Morant v. Miracle Financial, Inc.

Filing 9

MEMORANDUM & ORDER granting in part and denying in part 4 Motion for Judgment on the Pleadings; granting in part and denying in part 5 Motion to Amend/Correct/Supplement. For the foregoing reasons, it is hereby ORDERED that: (1) Defendant&# 039;s motion to dismiss is GRANTED IN PART and DENIED IN PART, and Plaintiff's claims arising under Section 1692b are hereby DISMISSED WITH PREJUDICE; and (2) Plaintiff's motion to amend her Complaint is GRANTED IN PART and DENIED IN PART: Plaintiff is GRANTED leave to amend her claims under Section 1692d only. The Clerk of the Court is directed to docket the proposed Amended Complaint at Docket Entry 5-2 as a separate docket entry entitled "Amended Complaint." So Ordered by Judge Joanna Seybert on 9/17/12. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
MARGARET MORANT,
Plaintiff,
MEMORANDUM & ORDER
11-CV-4140(JS)(GRB)

-againstMIRACLE FINANCIAL, INC.,

Defendant.
--------------------------------------X
APPEARANCES
For Plaintiff:
Joseph Mauro, Esq.
The Law Office of Joseph Mauro, LLC
306 McCall Avenue
West Islip, NY 11795
For Defendant:

Gregory J. Gallo, Esq.
Pellegrino Law Firm
475 Whitney Avenue
New Haven, CT 06511

SEYBERT, District Judge:
Plaintiff Margaret Morant (“Plaintiff”) commenced this
action against Defendant Miracle Financial, Inc. (“Defendant” or
“Miracle”)

asserting

violations

of

the

Fair

Debt

Collection

Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”).
before

the

Plaintiff’s

Court

is

cross-motion

Defendant’s
to

amend

motion
her

to

Pending

dismiss

Complaint.

For

and
the

following reasons, both motions are GRANTED IN PART and DENIED
IN PART.

BACKGROUND1
Plaintiff

asserts

that,

in

or

around

March

2011,

Miracle began calling her residence in an attempt to collect an
alleged debt from a person named Theresa Brown.
On

or

about

April

19,

Miracle’s representatives.

2011,

Plaintiff

spoke

(Compl. ¶ 14.)

(Compl. ¶ 10.)
with

one

of

She informed him or

her that Miracle had the wrong number and demanded that Miracle
stop calling her.
conversation,
thereafter.

(Compl. ¶¶ 15-16.)

Miracle

called

Notwithstanding this

Plaintiff

“several”

times

(Compl. ¶¶ 17-18.)

On August 25, 2011, Plaintiff commenced this action
asserting violations of four provisions of the FDCPA--Sections
1692d, 1692d(5), 1692b(1), and 1692b(3).

(Docket Entry 1.)

On

October 11, 2011, Defendant answered the Complaint (Docket Entry
3), and on November 9, 2011, Defendant moved to dismiss pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure (Docket
Entry 4).

On November 19, 2011, Plaintiff filed a motion to

amend her Complaint.

(Docket Entry 5.)

Plaintiff does not

assert any new claims in her proposed Amended Complaint; rather,
she amplifies the facts as stated in her original Complaint.

On

November 22, 2011, Plaintiff filed her opposition to Defendant’s
motion to dismiss.

(Docket Entry 6.)

Defendant has neither

1
The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.

2

opposed

Plaintiff’s

motion

to

amend

nor

submitted

anything

further in support of its motion to dismiss.
DISCUSSION
The Court will address Defendant’s motion to dismiss
before turning to the merits of Plaintiff’s motion to amend.
I.

Motion to Dismiss
A.

Standard of Review under Rule 12(c)
The standard for deciding a motion pursuant to Rule

12(c)

“is

identical

to

that

failure to state a claim.”
Beverly

Hills,

259

F.3d

omitted).

To

survive

plaintiff

must

plead

a

of

a

Rule

12(b)(6)

motion

for

Patel v. Contemporary Classics of

123,

126

Rule

12(b)(6)

sufficient

(2d

Cir.

2001)

motion

factual

to

(citations
dismiss,

allegations

in

a

the

complaint to “state a claim [for] relief that is plausible on
its face.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570,

127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

A complaint does not

need “detailed factual allegations,” but it demands “more than
labels

and

conclusions,

and

a

formulaic

elements of a cause of action will not do.”

recitation

of

the

Id. at 555.

In

addition, the facts pled in the complaint “must be enough to
raise

a

right

Determining

to

relief

whether

a

above

plaintiff

the

speculative

has

met

her

level.”
burden

Id.
is

“a

context-specific task that requires the reviewing court to draw
on

its

judicial

experience

and

3

common

sense.”

Ashcroft

v.

Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009) (citation omitted); accord Harris v. Mills, 572 F.3d 66,
72

(2d

Cir.

2009).

However,

“[t]hreadbare

recitals

of

the

elements of a cause of action, supported by mere conclusory
statements, do not suffice.”

Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 555).
B.

Alleged FDCPA Violations
The

FDCPA

was

enacted

to

“eliminate

abusive

debt

collection practices by debt collectors, [and] to insure that
those

debt

collectors

who

refrain

from

using

abusive

collection practices are not competitively disadvantaged.”
U.S.C. § 1692(e).
Amended

Complaint,

debt
15

Plaintiff, in both her Complaint and proposed
asserts

that

Defendant

violated

1692d, 1692d(5), 1692b(1), and 1692b(3) of the FDCPA.

Sections
The Court

will address the claims asserted under Sections 1692d and 1692b
separately.
1.

Claims under Section 1692d

Plaintiff asserts two claims under Section 1692d:

one

for a violation of subsection (5) and one under the section
generally.

Section

1692d

provides,

in

relevant

follows:
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.
Without limiting the general application of

4

part,

as

the foregoing, the following conduct is a
violation of this section:
(5)

Causing a telephone to ring or engaging
any person in telephone conversation
repeatedly or continuously with intent
to annoy, abuse, or harass any person
at the called number.

Defendant makes three arguments in support of dismissal of these
claims.
First, Defendant appears to be arguing that there is
no cause of action for a violation of Section 1692d generally
and that, to state a claim, Plaintiff must allege a violation of
a specific subsection.

The Court disagrees.

“[T]he list of

specified violations is explicitly not exhaustive; it is not
intended to ‘limit[] the general application’ of the provision's
sweeping

prohibition

of

conduct

‘the

natural

consequence

of

which is to harass, oppress, or abuse any person in connection
with

the

collection

of

a

debt.’”

Bank

v.

Pentagroup

Fin.,

L.L.C., No. 08-CV-5293, 2009 WL 1606420, at *5 (E.D.N.Y. June 9,
2009)

(second

1692d).

alteration

Accordingly,

in

the

original)

Court

finds

(quoting
this

15

U.S.C.

argument

to

§
be

without merit.
Second, Defendant argues that the Complaint fails to
state a claim under Section 1692d(5) because there is nothing in
the Complaint to suggest that the calls were made “repeatedly or
continuously with intent to annoy, abuse, or harass” Plaintiff.

5

(Def. Mot. 7.)

The Court disagrees.

Plaintiff asserts that

Miracle called her “several times,” that each time she informed
Miracle

that

the

debtor

could

not

be

reached

at

that

phone

number, and that Miracle nonetheless called Plaintiff “several”
more times thereafter.
found

similar

dismiss.

(Compl. ¶¶ 11-13, 15-18.)

allegations

sufficient

to

survive

Courts have
a

motion

to

See, e.g., Shand-Pistilli v. Prof’l Account Servs.,

Inc., No. 10-CV-1808, 2010 WL 2978029, at *4 (E.D. Pa. July 26,
2010)

(holding

that

allegations

that

the

defendant

made

“continuous calls” to the plaintiff’s home after the plaintiff
asked the defendant to stop calling stated a plausible claim for
relief under Section 1692d(5)); Stuart v. AR Res., Inc., No. 10CV-3520, 2011 WL 904167, at *3 (E.D. Pa. Mar. 16, 2011) (finding
that

allegations

of

“repeated

calls

by

Defendants,

use

of

profane language, and refusal to cease calling” stated a claim
under

Section

Collection

1692d(5));

Corp.,

No.

cf.

Kavalin

10-CV-0314,

2011

v.
WL

Global

Credit

1260210,

at

&
*4

(W.D.N.Y. Mar. 31, 2011) (“Courts have held that the question
whether a debt collector’s conduct in attempting to contact a
debtor

by

violation

telephone
of

these

amounts

to

provisions

harassment

ultimately

or

turns

annoyance
on

in

evidence

regarding volume, frequency, pattern, or substance of the phone
calls.”).

6

Finally, Defendant argues that Plaintiff does not have
standing to bring these claims.

The Court disagrees.

Section

1692k, the general enforcement provision of the FDCPA, provides
that “[e]xcept as otherwise provided by this section, any debt
collector

who

subchapter

fails

with

to

respect

person . . . .”

comply
to

with

any

any

person

provision
is

of
to

liable

this
such

15 U.S.C. § 1692k(a) (emphasis added).

Courts

have interpreted this language broadly to allow “[a]ny person
who comes in contact with proscribed debt collection practices”
to bring a claim.
Supp.

174,

175

Riveria v. MAB Collections, Inc., 682 F.

(W.D.N.Y.

1988)

(citation

omitted);

see

also

Whatley v. Universal Collection Bureau, Inc., 525 F. Supp. 1204,
1206 (N.D. Ga. 1981) (holding that “‘any person,’ as used in 15
U.S.C.

§

1692k(a)

includes

persons . . . who

claim

they

are

harmed by proscribed debt collection practices directed to the
collection

of

another

person’s

debt”);

Kerwin

v.

Remittance

Assistance Corp., 559 F. Supp. 2d 1117, 1123 (D. Nev. 2008)
(“Persons

who

do

not

owe

money

but

are

subject

to

improper

practices by debt collectors are covered by the FDCPA.”).
Therefore,

the

Court

denies

Defendant’s

motion

dismiss Plaintiff’s claims under Sections 1692d and 1692d(5).
2.

Claims under Section 1692b

Section 1692b provides in relevant part as follows:

7

to

Any debt collector communicating with any
person other than the consumer for the
purpose of acquiring location information
about the consumer shall-(1)

identify himself, state that he is
confirming
or
correcting
location
information concerning the consumer,
and,
only
if
expressly
requested,
identify his employer; [and]

(3)

not communicate with any such person
more than once unless requested to do
so by such person or unless the debt
collector reasonably believes that the
earlier response of such person is
erroneous or incomplete and that such
person now has correct or complete
location information . . . .

Defendant argues that Plaintiff’s claims under this
section must be dismissed because (i) Plaintiff does not have
standing

and

(ii)

Plaintiff

never

alleges

that

Defendant

telephoned her residence “for the purpose of acquiring location
information” about the debtor.

Because the Court finds that

Plaintiff does not have standing to assert these claims, it will
not address the merit of Defendant’s other argument.
Before
however,

the

getting

Court

must

to

Defendant’s

first

address

standing
a

argument,

threshold

issue.

Section 1692b contains a list of exceptions to Section 1692c(b),
which

prohibits

a

debt

collector

from

communicating,

in

connection with the collection of a debt, with anyone other than
the “consumer.”
§ 1692b

is

thus

15 U.S.C. § 1692c(b).
a

violation

of

8

§

“Noncompliance with

1692c(b),

and

not

an

independent
Adjustment
2008).

violation
Co.,

Inc.,

of
579

the
F.

Act.”
Supp.

Thomas

2d

1290,

v.

1297

Consumer
(E.D.

Mo.

Therefore, the Court will analyze Plaintiff’s claims as

if they were properly brought under Section 1692c(b).
Although generally “any person” may bring a claim for
a violation of the FDCPA, see supra page 7, courts have held
that only a “consumer” has standing to bring a claim for relief
under Section 1692c.
consumers

lack

See Bank, 2009 WL 1606420, at *4 (“Non-

standing

to

sue

under

1692c.”);

see

also

Montgomery v. Huntington Bank, 346 F.3d 693, 696–97 (6th Cir.
2003) (“Only a ‘consumer’ has standing to sue for violations
under 15 U.S.C. § 1692c.” (internal quotation marks and citation
omitted)); Mathis v. Omnium Worldwide, No. 04-CV-1614, 2006 WL
1582301,

at

“Consumer”

*4-5
is

(D.

Or.

defined

by

June

2006)

FDCPA

the

4,

as

(collecting
“any

natural

obligated or allegedly obligated to pay a debt.”
1692a(3).

cases).
person

15 U.S.C. §

Here, Plaintiff does not assert that she was the

alleged debtor, and, accordingly, she does not having standing
to bring these claims.

Therefore, the Court grants Defendant’s

motion to dismiss these claims.
II.

Motion to Amend
Amendments to pleadings are governed by Rule 15 of the

Federal Rules of Civil Procedure, which provides that the Court
should grant leave to amend “when justice so requires.”

9

FED. R.

CIV. P. 15(a)(2).

Leave to amend should be granted unless there

is evidence of undue delay, bad faith, undue prejudice to the
non-movant, or futility.

See Milanese v. Rust–Oleum Corp., 244

F.3d 104, 110 (2d Cir. 2001).

To determine whether an amended

claim is futile, courts analyze whether the proposed pleading
would

withstand

a

articulated above.

motion

to

dismiss

under

Rule

12(b)(6)

See Dougherty v. Town of N. Hempstead Bd. of

Zoning Appeal, 282 F.3d 83, 88 (2d Cir. 2002).
Here, Plaintiff’s Amended Complaint is substantially
similar to her original Complaint.

It asserts violations of 15

U.S.C. §§ 1692d, 1692d(5), 1692b(1), 1692b(3) arising out of
Miracle’s calling Plaintiff in an attempt to collect an alleged
debt from Theresa Brown.

Accordingly, the Court finds that the

proposed amendments with respect to the claims under Section
1692b are futile, and, to the extent that Plaintiff seeks leave
to

amend

those

claims,

her

motion

is

denied.

Plaintiff’s

proposed amendments to the claims under Section 1692d, on the
other hand, are not futile for the reasons discussed above.
Therefore,

the

Court

grants

Plaintiff

claims.

10

leave

to

amend

those

CONCLUSION
For the foregoing reasons, it is hereby ORDERED that:
(1)

Defendant's motion to dismiss is GRANTED IN PART

and DENIED IN PART, and Plaintiff’s claims arising under Section
1692b are hereby DISMISSED WITH PREJUDICE; and
(2)

Plaintiff’s

motion

to

GRANTED IN PART and DENIED IN PART:

amend

her

Complaint

is

Plaintiff is GRANTED leave

to amend her claims under Section 1692d only.
The

Clerk

of

the

Court

is

directed

to

docket

the

proposed Amended Complaint at Docket Entry 5-2 as a separate
docket entry entitled “Amended Complaint.”

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

September 17, 2012
Central Islip, New York

11