Nazmiyal v. Sunrise Credit Services, Inc.

Filing 12

MEMORANDUM & ORDER re: 4 Motion to Dismiss for Failure to State a Claim is GRANTED and Plaintiff's claim that Defendant violated 15 U.S.C. §§ 1692g and 1692e is DISMISSED WITH PREJUDICE. The Clerk of the Court is directed to enter judgment accordingly and to mark this case CLOSED. Ordered by Judge Joanna Seybert on 2/7/2014. (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
YAARA NAZMIYAL, on behalf of herself
and all others similarly situated,
Plaintiff,
MEMORANDUM & ORDER
13-CV-0676(JS)(ARL)

-againstSUNRISE CREDIT SERVICES, INC.,

Defendants.
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APPEARANCES
For Plaintiff:
Aryeh L. Pomerantz, Esq.
Prabhkaran S. Bedi, Esq.
Benjamin Nazmiyal Law Group, P.C.
209 Main Street, Suite 2
Fort Lee, NJ 07024
For Defendant:

Jarett Lawrence Warner, Esq.
Havkins Rosenfeld Ritzert
& Varriale, LLP
Eleven Penn Plaza, Suite 2101
New York, NY 10001

SEYBERT, District Judge:
On
(“Plaintiff”)

February
commenced

5,

2013,

this

Plaintiff

putative

Yaara

class

action

Nazmiyal
against

defendant Sunrise Credit Services, Inc. (“Defendant”) alleging
that Defendant sent Plaintiff a debt collection notice that did
not comply with the Fair Debt Collection Practices Act (“FDCPA”),
15

U.S.C.

§

1692,

et

seq.

Presently

before

the

Court

is

Defendant’s motion to dismiss the Complaint for failure to state
a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).

For

the following reasons, Defendant’s motion to dismiss is GRANTED.

BACKGROUND1
Plaintiff is a resident of Great Neck, New York in the
Eastern District of New York.

(Compl. ¶ 5.)

Defendant is a New

York corporation engaged in the business of debt collection.
(Compl. ¶ 8.) The Complaint alleges that Plaintiff is a “consumer”
and that Defendant is a “debt collector” as those terms are defined
by the FDCPA.

(Compl. ¶¶ 7, 10.)

Plaintiff alleges that, on February 5, 2012, Defendant
sent Plaintiff an “initial demand letter” in an attempt to collect
a

$231.80

debt

Plaintiff

owed

Cablevision

(the

“Collection

Letter”). (Compl. ¶ 12.) The Collection Letter, which is attached
to

the

Complaint

as

Exhibit

A,

included

the

following

validation notice:
UNLESS YOU NOTIFY THIS OFFICE WITHIN 30 DAYS
AFTER RECEIVING THIS NOTICE THAT YOU DISPUTE
THE VALIDITY OF THIS DEBT OR ANY PORTION
THEREOF, THIS OFFICE WILL ASSUME THIS DEBT IS
VALID. IF YOU NOTIFY THIS OFFICE IN WRITING
WITHIN 30 DAYS FROM RECEIVING THIS NOTICE,
THIS OFFICE WILL: OBTAIN VERIFICATION OF THE
DEBT OR OBTAIN A COPY OF THE JUDGMENT AND MAIL
YOU A COPY OF SUCH JUDGMENT OR VERIFICATION.
IF YOU REQUEST THIS OFFICE IN WRITING WITHIN
30 DAYS AFTER RECEIVING THIS NOTICE, THIS
OFFICE WILL PROVIDE YOU WITH THE NAME AND
ADDRESS OF THE ORIGINAL CREDITOR, IF DIFFERENT
FROM THE CURRENT CREDITOR.

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

2

debt

(the

“Validation

original).)

Notice”).

(Compl.

Ex.

A

(emphasis

in

the

Plaintiff alleges that the Validation Notice violates

the FDCPA, 15 U.S.C §§ 1692g(a)(4), 1692e(10), because it “failed
to inform [Plaintiff] that in order to obtain a verification of
the alleged debt or a copy of the judgment against her, she must
notify Defendant in writing that ‘the debt, or any portion thereof,
is disputed.’” (Compl. ¶¶ 15, 20.) Defendant now moves to dismiss
the Complaint.
DISCUSSION
The Court will first set forth the legal standard on a
Rule 12(b)(6) motion to dismiss before turning to Defendant’s
motion specifically.
I.

Standard of Review
In deciding a Rule 12(b)(6) motion to dismiss, the Court

applies a “plausibility standard,” which is guided by “[t]wo
working principles.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937, 173 L. Ed. 2d 868 (2009); accord Harris v. Mills, 572
F.3d 66, 71–72 (2d Cir. 2009).

First, although the Court must

accept all allegations as true, this “tenet” is “inapplicable to
legal conclusions;” thus, “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do
not suffice.”
72.

Iqbal, 556 U.S. at 678; accord Harris, 572 F.3d at

Second, only complaints that state a “plausible claim for

relief” can survive a Rule 12(b)(6) motion to dismiss.
3

Iqbal, 556

U.S. at 679.

Determining whether a complaint does so is “a

context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.”

Id.; accord Harris,

572 F.3d at 72.
The Court is confined to “the allegations contained
within the four corners of [the] complaint.”

Pani v. Empire Blue

Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998).

However, this

has been interpreted broadly to include any document attached to
the complaint, any statements or documents incorporated in the
complaint by reference, any document on which the complaint heavily
relies, and anything of which judicial notice may be taken.

See

Chambers v. Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir. 2002)
(citations omitted); Kramer v. Time Warner Inc., 937 F.2d 767, 773
(2d Cir. 1991).
II.

Defendant’s Motion to Dismiss the Complain
Plaintiff brings her claim pursuant to the FDCPA, which

Congress enacted in 1977 “‘to protect consumers from a host of
unfair, harassing, and deceptive debt collection practices without
imposing unnecessary restrictions on ethical debt collectors.’”
Arroyo v. Solomon & Solomon, P.C., No. 99-CV-8302, 2001 WL 1590520,
at *4 (E.D.N.Y. Nov. 16, 2001) (quoting S. REP., NO. 95-382, at 12
(1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1696).

To that end,

the FDCPA bars the use of any “false, deceptive, or misleading

4

representation or means in connection with the collection of any
debt.”

15 U.S.C. § 1692e.
Congress also sought to “eliminate the recurring problem

of debt collectors dunning the wrong person or attempting to
collect debts which the consumer has already paid.”

Sarno v.

Midland Credit Mgmt., Inc., No. 10-CV-4704, 2011 WL 349974, at *2
(S.D.N.Y. Jan. 31, 2011) (quoting S. REP., NO. 95-382, at 4 (1977),
reprinted in 1977 U.S.C.C.A.N. 1695, 1699), aff’d, 435 F. App’x 44
(2d Cir. 2011).

Accordingly, under § 1692g of the FDCPA, a “debt

collector,”2 when attempting to collect a debt from a “consumer,”3
must provide the consumer with a detailed debt validation notice
within five days after the initial communication with the debtor.
15 U.S.C. § 1692g(a).

The notice must include the following:

(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;
The FDCPA defines “debt collector” as “any person who uses any
instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of any
debts, or who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be owed
or due another.” 15 U.S.C. § 1692a(6).
2

The FDCPA defines “consumer” as “any natural person obligated
or allegedly obligated to pay any debt.” 15 U.S.C. § 1692a(3).
3

5

(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.
15 U.S.C. § 1692g(a).
To

determine

whether

a

debt

collector

has

violated

§ 1692g or § 1692e, courts use “an objective standard, measured by
how the ‘least sophisticated consumer’ would interpret the notice
[received from the debt collector].” Soffer v. Nationwide Recovery
Sys., Inc., No. 06-CV-435, 2007 WL 1175073, at *3 (E.D.N.Y. Apr.
19, 2007) (citing Greco v. Trauner, Cohen & Thomas, L.L.P., 412
F.3d 360, 363 (2d Cir. 2005); Russell v. Equifax A.R.S., 74 F.3d
30, 34 (2d Cir. 1996); Clomon v. Jackson, 988 F.2d 1314, 1318-19
(2d Cir. 1993)).

The Second Circuit has described the “least

sophisticated consumer” standard as “an objective analysis that
seeks

to

protect

simultaneously
bizarre

or

the

shielding

idiosyncratic

naive
debt

from

abusive

collectors

interpretations

6

practices

from
of

liability
debt

while
for

collection

letters.”

Greco,

412

F.3d

at

363

(2d

Cir.

2005)

(internal

citations and quotation marks omitted).
The

validation

notice

must

convey

the

information

required by § 1692g(a) “‘clearly and effectively’ so that ‘the
least sophisticated consumer [will not be] uncertain as to her
rights.’”

Stark v. RJM Acquisitions LLC, No. 08-CV-2309, 2009 WL

605811, at *3 (E.D.N.Y. Mar. 9, 2009) (alteration in the original)
(quoting Savino v. Computer Credit Inc., 164 F.3d 81, 85 (2d Cir.
1996)).

In addition, even if the validation notice complies with

1692g(a), “a debt collector violates § 1692g(a) . . . if that
notice

is

overshadowed

or

contradicted

communications to the debtor.”

by

other

language

in

Sarno, 2011 WL 349974, at *2

(quoting Jacobson v. Healthcare Fin. Servs., Inc. 516 F.3d 85, 90
(2d Cir. 2008)) (alteration in original).
Here, the Complaint does not purport to state a claim
that

other

language

in

the

Collection

Letter

overshadows

or

contradicts the Validation Notice, nor does Plaintiff make such an
argument in her memorandum of law.
Defendant

has

violated

§§

Rather, Plaintiff asserts that

1692g(a)(4),

1692e(10)

because

the

Validation Notice itself does not make clear that she must provide
written notification that she disputes the debt in order to receive

7

verification of the debt.
Entry 8, at 7-134.)

(Compl. ¶¶ 15, 20; Pl.’s Br., Docket

Plaintiff’s claim is not plausible.

For ease of reference, the Validation Notice states:
UNLESS YOU NOTIFY THIS OFFICE WITHIN 30 DAYS
AFTER RECEIVING THIS NOTICE THAT YOU DISPUTE
THE VALIDITY OF THIS DEBT OR ANY PORTION
THEREOF, THIS OFFICE WILL ASSUME THIS DEBT IS
VALID. IF YOU NOTIFY THIS OFFICE IN WRITING
WITHIN 30 DAYS FROM RECEIVING THIS NOTICE,
THIS OFFICE WILL: OBTAIN VERIFICATION OF THE
DEBT OR OBTAIN A COPY OF THE JUDGMENT AND MAIL
YOU A COPY OF SUCH JUDGMENT OR VERIFICATION.
IF YOU REQUEST THIS OFFICE IN WRITING WITHIN
30 DAYS AFTER RECEIVING THIS NOTICE, THIS
OFFICE WILL PROVIDE YOU WITH THE NAME AND
ADDRESS OF THE ORIGINAL CREDITOR, IF DIFFERENT
FROM THE CURRENT CREDITOR.
(Compl. Ex. A (emphasis in the original).)

Plaintiff argues that,

because the second sentence of the Validation Notice does not make
a specific reference to disputing the validity of the debt, the
least sophisticated consumer would conclude that he or she only
needed to request verification of her debt in order to receive
verification.

(See Pl.’s Br. at 7.)

However, under § 1692g(b),

the consumer’s right to verification is triggered only upon the
debt collector’s receipt of a written notice disputing the validity
of the debt, not a mere written request for verification.

See

Plaintiff did not number the pages of her Brief in Opposition
to Defendant’s Motion to Dismiss. The Court will therefore cite
to the page numbers supplied by the Electronic Case Filing
system.
4

8

15 U.S.C. § 1692g(b).

The Court disagrees with Plaintiff’s

interpretation of the Validation Notice.
At least one court in this District, interpreting a
substantially similar validation notice, previously rejected the
exact argument Plaintiff makes here.

In Stark, the consumer

brought suit alleging that the following debt validation notice
violated § 1692g:
Unless you dispute the validity of all or part
of this debt within 30 days after receipt of
this notice, we will assume the debt is valid.
If you notify us in writing within the 30-day
period, we will mail a copy of verification of
the debt or the judgment to you and will
provide you with the name and address of the
original creditor for this debt.
Stark, 2009 WL 605811, at *4. The debt collector moved for summary
judgment, and the consumer opposed, arguing, like Plaintiff does
here, that the validation notice violated § 1692g(a) because the
second sentence did not contain a specific reference to disputing
the validity of the debt.

Id.

According to the consumer, the

absence of a specific reference to disputing the debt would cause
the least sophisticated consumer to “infer that she need only
request verification of the debt in writing in order to receive
it.”

Id.
The court rejected the consumer’s argument, noting that

the phrase “[i]f you notify us in writing” in the second sentence
could only be read to refer to the notification of a dispute, not

9

a mere request, because it immediately followed the first sentence
“evoking the consumer’s rights to dispute the debt.”

Id.

The

court further found that, even standing alone, the second sentence
could not be read to suggest that a mere request would trigger the
consumer’s verification right because it directs the consumer “to
‘notify’ the debt collector, a word which implies that the consumer
must take some action and inform the collector of the action in
order to receive debt verification.”5

Id.

This Court finds Stark to be well reasoned and applicable
here, and therefore concludes that the Validation Notice, even
read by the least sophisticated consumer, unambiguously informs

The Stark court did accept the consumer’s argument that the
second sentence could mislead a consumer to believe that she
must dispute a debt in order to receive the name and address of
the original creditor. Id. For ease of reference, the second
sentence stated:
5

If you notify us in writing within the 30-day period, we
will mail a copy of verification of the debt or the
judgment to you and will provide you with the name and
address of the original creditor of this debt.
Id. However, although § 1692g(b) requires a debt collector to
send debt verification upon receipt of a written notification
disputing the debt, a debt collector must provide the name and
address of the original creditor upon receipt of a mere written
request. Accordingly, the Stark court held that, because the
second sentence properly directed the consumer to provide a
written notice that she disputed the debt in order to receive
verification, it followed that the second sentence could mislead
a consumer into believing that she must dispute the debt in
order to receive the name and address of the original creditor.
Id. On this ground, the Stark court denied the debt collector’s
motion for summary judgment.
10

the consumer that he or she must dispute the debt in writing, and
not merely request verification, in order to receive verification.
Like the notice in Stark, the phrase, “if you notify this office
in writing” in the second sentence of the Validation Notice, must
refer to the notification of a dispute because it immediately
follows a sentence eliciting Plaintiff’s right to dispute the debt.
Moreover, the third sentence of the Validation Notice, unlike the
second sentence, explicitly states that a written “request” will
trigger Defendant’s obligation to provide Plaintiff with the name
and address of the original creditor.

A consumer could not read

the third sentence, which directs the consumer to make a “request,”
in conjunction with the second sentence, which directs the consumer
to “notify” the debt collector, and reasonably conclude that the
second

sentence

implies

that

the

consumer

will

receive

Stark

in

verification upon “request.”
Notably,

Plaintiff

opposition memorandum of law.

does

not

address

her

Moreover, the cases Plaintiff cites

in which the courts found violations of § 1692g are factually
inapplicable here.

(See Pl.’s Br. at 9-12.)

For example, in

McCabe v. Crawford & Co., 272 F. Supp. 2d 736 (N.D. Ill. 2003),
the debt collector sent the following validation notice:
Unless we hear from you within thirty (30)
days after the receipt of this letter
disputing this claim, Federal Law provides
that this debt will be assumed to be valid and
owing. In the event you contact us and dispute
11

the charges owed, we will promptly furnish you
with any and all documentation to substantiate
the claim.
272 F. Supp. 2d at 738.

The McCabe court held that this notice

did not effectively inform the consumer that a written notification
disputing any portion of the debt would trigger his verification
rights because, unlike the Validation Notice here, the notice in
McCabe omitted the words “in writing” and “any portion.”
742-43.
v.

G.C.

Thus, McCabe is not applicable here.
Services

Corp.,

677

F.2d

775

Id. at

Similarly, in Baker

(9th

Cir.

1982),

the

validation notice failed to inform the consumer that he could
dispute a portion of the debt and then affirmatively stated that
“[v]erication of this debt . . . will be provided if requested in
writing within 30 days.”6

677 F.2d at 778 (emphasis added).

Contrary to Plaintiff’s assertion, the Validation Notice here does
not direct the consumer to request verification.
Accordingly, this Court concludes that Plaintiff has
failed to state a claim that Defendant’s Validation Notice violated
§ 1692g(a)(4).

Plaintiff’s claim that the Validation Notice is

misleading under § 1692e(10), which is premised on Plaintiff’s
claim that Defendant violated the notification requirement under

The language in Baker specifically provided: “Verification of
this debt, a copy of judgment or the name and address of the
original creditor, if different from the current creditor, will
be provided if requested in writing within 30 days. Otherwise,
the debt will be assumed to be valid.” 677 F.2d at 778.
6

12

§ 1692g(a)(4), therefore also fails.

Because the Court concludes

that Defendant’s Validation Notice complies with § 1692g(a)(4) as
a matter of law, Plaintiff is not granted leave to amend the
Complaint, as any amendment would be futile.
Finally, although Plaintiff filed this action as a class
action, Plaintiff never sought to certify a class.
is therefore dismissed in its entirety.

The Complaint

See Swan v. Stoneman, 635

F.2d 97, 102 n.6 (2d Cir. 1980) (“As a general rule, a class action
cannot be maintained unless there is a named plaintiff with a live
controversy both at the time the complaint is filed and at the
time the class is certified.”).
CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss
the Complaint is GRANTED and Plaintiff’s claim that Defendant
violated 15 U.S.C. §§ 1692g and 1692e is DISMISSED WITH PREJUDICE.
The Clerk of the Court is directed to enter judgment accordingly
and mark this case CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

February
7 , 2014
Central Islip, New York

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