Rosenberg v. McCarthy, Burgess & Wolff, Inc.
MEMORANDUM & ORDER granting 15 Motion to Dismiss for Failure to State a Claim. For the reasons discussed in the attached Memorandum & Order, the Court grants Defendant's motion and dismisses the Amended Complaint without prejudice for lack of subject matter jurisdiction. The Clerk of Court is respectfully directed to close this case. Ordered by Chief Judge Margo K. Brodie on 8/1/2022. (Bacchi, Joseph)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------NAFTALI ROSENBERG, individually and on
behalf of all others similarly situated,
MEMORANDUM & ORDER
MCCARTHY, BURGESS & WOLFF, INC.,
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Naftali Rosenberg, individually and on behalf of all others similarly situated,
commenced the above-captioned putative class action against Defendant McCarthy, Burgess &
Wolff, Inc. on April 21, 2021, alleging that Defendant violated the Fair Debt Collection Practices
Act, 15 U.S.C. § 1692 et seq. (the “FDCPA”) by sending Plaintiff a debt collection letter seeking
$103.60 in unauthorized fees and other charges, thus misrepresenting the amount of Plaintiff’s
debt. (Compl. ¶¶ 27–30, Docket Entry No. 1.) Defendant moves to dismiss the Amended
Complaint for lack of standing and failure to state a claim pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure, and Plaintiff opposes the motion. 1
For the reasons set forth below, the Court grants Defendant’s motion and dismisses the
Amended Complaint without prejudice for lack of subject matter jurisdiction.
(Am. Compl., Docket Entry No. 12; Def.’s Mot. to Dismiss (“Def.’s Mot.”), Docket
Entry No. 15; Def.’s Mem. in Supp. of Def.’s Mot. (“Def.’s Mem.”), Docket Entry No. 15-1;
Pl.’s Opp’n to Def.’s Mot. (“Pl.’s Opp’n”), Docket Entry No. 17; Def.’s Reply Mem. in Supp. of
Def.’s Mot. (“Def.’s Reply”), Docket Entry No. 18.)
Plaintiff is a New York State resident and a “consumer” as defined by the FDCPA. 2
(Am. Compl. ¶¶ 7, 24.) Defendant is a debt collection company and a “debt collector” as defined
by the FDCPA. (Id. ¶¶ 8–9, 22, 26.)
Prior to June 19, 2020, Plaintiff incurred a debt obligation to Verizon Wireless
(“Verizon”) from “a mobile telephone debt” incurred for “personal, household or family
purposes.” (Id. ¶¶ 20, 23.) Plaintiff alleges the debt obligation is “consumer-related” and
therefore a “debt” as defined by the FDCPA. (Id. ¶ 25.) Verizon initially contracted with MRS
BPO, L.L.C. d/b/a MRS Associates (“MRS”) to collect the debt. (Id. ¶¶ 21–22.) On May 1,
2020, MRS “sent Plaintiff a collection letter” seeking a balance of $575.56, plus $57.55 in
“Verizon Collection Fees,” for a total of $633.11. (Id. ¶¶ 30–31; MRS Letter dated May 1, 2020,
annexed to Am. Compl. as Ex. B., Docket Entry No. 12-2.) Verizon later contracted with
Defendant to collect the debt. (Am. Compl. ¶¶ 21–22.) Although the “express terms of the
governing contract only allow for one application of a collection fee,” Defendant sent Plaintiff a
separate collection letter (the “Collection Letter”) seeking the same balance of $575.56, plus the
new amount of $103.60 in “[f]ees and other charges,” for a total of $679.16. (Id. ¶¶ 27–29, 32;
Collection Letter dated June 19, 2020, annexed to Am. Compl. as Ex. A, Docket Entry No. 121.)
Plaintiff alleges that Defendant “seeks to collect an amount that misrepresents the debt”
because Defendant “was not expressly authorized by the agreement” between Plaintiff and
Verizon or permitted by law to charge $103.60 in “excessive” fees. (Am. Compl. ¶¶ 34–37.) In
The Court assumes the truth of the factual allegations in the Amended Complaint for
the purposes of this Memorandum and Order.
addition, Plaintiff alleges that while “thes[e] fees are defined as ‘Verizon Collection Fees,’” this
amount “has not been spent on collection,” as Defendant sent “only one letter,” causing Plaintiff
confusion “as to the amount of the account balance” and thus “an informational injury” that has
“damaged” Plaintiff. (Id. ¶¶ 38–43.)
Plaintiff alleges that Defendant (1) “falsely represent[ed] the true amount of the debt” in
violation of 15 U.S.C. § 1692(e)(2)(A); (2) made “a false and deceptive representation” in
violation of 15 U.S.C. § 1692e(10); (3) sought to collect $103.60 in “fees or other charges” that
are “not expressly authorized” by Plaintiff’s agreement with Verizon “or permitted by law” in
violation of 15 U.S.C. § 1692f(1); and (4) falsely represented “the true amount of the debt” in
violation of 15 U.S.C. § 1692g(a)(1). (Id. ¶¶ 47, 52, 57.) Plaintiff seeks statutory damages,
actual damages, costs, and attorneys’ fees. (Id. at 11.)
Standards of review
A district court may dismiss an action for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1) of the Federal Rules of Civil Procedure when the court “lacks the statutory or
constitutional power to adjudicate it.” Huntress v. United States, 810 F. App’x 74, 75 (2d Cir.
2020) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)); Cortlandt St.
Recovery Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 416–17 (2d Cir. 2015) (quoting
Makarova, 201 F.3d at 113); Shabaj v. Holder, 718 F.3d 48, 50 (2d Cir. 2013) (per curiam)
(quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005)).
“‘[C]ourt[s] must take all facts alleged in the complaint as true and draw all reasonable
inferences in favor of [the] plaintiff,’ but ‘jurisdiction must be shown affirmatively, and that
showing is not made by drawing from the pleadings inferences favorable to the party asserting
it.’” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citation omitted) (first
quoting Nat. Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006); and then quoting
APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003)), aff’d, 561 U.S. 247 (2010). Ultimately, “the
party asserting subject matter jurisdiction ‘has the burden of proving by a preponderance of the
evidence that it exists.’” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239,
243 (2d Cir. 2014) (quoting Makarova, 201 F.3d at 113); see also Suarez v. Mosaic Sales Sols.
US Operating Co., 720 F. App’x 52, 53 (2d Cir. 2018) (citing Morrison, 547 F.3d at 170);
Clayton v. United States, No. 18-CV-5867, 2020 WL 1545542, at *3 (E.D.N.Y. Mar. 31, 2020)
(quoting Tandon, 752 F.3d at 243); Fed. Deposit Ins. Corp. v. Bank of N.Y. Mellon, 369 F. Supp.
3d 547, 552 (S.D.N.Y. 2019) (quoting Tandon, 752 F.3d at 243).
In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a court must construe the complaint liberally, “accepting all factual allegations
therein as true and drawing all reasonable inferences in the plaintiffs’ favor.” Sacerdote v.
N.Y.U., 9 F.4th 95, 106–107 (2d Cir. 2021); Vaughn v. Phoenix House N.Y. Inc., 957 F.3d 141,
145 (2d Cir. 2020). A complaint must plead “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); Bacon v. Phelps,
961 F.3d 533, 540 (2d Cir. 2020) (quoting Twombly, 550 U.S. at 570). A claim is plausible
“when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63
(2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); Cavello Bay Reinsurance
Ltd. v. Shubin Stein, 986 F.3d 161, 165 (2d Cir. 2021) (quoting Iqbal, 556 U.S. at 678).
Although all allegations contained in the Amended Complaint are assumed to be true, this tenet
is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678; Vaughn, 957 F.3d at 145 (same).
Defendant argues that the Court should dismiss the Amended Complaint for lack of
subject matter jurisdiction because, under the Supreme Court’s recent holding in TransUnion
LLC v. Ramirez, --- U.S. ---, ---, 141 S. Ct. 2190, 2203 (June 25, 2021), Plaintiff has failed “to
articulate a particularized concrete harm necessary to establish Article III standing.” (Def.’s
Mem. 9–16.) In addition, Defendant argues that the fact that Plaintiff “may be obligated to
engage in protracted litigation to free himself from the obligation to pay Verizon’s collection
fee” does not establish standing because “Plaintiff has asserted no intention of paying the debt”
and “this is an assertion of a potential risk of future harm.” (Def.’s Reply 7 n.2.)
Plaintiff argues that recent cases confirm that 15 U.S.C. §§ 1692e and 1692f “confer
substantive rights the violation of which, in and of itself, constitutes concrete harm under Article
III.”3 (Pl.’s Opp’n 6–12.) In addition, Plaintiff argues that “Defendant wrongfully imposed
additional collection charges by referring the debt to two different collection agencies, thereby
triggering the collection fee provision in the agreement at issue,” and the “liabilities imposed”
due to Defendant’s wrongful conduct also give rise to standing. (Id. at 13–14.)
“‘Standing to sue is a doctrine’ that ‘limits the category of litigants empowered to
maintain a lawsuit in federal court to seek redress for a legal wrong.’” Liberian Cmty. Ass’n of
Conn. v. Lamont, 970 F.3d 174, 183–84 (2d Cir. 2020) (quoting Spokeo, Inc. v. Robins, 578 U.S.
330, 338 (2016)). In order to show standing, a plaintiff must establish three things: (1) an “injury
in fact — an invasion of a legally protected interest which is . . . concrete and particularized
Plaintiff does not argue that he has standing under 15 U.S.C. § 1692g(a).
and . . . actual or imminent, not conjectural or hypothetical,” (2) “a causal connection between
the injury and the conduct complained of,” and (3) redressability of the injury “by a favorable
decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (internal citations and
quotation marks omitted); see also Harty v. W. Point Realty, Inc., 28 F.4th 435, 442 (2d Cir.
2022) (same); Pincus v. Nat’l R.R. Passenger Corp., 581 F. App’x 88, 89 (2d Cir. 2014) (quoting
Lujan, 504 U.S. at 560–65) (describing the three elements of standing); Cacchillo v. Insmed,
Inc., 638 F.3d 401, 404 (2d Cir. 2011) (“[A] plaintiff must show the three familiar elements of
standing: injury in fact, causation, and redressability.” (citing Summers v. Earth Island Inst., 555
U.S. 488 (2009))). “An injury in fact must be ‘particularized,’ and it must be ‘concrete.’” Harty,
28 F.4th at 442 (quoting Spokeo, Inc., 578 U.S. at 340). “[S]tanding is required for subject
matter jurisdiction.” James v. Willis, No. 21-501, 2022 WL 481812, at *1 (2d Cir. Feb. 17,
2022) (citing Strubel v. Comenity Bank, 842 F.3d 181, 187 (2d Cir. 2016)). “If plaintiffs lack
Article III standing, a court has no subject matter jurisdiction to hear their claim.” Mahon v.
Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012) (quoting Cent. States Se. & Sw. Areas Health
& Welfare Fund v. Merck–Medco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005)); see
Otrompke v. The First Dep’t Comm. on Character & Fitness, No. 20-4107, 2021 WL 5764221,
at *1 (2d Cir. Dec. 6, 2021) (“A district court lacks jurisdiction ‘when . . . the plaintiff lacks
constitutional standing to bring the action.’” (quoting Cortlandt St. Recovery Corp., 790 F.3d at
The Court dismisses the Amended Complaint for lack of subject matter jurisdiction
because Plaintiff has failed to allege an injury in fact sufficient to confer standing. Plaintiff
argues that Defendant violated FDCPA provisions that “confer substantive rights the violation of
which, in and of itself, constitutes concrete harm under Article III.” (Pl.’s Opp’n 6–12.)
However, as Defendant argues, the Supreme Court’s decision in TransUnion forecloses this
argument. In TransUnion, the Supreme Court clarified that it has “rejected the proposition that
‘a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a
person a statutory right and purports to authorize that person to sue to vindicate that right.’”
TransUnion LLC, --- U.S. at ---, 141 S. Ct. at 2205 (quoting Spokeo, 578 U.S. at 341). Rather,
“Article III standing requires a concrete injury even in the context of a statutory violation.” Id.
(quoting Spokeo, 578 U.S. at 341).
Plaintiff argues that recent decisions confirm that FDCPA §§ 1692e and 1692f confer
substantive rather than procedural rights, the violation of which confers standing. In support,
Plaintiff first cites pre-TransUnion cases in which courts analyzing standing under the FDCPA
reached this conclusion. (See Pl.’s Opp’n 6–8.) However, in view of TransUnion, Plaintiff’s
reliance on pre-TransUnion decisions is unpersuasive. Plaintiff next cites Maddox v. Bank of
N.Y. Mellon Tr. Co., N.A., 997 F.3d 436, 446 (2d Cir. 2021), in which the Second Circuit held
that the violation of New York statutes protecting substantive rights conferred standing without
any additional showing of harm. (Id. at 8.) However, the Second Circuit recently revisited and
reversed its decision in Maddox, acknowledging that “TransUnion established that in suits for
damages plaintiffs cannot establish Article III standing by relying entirely on a statutory
violation or risk of future harm: ‘No concrete harm; no standing.’” Maddox v. Bank of N.Y.
Mellon Tr. Co., N.A., 19 F.4th 58, 64 (2d Cir. 2021) (quoting TransUnion, --- U.S. at ---, 141 S.
Ct. at 2214). Finally, Plaintiff cites post-TransUnion cases in which courts outside this Circuit
found that FDCPA violations constitute substantive harms, rather than procedural harms,
sufficient to establish concrete injury. (See Pl.’s Opp’n 11–12.) However, Plaintiff’s reliance on
these cases is also unpersuasive, as the Court is bound by the Second Circuit’s reconsidered
decision in Maddox. In Maddox, the Second Circuit explained that despite its prior holding that
“[t]he violation of a substantive right . . . constitutes a concrete injury in fact sufficient to
establish Article III standing without any additional showing[,] TransUnion clarified . . . that the
type of harm that a statute protects against is of little (or no) import” — “plaintiffs must show
that the statutory violation caused them a concrete harm, regardless of whether the statutory
rights violated were substantive or procedural.” Maddox, 19 F.4th at 64–65 & n.2; Kola v.
Forster & Garbus LLP, No. 19-CV-10496, 2021 WL 4135153, at *5 (S.D.N.Y. Sept. 10, 2021)
(noting that, after TransUnion, “courts may not assume that the existence of a statutory
prohibition or obligation automatically elevates that prohibition or obligation to a harm that is
concrete under Article III”).
In line with TransUnion and the Second Circuit’s recent decision in Maddox, Plaintiff
next argues that “it is widely understood that violations of [FDCPA] § 1692e are akin to common
law actions for fraud or negligent misrepresentation.” (Pl.’s Mem. 9–10); see
TransUnion, --- U.S. at ---, 141 S. Ct. at 2204 (noting that “intangible harms can . . . be
concrete,” including “injuries with a close relationship to harms traditionally recognized as
providing a basis for lawsuits in American courts”); Maddox, 19 F.4th at 64–65 & n.2 (noting
that the type of harm a statute protects against “is of little (or no) import; what matters is
‘whether the alleged injury to the plaintiff has a close relationship to a harm traditionally
recognized as providing a basis for a lawsuit in American courts’” (quoting TransUnion, --- U.S.
at ---, 141 S. Ct. at 2204)). As Defendant notes, Plaintiff’s counsel raised this same argument in
Kola v. Forster & Garbus LLP, No. 19-CV-10496, 2021 WL 4135153, at *6–7 (S.D.N.Y. Sept.
10, 2021). (Def.’s Reply 5–6.)
Under New York law, a claim for fraudulent misrepresentation “requires a showing that
‘(1) the defendant made a material false representation, (2) the defendant intended to defraud the
plaintiff thereby, (3) the plaintiff reasonably relied upon the representation, and (4) the plaintiff
suffered damage as a result of such reliance.’” Spinelli v. NFL, 903 F.3d 185, 209 (2d Cir. 2018)
(quoting Wall v. CSX Transp., Inc., 471 F.3d 410, 415–16 (2d Cir. 2006)). A claim for negligent
misrepresentation requires “(1) the existence of a special or privity-like relationship imposing a
duty on the defendant to impart correct information to the plaintiff; (2) that the information was
incorrect; and (3) reasonable reliance on the information.’” ICD Cap., LLC v. Codesmart
Holdings, Inc., 842 F. App’x 705, 706 (2d Cir. 2021) (quoting Crawford v. Franklin Credit
Mgmt. Corp., 758 F.3d 473, 490 (2d Cir. 2014)). The Kola court found that the mere receipt of
“a letter from a debt collector that was confusing or misleading as to the amount owed does not
demonstrate a harm closely related to fraudulent or negligent misrepresentation” when the
plaintiff did not rely upon those misrepresentations. Kola, 2021 WL 4135153, at *7. As
Defendant argues, Plaintiff “fails to allege that he relied in any way upon the representations” in
the Collection Letter. (Def.’s Reply 7); TransUnion, --- U.S. at ---, 141 S. Ct. at 2214 (“An
‘asserted informational injury that causes no adverse effects cannot satisfy Article III.’” (quoting
Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 1004 (11th Cir. 2020))).
Finally, Plaintiff argues that his contractual liability for additional collection fees
wrongfully charged by Defendant constitutes concrete harm. (Pl.’s Opp’n 13–14.) In support,
Plaintiff argues that Defendant “wrongfully imposed additional collection charges by referring
the debt to two different collection agencies, thereby triggering the collection fee provision in the
agreement at issue,” creating “a liability that Plaintiff is subject to, and which Plaintiff cannot
escape without resort to protracted litigation.” (Id. at 13.) Plaintiff relies on Via Mat Int’l S. Am.
Ltd. v. United States, 446 F.3d 1258 (11th Cir. 2006), to argue that he has “suffered a direct
injury in the form of liability for a debt [he] does not owe, which can ultimately be traceable to
Defendant’s conduct,” and “any traceability determinations must be deferred” until “discovery
has been had on this critical issue.” (Id. at 13–14.) Defendant contends that Plaintiff’s argument
“fails to account for the fact that Plaintiff has asserted no intention of paying the debt” and that it
is also “an assertion of a potential risk of future harm,” which is “insufficient to give rise to
standing in an action for damages” under TransUnion. (Def.’s Reply 7 n.2.) In Via Mat Int’l S.
Am. Ltd., Lespan, a currency exchange house, owned bank notes valued at $2.7 million. 446
F.3d at 1260. Lespan hired Via Mat to transport and insure the bank notes from Montevideo to
London. Id. During the transport, Via Mat failed to file the necessary Customs form for the
notes, and Customs agents seized them. Id. Lespan reached an agreement with Customs, and
Customs released the funds to Lespan, minus $500,000. Id. at 1261. Via Mat agreed to
reimburse Lespan the $500,000 retained by Customs, and sought to recover the funds through a
judicial forfeiture proceeding. Id. The court held that “[t]he economic harm to a party with a
possessory interest in seized property, imposed by virtue of its liability to the owner of such
property, can constitute a palpable injury sufficient to confer standing under Article III.” Id. at
1263. The court concluded that although Via Mat was not the owner of the notes, it had a
possessory interest in them when Customs seized them, and therefore suffered a “direct,
substantial economic injury due to its liability to Lespan for any of the property the Government
did not return to [Lespan].” Id.
Unlike Via Mat Int’l S. Am. Ltd., Plaintiff did not suffer — and has not alleged — an
economic harm arising from a possessory interest in seized property. Rather, Plaintiff’s only
alleged harm is an informational injury, which courts have found insufficient to confer standing
in the FDCPA context. See, e.g., Nettles v. Midland Funding LLC, 983 F.3d 896, 899–900 (7th
Cir. 2020) (finding no concrete injury traceable to false representation in letter and mere
violation of FDCPA insufficient), cert. denied, 142 S. Ct. 313 (Oct. 4, 2021); Adams v. Skagit
Bonded Collectors, LLC, 836 F. App’x 544, 545–47 & n.2 (9th Cir. 2020) (stating that the
doctrine of informational injury does not apply to FDCPA violations, finding that the plaintiff
had not alleged actual harm or a material risk of harm to the interests protected by the FDPCA,
and noting that “[w]ithout more, confusion does not constitute an actual harm to [the appellant’s]
concrete interests”); Cooper v. Atl. Credit & Fin., Inc., 822 F. App’x 951, 954–55 (11th Cir.
2020) (finding that the plaintiff “ha[d] not alleged an injury-in-fact sufficient to confer standing”
where she merely alleged that debt collection letters violated the FDCPA and left her confused
about her statutory rights and observing that the plaintiff did not allege that the letter caused her
to take or refrain from taking any action or that she suffered any financial, legal, or other harm
beyond the alleged statutory violations).
In addition, as Defendant argues, Plaintiff’s theory that Defendant subjected him to a
liability that Plaintiff has not alleged he intends to pay presents only a risk of future harm, which
is insufficient to confer standing in a suit for damages under TransUnion. TransUnion, --- U.S.
at ---, 141 S. Ct. at 2210 (“[A] person exposed to a risk of future harm may pursue forwardlooking, injunctive relief to prevent the harm from occurring, at least so long as the risk of harm
is sufficiently imminent and substantial.”); see also Pierre v. Midland Credit Mgmt., Inc., 29
F.4th 934, 938 (7th Cir. 2022) (“[A]s the Supreme Court clarified in TransUnion, a risk of harm
qualifies as a concrete injury only for claims for ‘forward-looking, injunctive relief to prevent the
harm from occurring.’” (quoting TransUnion, --- U.S. at ---, 141 S. Ct. at 2210)).
Accordingly, Plaintiff has failed to allege an injury-in-fact sufficient to confer Article III
standing, and the Court dismisses the Amended Complaint without prejudice for lack of subject
Plaintiff has not plausibly alleged a “debt” under the FDCPA
Even assuming the Court had subject matter jurisdiction over Plaintiff’s claims, Plaintiff
has failed to plausibly allege a “debt” under the FDCPA.
Defendant argues that Plaintiff fails to state an FDCPA claim because he has not
plausibly alleged a “debt” as defined under 15 U.S.C. § 1692a(5), as his allegations merely
“parrot the statutory definition” and are asserted “[u]pon information and belief,” despite the
facts being within Plaintiff’s control. (Def.’s Mem. 17–18.) In addition, Defendant argues that
Plaintiff “speculates that because the phone at issue is mobile, Plaintiff . . . used it exclusively to
take personal calls,” however Plaintiff has not alleged facts to support this contention and “could
just as well have . . . used it exclusively in connection with a business venture.” (Def.’s Reply 8;
Def.’s Mem. 17.)
Plaintiff argues that he has sufficiently alleged a consumer debt under the FDCPA
because his allegation that the debt is “a mobile phone debt from Verizon” supports “the
reasonable inference . . . that the phone is used for ‘personal, family, or household purposes.’”
(Pl.’s Opp’n 25.) In support, Plaintiff argues that other courts “have validated similar allegations
on a motion to dismiss regarding cell phones.” (Id. (first citing Butto v. Collecto Inc., 290 F.R.D.
372, 381–83 (E.D.N.Y. 2013); and then citing Hering v. Halsted Fin. Servs., LLC, No. 17-CV1439, 2017 WL 4355626, at *8–9 (M.D. Fla. Oct. 2, 2017)).)
The FDCPA protects debtors in connection with the collection of certain debts, but not
others. The Act “defines a ‘debt’ as ‘any obligation or alleged obligation of a consumer to pay
money arising out of a transaction in which the money, property, insurance, or services which are
the subject of the transaction are primarily for personal, family, or household purposes, whether
or not such obligation has been reduced to judgment.’” Beauvoir v. Israel, 794 F.3d 244, 247
(2d Cir. 2015) (quoting 15 U.S.C. § 1692a(5)); see Eades v. Kennedy, PC Law Offices, 799 F.3d
161, 170 (2d Cir. 2015) (quoting same); Scarola Malone & Zubatov LLP v. McCarthy, Burgess
& Wolff, 638 F. App’x 100, 102 (2d Cir. 2016) (“While the FDCPA protects consumers from
‘abusive debt collection practices,’ 15 U.S.C. § 1692(e), it ‘applies only in instances where a
debt collector attempts to collect a “debt” within the meaning of the Act.’” (quoting
Degrosiellier v. Solomon & Solomon, P.C., No. 00-CV-1065, 2001 WL 1217181, at *3
(N.D.N.Y. Sept. 27, 2001))).
Plaintiff has failed to plausibly allege that his debt falls within the scope of the FDCPA’s
protection. Plaintiff’s only allegations regarding the nature of the debt are that, “[u]pon
information and belief, the original subject obligation arose out of a mobile telephone debt” and
“[t]he subject debt was incurred by Plaintiff solely for personal, household or family purposes.”
(Am. Compl. ¶ 23.) These allegations do not provide the necessary factual support to sustain
Plaintiff’s claims because they are mere conclusory statements that repeat the statutory definition
of “debt” without pleading any facts from which the Court can ascertain or infer “the asserted
basis for the obligation to pay.” Scarola Malone & Zubatov LLP, 638 F. App’x at 102–03
(quoting Beauvoir, 794 F.3d at 248) (affirming dismissal of FDCPA claims where the plaintiff
alleged his debt arose from “transactions related to a business telephone account” and was thus a
commercial debt and finding that the plaintiff’s claim that the debt was incurred “for personal,
family or household purposes” was a “mere conclusory statement not supported by facts from
which the inference could be reasonably drawn that collection efforts arose from a consumer
Numerous courts have concluded that plaintiffs who recite the statutory definition of
“debt” rather than plead facts regarding the debt’s nature have not adequately pled an FDCPA
claim. See Garcia v. Primary Fin. Servs., 605 F. App’x 418, 418–19 (5th Cir. 2015) (affirming
dismissal of claims based on identical language, and reiterating prior holding that “recitation of a
key statutory phrase, without any accompanying factual content, was merely a threadbare recital
of a cause of action” (alteration omitted) (quoting Garcia v. Jenkins Babb, LLP, 569 F. App’x
274, 276 (5th Cir. 2014)); Piper v. Meade & Assocs., Inc., 282 F. Supp. 3d 905, 912 (D. Md.
2017) (“The mere recitation of the statutory language that the debt was ‘incurred as a financial
obligation that was primarily for personal, family or household purposes and is therefore a debt
as that term is defined by 15 U.S.C. § 1692a(5),’ constitutes ‘a legal conclusion couched as a
factual allegation’ and the [c]ourt is ‘not bound to accept it as true.’” (alteration omitted)
(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986))); Shetty v. Lewis, No. 16-CV-3112, 2017
WL 1177993, at *6 (N.D. Cal. Mar. 30, 2017) (dismissing FDCPA claim where the plaintiff
“allege[d] conclusorily that ‘the debt evidenced by the purported [n]ote and deed of trust arise
[sic] out of a loan transaction entered primarily for personal, family, or household purposes . . .
and consistent with 15 U.S.C.A. § 1692a(5)” (third alteration in original)); Billie v. Credit
Collection Servs., Inc., No. 16-CV-786, 2017 WL 396536, at *3 (D. Conn. Jan. 30, 2017)
(collecting cases dismissing FDCPA claims based on similar allegations, and acknowledging that
“there is no indication on the face of the [c]omplaint that the [c]ourt has reason to believe that the
alleged debt” was not covered but dismissing the claim because “the Second Circuit made clear
that the allegation that a transaction was ‘primarily for personal, family or household
purposes[,]’ as required by the FDCPA, is ‘not entitled to a presumption of truth’” (citing
Scarola Malone & Zubatov LLP, 638 F. App’x at 102–03)); Sanon-Lauredant v. LTD Fin.
Servs., L.P., No. 15-CV-6529, 2016 WL 3457010, at *2 (D.N.J. June 22, 2016) (dismissing
FDCPA claim because the “plaintiff has merely repeated the language of the statute” and
collecting cases); Jenkins v. Santiago, No. 11-CV-1082, 2012 WL 3242354, at *3 (M.D. Fla.
Aug. 8, 2012) (dismissing FDCPA claim based on allegation that debt was “incurred primarily
for personal, family, or household purposes” because “[t]his is merely a reiteration of the
statutory definition”); Nicholas v. CMRE Fin. Servs., Inc., No. 08-CV-4857, 2009 WL 1652275,
at *2 (D.N.J. June 11, 2009) (dismissing as “conclusory” and “devoid of any factual detail”
claims based on allegations that “addresse[d] [the plaintiff’s] debt in language derived from 15
U.S.C. § 1692a(5) as ‘a financial obligation arising out of a transaction in which the money,
property, insurance, or services which are the subject of the transaction are primarily for
personal, family, or household purposes’”).
In addition, although Plaintiff argues that his allegation that the debt “arose out of a
mobile phone debt” permits the reasonable inference that Plaintiff used the phone for “personal,
family, or household purposes,” (Pl.’s Opp’n 25), as Defendant argues, a mobile phone can be
used for personal or business purposes, (Def.’s Reply 8), and Plaintiff has not alleged any facts
that would support the inference that he used the mobile phone for one purpose or the other. See
Jennings v. Cont’l Serv. Grp., Inc., 239 F. Supp. 3d 662, 667–68 (W.D.N.Y. 2017) (rejecting
argument that court should infer debt was consumer debt based on allegation that the defendant
“was primarily engaged in the collection of student loan debt” because “it does not follow that
any calls to [the plaintiff] related to student debt”). Although Plaintiff argues that other courts
“have validated similar allegations on a motion to dismiss regarding cell phones,” neither of the
cases Plaintiff cites involved a motion to dismiss. (Pl.’s Opp’n 25.) In Butto v. Collecto Inc.,
290 F.R.D. 372, 381–33 (E.D.N.Y. 2013), which concerned a Rule 23 class certification, the
defendant argued that “merely because an account is a Verizon Wireless account does not mean
that it is consumer debt for purposes of the FDCPA.” Id. at 381. The court assumed, for the
purposes of finding numerosity of the class, that “a significant portion of the 18,949 letters were
sent to Verizon Wireless customers and concerned personal debt.” Id. In Hering v. Halsted Fin.
Servs., LLC, No. 17-CV-1439, 2017 WL 4355626, at *4 (M.D. Fla. Oct. 2, 2017), the court
granted default judgment on the plaintiff’s FDCPA claim based on the allegations that the
defendant “called [the plaintiff] to collect an outstanding debt” and “that this alleged debt was
for ‘personal, family, or household purposes.’” Id. However, as discussed above, in the Second
Circuit, such allegations are not entitled to a presumption of truth and are insufficient to establish
that a debt was a consumer debt.
Accordingly, Plaintiff’s allegations are insufficient to state a claim under the FDCPA. 4
For the reasons stated above, the Court grants Defendant’s motion and dismisses the
Amended Complaint without prejudice for lack of subject matter jurisdiction. The Clerk of
Court is respectfully directed to close this case.
Dated: August 1, 2022
Brooklyn, New York
MARGO K. BRODIE
United States District Judge
The Court declines to address Defendant’s argument in the alternative that the
underlying debt collection contract permitted the collection of the fees in this case. (See Def.’s
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?