Makhnevich v. Bougopoulos et al
Filing
185
ORDER granting 175 Motion for Summary Judgment; granting 178 Motion for Leave to File; granting 181 Motion for Leave to File; granting 183 Motion for Leave to File. For the reasons set forth in the attached memorandum and order, Defendants& #039; 175 motion for summary judgment is GRANTED as to Plaintiff's FDCPA claims. Plaintiff's state law claims are DISMISSED WITHOUT PREJUDICE. The court also GRANTS the parties' various 178 181 183 motions for leave to file d ocuments in connection with the summary judgment motion.The Clerk of Court is respectfully directed to enter judgment accordingly, serve a copy of this memorandum and order and the judgment on Plaintiff, note service on the docket, and close this case. Ordered by Judge Kiyo A. Matsumoto on 3/29/2022. (Duhaime, Daniel)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
STACY MAKHNEVICH,
MEMORANDUM & ORDER
18-CV-285 (KAM) (VMS)
Plaintiff,
- against GREGORY BOUGOPOULOS; NOVICK, EDELSTEIN,
LUBELL, REISMAN, WASSERMAN & LEVENTHAL,
P.C.,
Defendants.
---------------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
Plaintiff Stacy Makhnevich, proceeding pro se, brings
this action against Defendants Gregory Bougopoulos and Novick,
Edelstein,
Lubell,
Reisman,
Wasserman
&
Levanthal,
P.C.
(the
“Novick Firm”)1, asserting violations of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and section 349
of New York’s General Business Law (“GBL”).
Plaintiff claims that
Defendants engaged in a host of unfair debt collection practices
during the course of state court litigation to recover condominium
charges and other fees assessed against Plaintiff.
Defendants now move for summary judgment on Plaintiff’s
claims pursuant to Federal Rule of Civil Procedure 56.
Defendants
The Novick Firm has since changed its name to Novick Edelstein Pomerantz P.C.
(ECF No. 85.)
1
1
have complied with Local Civil Rules 56.1 and 56.2.
For the
reasons set forth below, Defendants’ motion is GRANTED.
BACKGROUND
The court draws the following facts, which are not in
genuine dispute, from the parties’ 56.1 statements, declarations,
and exhibits.
The court begins with Defendants’ debt collection
letters before proceeding to overview what one state court judge
described as the “tortured history” of the litigation between the
parties.
I.
(ECF No. 175-35 at 3.)2
Pre-Litigation Communications
Plaintiff is the owner of a condominium located at 2900
Ocean Avenue in Brooklyn, New York.
(ECF No. 175-41 (“Defs.’
56.1”) ¶ 1; ECF No. 176-22 (“Pl.’s 56.1”) ¶ 1.)
In 2015, the
condominium’s Board of Managers (the “Board”) retained the Novick
Firm
to
recover
Plaintiff.
unpaid
common
charges
and
(Defs.’ 56.1 ¶ 2; Pl.’s 56.1 ¶ 2.)
Bougopoulos is a member of the Novick Firm.
other
fees
from
Defendant Gregory
(ECF No. 175-1
(“Bougopoulos Decl.”) ¶ 1.)
On April 3, 2015, the Novick Firm sent a letter to
Plaintiff notifying her that it had been retained to collect
$5,410.85 in unpaid common charges. (ECF No. 175-22.) Among other
All pin citations to the record refer to the page number assigned by the
court’s CM/ECF system.
2
2
notifications and disclaimers, the April 3, 2015 letter advised
Plaintiff that the Novick Firm had not reviewed the particular
circumstances of Plaintiff’s account.
(Id. at 3.)
The April 3,
2015 letter also informed Plaintiff that she had thirty days to
dispute the debt in writing.
(Id.)
On May 11, 2015, the Novick
Firm sent a copy of the April 3, 2015 letter to JPMorgan Chase
Bank, N.A., which owned a mortgage on Plaintiff’s condominium.
(ECF No. 175-23.)
On June 5, 2015, the Novick Firm filed a notice of lien
for unpaid common charges on behalf of the Board with the Kings
County Clerk’s Office.
(ECF No. 175-24 at 4-6.)
The Novick Firm
subsequently recorded the lien with the New York City Department
of Finance on June 19, 2015.
(Id. at 2-3.)
On November 20, 2015, the Novick Firm sent a second
letter to Plaintiff informing her that the unpaid debts owed to
the Board had grown to $7,283.16.
(ECF No. 175-26 at 3.)
Like
the first letter, the November 20, 2015 letter notified Plaintiff
that the Novick Firm had not reviewed the circumstances of her
particular case and that she had thirty days to dispute the debt
in writing.
II.
(Id.)
The Board’s Civil Court Action
On November 25, 2015, the Novick Firm filed a complaint
on behalf of the Board against Ms. Makhnevich in the New York City
Civil Court for Kings County.
(ECF No. 175-27.)
3
The complaint
sought $7,283.16 in unpaid common charges, assessments, and late
fees, as well as attorney’s fees in excess of $2,500.00.
4.)
(Id. at
On December 11, 2015, the summons and complaint were served
on Ms. Makhnevich by Devin Harrington, a licensed process server.
(Id. at 2.)
Mr. Harrington effectuated service in accordance with
N.Y. C.P.L.R. § 308(2) by delivering the summons and complaint to
a person of suitable age and discretion at
Brooklyn condominium.
(Id.)
Ms. Makhnevich’s
Mr. Harrington also mailed a copy of
the summons and complaint to Ms. Makhnevich’s Brooklyn address on
December 14, 2015.
(Id.)
On March 11, 2016, the Civil Court granted the Board’s
motion for a default judgment on liability due to Ms. Makhnevich’s
failure to appear, answer, or otherwise defend in the Civil Court
action.
(ECF No. 175-29.)
On March 24, 2016, the Board served
Plaintiff with a notice of an inquest on damages as directed by
the Civil Court.
On
May
(ECF No. 175-30.)
3,
2016,
Defendant
Bougopoulos
received
a
voicemail from an attorney named Joe Schuessler, who stated that
he represented two defendants in lawsuits commenced by the Novick
Firm.
(ECF No. 175-31 at 4.)
In an email the following day, Mr.
Schuessler confirmed that Ms. Makhnevich was one of his clients.
(Id.)
Based on Mr. Schuessler’s representation, Mr. Bougopoulos
sent the account ledger listing Ms. Makhnevich’s debts to Mr.
Schuessler for the purpose of settlement negotiations.
4
(Id. at
3.)
During a subsequent telephone conversation, in which Mr.
Schuessler again stated that he was Ms. Makhnevich’s attorney, Mr.
Bougopoulos
advised
Mr.
Schuessler
defaulted in the Civil Court action.
35.)
that
Ms.
Makhnevich
had
(Bougopoulos Decl. ¶¶ 34-
Although Mr. Bougopoulos and Mr. Schuessler also discussed
settling the case, the amount that Mr. Schuessler advised that Ms.
Makhnevich was willing to pay was far below what the Board was
willing to settle for.
(Id. ¶ 34.)
The Civil Court scheduled an inquest on damages to
commence on April 19, 2017.
(ECF No. 175-28 at 3.)
On that date,
Ms. Makhnevich’s daughter – Allison Goldman – appeared in court
and obtained an adjournment on behalf of Ms. Makhnevich.
2; Bougopoulos Decl. ¶ 36.)
(Id. at
On June 21, 2017, the Civil Court
denied Ms. Makhnevich’s motion to dismiss for lack of standing,
because the motion was submitted through a power of attorney for
Ms. Makhnevich but the documentation for the power of attorney was
not submitted with the motion.
(See ECF No. 175-35 at 3-4.)
On
August 16, 2017, Ms. Makhnevich granted her daughter Allison a
durable power of attorney under New Jersey law.
(ECF No. 175-33.)
On September 26, 2017, Allison Goldman appeared in Civil
Court on Ms. Makhnevich’s behalf with Diana Goldman, another one
of Ms. Makhnevich’s daughters.
(Bougopoulos Decl. ¶ 37.)
On that
date, the Civil Court granted Ms. Makhnevich’s motion to vacate
the default judgment on the consent of the Board.
5
(ECF No. 181 at
4-5.)3
The
Civil
Court
accepted
Allison
Goldman’s
power
of
attorney for Ms. Makhnevich, permitted Ms. Makhnevich to file an
answer, and ordered that “[a]ny jurisdictional defenses are hereby
waived.”
(Id.)
Rather than answering the Civil Court complaint,
however, Ms. Makhnevich filed two motions to stay or dismiss the
Civil Court action based on the filing of the instant federal
action on January 16, 2018.
(See ECF No. 175-35 at 4.)
Ms.
Makhnevich’s motions were denied on January 17, 2018 and January
30, 2018, respectively. (Id.) On February 9, 2018, Ms. Makhnevich
filed a motion to dismiss the Civil Court action based again on
the filing of the instant federal action.
(Id.; see also ECF No.
175-34 at 3.)
On February 13, 2018, Mr. Bougopoulos sent a letter on
behalf of the Board to Ms. Makhnevich, in the care of her daughters
Allison and Diana Goldman.
(ECF No. 175-34.)
The February 13,
2018 letter informed Ms. Makhnevich that the Novick Firm had not
received an amended answer from her by the Civil Court’s January
31, 2018 deadline.
(Id. at 3.)
As a courtesy, the Novick Firm
extended the time to serve an answer until February 25, 2018.
(Id.)
The letter also advised Ms. Makhnevich that her motions to
By letter dated August 15, 2021, Plaintiff moved for leave to re-file a more
legible copy of the Civil Court’s September 26, 2017 order. (ECF No. 181.)
Defendants do not object.
(ECF No. 182.)
The court accordingly GRANTS
Plaintiff’s [181] motion and considers the more legible copy of the September
26, 2017 order.
3
6
stay or dismiss the Civil Court action had been denied, and that
the Novick Firm considered her February 9, 2018 motion to dismiss
to be a “frivolous . . . dilatory tactic.”
(Id.)
The letter
stated that if Ms. Makhnevich did not agree to withdraw her motion
to dismiss and abstain from filing any further motions based on
the instant federal action, the Novick Firm would move the court
to impose sanctions and/or award legal fees.
(Id.)
On March 19, 2018, Mr. Bougopoulos sent another letter
to Ms. Makhnevich, in the care of her two daughters.
14.)
(Id. at 13-
The letter advised Ms. Makhnevich that the Novick Firm had
not been served with her answer, but that it obtained a copy from
the court’s file around March 16, 2018.
(Id. at 13.)
The letter
also informed Ms. Makhnevich that the Novick Firm was treating the
answer “as a nullity” because it was not verified in accordance
with C.P.L.R. § 3020(a).
(Id. at 14.)
On April 18, 2018, the Civil Court issued an order
denying Ms. Makhnevich’s motion to dismiss, declining to strike
Ms. Makhnevich’s answer, and granting the Board’s motion for
summary judgment as to liability.
(ECF No. 175-35 at 3.)
With
respect to liability, the Civil Court concluded that Ms. Makhnevich
failed to demonstrate a genuine issue for trial
opposition
consisted
of
an
unsworn
affirmed under penalty of perjury.
declaration
(Id. at 5-6.)
because her
that
was
not
The Civil Court
also observed that it was unclear whether the declaration was made
7
by Ms. Makhnevich or her daughter Allison.
(Id. at 6.)
Having
concluded that there was no genuine issue as to liability, the
Civil Court scheduled a trial on damages.
The
damages
December 6, 2018.
trial
occurred
(Id.)
between
December
4
and
(ECF No. 175-28 at 2; ECF No. 175-37 at 2.)
After deliberations, a jury found that the Board was entitled to
$12,322.80 in common charges and $3,941.82 in other assessments
from Ms. Makhnevich, for a total of $16,264.62.
at 3.)
(ECF No. 175-36
Because Ms. Makhnevich’s condominium agreement entitled
prevailing parties to recover attorney’s fees, the Civil Court
also held a hearing regarding attorney’s fees.
2-4.)
The
Civil
Court
ultimately
$21,047.73 in attorney’s fees.
(ECF No. 175-37 at
awarded
(Id. at 11.)
the
Novick
Firm
On August 29, 2019,
the Civil Court entered judgment against Ms. Makhnevich in the
amount of $40,936.60, representing the sum of the jury’s verdict,
the award of attorney’s fees, interest, and certain court costs.
(ECF No. 175-38 at 2.)
III.
This Action
Plaintiff
complaint
on
commenced
January
16,
Bougopoulos, and the Board.
the
2018
instant
against
(ECF No. 1.)
action
the
by
Novick
filing
Firm,
a
Mr.
On October 31, 2018,
Plaintiff moved for leave to file an amended complaint, adding
Bryant Tovar as a defendant.
(ECF No. 52.)
On November 19, 2018,
the court granted Plaintiff’s motion for leave to file an amended
8
complaint based on Defendants’ consent.
(11/19/18 Minute Order.)
The court specifically ordered that Plaintiff “may not further
amend the complaint or file additional motions without a court
order granting permission to do so.”
(Id.)
On December 9, 2018,
Plaintiff requested a pre-motion conference to move for leave to
file a second amended complaint.
(ECF No. 61.)
The court held a
pre-motion conference on December 14, 2018 and set a briefing
schedule for Plaintiff’s motion for leave to file a second amended
complaint.
(12/14/18 Minute Entry.)
The court denied Plaintiff’s motion for leave to file a
second amended complaint in a July 9, 2019 memorandum and order.
(ECF No. 86.) The court found that it would be futile for Plaintiff
to add allegations regarding the Board’s assessment of attorney’s
fees for a Civil Court hearing because such fees were authorized
by Plaintiff’s condominium agreement.
(Id. at 10-11.)
Because
the Board did not qualify as a “debt collector” under the FDCPA,
the court also dismissed all federal claims against the Board and
declined to exercise supplemental jurisdiction over Plaintiff’s
state law claims against the Board.
(Id. at 8-19.)
Although Plaintiff’s claims against the Novick Firm and
Defendant
Bougopoulos
remained
intact,
the
court
cautioned
Plaintiff that she could not prevail “on any claims that would
undermine the state court’s determination that the common charges
were legitimate.”
(Id. at 18-19.)
9
Instead, the court noted that
Plaintiff needed to show that the remaining defendants “violated
the law by the manner in which they engaged in debt collection or
on a basis other than one that disputes the legitimacy of the
charges as found by the state court.”
(Id. at 19.)
On July 19,
2019, the court denied Plaintiff’s motion for reconsideration.
(ECF No. 89.)
Thereafter,
the
parties
proceeded
to
engage
in
contentious discovery under the able supervision of Magistrate
Judge Scanlon.
On March 12, 2020, the Novick Firm and Mr.
Bougopoulos requested a pre-motion conference in order to file a
motion for summary judgment.
(ECF No. 115.)
Plaintiff filed a
response in opposition (ECF No. 118), and the court held a premotion conference on July 14, 2020.
February
1,
2021,
Plaintiff
(7/14/20 Minute Entry.)
voluntarily
dismissed
her
On
claims
against Bryant Tovar with prejudice, leaving the Novick Firm and
Mr. Bougopoulos as the only remaining defendants.
(ECF No. 151.)
Defendants’ motion for summary judgment is now fully briefed and
ripe for decision.
IV.
Plaintiff’s State Court Action
Following this court’s dismissal of her claims against
the Board, Ms. Makhnevich commenced an action against the Board
and its managing agent in the Supreme Court of New York for New
York County.
Although not relevant to the disposition of the
claims in this action, the court notes that the Supreme Court
10
dismissed Plaintiff’s claims on July 21, 2021.
7.)4
The
Supreme
Court
concluded
that
(ECF No. 178 at 2-
it
lacked
personal
jurisdiction over the Board because, as further discussed below,
Ms.
Makhnevich
failed
to
effectuate
service
on
the
Board’s
president or treasurer. (Id. at 3-5.) The Supreme Court dismissed
Plaintiff’s
claims
against
Sulzer, on the merits.
the
Board’s
(Id. at 5-6.)
managing
agent,
Randy
Plaintiff has filed a notice
of appeal.
V.
Plaintiff’s New Federal Action
As part of her opposition to Defendants’ motion for
summary
judgment,
Plaintiff
“supplemental” complaint.
36.)
moved
for
leave
to
file
a
(ECF No. 176-1 (“Pl.’s Opp’n”) at 34-
Plaintiff did so despite the court’s order that she “may not
further amend the complaint or file additional motions without a
court order granting permission to do so.”
Order.)
(11/19/18 Minute
Plaintiff’s motion seeks to add claims of disability
discrimination
based
on
pregnancy
due
to
Defendants’
alleged
failure to consent to a request for an adjournment in the Civil
Court
action.
(See
Pl.’s
Opp’n
at
35-36.)
Based
on
her
unsuccessful request for an adjournment in Civil Court and related
allegations, Plaintiff has also filed complaints of disability
By letter dated July 22, 2021, Defendants moved to add the Supreme Court’s
order of dismissal to the record in this case. (ECF No. 178 at 1.) The court
GRANTS Defendants’ [178] motion, over Plaintiff’s objection (ECF No. 180), for
the sole purpose of providing background on the disputes between the parties.
4
11
discrimination against a Civil Court judge and the Civil Court
itself with the New York State Division of Human Rights and the
United States Department of Justice.
(See ECF No. 176-14 at 4-
5.)
Plaintiff sought to “supplement” her complaint as an
alternative to filing a new action against Defendants.
Opp’n at 35.)
(Pl.’s
And on August 17, 2021, Plaintiff filed a new action
against Defendants in the U.S. District Court for the Southern
District of New York, which subsequently transferred the case to
this court.5
See Makhnevich v. Novick Edelstein Pomerantz PC, No.
21-cv-5516 (E.D.N.Y.) (the “New Action”).
duplicating
her
claims
in
the
instant
In addition to largely
action,
the
operative
complaint in the new action alleges that Defendants discriminated
against Plaintiff in the Civil Court action based on her pregnancy.
(Id., ECF No. 12.) As a result, Plaintiff’s motion to “supplement”
her complaint in this action is denied as moot.
As discussed at
the pre-motion conference held on February 28, 2022, the court
will decide the instant motion based on the operative amended
complaint
in
this
action
and
will
adjudicate
Plaintiff’s
By letter dated September 9, 2021, Defendants moved to add Plaintiff’s initial
complaint in her new federal action to the record in this case. (ECF No. 183.)
Although the court GRANTS Defendants’ [183] motion, it will adjudicate
Plaintiff’s new claims in her new federal action, but not in the context of
deciding the instant motion.
5
12
allegations of disability discrimination in the new action at a
subsequent date.6
LEGAL STANDARD
Summary
judgment
shall
be
granted
to
a
movant
who
demonstrates “that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
“A fact is ‘material’ for these purposes
when it ‘might affect the outcome of the suit under the governing
law.’”
Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98,
104 (2d Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)).
No genuine issue of material fact exists
“unless there is sufficient evidence favoring the nonmoving party
for a jury to return a verdict for that party.”
U.S. at 249.
Anderson, 477
“If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.”
Id. at
249-50 (citations omitted).
When bringing a motion for summary judgment, the movant
carries the burden of demonstrating the absence of any disputed
issues of material fact and entitlement to judgment as a matter of
law.
Rojas, 660 F.3d at 104.
In deciding a summary judgment
Finally, the court notes that Ms. Makhnevich commenced an FDCPA action in the
Southern District of New York against unrelated defendants based on conduct
occurring during state court proceedings to foreclose on her condominium.
Makhnevich v. MTGLQ Invs., L.P., No. 19-cv-72 (S.D.N.Y. filed Jan. 3, 2019).
That action remains pending.
6
13
motion, the court must resolve all ambiguities and draw all
reasonable inferences against the moving party.
Flanigan v. Gen.
Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001) (citing Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
A moving party may indicate the absence of a factual dispute by
“showing . . . that an adverse party cannot produce admissible
evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1)(B).
Once
the moving party has met its burden, the nonmoving party “must
come forward with admissible evidence sufficient to raise a genuine
issue of fact for trial in order to avoid summary judgment.”
Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
As a pro se litigant, the Court is obliged to liberally
construe Plaintiff’s submissions and read them “to raise the
strongest arguments they suggest.” Campbell v. We Transport, Inc.,
847 F. App’x 88, 88-89 (2d Cir. 2021) (quoting McLeod v. Jewish
Guild
for
the
Blind,
864
F.3d
154,
156
(2d
Cir.
2017)).
Nevertheless, Plaintiff’s pro se status “d[oes] not eliminate
[her] obligation to support [her] claims with some evidence to
survive summary judgment.”
Nguedi v. Fed. Reserve Bank of N.Y.,
813 F. App’x 616, 618 (2d Cir. 2020).
Plaintiff’s “reliance on
‘conclusory allegations’ and ‘unsubstantiated speculation’” will
not suffice.
Id. (quoting Fujitsu Ltd. v. Fed. Exp. Corp., 247
F.3d 423, 428 (2d Cir. 2001)).
14
DISCUSSION
I.
FDCPA Claims
“Congress enacted the FDCPA to protect against abusive
debt collection practices likely to disrupt a debtor’s life.”
Cohen v. Rosicki, Rosicki & Assocs., P.C., 897 F.3d 75, 81 (2d
Cir.
2018)
(quotations
and
citation
omitted).
“[W]hether
a
communication complies with the FDCPA is determined from the
perspective of the ‘least sophisticated consumer.’”
Capital
Mgmt.
(citation
Servs.,
omitted).
LP,
“The
918
F.3d
236,
hypothetical
239
Kolbasyuk v.
(2d
least
Cir.
2019)
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.”
Ellis v. Solomon & Solomon,
P.C., 591 F.3d 130, 135 (2d Cir. 2010) (quotations and citation
omitted).
A. Threshold Issues
“A violation under the FDCPA requires that (1) the
plaintiff be a ‘consumer’ who allegedly owes the debt or a person
who has been the object of efforts to collect a consumer debt, (2)
the defendant collecting the debt must be considered a ‘debt
collector,’ and (3) the defendant must have engaged in an act or
omission in violation of the FDCPA’s requirements.”
Felberbaum v.
Mandarich Law Grp., 2022 WL 256507, at *4 (E.D.N.Y. Jan. 27, 2022)
15
(citation omitted).7
FDCPA actions must be commenced within one
year of the allegedly violative act or omission.
15 U.S.C. §
1692k(d).
With respect to the first requirement, “the FDCPA is
triggered when the obligation is a debt arising out of a consumer
transaction.”
Finnegan v. J.P. Morgan Chase, 2022 WL 623357, at
*2 (S.D.N.Y. Mar. 3, 2022) (quoting Polanco v. NCO Portfolio Mgmt.,
Inc., 930 F. Supp. 2d 547, 551 (S.D.N.Y. 2013)); see 15 U.S.C. §
1692a(5).
argument
The court concludes that Defendants have forfeited any
that
this
requirement
is
not
satisfied.
“[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed [forfeited].”
Roberts v.
Capital One, N.A., 719 F. App’x 33, 37 (2d Cir. 2017) (quoting
The court has considered whether Plaintiff has come forward with sufficient
evidence of Article III standing in light of the Supreme Court’s decision in
TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021).
See also Faehner v.
Webcollex, LLC, 2022 WL 500454, at *1 (2d Cir. Feb. 18, 2022) (vacating and
remanding FDCPA case for the plaintiff and district court to address TransUnion
in the first instance).
Here, Plaintiff declares that she has experienced
severe headaches and stomach aches, among other things, due to Defendants’
alleged misconduct. See TransUnion, 141 S. Ct. at 2200 (“If a defendant has
caused physical or monetary injury to the plaintiff, the plaintiff has suffered
a concrete injury in fact under Article III.”); see also, e.g., Benjamin v.
Rosenberg & Assocs., 2021 WL 3784320, at *5-8 (D.D.C. Aug. 26, 2021) (finding
FDCPA claims adequately pleaded based on allegations of headaches and stomach
aches, among other things). Moreover, because the vast majority of Plaintiff’s
claims concern Defendants’ alleged misconduct during the Civil Court action,
Plaintiff’s claims share “a close relationship [with] harms traditionally
recognized as providing a basis for lawsuits in American courts.” TransUnion,
141 S. Ct. at 2204; see also, e.g., Benjamin, 2021 WL 3784320, at *6 (finding
a close relationship with “common-law unjustifiable-litigation torts” (citation
omitted)); Viernes v. DNF Assocs., --- F. Supp. 3d ----, 2022 WL 252467, at *6
(D. Hawaii Jan. 27, 2022) (same, for the tort of “wrongful use of civil
proceedings”).
The court finds that Plaintiff has standing and accordingly
proceeds to the merits.
7
16
Niagara Mohawk Power Corp. v. Hudson River-Black Regulating Dist.,
673 F.3d 84, 107 (2d Cir. 2012)).
This rule has “particular force
where a[] [party] makes an argument only in a footnote.”
(quoting Niagara Mohawk Power Corp., 673 F.3d at 107).
Id.
In a
footnote of their brief, Defendants merely “note[]” that one New
York court has held that condominium debts do not qualify as
consumer debts under the FDCPA, and state that “even if we presume
common charges and assessments qualify as a ‘consumer debt,’
Plaintiff is unable to demonstrate [Defendants] violated FDCPA
requirements.”
(ECF No. 175-42 (“Defs.’ Mem.”) at 6 n.4.)
The
first requirement is thus satisfied by virtue of Defendants’
forfeiture.8
With respect to the second requirement, “[t]he Supreme
Court has made it clear that the FDCPA applies to attorneys
‘regularly’ engaging in debt collection activity, including such
activity in the nature of litigation.”
Goldstein v. Hutton,
Ingram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56, 60 (2d
Cir. 2004) (quoting Heintz v. Jenkins, 514 U.S. 291, 299 (1995)).
Defendants do not dispute that they regularly engage in debt
Even if Defendants had not forfeited this argument, the court would follow
the overwhelming weight of recent authority holding that condominium charges
and assessments are consumer debts subject to the FDCPA. See, e.g., Agrelo v.
Affinity Mgmt. Servs., LLC, 841 F.3d 944, 951 (11th Cir. 2016); Haddad v.
Alexander, Zelmanski, Danner & Fioritto, PLLC, 698 F.3d 290, 294 (6th Cir.
2012); Ladick v. Van Gemert, 146 F.3d 1205, 1206 (10th Cir. 1998); Newman v.
Boehm, Pearlstein & Bright, Ltd., 119 F.3d 477, 481 (7th Cir. 1997).
8
17
collection activities.
(Defs.’ Mem. at 6 n.4.)
Accordingly, the
court will proceed to analyze whether Defendants engaged in any
acts or omissions in violation of the FDCPA’s requirements, taking
Plaintiff’s claims in chronological order.
At the outset, however, the court notes that the vast
majority of Plaintiff’s claims concern Defendants’ conduct during
the Civil Court action.
“[T]he protective purposes of the FDCPA
typically are not implicated ‘when a debtor is instead protected
by the court system and its officers.’”
Gabriele v. Am. Home
Mortg. Servicing, Inc., 503 F. App’x 89, 96 n.1 (2d Cir. 2012)
(quoting Simmons v. Roundup Funding, LLC, 622 F.3d 93, 96 (2d Cir.
2010)). In other words, “the state court’s authority to discipline
will
usually
be
sufficient
to
[Plaintiff] from legitimately
conduct.”
Id.
protect
putative-debtors
like
abusive or harassing litigation
To be sure, the Second Circuit has recognized that
civil litigation in state court offers fewer protections than
litigation in bankruptcy court.
Arias v. Gutman, Mintz, Baker &
Sonnenfeldt LLP, 875 F.3d 128, 137 (2d Cir. 2017).
Nevertheless,
“courts in this Circuit have been reluctant to impose liability
under the FDCPA for statements made . . . during the course of
debt collection litigation.”
Gutman v. Malen & Assocs., P.C., 512
F. Supp. 3d 428, 431 (E.D.N.Y. 2021) (quoting Lautman v. 2800 Coyle
St. Owners Corp., 2014 WL 4843947, at *12 (E.D.N.Y. Sept. 26,
2014)).
18
B. The April 3, 2015 Letter
Plaintiff first claims a violation of 15 U.S.C. § 1692g.
(Am. Compl. ¶ 27.)
The FDCPA generally requires a debt collector
to send a written notice “[w]ithin five days after the initial
communication with a consumer in connection with the collection of
any debt.”
15 U.S.C. § 1692g(a).
The notice must contain:
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days
after receipt of the notice, disputes the validity of the
debt, or any portion thereof, the debt will be assumed to be
valid by the debt collector;
(4) a statement that if the consumer notifies the debt
collector in writing within the thirty-day period that the
debt, or any portion thereof, is disputed, the debt collector
will obtain verification of the debt or a copy of a judgment
against the consumer and a copy of such verification or
judgment will be mailed to the consumer by the debt collector;
and
(5) a statement that, upon the consumer’s written request
within the thirty-day period, the debt collector will provide
the consumer with the name and address of the original
creditor, if different from the current creditor.
Id. § 1692g(a)(1)-(5). However, the debt collector is not required
to include in the notice any information that was provided in its
initial communication with the debtor.
Id. § 1692g(a).
As an initial matter, Plaintiff’s Section 1692g(a) claim
is untimely.
(See Defs.’ Mem. at 6.)
An FDCPA claim must be
brought “within one year from the date on which the violation
occurs.”
an
15 U.S.C. § 1692k(d).
individual
is
injured
by
An FDCPA violation occurs “when
the
alleged
unlawful
conduct.”
Benzemann v. Houslanger & Assocs., PLLC, 924 F.3d 73, 83 (2d Cir.
19
2019).
Here, Plaintiff was allegedly injured in April 2015, when
Defendants allegedly failed to provide the notice required by
Section 1692g(a) in its letter.
Because Plaintiff filed this
action on January 16, 2018, her Section 1692g(a) claim is more
than a year-and-a-half too late.
Throughout her papers, Plaintiff asserts that she is
entitled to equitable tolling.
“The Second Circuit has not
directly addressed whether FDCPA claims can be equitably tolled,
but district courts have applied the equitable tolling doctrine in
FDCPA cases.” Scott v. Greenberg, 2017 WL 1214441, at *7 (E.D.N.Y.
Mar. 31, 2017).
Here, however, Plaintiff’s claim for equitable
tolling is based only on Defendants’ alleged failure to properly
serve her in the Civil Court action in December 2015.
at 13, 19-20.)
(Pl.’s Opp’n
Plaintiffs offers no basis to equitably toll her
Section 1692g(a) claim, which accrued prior to the filing of the
Civil Court action. To the extent Plaintiff argues she is entitled
to equitable tolling because she claims to have never received the
April 3, 2015 letter (see id. at 19), the court respectfully
disagrees. See, e.g., Burke v. U.S. Postal Serv., 2020 WL 9816003,
at *7 (E.D.N.Y. Sept. 28, 2020) (“[N]onreceipt of a properly
addressed . . . letter is not, by itself, an ‘extraordinary
circumstance’ that warrants equitable tolling.”).
In any event, even if Plaintiff’s claim were timely, the
court finds that Defendants were not required to send Plaintiff a
20
separate written notice because all of the information required by
Section
1692g(a)
was
contained
in
Defendants’
initial
communication of April 3, 2015. (Defs.’ Mem. at 8.) Specifically,
Defendants’ April 3, 2015 letter stated that: (1) Plaintiff owed
$5,410.85;
(2)
the
creditor
was
2900
Ocean
Condominium;
(3)
Defendants would assume the debt is valid if Plaintiff failed to
dispute the debt in writing within thirty days; (4) Defendants
would obtain and provide Plaintiff with verification of the debt
if she disputed the debt within thirty days; and (5) Defendants
would provide Plaintiff with the name and address of the original
creditor, if different than the current creditor, upon Plaintiff’s
written request within the thirty-day period.
(ECF No. 175-22 at
3.)
Plaintiff’s only response is to dispute receipt of the
April 3, 2015 letter.
(ECF No. 176-2 (“Makhnevich Decl.”) ¶ 15.)
However, “[i]t is ‘well settled that proof that a letter properly
directed was placed in a post office creates a presumption that it
reached its destination in usual time and was actually received by
the person to whom it was addressed.’”
Trs. of Gen. Building
Laborers’ Local 66 Pension Fund v. J.M.R. Concrete Corp., 2021 WL
6211631, at *8 (E.D.N.Y. Sept. 29, 2021) (quoting Hagner v. United
States, 285 U.S. 427, 430 (1932)).
does not rebut that presumption.”
The “mere denial of receipt
Isaacson v. N.Y. Organ Donor
Network, 405 F. App’x 552, 553 (2d Cir. 2011) (quoting Meckel v.
21
Cont’l Res. Co., 758 F.2d 811, 817 (2d Cir. 1985)); accord Ma v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 597 F.3d 84, 92 (2d
Cir. 2010).
Here, Defendants have put forward sufficient evidence to
give
rise
to
the
presumption
of
mailing
and
receipt.
Mr.
Bougopoulos declares that the Novick Firm caused the April 3, 2015
letter to be sent to Plaintiff at her Brooklyn condominium.
(Bougopoulos Decl. ¶ 26.)
Defendants corroborate this declaration
by including a certificate of mailing and a certified mail receipt
showing that the letter was mailed to Plaintiff at her Brooklyn
condominium on April 6, 2015.
(ECF No. 175-22 at 2.)
See, e.g.,
Wilmington Savings Fund Soc’y v. White, 2019 WL 4014842, at *4
(E.D.N.Y. May 28, 2019) (“A [party] may submit proof of mailing
issued by the United States Postal Service, such as a certified
mailing receipt or a certificate of first-class mailing.”); see
also, e.g., Wells Fargo Bank, N.A. v. Watts, 2019 WL 8325097, at
*4 (E.D.N.Y. Dec. 16, 2019) (collecting cases).
Other than her denial of receipt, Plaintiff attempts to
rebut the presumption of proper mailing by arguing that “USPS has
no record for the tracking number.”
(Makhnevich Decl. ¶¶ 15-18.)
The record in this case includes an undated screenshot from the
Postal Service’s website – submitted by Plaintiff on January 25,
2019 – that shows the tracking number for the April 3, 2015 letter
is “not available.”
(ECF No. 79-5.)
22
However, the court takes
judicial
notice
of
the
Postal
Service’s
“frequently
asked
questions” page that is referenced on the screenshot submitted by
Plaintiff.
See, e.g., Wells Fargo Bank, N.A. v. Wrights Mill
Holdings, LLC, 127 F. Supp. 3d 156, 166 (S.D.N.Y. 2015) (finding
it “clearly proper to take judicial notice” of “documents retrieved
from official government websites”); see also Cangemi v. United
States, 13 F.4th 115, 124 n.4 (2d Cir. 2021).
The Postal Service’s
website explains that tracking records are currently maintained
for a maximum of up to two years.
See U.S. Postal Serv., “How
Long
Tracking?,”
Are
Records
Kept
For
available
at
https://faq.usps.com/s/article/USPS-Tracking-TheBasics#How_can_I_use_USPS_Tracking.
Given
that
Plaintiff’s
undated screenshot was submitted to this court on January 25, 2019
– nearly four years after the April 3, 2015 letter – the court
concludes that the screenshot is insufficient to raise a genuine
dispute as to receipt.
See Isaac v. NRA Grp., LLC, 798 F. App’x
693, 693-94 (2d Cir. 2020) (affirming grant of summary judgment
where the plaintiff failed to raise a genuine factual dispute as
to receipt of initial communication under the FDCPA).
Moreover,
construing the record in favor of the non-moving Plaintiff, the
court finds that if Plaintiff did not receive the April 2015 letter
from Defendants, she could not have been injured as a “least
sophisticated consumer,” and her Section 1692g(a) claim would be,
and is, dismissed.
23
C. The Initiation of the Civil Court Action
Plaintiff alleges that Defendants falsely represented
that they were authorized to proceed with the Civil Court action
by commencing the Civil Court action on November 25, 2015 in the
name of the Board rather than in the name of its president or
treasurer.
(Pl.’s Opp’n at 7, 10-11, 15, 18, 21, 30-31.)9
The
court assumes this claim is timely and construes this claim as
being raised under Section 1692e, which prohibits a debt collector
from using “any false, deceptive, or misleading representation or
means in connection with the collection of any debt.”
15 U.S.C.
§ 1692e.
The Second Circuit has interpreted Section 1692e to
include a materiality requirement.
Cohen, 897 F.3d at 85.
“The
FDCPA was designed to give consumers reliable information so that
they can make informed decisions about how to address debts, and
by definition immaterial information neither contributes to that
objective (if the statement is correct) nor undermines it (if the
The court notes that this claim was not raised in the operative amended
complaint. Although Federal Rule of Civil Procedure 15(b) refers to conforming
the pleadings to the evidence during and after trial, “some courts have applied
Rule 15(b) to conform pleadings to the proof offered at summary judgment.” CIT
Bank, N.A. v. Zisman, 2021 WL 3354047, at *5 (E.D.N.Y. Mar. 1, 2021) (citation
omitted); see also Clomon v. Jackson, 988 F.2d 1314, 1323 (2d Cir. 1993) (“[T]he
undisputed facts as presented on the summary judgment motion served as a basis
to deem the complaint amended to conform with the proof pursuant to Fed. R.
Civ. P. 15(b).”).
Because Defendants have consented by briefing this issue
(see ECF No. 177-11 (“Defs.’ Reply”) at 14 n.10), the court proceeds to consider
whether the filing of the Civil Court action in the name of the Board violated
the FDCPA. See CIT Bank, N.A., 2021 WL 3354047, at *6 (noting that a party may
impliedly consent by failing to object or by briefing the issue).
9
24
statement is incorrect).”
Id. (quotations and citation omitted).
Thus, “a false statement is only actionable under the FDCPA if it
has the potential to affect the decision-making process of the
least sophisticated consumer.”
communications
violate
the
Id. (citation omitted).
FDCPA
when
they
“could
Although
mislead
a
putative-debtor as to the nature and legal status of the underlying
debt,” or “could impede a consumer’s ability to respond to or
dispute collection,” “mere technical falsehoods that mislead no
one are immaterial and consequently not actionable under § 1692e.”
Id. at 86 (quotations and citation omitted).
Plaintiff
appears
to
be
correct
that,
as
an
unincorporated association, the Civil Court action should not have
been commenced in the name of the Board. N.Y. General Associations
Law § 12 (“An action or special proceeding may be maintained[] by
the president or treasurer of an unincorporated association . . .
.”); see also, e.g., Westport Condo. Ass’n v. Mayzel, 2019 WL
274257, at *1 (N.Y. Sup. Ct. App. Term. Jan. 11, 2019) (“Inasmuch
as this action was commenced in the name of an association, it
should have been brought by its treasurer or president, rather
than in the name of the association itself . . . .”).
However,
this mistake is “not a fatal defect”; it is “merely a correctable
error” that can be remedied by amendment.
August Bohl Constr. Co.
v. IUE, AFL-CIO Dist. No. 3, 73 A.D.2d 1023, 1024 (3d Dep’t 1980);
25
see also, e.g., Int’l Bhd. of Teamsters, Local No. 264 v. Nason’s
Delivery, Inc., 2011 WL 3862322, at *6 (W.D.N.Y. Aug. 31, 2011).
As a result, Defendants’ apparent failure to bring the
Civil
Court
action
in
the
name
of
the
Board’s
president
or
treasurer did not affect the “nature and legal status of the
underlying debt,” “impede”
the least sophisticated consumer’s
ability to litigate on the merits, or “undermine[]” a defense in
Civil Court.
Cohen,
897 F.3d at
85-86 (citations
omitted).
Indeed, given that the Second Circuit in Cohen found a similar
kind
of
misidentification
immaterial
–
namely,
the
misidentification of a mortgage servicer as a creditor on a
collection
notice,
897
F.3d
at
85
–
the
court
finds
that
Defendants’ failure to identify the Board’s president or treasurer
as the plaintiff in the Civil Court action was immaterial.
In
short, Defendants’ error embraced a “mere technical falsehood[]
that misle[d] no one.”
Id. at 86 (citation omitted).
If anything,
Defendants’ error contributed to Plaintiff’s efforts to defend
against an adverse judgment in Civil Court.
See, e.g., 2834-2838
Brighton 3rd St. Condo. v. Bazinian, 2020 WL 629764, at *1 (N.Y.
Sup. Ct. App. Term Jan. 31, 2020) (reversing judgment when the
error was not corrected).
D. Alleged Sewer Service
Plaintiff
claims
that
Defendants
engaged
in
“sewer
service” in the Civil Court action in December 2015, i.e., that
26
Defendants failed to serve Plaintiff with the summons and complaint
and filed a false affidavit stating that they had done so to obtain
a default judgment.
21.)
(Am. Compl. ¶¶ 19-23; Pl.’s Opp’n at 13, 17-
Plaintiff is correct that sewer service can violate several
provisions of the FDCPA.
See, e.g., Guzman v. Mel S. Harris &
Assocs., LLC, 2018 WL 1665252, at *9 (S.D.N.Y. Mar. 22, 2018)
(collecting cases finding that sewer service can violate Sections
1692d, e, and f).
It is also true that “[e]quitable tolling is
available where a party does not discover the action exists until
after default judgment is entered due to sewer service.”
Kearney
v. Cavalry Portfolio Servs., LLC, 2014 WL 3778746, at *5 (E.D.N.Y.
July 31, 2014).
Thus, Plaintiff could avoid the operation of the
FDCPA’s one-year statute of limitations based on a valid claim of
sewer service.
However, the court concludes that Plaintiff has
failed to demonstrate a genuine issue of material fact as to
whether sewer service actually occurred.
“In New York, a process server’s sworn statement of
service creates a presumption that service has been effectuated in
the manner described in the affidavit of service which may be
overcome by a sworn denial of receipt of service which specifically
rebuts the statements in the process server’s affidavits.”
Sam v.
Midland Credit Mgmt., Inc., 2021 WL 5772471, at *6 (W.D.N.Y. June
15, 2021) (emphasis added); see also, e.g., Sanchez v. Abderrahman,
2013 WL 8170157, at *7 (E.D.N.Y. July 24, 2013) (“[A]n affidavit
27
of service ‘constitutes a prima facie showing of proper service.’”
(quoting Aurora Loan Servs., LLC v. Gaines, 962 N.Y.S.2d 316, 318
(2d Dep’t 2013))); Picard v. ABC Legal Servs., 2015 WL 3465832, at
*6 (N.D. Cal. June 1, 2015) (applying presumption of service to
FDCPA claim based on alleged sewer service); Long v. Nationwide
Legal File & Serve, Inc., 2013 WL 5219053, at *15 (N.D. Cal. Sept.
17, 2013) (same).
Here, Defendants’ process server effectuated
service pursuant to C.P.L.R. § 308(2) on December 11, 2015.
(ECF
No. 175-27 at 2.)
C.P.L.R. § 308(2) authorizes personal service on an
individual “by delivering the summons within the state to a person
of suitable age and discretion at the . . . dwelling place or usual
place of abode of the person to be served . . . .”
Within twenty
days of this delivery, the serving party must also mail the summons
to the last known residence of the party to be served.
Id.
“[P]roof of service shall identify such person of suitable age and
discretion and state the date, time[,] and place of service . . .
.”
Id.
The affidavit of Defendants’ process server satisfies
these requirements.
December
11,
2015
Specifically, the affidavit states that on
at
12:08
P.M.,
Defendants’
process
server
delivered the summons and complaint to a person of suitable age
and discretion at Plaintiff’s Brooklyn condominium.
27 at 2.)
(ECF No. 175-
The affidavit identifies the person of suitable age and
discretion as a Jane Doe, a white female in her thirties who was
28
between five-foot-four inches and five-foot-eight inches tall,
weighed between 131 and 180 pounds, and had black hair.
(Id.)
Plaintiff has failed to come forward with admissible
evidence that “specifically rebuts” the statements in the process
server’s affidavit.
Sam, 2021 WL 5772471, at *6.
Plaintiff
declares that she “does not fit the description specified in the
affidavit of service.” (Makhnevich Decl. ¶ 12.) But the affidavit
of service does not purport to reflect service on Plaintiff
personally pursuant to C.P.L.R. 308(1); rather, the affidavit
reflects service on a person of suitable age and discretion at
Plaintiff’s usual place of abode pursuant to C.P.L.R. 308(2). See,
e.g., MRS Prop. Invs., Inc. v. Bivona, 2021 WL 1738329, at *3
(E.D.N.Y. May 3, 2021) (“New York State . . . does not require
actual receipt by a party.”).
In her declaration, Plaintiff also
states that the description listed on the affidavit of service
does not match her two daughters, but she does not state that no
person of suitable age and discretion was present in her home on
the date and at the time of service on the process server’s
affidavit.
(Makhnevich Decl. ¶ 12.)
Plaintiff’s daughters are
far from the only people of suitable age and discretion who could
have accepted service at Plaintiff’s home.
See, e.g., D.S. ex
rel. C.S. v. Rochester City Sch. Dist., 2020 WL 7028523, at *7
(W.D.N.Y. Nov. 30, 2020) (“To be of suitable age and discretion,
the
person
must
objectively
29
be
of
sufficient
maturity,
understanding[,] and responsibility under the circumstances so as
to be reasonably likely to convey the summons to the defendant.”
(quotations and citation omitted)); see also, e.g., MRS Prop. Invs.
2021 WL 1738329, at *3 (doorman); Kokolis v. Wallace, --- N.Y.S.3d
----, 2022 WL 468392, at *2 (2d Dep’t Feb. 16, 2022) (relative);
Rattner v. Fessler, --- N.Y.S.3d ----, 2022 WL 468471, at *2 (2d
Dep’t Feb. 16, 2022) (spouse); Nat’l Credit Union Admin. Bd. v.
Ahmed, 155 N.Y.S.3d 306 (Table), 2021 WL 5408151, at *2 (N.Y. Sup.
Ct. Nov. 16, 2021) (nephew); Bank of N.Y. Mellon v. Ziangos, 149
N.Y.S.3d 145, 147 (2d Dep’t 2021) (co-resident).
In light of
Plaintiff’s failure to present evidence that none of the myriad
other persons of suitable age and discretion who could have
received service on her behalf were present in her home on the
date and time listed on the process server’s affidavit, Plaintiff
has failed to come forward with sufficient evidence to allow a
reasonable jury conclude that the affidavit of service was false.
The
Second
Department’s
recent
decision
in
Sperry
Associates Federal Credit Union v. Lee illustrates Plaintiff’s
failure to rebut the presumption of service established by the
process server’s affidavit.
148 N.Y.S.3d 169 (2d Dep’t 2021).
In
that case, the plaintiff served a “John Doe” and “Jane Doe” at the
defendants’ residence pursuant to C.P.L.R. 308(2).
Id. at 171.
In seeking to rebut the presumption of service, the homeowners
“merely asserted that [one of the homeowners] was not at home at
30
the time of the alleged service, and, without substantiation, that
[the other homeowner] did not match one aspect of the description,
provided in the affidavit of service, of the person served.”
The
Appellate
Division
concluded
that
the
affidavits
Id.
“lacked
sufficient detail to rebut the presumption of proper service,”
observing
that
the
homeowners
“failed
to
account
for
the
possibility that the ‘John Doe’ or ‘Jane Doe’ could have been
persons present to accept service as a person of suitable age and
discretion in their home at the time of the alleged service.”
Id.
So too here: even if Plaintiff had substantiated her claim that
the description on the affidavit does not match her daughters –
which she has not – her declaration fails to account for the
possibility that service was effectuated on another person of
suitable age and discretion at Plaintiff’s home.
Accordingly,
because Plaintiff has not adequately rebutted the presumption of
service arising from the process server’s affidavit, she has failed
to demonstrate a genuine issue for trial as to whether Defendants
engaged in sewer service in violation of the FDCPA, even if this
claim were timely or subject to equitable tolling.10
Plaintiff also attaches a screenshot from the website of the New York City
Department of Consumer Affairs stating that on April 1, 2021, a process server
named Devin Harrington failed to comply with an order and was suspended pending
compliance. (ECF No. 176-8 at 2.) The court notes that the license number for
the Devin Harrington listed on the screenshot differs from the license number
for the Devin Harrington listed on the affidavit of service. (Compare ECF No.
175-27 at 2 with ECF No. 176-8 at 2.) But even if both documents refer to the
same Devin Harrington, an unspecified suspension for failing to comply with an
order imposed on April 1, 2021 – more than five years after the service in this
10
31
E. Third Party Communications
The FDCPA generally prohibits a debt collector from
“communicat[ing], in connection with the collection of any debt,
with any person other than the consumer, [her] attorney, a consumer
reporting agency if otherwise permitted by law, the creditor, the
attorney of the creditor, or the attorney of the debt collector.”
15 U.S.C. § 1692c(b).
However, this prohibition does not apply
when a communication is made with “the prior consent of the
consumer given directly to the debt collector, or the express
permission of a court of competent jurisdiction, or as reasonably
necessary to effectuate a postjudgment judicial remedy.”
Id.
Here, Plaintiff alleges that Defendants violated Section 1692c(b)
by communicating with Mr. Schuessler – the man who contacted Mr.
Bougopoulos and informed him that he was Ms. Makhnevich’s attorney
– and her daughters who advised Defendants at the state court that
they were appearing for Plaintiff in connection with the Civil
Court action.
(See Am. Compl. ¶¶ 15, 27; Pl.’s Opp’n at 18, 20,
23-24, 26-27.)11
The court respectfully disagrees.
case – is insufficient to raise a genuine issue with respect to Plaintiff’s
claim of sewer service. Likewise, Plaintiff’s references to debt collection
suits filed against other residents of her condominium – without any evidence
to undermine the propriety of service in those cases – is insufficient to raise
a genuine issue as to the validity of the affidavit of service in this case.
(See ECF No. 176-7.)
11 In presenting her claims of unauthorized third party communications, Plaintiff
invokes 15 U.S.C. § 1692b.
(Am. Compl. ¶¶ 15, 27; Pl.’s Opp’n at 24-25.)
Section 1692b provides an exception to Section 1692c(b)’s prohibition on certain
third party communications when a debt collector communicates with “any person
other than the consumer for the purpose of acquiring location information about
32
First, “the FDCPA’s protections are not triggered by
communications
collector.”
initiated
by
someone
other
than
the
debt
Williams v. Ocwen Loan Servicing, 2020 WL 5757640, at
*9 (E.D.N.Y. Sept. 27, 2020) (quoting Boyd v. J.E. Robert Co.,
2010 WL 5772892, at *13 (E.D.N.Y. Mar. 31, 2010)); see also, e.g.,
Araujo v. PennyMac Loan Servs., LLC, 2015 WL 5664259, at *3
(E.D.N.Y. Sept. 23, 2015); Hawkins-El v. First Am. Funding, LLC,
891 F. Supp. 2d 402, 411 (E.D.N.Y. 2012).
Ms. Makhnevich does not
dispute that Mr. Schuessler initiated communications with Mr.
Bougopoulos and advised him that he represented Ms. Makhnevich in
connection with her debts to the Board.
(Bougopoulos Decl. ¶ 34;
ECF No. 175-31 at 4.) Instead, Ms. Makhnevich’s declaration states
only that she “never retained, met, spoke with, [or] saw ‘Mr.
Schuessler.’”
(Makhnevich Decl. ¶ 26.)
Notably, Ms. Makhnevich
does not deny that she communicated with Mr. Schuessler regarding
her debts to the Board, such as by e-mail or text message, nor
that she authorized Mr. Schuessler to initiate communications with
the consumer . . . .” 15 U.S.C. § 1692b. “Noncompliance with § 1692b is thus
a violation of § 1692c(b), and not an independent violation of the Act.” Morant
v. Miracle Fin., Inc., 2012 WL 4174893, at *3 (E.D.N.Y. Sept. 17, 2012) (citation
omitted). The court thus construes Plaintiff’s claims as being raised under
Section 1692c(b). In any event, the only evidence in the record regarding the
acquisition of Plaintiff’s location information is Mr. Bougopoulos’s
declaration that during the Civil Court action, Plaintiff’s daughter Allison
provided him with a temporary address for “a hospital or other medical facility
Plaintiff was recovering from a medical procedure at.” (Bougopoulos Decl. ¶ 21
n.7.) As discussed below, Allison had a power of attorney for Plaintiff and
Mr. Bougopoulos’s communications with her – location related or otherwise – did
not run afoul of Section 1692c(b).
33
Mr. Bougopoulos.
Thus, the court finds that Mr. Bougopoulos’s
communications with Mr. Schuessler – which were initiated by Mr.
Schuessler – did not run afoul of the FDCPA.12
Second, it is undisputed that Ms. Makhnevich entered
into an agreement granting her daughter Allison a durable power of
attorney.
(Bougopoulos Decl. ¶ 37; Makhnevich Decl. ¶ 19.)
In
its September 26, 2017 order, the Civil Court “accept[ed] the power
of attorney submitted by [Ms. Makhnevich’s] representative.”
No. 181 at 4.)
(ECF
“Section 1692c(b) authorizes a debt collector to
speak to a debtor’s attorney, and it does not distinguish between
an attorney at law and an attorney in fact, i.e., one appointed
pursuant to a power of attorney.”
Robinson v. I.C. Sys., Inc.,
2016 WL 6462278, at *2 (E.D.N.Y. Nov. 1, 2016); see also Martinez
v. I.C. Sys., 2019 WL 1508988, at *3 (E.D.N.Y. Mar. 31, 2019)
(“Importantly,
attorney-at-law
§
1692c(b)
and
an
does
not
distinguish
attorney-in-fact
.
.
.
between
.”);
West
an
v.
Abendroth & Russell Law Firm, 45 F. Supp. 3d 959, 966 (N.D. Iowa
The court has also considered Defendants’ argument that Mr. Bougopoulos’s
communications with Mr. Schuessler were permissible under Section 1692c(b) based
on Mr. Schuessler’s apparent authority to represent Plaintiff. (Defs.’ Mem. at
9.) As a general matter, the court agrees with Defendants that traditional
agency principles can inform the FDCPA’s definition of an attorney. See, e.g.,
Reygadas v. DNF Assocs., LLC, 982 F.3d 1119, 1126 (8th Cir. 2020). However,
apparent authority arises when “a third party reasonably believes the actor has
authority to act on behalf of the principal and that belief is traceable to the
principal’s manifestations.” Restatement (Third) of Agency § 2.03 (emphasis
added).
Because Defendants rely only on Mr. Schuessler’s statements to Mr.
Bougopoulos, rather than any manifestations by Plaintiff, Defendants have failed
to show that the communications were authorized based on Mr. Schuessler’s
apparent authority.
12
34
2014) (holding that a company with a valid power of attorney
“effectively stepped into [Plaintiff’s] shoes . . . and, therefore,
was no longer a third party to the debt communications”).
In light
of the undisputed power of attorney that was accepted by the Civil
Court, and the fact that the FDCPA does not distinguish between
attorneys-at-law
and
attorneys-in-fact,
Defendants’
communications with Allison did not violate Section 1692c(b).13
To the extent that Plaintiff
challenges Defendants’
communications with Allison prior to the execution of the power of
attorney, the court is likewise unpersuaded.
On April 19, 2017,
Allison appeared in Civil Court and obtained an adjournment on
Plaintiff’s behalf.
(Bougopoulos Decl. ¶ 36.)14
The Civil Court
also ordered the parties to attempt to settle the case.
(Id. ¶
Plaintiff also claims that Defendants fraudulently procured Allison’s consent
to enter into the September 26, 2017 order.
(See Pl.’s Opp’n at 7-8.)
In
addition to the fact that it was not raised in the operative amended complaint,
the court rejects this claim as being based on Plaintiff’s apparent
misunderstanding of the Civil Court’s September 26, 2017 order.
The Civil
Court’s order granted relief sought by Ms. Makhnevich, i.e., vacating her
default and permitting her to file a late answer. (ECF No. 181 at 4.) It was
thus the Board who consented to the request to vacate the default, not Ms.
Makhnevich or her representatives.
There is no evidence in the record to
suggest that the Novick Firm demanded that Ms. Makhnevich waive jurisdictional
defenses in exchange for consent to vacate the default, as opposed to being
imposed by the Civil Court in recognition of Ms. Makhnevich appearing by her
daughter Allison and being permitted to file a late answer. Even if there was
such evidence, it is a far cry from an unfair debt collection practice to
request that a debtor waive a defense to personal jurisdiction in exchange for
consenting to vacate the debtor’s default and permitting the debtor to litigate
on the merits.
14 In her declaration, Plaintiff states that “[u]pon information and belief,
Allison did not go to Court on that day.” (Makhnevich Decl. ¶ 21.) Unlike
Defendant Bougopoulos, however, there is no evidence in the record that
Plaintiff appeared in Civil Court on April 19, 2017, and thus Plaintiff lacks
personal knowledge of whether Allison appeared.
13
35
36.)
Thus,
even
assuming
Allison
could
not
be
considered
Plaintiff’s “attorney” under the FDCPA prior to the execution of
the power of attorney, Defendants had the “express permission of
a court of competent jurisdiction” to communicate with Allison.
15 U.S.C. § 1692c(b); see also “Adjournments,” N.Y.C. Civ. Ct.
(“If it is an emergency and you cannot appear yourself to request
the adjournment, but wish to send someone on your behalf, you must
give that person written authorization to make the request for
you.”),
available
at
https://www.nycourts.gov/courts/nyc/civil/adjournments.shtml.
Third, it is undisputed that Diana Goldman also appeared
in Civil Court on Ms. Makhnevich’s behalf.
37; see Makhnevich Decl. ¶ 27.)
(Bougopoulos Decl. ¶
In its September 26, 2017 order,
the Civil Court directed the Novick Firm and Mr. Bougopoulos to
“file
and
serve
an
amended
Makhnevich’s]
summons
¶ 37.)
complaint
representative
consultingservices2020@email.com,”
provided by Diana Goldman.
and
which
was
on
[Ms.
at:
an
email
address
(ECF No. 181 at 4; Bougopoulos Decl.
Thus, the Civil Court’s September 26, 2017 order indicated
that it viewed Diana as Ms. Makhnevich’s “representative” (ECF No.
181 at 4), despite the fact that Diana – unlike Allison – did not
have a power of attorney.
See Bible v. Allied Interstate, Inc.,
2001 WL 1618494, at *3 (D. Minn. May 14, 2001) (granting summary
judgment on Section 1692c(b) claim where the plaintiff’s husband
36
“represented himself as the administrator of [the plaintiff’s]
affairs”).
Under New York law, the Civil Court “may permit, upon
the request of a party, that a non-attorney representative, who is
related by consanguinity or affinity to such party, be allowed to
appear on behalf of such party when the court finds that due to
the age, mental[,] or physical capacity or other disability of
such party that it is in the interests of justice to permit such
representation.”
N.Y.C. Civ. Ct. Act, § 1815.
Thus, the Civil
Court necessarily granted express permission to Defendants to
communicate with Diana by permitting her to appear as Plaintiff’s
non-attorney representative, even if Diana could not be considered
an attorney within the meaning of Section 1692c(b).
The Supreme Court’s decision in Heintz reinforces the
court’s
conclusion
Schuessler
and
that
Defendants’
Plaintiff’s
daughters
communications
did
not
with
violate
Mr.
Section
1692c(b). As mentioned above, the Heintz Court held that the FDCPA
“applies to the litigating activities of lawyers.”
294.
514 U.S. at
However, the Court acknowledged in dicta that applying the
FDCPA to litigation activities could result in “anomalies.”
at 296.
Section
Id.
For example, the Court considered another subsection of
1692c
collector’
not
–
Section
to
1692c(c)
‘communicate
–
which
further’
“requires
with
a
a
‘debt
consumer
who
‘notifies’ the ‘debt collector’ that he or she ‘refuses to pay’ or
wishes the debt collector to ‘cease further communication.’”
37
Id.
(quoting 15 U.S.C. § 1692c(c)).
In light of this prohibition, the
Court questioned whether an attorney could “file a lawsuit against
(and thereby communicate with) a nonconsenting consumer or file a
motion for summary judgment against that consumer.”
Ultimately,
the
Court
concluded
that
Id.
“it
is
not
necessary to read § 1692c(c)” in a way that would prohibit the
filing of a lawsuit or a motion for summary judgment. Id. Instead,
the
Court
read
Section
1692c(c)
to
contain
an
“additional,
implicit[] exception” that authorizes “the actual invocation of
the remedy that the collector ‘intends to invoke.’”
97
(quoting
15
U.S.C.
§
1692c(c)(3)).
In
Id. at 296-
reaching
this
determination, the Court observed that “it would be odd if the Act
empowered
a
debt-owing
consumer
to
stop
the
‘communications’
inherent in an ordinary lawsuit and thereby cause an ordinary debtcollecting lawsuit to grind to a halt.”
also
noted
that
its
interpretation
was
Id. at 296.
“consistent
The Court
with
the
statute’s apparent objective of preserving creditors’ judicial
remedies.”
Id.
Following
Heintz, lower courts have avoided reading
Section 1692c in a manner that would prohibit the communications
inherent
in
an
ordinary
lawsuit.
For
example,
in
a
recent
unpublished decision, the Second Circuit cited Heintz in applying
Section 1692c(b), the subsection at issue in this case.
Johnson-
Gellineau v. Stiene & Associates, P.C., 837 F. App’x 8, 11 (2d
38
Cir. 2020).
In Johnson-Gellineau, the plaintiff claimed that
attorneys violated Section 1692c(b) by “communicating with the
Dutchess County clerk in connection with foreclosure proceedings.”
Id.
In affirming the dismissal of this claim, the Second Circuit
relied on Heintz’s statement that “it would be odd if the Act
empowered
a
debt-owing
consumer
to
stop
the
‘communications’
inherent in an ordinary lawsuit and thereby cause an ordinary debtcollecting lawsuit to grind to a halt.”
U.S. at 296).
Id. (quoting Heintz, 514
Similar to Heintz and Johnson-Gellineau, the court
declines to read Section 1692c in a manner that would countenance
the absurd results of prohibiting an attorney debt collector from
communicating in connection with a pending court proceeding with
(1) an attorney who contacts the debt collector and states that he
represents the debtor, or (2) relatives of the debtor who have
appeared in court and litigated on the debtor’s behalf.
See also
Jerman v. Carlisle, McNeillie, Rini, Kramer & Ulrich LPA, 559 U.S.
573, 600 (2010) (stating that the FDCPA “should not be assumed to
compel absurd results when applied to debt collecting attorneys”).
In
sum,
the
court
concludes
that
Defendants’
communications with Mr. Schuessler and Plaintiff’s daughters did
not violate Section 1692c(b).
However, even if some of the
communications could be said to violate a literal reading of
Section 1692c(b), the court would construe the statute to avoid
the absurd results of prohibiting the communications at issue in
39
this case.
Defendants are thus entitled to summary judgment on
Plaintiff’s Section 1692c(b) claims.
F. The February 13, 2018 Letter
Plaintiff
raises
two
distinct
Defendants’ February 13, 2018 letter.
claims
regarding
First, Plaintiff asserts
that the letter violated the FDCPA by “fail[ing] to disclose . .
. that the communication is from a debt collector.”
1692e(11).
15 U.S.C. §
In its motion, Defendants contend that the February
13, 2018 letter was not made “in connection with the collection of
a debt” under Section 1692e.
(Defs.’ Mem. at 12.)
The Second
Circuit rejected a similar argument in Cohen, however, holding
that “a foreclosure action is an ‘attempt to collect a debt’ as
defined by the FDCPA.”
897 F.3d at 82.
Cohen reasoned that “every
mortgage foreclosure, judicial or otherwise, is undertaken for the
very purpose of obtaining payment on the underlying debt . . . .”
Id. at 83 (citation omitted).
That reasoning applies here because
the very purpose of the Civil Court action was to obtain payment
on Plaintiff’s underlying debts.
Thus, just as Cohen held that
Section 1692e applied to a foreclosure action and foreclosure
filings – including a complaint, summons, certificate of merit,
40
and request for judicial intervention – Section 1692e applies to
the February 13, 2018 letter.
Id.15
Nevertheless, the court finds that the February 13, 2018
letter did not violate Section 1692e(11) based on Defendants’
failure to specifically invoke the statutory language that the
Novick Firm was a “debt collector.”
As an initial matter, to the
extent Defendants were responding to Plaintiff’s motion to dismiss
in the Civil Court action, the February 13, 2018 letter was
responding to a communication initiated by the consumer.
See,
e.g., Williams, 2020 WL 5757640, at *9 (“[T]he FDCPA’s protections
are not triggered by communications initiated by someone other
than the debt collector.” (citation omitted)). In addition, “there
simply is no requirement that the letter quote verbatim the
language of the statute.”
Foti v. NCO Fin. Sys., Inc., 424 F.
Supp. 2d 643, 668 (S.D.N.Y. 2006) (quoting Emanuel v. Am. Credit
Exch., 870 F.2d 805, 808 (2d Cir. 1989)).
In Bank v. Cooper,
It is true that the February 13, 2018 letter lacks many of the characteristics
identified by the Second Circuit in Hart v. FCI Lender Services, Inc., as
relevant to determining whether a communication was made in connection with an
attempt to collect a debt. 797 F.3d 219, 226 (2d Cir. 2015); see Carlin v.
Davidson Fink LLP, 852 F.3d 207, 215 (2d Cir. 2017) (“In Hart, [the Second
Circuit] determined that the letter in question was unambiguously sent in
connection with the collection of a debt because: (1) the letter directed the
recipient to mail payments to a specified address, (2) the letter referred to
the FDCPA by name, (3) the letter informed the recipient that he had to dispute
the debt’s validity within thirty days, and (4) most importantly, the letter
emphatically announced itself as an attempt at debt collection: THIS IS AN
ATTEMPT TO COLLECT UPON A DEBT, AND ANY INFORMATION OBTAINED WILL BE USED FOR
THAT PURPOSE.” (quotations and citation omitted)); see also Collazo v. Resurgent
Capital Servs., L.P., 443 F. Supp. 3d 398, 404-05 (W.D.N.Y. 2020) (dismissing
claims based on an absence of the four Hart factors).
However, the court
considers Cohen to be the more directly relevant precedent.
15
41
Paroff, Cooper & Cook, for example, the debtor received two letters
with the same date, from the same law firm, that demanded the same
sum.
356 F. App’x 509, 511 (2d Cir. 2009).
The Second Circuit
rejected the argument that one of the letters violated Section
1692e(11) for failing to expressly state that the letter was from
a debt collector, concluding that even the least sophisticated
consumer would understand as much. Id.; see also, e.g., Majerowitz
v. Stephen Einsten & Assocs., 2013 WL 4432240, at *3 (E.D.N.Y.
Aug. 15, 2013) (“There was no requirement that defendant repeatedly
add after its name what plaintiff surely knew, that it was a debt
collector.”).
By the time of the February 13, 2018 letter,
Plaintiff
her
and
daughters
had
been
actively
embroiled
in
litigation with Defendants for nearly a year, and had recently
filed a motion to dismiss the Civil Court action.
Moreover,
Plaintiff had already filed the instant federal lawsuit claiming
that Defendants were debt collectors under the FDCPA.
Even the
least sophisticated consumer would understand that the February
13, 2018 letter from opposing counsel in her Civil Court action,
which references the caption and discusses the procedural history
of that action, was from a debt collector.16
The court recognizes that Section 1692e(11) also contains an exception for
“formal pleading[s] made in connection with a legal action.” 15 U.S.C. §
1692e(11).
The Second Circuit has broadly interpreted Section 1692e(11)’s
exception to apply to “any communication forming any part of a pleading.”
Cohen, 897 F.3d at 88 (citation omitted). Unlike some courts, however, courts
in this circuit have declined to read Section 1692e(11)’s exception in a manner
16
42
Second, Plaintiff claims that the letter “threat[ened]
to take an[] action that cannot legally be taken” by informing
Plaintiff that Defendants would seek sanctions or attorney’s fees
if Plaintiff did not withdraw her third motion to stay or dismiss
the Civil Court action.
at 25-26.)
15 U.S.C. § 1692e(5).
(See Pl.’s Opp’n
But New York law expressly authorizes parties to seek
sanctions and attorney’s fees during the course of litigation.
See, e.g., N.Y. C.R.R. § 130-1.1(a) (“The court, in its discretion,
may
award
to
any
party
or
attorney
in
any
civil
action
or
proceeding before the court, except where prohibited by law, costs
in
the
form
of
reimbursement
for
actual
expenses
reasonably
incurred and reasonable attorney’s fees, resulting from frivolous
conduct as defined in this Part.”).
Although Plaintiff asserts that Defendants had no basis
to threaten a motion for sanctions or costs, the court respectfully
disagrees.
Conduct is frivolous when “it is undertaken primarily
to delay or prolong the resolution of the litigation . . . .”
§ 130-1.1(c)(2).
Id.
And here, Plaintiff filed three motions in the
Civil Court action that sought essentially the same relief –
namely, to stop the progress of the Civil Court action based on
that would reach other litigation documents that do not fall within a common
understanding of a “formal pleading.” See, e.g., Somerset v. Stephen Eisenstein
& Assocs., P.C., 351 F. Supp. 3d 201, 211-12 (E.D.N.Y. 2019).
This issue
largely arises in the context of initial communications, which are not relevant
to Plaintiff’s claim and require additional disclosures.
See 15 U.S.C. §
1692e(11).
43
the existence of the instant federal action.
4.)
(ECF No. 175-35 at
New York courts have affirmed the award of sanctions based on
similar conduct.
See, e.g., Ofman v. Campos, 12 A.D.3d 581, 582
(2d Dep’t 2005) (affirming award of sanctions for unnecessarily
prolonging
motions
litigation
seeking,
in
when
the
essence,
party
the
“made
same
three
consecutive
relief”).
Moreover,
Plaintiff’s efforts to halt the Civil Court action were meritless.
As the Civil Court explained in its order denying Plaintiff’s third
motion, New York law authorizes the dismissal of an action based
on a previously filed action involving the same subject matter.
(ECF No. 175-35 at 4-5.) The instant FDCPA action does not involve
the same subject matter as the Civil Court action and was filed
after the Civil Court action.17
G. Plaintiff’s Other Claims
Finally, Plaintiff raises a host of other claims that
she has either abandoned, failed to support with any admissible
evidence, or that are otherwise meritless.
Challenges to the Validity of the Debt.
In its July 9,
2019 memorandum and order, the court cautioned Plaintiff that she
To the extent Plaintiff also challenges Mr. Bougopoulos’s April 19, 2017
statement to Allison that the Board would seek to recover common charges,
assessments, and attorney’s fees if the case did not settle (Bougopoulos Decl.
¶ 36), the court rejects Plaintiff’s Section 1692e(5) claim for substantially
the same reasons.
As reflected by the Civil Court judgment, the Board was
entitled to recover the common charges, assessments, and attorney’s fees under
its agreement with Plaintiff.
17
44
would not be able to prevail “on any claims that would undermine
the state court’s determination that the common charges were
legitimate.”
(ECF No. 86 at 18-19.)
Instead, Plaintiff would
need to show that Defendants “violated the law by the manner in
which they engaged in debt collection or on a basis other than one
that disputes the legitimacy of the charges as found by the state
court.”
(Id. at 19.)
In her 56.1 statement, Plaintiff represents
that she “will not argue or dispute the charges at this juncture
(beyond the fraudulent late fees that the Civil Court completely
denied).”
(ECF No. 176-22 at 2.)
The court accordingly deems
Plaintiff to have abandoned any claim attacking the validity of
the Civil Court judgment, including any claim that Defendants made
a false, deceptive, or misleading representation in violation of
Section 1692e, or attempted to collect unauthorized amounts in
violation of Section 1692f(1).
With respect to the late fees that Plaintiff continues
to dispute, it is true that, although Defendants prevailed in the
Civil Court action, Defendants “did not prevail on the issue of
late fees.”
(ECF No. 175-37 at 2.)
However, the court “do[es]
not see how the fact that a lawsuit turns out ultimately to be
unsuccessful could, by itself, make the bringing of it an ‘action
that cannot legally be taken.’”
Heintz, 514 U.S. at 296; see also,
e.g., Hackett v. Midland Funding LLC, 2019 WL 1902750, at *2
(W.D.N.Y. Apr. 29, 2019) (holding that the filing of a collection
45
case “without the immediate means of proving ownership of the debt
and then losing the case” did not violate the FDCPA); Hill v.
Accounts Receivable Servs., LLC, 888 F.3d 343, 346 (8th Cir. 2018)
(“[A] debt collector’s loss of a collection action – standing alone
– does not establish a violation of the Act.”).
Here, the only
evidence offered by Plaintiff is that the jury ultimately declined
to award late fees.
That fact, standing alone, is insufficient to
survive summary judgment.
Section 1692d.
Section 1692d provides that “[a] debt
collector may not engage in any conduct the natural consequence of
which is to harass, oppress, or abuse any person in connection
with the collection of a debt.”
15 U.S.C. § 1692d.
“The statute’s
examples of qualifying acts all involve oppressive and outrageous
conduct – that is, extrajudicial techniques of harassment designed
to humiliate or annoy a debtor.” Finch v. Slochowsky & Slochowsky,
LLP, 2020 WL 5848616, at *3 (E.D.N.Y. Sept. 30, 2020) (quotations
and citations omitted).
“Under the principle of noscitur a sociis
– that statutory words are often known by the company they keep –
the statutory examples counsel against reading Section 1692d to
reach to the dissimilar category of situations involving improper
litigation conduct.”
Id. (quotations and citations omitted).
Accordingly, in addition to rejecting any claim under Section 1692d
for the reasons explained above, the court declines to extend
46
Section 1692d to reach the alleged litigation misconduct in the
Civil Court action here.
Section 1692f.
Section 1692f prohibits a debt collector
from using “unfair or unconscionable means to collect or attempt
to collect any debt.”
15 U.S.C. § 1692f.
This provision “is aimed
at practices that give the debt collector an unfair advantage over
the debtor or are inherently abusive.”
Wagner v. Chiari & Ilecki,
LLP, 973 F.3d 154, 166 (2d Cir. 2020) (citation omitted). Although
Section 1692f and other provisions of the FDCPA are not “mutually
exclusive,” Arias, 875 F.3d at 135, here Plaintiff fails to
“identify
any
misconduct
beyond
that
which
violate[s] other provisions of the FDCPA.”
[she]
assert[s]
Scaturro v. Northland
Grp., Inc., 2017 WL 415900, at *4 (E.D.N.Y. Jan. 9, 2017) (citation
omitted).
In any event, having reviewed the record, the court
concludes that Plaintiff has failed to come forward with sufficient
evidence for a reasonable jury to find that Defendants used any
unfair or unconscionable means to collect her debts to the Board.18
Similarly, the court finds that Plaintiff has failed to come forward with
admissible evidence to create a genuine issue for trial to the extent she
presses FDCPA claims based on conclusory allegations regarding: (1) the alleged
appearance in Civil Court of Bryant Tovar, a defendant with whom Plaintiff has
settled; (2) Defendants’ alleged failure to adequately verify the debt prior to
filing suit; or (3) Defendants’ alleged misrepresentations to the Civil Court
regarding Plaintiff’s service of certain documents. (See Am. Compl. ¶ 23; Pl.’s
Opp’n at 8 n.1, 28.)
18
47
II.
New York General Business Law Claims
Plaintiff also asserts claims against Defendants under
section 349 of New York’s General Business Law.
(Am. Compl. ¶¶
41-45.) Having granted Defendants’ motion as to all of Plaintiff’s
FDCPA
claims,
jurisdiction
1367(c)(3).
are
the
over
court
her
declines
section
349
to
exercise
claims.
See
supplemental
28
U.S.C.
§
“In the ‘usual case’ in which ‘all federal-law claims
eliminated
before
trial,
the
balance
of
factors
to
be
considered under the pendent jurisdiction doctrine – judicial
economy, convenience, fairness, and comity – will point toward
declining to exercise jurisdiction over the remaining state-law
claims.’”
Krow v. Pinebridge Invs. Holdings U.S. LLC, 2022 WL
836916, at *15 (S.D.N.Y. Mar. 21, 2022) (quoting Valencia ex rel.
Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003)).
The court
accordingly dismisses Plaintiff’s claims under section 349 of New
York General Business law without prejudice.
48
CONCLUSION
For
the
foregoing
reasons,
Defendants’
summary judgment is GRANTED as to the FDCPA claims.
motion
for
Plaintiff’s
claims under section 349 of New York General Business Law are
DISMISSED without prejudice.
The Clerk of Court is respectfully
directed to enter judgment accordingly, serve a copy of this
memorandum and order and the judgment on Plaintiff, and close this
case.
SO ORDERED.
/s/ Kiyo A. Matsumoto_______
Hon. Kiyo A. Matsumoto
United States District Judge
Eastern District of New York
Dated:
March 29, 2022
Brooklyn, New York
49
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