RMCB’s
use of a trade name was intended or used to mislead or deceive. Thus, Miles has failed to “state
a claim to relief that is plausible on its face” under § 1692e or § 1692e(14). Iqbal, 556 U.S. at
Miles’ Claim Fails Under 15 U.S.C. § 1692f.
The preface of § 1692f is a catchall provision that prohibits “unfair or unconscionable
conduct” and provides a cause of action “standing alone.” Tsenes v. Trans-Cont’l Credit and
Collection Corp., 892 F. Supp. 461, 466 (E.D.N.Y. 1995). Eight subsections then provide a nonexhaustive list of practices which violate the statute. See 15 U.S.C. § 1692f(1)–(8). A § 1692f
claim may not duplicate claims brought under other FDCPA sections and fails as a matter of law
where “all [of] the allegations in the Complaint support claims asserted under either §§ 1692g or
1692e.” See Bieder, 2015 WL 7454119, at *4; Tsenes, 892 F. Supp. at 466; Sussman v. I.C.
Syst., Inc., 928 F. Supp. 2d 784, 797 (S.D.N.Y. 2013) (dismissing § 1692f claim where plaintiff’s
“allegations fail to identify any misconduct beyond that which Plaintiff[ ] assert[s] violate[s]
other provisions of the FDCPA” (internal quotation marks omitted) (alterations in original)).
In support of his § 1692f claim, Miles points to the “added  charge of $40.00” which
RMCB “failed to attribute  to any laboratory testing or other service.” (Compl. at ¶ 31.) Miles
alleges that RMCB “unfairly and unconscionably pursued collection activities with the intent to
collect additional unexplained charges in addition to a balance allegedly owed.” (Id.) This
allegation is already included in Miles’ § 1692e claim. (Id. at ¶ 27.) As such, Miles has failed to
state a cause of action under § 1692f. Moore v. Diversified Collection Servs., Inc., No. 07-CV397, 2009 WL 1873654, at *4 (E.D.N.Y. June 29, 2009); Tsenes, 892 F. Supp. at 466.
Miles’ Claim under N.Y. General Business Law § 349 is Dismissed for Lack of
Miles claims a violation of § 349 of the New York General Business Law in the first
paragraph of his complaint, but does not assert a cause of action pursuant to the section. (Compl.
at ¶ 1.) To the extent that Miles pleads such a claim, the Court declines to exercise supplemental
jurisdiction and it is dismissed. Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 121–22
(2d Cir. 2006) (“[I]n the usual case in which all federal-law claims are eliminated before trial, the
balance of factors . . . will point toward declining to exercise jurisdiction over the remaining
state-law claims.” (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988))).
For the above reasons, RMCB’s motion (Doc. No. 24) is GRANTED and the case is
dismissed. The Clerk of Court is directed to enter Judgment accordingly, and to close this case.
Roslynn R. Mauskopf
Dated: Brooklyn, New York
March 29, 2016
ROSLYNN R. MAUSKOPF
United States District Judge
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