Santora v. Capio Partners, LLC
MEMORANDUM OF DECISION AND ORDER: For the reasons set forth in the Court's September 28, 2017 Memorandum of Decision and Order, Defendant's motion 16 for judgment on the pleadings is GRANTED. The Clerk of the Court is respectfully requested to enter judgment in accordance with the attached Memorandum and Order and close the case. Ordered by Judge LaShann DeArcy Hall on 9/28/2017. (Zdanys, Joanna)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DECISION AND ORDER
16-CV-02788 (LDH) (VMS)
-againstCAPIO PARTNERS, LLC
LASHANN DEARCY HALL, United States District Judge:
Plaintiff Dina Santora brings the instant action against Defendant Capio Partners, LLC,
alleging violations of the Fair Debt Collection Practices Act (“FDCPA”). Defendant moves
pursuant to Federal Rule of Civil Procedure 12(c) for judgment on the pleadings.
Defendant, a provider of debt collection services, was engaged to collect a debt of
$3,190.95 that Plaintiff allegedly owed to another party. (Compl. ¶¶ 3, 8, ECF No. 1; Pl.’s PreMot. Letter Ex. A (“Pl.’s Ex. A”), ECF No. 14-1.) On or about February 22, 2016, Defendant
sent Plaintiff an initial collection letter (the “Collection Letter”). (Pl.’s Ex. A.) Plaintiff states
that the Collection Letter contained the language required under 15 U.S.C. § 1692g, which
provides a consumer with notice of her thirty-day period to exercise her validation and
verification rights. (Compl. ¶ 13.) Plaintiff further alleges, however, that these rights were
overshadowed by a fifteen-day settlement offer included in the Collection Letter:
NOTICE OF DEBT – SETTLEMENT OFFER
We are reasonable people to deal with and we know that times are tough. Are you
expecting a tax refund this year? If so, take this opportunity to resolve your accounts with
a one-time payment of $1,595.48 which is a 50% discount off of the balance.
The offer will expire 03/07/2016.
This settlement offer and the deadline for accepting it do not in any way affect your right
to dispute this debt and request validation of this debt during the 30 days following your
receipt of this letter as described on the reverse side. If you do not accept this settlement
offer, you are not giving up any of your rights regarding this debt.
SEE REVERSE SIDE FOR IMPORTANT CONSUMER INFORMATION.
(Pl.’s Ex. A.) Plaintiff contends that this letter is deceptive and overshadowing. (Compl. ¶ 15.)
Plaintiff contends that Defendant’s conduct violated numerous sections of the FDCPA, including
but not limited to 15 U.S.C. §§ 1692e, 1692e(2), 1692e(5), 1692e(10), 1692f, 1692f(1), and
1692g. (Id. ¶ 18.)
STANDARD OF REVIEW
A motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure
12(c) is reviewed under the same standard as a motion to dismiss under Rule 12(b)(6). Bank of
New York v. First Millennium, 607 F.3d 905, 922 (2d Cir. 2010) (citing Sheppard v. Beerman, 18
F.3d 147, 150 (2d Cir. 1994)) (“The same standard applicable to Fed. R. Civ. P. 12(b)(6) motions
to dismiss applies to Fed. R. Civ. P. 12(c) motions for judgment on the pleadings.”). To
withstand a motion to dismiss, a “complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.
at 556). As with a motion to dismiss under Rule 12(b)(6), a motion for judgment on the
pleadings pursuant to Rule 12(c) “must be decided solely on the pleadings before the court, in
addition to any materials implicitly or explicitly incorporated by reference into those pleadings.”
U.S. v. Certain Real Property and Premises Known as 44 Autumn Ave., Brooklyn, N.Y., 156
F.R.D. 26, 30 (E.D.N.Y. 1994). Because the complaint explicitly refers to the Collection Letter,
the Court may consider it in deciding this motion.
FDCPA Claims Based on Overshadowing
Section 1692g of the FDCPA provides that a consumer has thirty days to dispute the
validity of a debt after receiving written notice. See 15 U.S.C. § 1692g(a)(3). Any collection
activities and communication during this thirty-day period “may not overshadow or be
inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name
and address of the original creditor.” Id. § 1692g(b).
A complaint alleging a violation of § 1692g for being overshadowing or contradictory
“may survive a motion to dismiss if (1) the plaintiff pleads a contradiction between the demand
language and the validation language, and (2) it is possible that the plaintiff could prove that the
contradiction would mislead the least sophisticated consumer into disregarding his or her rights
under the validation notice.” Harrison v. NBD, Inc., 968 F. Supp. 837, 846 (E.D.N.Y. 1997)
(quoting Beeman v. Lacy, Katzen, Ryen & Mittleman, 892 F. Supp. 405, 412 (N.D.N.Y. 1995)).
Although courts are to analyze collection letters from the perspective of the “least sophisticated
consumer,” they must also be reasonable in their application of the standard and assume that
even the least sophisticated consumer can read a collection letter with some care. Greco v.
Trauner, Cohen & Thomas, L.L.P., 412 F.3d 360, 363 (2d Cir. 2005) (quoting Clomon v.
Jackson, 988 F.2d 1314, 1318-19 (2d Cir. 1993) (analyzing least sophisticated consumer
standard). Such an approach protects the naïve from abusive practices while also shielding debt
collectors from “bizarre or idiosyncratic interpretations of debt collection letters.” See id.
Courts in this district have repeatedly held that a settlement offer contained in a debt
collector’s initial communication with a debtor does not, by itself, overshadow or contradict a
validation notice in the same communication. Harrison, 968 F. Supp. at 848 (finding that an
overshadowing allegation “premised solely upon [an] offer of a special discount if the debt [was]
paid within the 30-day validation period . . . [was] insufficient to state a claim upon which relief
can be granted”); Omogbeme v. Risk Mgmt. Alts., Inc., No. 01-cv-7293 (SJ), 2003 WL
21909773, at * 3 (E.D.N.Y. Aug. 4, 2003) (finding no overshadowing where a settlement offer
was located on the front side of an initial collection letter and the validation notice was on the
back); Soffer v. Nationwide Recovery Systems, Inc., No. 06-cv-435, 2007 WL 1175073, at *3-4
(E.D.N.Y. Apr. 19, 2007) (citing Harrison and Omogbeme and rejecting plaintiff’s argument that
“the settlement offer included in the initial communication overshadows or contradicts the
statutorily required validation notice”); Stark v. RJM Acquisitions LLC, No. 08-cv-2309, 2009
WL 605811, at *5 (E.D.N.Y. Mar. 9, 2009) (finding, on summary judgment, that “no reasonable
juror could find that the settlement offers overshadow the validation notice on the back of the
collection letter”). The Court agrees with that determination.
Here, the Collection Letter explicitly states that “[t]his settlement offer and the deadline
for accepting it do not in any way affect your right to dispute this debt and request validation of
this debt during the 30 days following your receipt of the letter as described on the reverse side.”
(Pl.’s Ex. A.) Defendant’s settlement offer did not demand payment, but rather “extended an
incentive for [a] debtor to pay [her] account.” Harrison, 968 F. Supp. at 848. If Plaintiff chose
to reject Defendant’s offer, “at worst, she . . . would be liable for the original amount of the
debt.” Id. Additionally, below the settlement offer, the Collection Letter states “SEE REVERSE
SIDE FOR IMPORTANT CONSUMER INFORMATION,” and Plaintiff admits that the
Collection Letter contained all of the validation rights language required by § 1692g. (Id.;
Compl. ¶ 13.) Even the least sophisticated consumer would not read the settlement offer and
validation language so carelessly or idiosyncratically as to be misled into disregarding her
validation rights. See Greco, 412 F.3d at 363 (“[E]ven the least sophisticated consumer can be
presumed to possess . . . a willingness to read a collection notice with some care.”) Rather, the
pleadings and relevant exhibits demonstrate that Plaintiff was fully informed of her validation
rights, and nothing on the face of the letter should be deemed contradictory or misleading.
Accordingly, Plaintiff’s overshadowing claim is dismissed.
Other FDCPA Claims
In addition to her § 1692g overshadowing claim, Plaintiff alleges that Defendant violated
various other provisions of the FDCPA, “including but not limited to” §§ 1692e, 1692e(2),
1692e(5), 1692e(10), 1692f, and 1692f(1). Plaintiff only provides the bald allegation that
Defendant violated these sections of the FDCPA without proffering any facts that would allow
the Court to reasonably discern what the allegedly violative conduct was. (Compl. ¶ 18.)
Accordingly, the balance of Plaintiff’s FDCPA claims must be dismissed. See Moore v.
Diversified Collection Servs., Inc., No. 07-cv-0397 (ENV) (VVP), 2009 WL 1873654, at *3
(E.D.N.Y. June 29, 2009) (finding that plaintiff’s “bald allegations that [defendant] engaged in
harassing and oppressive behavior . . . is entirely conclusory and is not borne out of any factual
assertion in the complaint” and “must be dismissed”).
For the foregoing reasons, Defendant’s motion for judgment on the pleadings is
GRANTED. The Clerk of the Court is respectfully requested to close the case.
LASHANN DEARCY HALL
United States District Judge
Dated: Brooklyn, New York
September 28, 2017
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