Torres v. Gutman Mintz Baker & Sonnenfeldt P.C. et al

Filing 41

MEMORANDUM AND ORDER granting 5 . For the reasons set forth in the attached opinion, plaintiff is granted leave to proceed in forma pauperis and to proceed without prepayment of fees, but the Court declines to direct the USMS to serve process given that plaintiff's counsel has already accomplished service on the defendants. See attached for details. So Ordered by Magistrate Judge Cheryl L. Pollak on 3/29/2018. (Blase, Brendan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CARMEN TORRES,
Plaintiff,
-against-

MEMORANDUM AND ORDER
17 CV 4109 (KAM) (CLP)

GUTMAN, MINTZ, BAKER &
SONNENFELDT P.C. et al.
Defendants.
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POLLAK, United States Magistrate Judge:
On July 11, 2017, Carmen Torres (“plaintiff”), through counsel, commenced this action
against Gutman, Mintz, Baker & Sonnenfeldt LLP (“GMBS”), Edguardo L. Baldinucci,
Kathleen E. Nolan, Yevgeniya Musheyeva, and Buddy Equities LLC (collectively, “defendants”)
seeking damages, attorney’s fees and costs, and injunctive and declaratory relief, pursuant to the
Fair Debt Collection Practices Act (“FDCPA”) 15 U.S.C. § 1692, et seq., New York General
Business Law (“GBL”) § 349 et seq., and New York Judiciary Law (“NYJL”) § 487.
Now before the Court is plaintiff’s motion for leave to proceed in forma pauperis. For
the reasons set forth below, the Court grants plaintiff’s motion.

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BACKGROUND
Since approximately 2004, plaintiff leased a rent-stabilized apartment in a building
owned and operated by defendant Buddy Equities LLC. (Compl. 1 ¶ 17). Due to plaintiff’s
severe disability and limited income, the entirety of plaintiff’s rent is paid by the Department of
Social Services (“DSS”), a branch of the New York City Human Resources Administration
(“HRA”). (Id. ¶ 18).
In June 2014 and again in August 2016, plaintiff signed two-year rent stabilized lease
agreements with defendant Buddy Equities LLC that required her to pay monthly rent in the
amount of $1,714.40. (Id. ¶ 22). Under its standard practice, HRA would make two monthly
rental payments on plaintiff’s behalf. Such payments took the form of an “A check,” typically
sent on the first week of the month, and a “B check,” typically sent on the third week of each
month. Each check consisted of half of her total monthly rent. (Id. ¶ 19).
Between 2015 and 2016, defendant Buddy Equities, through its counsel, GMBS, initiated
three eviction proceedings against plaintiff. (Id. ¶ 24). In each case, plaintiff alleges that Buddy
Equities, GMBS, and its attorneys, unlawfully mischaracterized the debt owed by plaintiff or
HRA. (Id.)
1. The First State Court Proceeding
On June 8, 2015, Defendants initiated a non-payment eviction proceeding against
plaintiff in the Kings’ County Housing Court in which defendants falsely represented that
plaintiff had paid none of the $1,714.40 due in monthly rent from December 2014 through June
2015. (Id. ¶ 27). In total, defendants alleged that plaintiff owed $11,915.20, plus attorneys’ fees.

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Citations to “Compl.” refer to the Complaint filed by Carmen Torres on July 11, 2017,
ECF No. 1.
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(Id.) Rebutting defendants’ claims, plaintiff’s attorney provided the Housing Court with HRA
records showing that DSS had paid $1,591.10 for every month that Defendant had alleged
complete non-payment. Of the $11,915.20 defendants demanded, $10,682.20 had already been
paid. (Id. ¶ 31). Despite the clear evidence, defendant continued litigating the matter for another
five months. (Id. ¶ 30).
2. The Second State Court Proceeding
On July 26, 2016, defendants initiated a second nonpayment eviction proceeding against
plaintiff. (Id. ¶ 34). They alleged that plaintiff failed to pay the full $1,714.40 due for the
months of June and July 2016, and demanded payment of the rent amount, plus $1,147 in late
fees, and attorney’s fees. (Id.) On August 17, 2016, the Housing Court judge determined that
plaintiff’s rent for June and July had been fully paid by DSS and a Stipulation of Settlement and
Discontinuance was filed. (Id. ¶ 36).
3. The Third State Court Proceeding
On November 9, 2016, defendants initiated a third nonpayment eviction proceeding
against plaintiff, claiming that she owed $3,787.26 for failure to pay rent in October and
November 2016, as well as attorney’s fees. (Id. ¶ 38). On December 20, 2016, plaintiff’s
attorney filed a Motion to Dismiss and provided the Housing Court with records demonstrating
that DSS had already paid the defendant $1,714.40 for the months in question, and that defendant
had cashed the checks for those payments. (Id. ¶ 41). Ultimately, the Housing Court judge
discontinued the case with prejudice, finding that plaintiff had made all her payments through
November 30, 2016. (Id. ¶ 42).

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4. Plaintiff’s Claims
The Plaintiff claims that the misleading and abusive debt collection practices of GMBS
and its attorneys, Ed Baldinucci and Kathleen Nolan, violated the Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. § 1692 et seq. Specifically, plaintiff contends that defendants
violated the FDCPA by “sending repeated demand letters and initiating repeated meritless
lawsuits; demanding that Ms. Torres pay rent she does not owe or face eviction; failing to
properly notify Ms. Torres of the actual amount of her debt, if any, and her rights under law; and
intentionally misrepresenting the status of Ms. Torres’ account to her and to the Court.” (Id. ¶
69). Plaintiff claims that these actions run afoul of numerous FDCPA provisions prohibiting
fraud, misrepresentation, and abusive practices in the collection of a debt, as well as the
FDCPA’s prohibition against the use of “unfair or unconscionable means in the collection of
debt.” (Id.)
Furthermore, plaintiff alleges that defendants’ debt collection practices violated the New
York General Business Law (“GBL”) § 349 et seq. Specifically, Section 349(a) prohibits
“deceptive acts or practices in the conduct of any business, trade or commerce in the furnish of
any services in this state[.]” N.Y. G.B.L. § 349(a). As explained above, plaintiff has claimed
facts describing the defendants’ alleged deceptive debt collection practices. It is further alleged
that defendants’ acts were both recurring in nature (defendants repeatedly tried to evict plaintiff)
and potentially impacted many other similarly situated consumers. (Id. ¶¶ 53-54). Plaintiff
contends that defendants’ actions, as alleged in the Complaint, violate N.Y. GBL § 349.
Plaintiff also contends that GMBS and attorneys Edguardo L. Baldinucci, Kathleen E.
Nolan, and Yevgeniya Musheyeva violated New York Judiciary Law § 487, which provides a
private cause of action against an attorney who is “guilty of any deceit or collusion.” NYJL

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§ 487. Specifically, Plaintiff alleges that in the numerous demand letters sent to plaintiff, GMBS
represented “that an attorney had performed meaningful review” of plaintiff’s account. (Id.
¶ 49). Plaintiff contends that these statements cannot be true because had the GMBS attorneys
actually performed meaningful review, they “would have determined that the amounts [claimed
to be due] were incorrect.” (Id. ¶ 50). In short, plaintiff alleges that “GMBS and its attorneys,
Ed Baldinucci, Kathleen Nolan, and Yevgeniya Musheyeva, represented to the Kings County
Housing Court and to Ms. Torres that the amounts alleged in the petition were due . . . despite
information available to them to the contrary.” (Id. ¶ 51). Thus, plaintiff claims that “GMBS
and its attorneys acted to deceive the Court and Ms. Torres,” and are therefore liable under NYJL
§ 487. (See id.)
DISCUSSION
A. Leave to Proceed in Forma Pauperis
The filing fee in this district is $400, which consists of the $350 filing fee prescribed by
28 U.S.C. § 1914(a) and the $50 administrative fee prescribed by the Judicial Conference of the
United States pursuant to 28 U.S.C. § 1914(b). See 28 U.S.C. § 1914; Judicial Conference of the
United States, District Court Miscellaneous Fee Schedule ¶ 14 (Dec. 1, 2016). Under 28 U.S.C.
§ 1915, the Court may waive the filing fee upon finding that a plaintiff is indigent. See 28
U.S.C. § 1915(a). The statute requires a plaintiff who seeks to proceed in forma pauperis to
provide an affidavit describing his or her assets and stating that the person is unable to pay the
fees or security required to bring an action or proceeding. 28 U.S.C. § 1915(a). A plaintiff may
not be granted leave to proceed in forma pauperis if (A) the allegation of poverty is untrue; or
(B) the action or appeal (i) is frivolous or malicious, (ii) fails to state a claim on which relief may
be granted, or (iii) seeks monetary relief against a defendant who is immune from such relief. Id.

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§ 1915(e)(2). If the court is satisfied that plaintiff is indigent and that the complaint is not
frivolous and adequately states a claim upon which relief may be granted, then the court may
grant plaintiff leave to proceed in forma pauperis and thus authorize the plaintiff to commence or
proceed with the lawsuit without prepayment of fees or security. See id. § 1915(a).
Moreover, while the vast majority of in forma pauperis motions involve pro se plaintiffs,
courts in this district have consistently granted IFP status when plaintiff is represented by an
attorney. See, e.g., Robinson v. City of New York, No. 16 CV 546, 2016 U.S. Dist. LEXIS
15157, at *1 (E.D.N.Y. February 8, 2016); Linton v. City of New York, No. 15 CV 2556, 2015
U.S. Dist. LEXIS 59419, at *1 (E.D.N.Y. May 6, 2015). However, in the event that plaintiff
ultimately recovers funds sufficient to pay the filing fee, it may be appropriate to require plaintiff
to reimburse the court at a later date. See Linton v. City of New York, 2015 U.S. Dist. LEXIS
59419, at *1. Requiring reimbursement is not inconsistent with 28 U.S.C. § 1915(a) which
merely exempts IFP plaintiffs from the prepayment of fees. Robinson v. City of New York,
2016 U.S. Dist. LEXIS 15157, at *1–2. Further, such an arrangement “balances the Court’s and
the public’s interest in obtaining filing fees . . . with the Court’s and the public's interest in
guaranteeing access to justice irrespective of a litigant's financial means.” Darang v. City of
New York, No. 15 CV 6058, 2015 WL 8207438, at *4 (E.D.N.Y. Dec. 7, 2015).
Here, plaintiff has offered sufficient proof that she is indigent and unable to afford the
filing fee. In her affidavit, plaintiff states that she is unemployed, receives $468 per month in
food stamps, and receives $694 per month in other public benefits. (Pl.’s IFP Mot. at 1, July 11,
2017, ECF No. 5). She also explains that she has no other source of income and has no money in
a checking or savings account. (Id. at 1-2). She indicates that three of her children live with her
and that she “contribute[s] to the entirety of their support.” (Id. at 2). Based on this information,

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the Court finds that plaintiff has demonstrated her inability to pay the filing fee to commence this
action as required by 28 U.S.C. § 1915.
Plaintiff also has pleaded a plausible claim upon which relief can be granted. At the
pleading stage, the Court “accept[s] as true all non-conclusory factual allegations” and “draw[s]
all reasonable inferences in the plaintiff's favor.” Pyskaty v. Wide World of Cars, LLC, 856 F.3d
216, 225 (2d Cir. 2017). A complaint must allege “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although a court
must accept as true all factual allegations in the complaint, it is not required to accept the truth of
conclusory statements of law. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2007).
Here, plaintiff has alleged facts sufficient to state plausible claims for relief under the
FDCPA, N.Y. GBL § 349, and NYJL § 487. Specifically, with respect to her FDCPA claim,
plaintiff alleges that defendants, over the course of three eviction proceedings, knowingly made
numerous false and misleading representations in declaring how much rent plaintiff owed while
having cashed the checks right before the proceedings. Such allegations suffice to state a claim
for abusive debt collection practices, fraud, and misrepresentation under the FDCPA.
As for her claim under N.Y. GBL § 349, plaintiff has set forth numerous deceptive acts
and practices allegedly committed by each defendant. Plaintiff’s allegations also demonstrate
the recurring nature of defendants’ alleged deceptive rent collection practices over the course of
several years. Such allegations suffice to state a claim for deceptive acts or practices in the
conduct of business under N.Y. GBL § 349.
Finally, in support of her cause of action against GMBS and the three attorneys under
NYJL § 487, plaintiff has alleged facts sufficient to demonstrate deceitful or collusive acts

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directed at the state court and plaintiff. Such allegations suffice to state a claim for deceit and
collusion with intent to deceive the court and the plaintiff under NYJL § 487.
Thus, plaintiff has demonstrated her inability to pay the required filing fee and that her
pleading states a claim upon which relief can be granted. The Court therefore grants plaintiff’s
motion to proceed in forma pauperis and without the prepayment of fees.
B. Service of Process
The Court must order the United States Marshals Service or someone specially appointed
to serve process to effect service on behalf of a plaintiff who has been authorized to proceed in
forma pauperis. See 28 U.S.C. § 1915(d) (providing that “[t]he officers of the court shall issue
and serve all process, and perform all duties in such cases”); Fed. R. Civ. P. 4(c)(3) (explaining
that the court “may order that service be made by a United States marshal or deputy marshal or
by a person specially appointed by the court” and providing that “[t]he court must so order if the
plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915”). In this case,
however, the docket sheet reflects that plaintiff has already accomplished service on the
defendants. (See, e.g., Return of Service, Aug. 4, 2017, ECF No. 8). The Court therefore
concludes that it is unnecessary to direct the United States Marshals Service to serve process in
this case.

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CONCLUSION
The Court has reviewed plaintiff’s financial affidavit and finds that plaintiff has
demonstrated her inability to pay the filing fee in this action and that plaintiff is entitled to
proceed in forma pauperis and without the prepayment of fees, pursuant to 28 U.S.C. § 1915(a).
Plaintiff’s motion to proceed in forma pauperis is therefore granted.
The plaintiff has already served the defendants, as reflected by the returns of service
filed on the public docket, and the Court therefore declines to direct the United States Marshals
Service to serve process on plaintiff’s behalf in this action.
The Clerk is directed to send copies of this Order to the parties either electronically
through the Electronic Case Filing (ECF) system or by mail.
SO ORDERED.
Dated: Brooklyn, New York
March 29, 2018
/s/ Cheryl L. Pollak
Cheryl L. Pollak
United States Magistrate Judge
Eastern District of New York

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