Blumenfeld v. Advanced Call Center Technologies, LLC

Filing 8

ORDER granting 5 Motion to Dismiss for Failure to State a Claim: For the reasons explained in the attached Memorandum and Order, the defendant's motion to dismiss is granted, and the plaintiff is ordered to show cause as to why an award of costs and fees should not be granted. Ordered by Judge John Gleeson on 10/23/2015. (Fallon, Ethan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FOR ONLINE PUBLICATION

RUCHEL BLUMENFELD,
Plaintiff,

MEMORANDUM
AND ORDER
15-CV-4578 (JG)

-againstADVANCED CALL CENTER TECHNOLOGIES, LLC,
Defendant.
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APPEARANCES:
ABRAMS GARFINKEL MARGOLIS BERGSON, LLP
1430 Broadway, 17th Floor
New York, NY 10018
By:
Barry G. Margolis
Attorneys for Defendant
RC Law Group PLLC
285 Passaic Street
Hackensack, NJ 07601
By:
Daniel Kohn
Attorneys for Plaintiff

JOHN GLEESON, United States District Judge:
Plaintiff Ruchel Blumenfeld filed this action against Defendant Advanced Call
Center Technologies, LLC (“ACCT”), alleging that it violated the Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. § 1692 et seq. Blumenfeld claims that ACCT engaged in debtcollection efforts that employed deceptive language making it appear that ACCT and GE Capital
Retail Bank (“GE Capital”) were acting as both creditor and debt collector, in violation of
FDCPA. ACCT moves to dismiss the case, asserting that the complaint fails to state a claim for
a FDCPA violation. ACCT also seeks an award of attorneys’ fees, pursuant to 15 U.S.C.

§ 1692k(a)(3). For the reasons stated below, ACCT’s motion to dismiss is granted, and
Blumenfeld is ordered to show cause as to why the award of attorneys’ fees and costs should not
be granted.
BACKGROUND
I take the following facts from Blumenfeld’s original complaint filed in state
court.1 The Court assumes these facts to be true for the purposes of deciding this motion,
construing them in the light most favorable to Blumenfeld. In addition, the Court takes judicial
notice of the letter ACCT sent to Blumenfeld in connection with the outstanding debt.2 See ECF
No. 5, Ex. B.
Blumenfeld is a resident of Brooklyn, New York, and ACCT is a “debt collector”
as defined under 15 U.S.C. § 1692a(6). Compl. at ¶¶ 3-4. At some point, ACCT began
“collection activities” against Blumenfeld on an alleged consumer debt. Id. at ¶ 8. Blumenfeld
incurred this debt as a financial obligation that was primarily for personal, family, or household
purposes as defined by 15 U.S.C. § 1692a(5). Id. at ¶ 9. During the past year, Blumenfeld
received multiple collection letters from ACCT, and she alleges that the letters “were deceptive
in that it was made to appear that the Defendant and GE Capital were acting as both the creditor
and debt collector.” Id. at ¶ 10. Blumenfeld argues that the letters were confusing because they

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ACCT removed this action to federal court pursuant to 28 U.S.C. §§ 1441 and 1446, see
ECF No. 1. This Court has federal question jurisdiction under 28 U.S.C. § 1331.
2

In considering a motion to dismiss, a court may take judicial notice of documents
attached to, integral to, or referred to in the complaint, as well as documents filed in other courts and other
public records. See, e.g., Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir.
2006); Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d Cir. 2005). Here,
Blumenfeld’s complaint relies on the terms and effect of the ACCT letter and her counsel consents to the
Court’s consideration of this document, see Oral Argument 10/15/2015; see also Chambers v. Time
Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002).

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made references to both GE Capital and ACCT, id. at ¶ 11, creating the perception that ACCT
was involved in the debt collection, even though ACCT was, in fact, “only acting as nothing
more than a mail service for GE [Capital],” Id. at ¶ 12. As a result of these letters, Blumenfeld
asserts that she has been “damaged.” Id. at ¶ 3. Blumenfeld commenced this action on June 19,
2015, alleging that ACCT’s debt collection efforts violated “various provisions of the FDCPA,
including but not limited to 15 U.S.C. §§ 1692d, 1692e, 1692e(5), 1692e(7), 1692e(8),
1692e(10), 1692f, and 1692f(1).”
DISCUSSION
A.

Legal Standard for Motion to Dismiss
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal, not the factual,

sufficiency of a complaint. See, e.g., Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (“At the Rule
12(b)(6) stage, ‘[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether
the claimant is entitled to offer evidence to support the claims.’” (quoting Chance v. Armstrong,
143 F.3d 698, 701 (2d Cir. 1998))). Accordingly, I must accept the factual allegations set forth
in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See
Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans,
Inc., 421 F.3d 96, 100 (2d Cir. 2005). Nonetheless, “to survive a motion to dismiss under Rule
12(b)(6), a complaint must allege a plausible set of facts sufficient ‘to raise a right to relief above
the speculative level.’” Operating Local 649 Annuity Tr. Fund v. Smith Barney Fund Mgmt.
LLC, 595 F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). This pleading standard does not require “heightened fact pleading of specifics, but only
enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
“Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops

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short of the line between possibility and plausibility of entitlement to relief.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557).
B.

ACCT’s Motion to Dismiss Blumenfeld’s FDCPA Claims Against It
ACCT moves to dismiss the complaint, asserting that Blumenfeld has failed to

adequately plead a plausible claim for relief under FDCPA. Although Blumenfeld alleges that
ACCT violated several FDCPA provisions, her complaint seems to rest on a generalized
grievance that ACCT employed false, deceptive, or misleading representations in its efforts to
collect on her debt. See Compl. ¶¶ 10, 12, 13, 15; Pl. Opp. 5-8.
FDCPA was enacted to “eliminate abusive debt collection practices by debt
collectors” and to establish “certain rights for consumers whose debts are placed in the hands of
professional debt collectors for collection.” Kropelnicki v. Siegel, 290 F.3d 118, 127 (2d Cir.
2002) (internal quotation marks omitted). “These purposes inform the FDCPA’s many
provisions.” Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 89 (2d Cir. 2008). FDCPA
bars the use of “any false, deceptive, or misleading representation or means in connection with
the collection of any debt,” 15 U.S.C. § 1692e, and proscribes “unfair or unconscionable means
to collect or attempt to collect any debt,” 15 U.S.C. § 1692f. The statute also gives “the
consumer the right to dispute a debt claimed by a debt collector, and to seek verification of the
validity of the debt.” Jacobson, 516 F.3d at 89 (citing 15 U.S.C. § 1692g).
The legislative history of FDCPA illustrates the kinds of abuse it was meant to
eliminate, see S. Rep. No. 95-382, at 2 (1977), and the statute itself sets forth a non-exclusive list
of particular practices that debt collectors are forbidden to employ, see 15 U.S.C. § 1692e.
“[T]he question of whether a communication complies with [] FDCPA is determined from the
perspective of the ‘least sophisticated consumer.’” Jacobson, 516 F.3d at 90 (quoting Clomon v.

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Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993)). “Under this standard, ‘collection notices can be
deceptive if they are open to more than one reasonable interpretation, at least one of which is
inaccurate.’” Easterling v. Collecto, Inc., 692 F.3d 229, 233 (2d Cir. 2012) (quoting Clomon,
988 F.2d at 1319). FDCPA’s protections, however, do “‘not extend to every bizarre or
idiosyncratic interpretation of a collection notice’ and courts should apply the standard ‘in a
manner that protects debt collectors against liability for unreasonable misinterpretations of
collection notices.’” Id. at 234 (quoting Clomon, 988 F.2d at 1319). Accordingly, “because the
least sophisticated consumer standard is objective, the determination of how the least
sophisticated consumer would view language in a defendant’s collection letter is a question of
law” that the Court may resolve on a motion to dismiss. Quinteros v. MBI Assoc., Inc., 999 F.
Supp. 2d 434, 437 (E.D.N.Y. 2014) (quoting Castro v. Green Tree Servicing LLC, 959 F. Supp.
2d 698, 707 (S.D.N.Y. 2013)).
First, Blumenfeld fails to allege any facts in her complaint that support a plausible
claim for relief under FDCPA. A plaintiff must “clearly identify the actions taken by those
individuals or entities that constituted violations of his [FDCPA] rights.” Doe v. City of New
York, 2011 WL 3876990, at *2 (E.D.N.Y. Sept. 1, 2011). Merely stating that “it was made to
appear that the Defendant and GE Capital were acting as both the creditor and debt collector,”
Compl. at ¶ 11, or that ACCT “attempt[ed] to create the perception that the Defendant is
involved in the collection but really only acting as nothing more than a mail service for GE
[Capital],” Id. at ¶ 12, is insufficient to plausibly state a claim under federal pleading standards.
See, e.g., Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.”); Twombly, 550 U.S. at 555 (“[A]
plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels

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and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
(internal quotation marks omitted)).
Second, the debt collection letter ACCT sent to Blumenfeld comports with
FDCPA requirements, see 15 U.S.C. § 1692g(a)(2), including the amount of the debt, the name
of the creditor, and certain mandated disclosure statements. See ECF No. 5, Ex. B. In fact, the
letter mentions “GE Capital” only once, and it clearly specifies the fact that GE Capital’s new
name is “Synchrony Bank.” Id. (“If the Amount Currently Due is paid to Synchrony Bank,
formerly known as GE Capital Retail Bank . . . .). Moreover, the letter conspicuously identifies
Synchrony Bank as the creditor of Blumenfeld’s debt, a fact reiterated three times. Id. Thus, the
least sophisticated consumer would have known, after reading the entirety of the debt collection
letter, that ACCT sought to collect a debt on behalf of Synchrony Bank and that Synchrony Bank
was the current creditor to whom she owed her debt. See Ellis v. Solomon & Solomon, P.C., 591
F.3d 130, 135 (2d Cir. 2010) (“The hypothetical least sophisticated consumer does not have ‘the
astuteness of a Philadelphia lawyer or even the sophistication of the average, everyday, common
consumer,’ but is neither irrational nor a dolt . . . . [T]his Court has been careful not to conflate
lack of sophistication with unreasonableness.” (quoting Russell v. Equifax A.R.S., 74 F.3d 30, 34
(2d Cir. 1996))).
Finally, Blumenfeld claims that ACCT “failed to clearly delineate what address
should be used to dispute the debt,” Pl. Opp. at 7, arguing that the letter lists two separate PO
Box addresses without proper mailing instructions. This argument is meritless. The letter not
only provides a clearly designated mailing address, but it also doubles as a detachable payment
slip with the mailing address pre-printed in lower right hand corner, as is the customary location
for addressing mail when following conventional postal procedure. See ECF No. 5, Ex. B.

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Moreover, the letter contains ACCT’s contact number, repeated three separate times, for debtors
to call in the event that they have questions or concerns regarding any information contained in
the letter. Id. Last, there is no support for an inference that that the return address printed in the
upper left hand corner of the payment slip would be insufficient to serve as a correspondence
address in disputing a debt. Accordingly, ACCT’s motion to dismiss is granted.
C.

ACCT’s Application for Attorneys’ Fees
ACCT requests the award of attorneys’ fees and costs in relation to the work

expended on this case, arguing that Blumenfeld commenced this action in bad faith and for the
purpose of harassment. Def. Br. at 6; Reply Br. at 3. Blumenfeld has not addressed this issue.
FDCPA authorizes an award of reasonable attorneys’ fees and costs only upon “a
finding by the court that an action under this section was brought in bad faith and for the purpose
of harassment.” 15 U.S.C. § 1692k(a). The fact that a defendant is entitled to judgment on the
pleadings does not provide a basis for an automatic award of attorneys’ fees; there must be
evidence that the plaintiff both knew that her claim was meritless and pursued it with the purpose
of harassing the defendant. See Spira v. Ashwood Financial, Inc., 358 F. Supp. 2d 150, 161
(E.D.N.Y. 2005) (noting that defendant must meet the statutory standard of proving bad faith and
harassment); see also Sierra v. Foster & Garbus, 48 F. Supp. 2d 393, 396 (S.D.N.Y. 1999)
(awarding attorneys’ fees where “[p]laintiff voluntarily abandoned his FDCPA claims once in
order to have the case remanded back to state court, then he voluntarily discontinued its
prosecution in state court, only to bring it once again in federal court”); Kahen-Kashani v. Nat’l
Action Fin. Services, Inc., 2004 WL 1040384, at *7 (W.D.N.Y. Apr. 12, 2004) (denying claim
for attorneys’ fees where defendant “has not provided evidence of plaintiff’s bad faith . . . and

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even if this Court wished to attribute counsel’s conduct to the client, defendant has not proved
the second element, that the suit was instituted for the purpose of harassment”).
Here, ACCT alleges that “counsel’s continued refusal to provide support for
[Blumenfeld’s] claims” and the decision to “perpetuate this litigation” presumptively
demonstrates bad faith and an intent to harass. As mentioned, Blumenfeld has not responded to
that assertion. She is hereby ordered to show cause in writing on or before October 30, 2015 as
to why an award of costs and fees should not be granted. Reply papers, if any, in support of the
motion shall be filed on or before November 6, 2015.
CONCLUSION
For the reasons set forth above, ACCT’s motion to dismiss is granted, and its
request for attorneys’ fees is denied.
So ordered.

JOHN GLEESON, U.S.D.J.
Dated: Brooklyn, New York
October 23, 2015

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