Strobel v. RJM Acquisitions LLC

Filing 33

MEMORANDUM & ORDER re: 12 Motion for Judgment on the Pleadings is GRANTED. The claim regarding BBB accreditation and rating is DISMISSED WITH PREJUDICE. The claim regarding a notice of assignment is DISMISSED WITHOUT PREJUDICE and with LEAVE TO REP LEAD. If Plaintiff intends to file an Amended Complaint, she must do so within thirty (30) days of the date of this Order. If she does not do so, the Complaint will be dismissed with prejudice in its entirety. Ordered by Judge Joanna Seybert on 2/6/2014. (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
BROCHA STROBEL, individually and on
behalf of a class,
Plaintiff,

MEMORANDUM & ORDER
13-CV-2467(JS)(AKT)

-againstRJM ACQUISITIONS LLC,
Defendant.
----------------------------------------X
APPEARANCES
For Plaintiff:
Abraham Kleinman, Esq.
Kleinman, LLC
626 RXR Plaza
Uniondale, NY 11556
For Defendant:

Shelby K. Benjamin, Esq.
Mel S. Harris & Associates, LLC
5 Hanover Square, 8th Floor
New York, NY 10004

SEYBERT, District Judge:
Currently pending before the Court is defendant RJM
Acquisitions,
pleadings.1

LLC’s

(“Defendant”)

motion

for

judgment

on

For the following reasons, Defendant’s motion is

GRANTED.

There are also several discovery-related motions pending in
this action, including a motion for sanctions, which have been
addressed to Magistrate Judge A. Kathleen Tomlinson. The
instant Memorandum and Order will address only Defendant’s
motion for judgment on the pleadings.
1

the

BACKGROUND2
Plaintiff Brocha Strobel, individually and on behalf
of a class (“Plaintiff”) commenced this action on April 23, 2013
for alleged violations of the Fair Debt Collection Practices
Act, 15 U.S.C. § 1692 et seq. (“FDCPA”).
Plaintiff alleges that Defendant “broadcasts” that it
is a Better Business Bureau (“BBB”) accredited business with an
A+ rating.

(Compl. ¶¶ 6, 10.)

On April 27, 2012, Plaintiff--an

individual consumer--received a collection letter (the “Letter”)
from Defendant containing the BBB rating.3

(Compl. ¶¶ 4, 8, 10.)

The Letter stated, in relevant part: “As you recall, [Defendant]
has

purchased

your

account.”

(Compl.

Ex.

A.)

Defendant

purchased this account from Doubleday Book Club (“Doubleday”)
and sought to collect debt incurred for a personal, family, or
household use.
letter

violates

(Compl. ¶¶ 9, 11.)
the

FDCPA

“by

Plaintiff maintains that the

misrepresenting

that

it

is

a

communication from a properly accredited entity, when in fact
the A+ accreditation is paid for and deceptive in light of the

The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.
2

Plaintiff has attached the Letter as Exhibit A to her
Complaint.
3

2

529 complaints against the debt collector.”4

(Compl. ¶ 13.)

She

also asserts that the Letter “is deceptive in that [Defendant]
cannot be the creditor of [Plaintiff], as the Doubleday Book
Club has not provided [Plaintiff] with a Notice of Assignment.”
(Compl. ¶ 14.)
Plaintiff further alleges that the Letter is a form
letter and she brings this action as a purported class action
because “there are more than 50 natural persons with addresses
in New York who were sent a letter on the same letterhead as
Exhibit A . . . .”

(Compl. ¶¶ 12, 18.)

Defendant now moves for judgment on the pleadings.
DISCUSSION
The

Court

will

first

address

the

applicable

legal

standard before turning to Defendant’s motion more specifically.
I. Legal Standard
The standard for evaluating a motion for judgment on
the

pleadings,

pursuant

to

Rule

12(c),

is

the

standard for a motion to dismiss under Rule 12(b).

same

as

the

See Karedes

v. Ackerley Grp., Inc., 423 F.3d 107, 113 (2d Cir. 2005).

In

deciding Rule 12(b)(6) motions 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.

In support, Plaintiff attaches as Exhibit B a printout from the
BBB website entitled “BBB Business Review,” showing a review of
Defendant.
4

3

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.
556 U.S. at 679.

Iqbal,

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.
Furthermore, in deciding the current motion, the Court
is

confined

to

“the

allegations

corners of [the] complaint.”
Shield,

152

interpreted
Complaint,
Complaint

F.3d
broadly

any
by

67,
to

71

reference,

(2d

Cir.

or

any

within

the

four

Pani v. Empire Blue Cross Blue

include

statements

contained

any

1998).

This

document

attached

to

the

incorporated

in

the

documents

document

on

which

the

has

been

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).

4

II. Defendant’s Motion
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.’”
CV-8302,

2001

Arroyo v. Solomon & Solomon, P.C., No. 99-

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 provides that

“[a]

not

use

or

means

debt

collector

misleading

may

representation

collection of any debt.”

any

false,

in

deceptive,

connection

with

or
the

15 U.S.C. § 1692e; see also id. §

1692e(10).
To

determine

whether

a

debt

collector

has

violated

Section 1692e, courts use “an objective standard, measured by
how

the

notice

‘least
[received

sophisticated
from

the

consumer’
debt

would

interpret

collector].”

Soffer

the
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);

Jackson, 988 F.2d 1314, 1318-19 (2d Cir. 1993)).
Circuit

has

described

the

“least

sophisticated

Clomon

v.

The Second
consumer”

standard as “an objective analysis that seeks to protect the
5

naive from abusive practices while simultaneously shielding debt
collectors

from

liability

for

bizarre

interpretations of debt collection letters.”
363

(2d

Cir.

2005)

(internal

quotation

or

idiosyncratic

Greco, 412 F.3d at

marks

and

citations

omitted).
Plaintiff’s claims--and thus those of the purported
class--center

around

two

issues:

(1)

rating, and (2) a notice of assignment.

BBB

accreditation

and

The Court will address

each in turn.
A. Plaintiff’s Allegations Regarding BBB Accreditation and
Rating
Plaintiff alleges that the Letter violates Sections
1692e

and

1692e(10)

“by

misrepresenting

that

it

is

a

communication from a properly accredited entity, when in fact
the A+ accreditation is paid for and deceptive in light of the
529 complaints against the debt collector.”

(Compl. ¶ 13.)

Defendant moves for dismissal of this claim primarily because
Plaintiff
statement.

has

not

pled

a

materially

false

or

misleading

The Court agrees.
Although the Second Circuit has yet to definitively

rule on the issue, other circuits and district courts within
this Circuit have “held that the least-sophisticated-consumer
standard also encompasses a materiality requirement; that is,
statements

must

be

materially

6

false

or

misleading

to

be

actionable under the FDCPA.”

Walsh v. Law Offices of Howard Lee

Schiff, P.C., No. 11-CV-1111, 2012 WL 4372251, at *3 (D. Conn.
Sept.

24,

2012)

(emphasis

in

original)

(collecting

cases);

accord Sussman v. I.C. Sys., Inc., 928 F. Supp. 2d 784, 795
(S.D.N.Y. 2013) (collecting cases); see Lane v. Fein, Such &
Crane, LLP, 767 F. Supp. 2d 382, 389 (E.D.N.Y. 2011) (collecting
cases); see also Gabriele v. Am. Home Mortg. Servicing, Inc.,
503 F. App’x 89, 94 (2d Cir. 2012) (“Although ‘[i]t is clear
that Congress painted with a broad brush in the FDCPA [,]’ not
every

technically

false

representation

by

a

debt

collector

amounts to a violation of the FDCPA.” (quoting Pipiles v. Credit
Bureau

of

Lockport,

Inc.,

886

F.2d

22,

27

(2d

Cir.

1989)

(alterations in original)).
Here, Plaintiff argues that the Letter’s inclusion of
an A+ rating from the BBB bolsters Defendant’s reputation and
decreases the likelihood that the least sophisticated consumer
would

question

the

validity

Docket Entry 16, at 15.)
statement

is

of

the

debt.

(Pl.’s

Opp.

Br.,

While Plaintiff has alleged that this

misleading,

it

is

not

disputed

indeed has an A+ rating from the BBB.

that

Defendant

Plaintiff’s opposition,

however, makes a number of statements regarding a “pay for play”
scheme--in
higher

which

rating

reference

to

some

through
a

businesses
payments

Federal

Trade
7

have
to

purportedly

the

BBB--as

Commission

obtained

a

well

a

as

investigation

of

Defendant.

(Pl.’s Opp. Br. 13-15.)

Other than stating that

Defendant paid for the BBB rating, none of these allegations are
contained in the Complaint.

In any event, they are not directly

relevant to how, if at all, a BBB accreditation and rating would
impact the least sophisticated consumer.
The Court agrees with Defendant that there is only one
way to read the representations at issue--that Defendant has an
A+ rating from the BBB.

This statement carries no connotation

regarding the character, amount, or legal status of any debt or
Plaintiff’s

rights

regarding

any

such

debt.

Nor

does

a

statement regarding the BBB indicate that Defendant is in any
way affiliated with any governmental entity.

The Court fails to

see how a BBB accreditation and rating suggests any relevant
meaning whatsoever.
not material.

To the extent that it does, however, it is

See Walsh, 2012 WL 4372251, at *4 (“[I]mmaterial

statements, by definition, do not affect a consumer’s ability to
make

intelligent

decisions

concerning

an

alleged

debt.”

(internal quotation marks and citation omitted)); see also Lane,
767 F. Supp. 2d at 389 (“[R]eferences to the laws of the United
States . . . . merely explain BMC’s place of incorporation and
licensing

.

.

.

[they

do]

not

suggest,

even

to

an

unsophisticated consumer, that BMC is acting on behalf of the
United States.”) (emphasis omitted)).

8

Moreover,
standard

itself

and

as

the

connotes,

least

the

idiosyncratic interpretations.

sophisticated

FDCPA

does

See supra pp. 5-6.

consumer

not

protect

Accordingly,

Defendant’s motion for judgment on the pleadings in this regard
is GRANTED.5
B. Plaintiff’s Allegations Regarding a Notice of Assignment
Plaintiff further alleges that “the collection letter
is

deceptive

[Plaintiff],
[Plaintiff]

in

that

as

the

with

a

[Defendant]
Doubleday

Notice

of

cannot

Book

be

Club

Assignment.”

the
has

creditor
not

of

provided

(Compl.

¶

14.)

Defendant maintains that dismissal of this claim is appropriate,
and the Court agrees.
Before the Court addresses the heart of Plaintiff’s
claim, there are several points worth noting.

First, Defendant

asserts--and Plaintiff apparently concedes--that the “notice of
assignment” to which Plaintiff refers is a requirement under New
York law, not the FDCPA.
7-11.)

Specifically,

(See Def.’s Br., Docket Entry 12-1, at
Section

5019(c)

of

New

York’s

Civil

Practice Law and Rules provides:
Change in judgment creditor. A person other
than the party recovering a judgment who
becomes entitled to enforce it, shall file
in the office of the clerk of the court in
In making this determination, the Court concludes that it was
not necessary to consider any documents outside of the
pleadings, and thus both parties’ arguments regarding potential
conversion to a motion for summary judgment are irrelevant.
5

9

which the judgment was entered . . . a copy
of the instrument on which his authority is
based, acknowledged in the form required to
entitle a deed to be recorded, or, if his
authority is based on a court order, a
certified copy of the order.
N.Y. C.P.L.R. § 5019(c).

As the statute, and precedent, make

clear, a notice of assignment becomes relevant in the context of
either a debt that has been reduced to judgment or--at the very
least--a

creditor’s

attempt

to

reduce

the

debt

to

judgment.

Musah v. Houslanger & Assocs., PLLC (“Musah II”), --- F. Supp.
2d

----,

2013

WL

4516786,

at

*3

(S.D.N.Y.

Aug.

26,

2013)

(finding that there was a potential FDCPA violation where the
defendant’s client attempted to collect on a judgment where the
plaintiff

was

not

notified

of

the

assignment);

South

Shore

Adjustment Co. v. Pierre, 32 Misc.3d 1227(A), *2, 936 N.Y.S.2d
61 (N.Y. Civ. Ct. 2011) (addressing notice of assignment where
creditor attempted to reduce debt to judgment).

Neither of

those situations is directly on point here, where there have
been no allegations that Defendant has received a judgment or
even attempted to bring suit.
Second, New York law requires that the assignor (i.e.,
Doubleday) provide the debtor with a notice of assignment, not
the assignee (i.e., Defendant).

(See Pl.’s Opp. Br. at 15-16

(citing Chase Bank USA v. Cardello, 27 Misc.3d 791, 896 N.Y.S.2d
856 (N.Y. Civ. Ct. 2010) for the proposition that “[n]otice of

10

assignment must be provided to the consumer from the assignor.”
(emphasis in original)).)

Thus, case law supports Defendant’s

argument that there is no valid cause of action under the FDCPA
for any purported failure by Defendant to provide the notice of
assignment to Plaintiff, at least in this context.

See Shetiwy

v. Midland Credit Mgmt., --- F. Supp. 2d ----, 2013 WL 5328075,
at *5 (S.D.N.Y. Sept. 20, 2013) (finding that the plaintiff had
not provided any legal support for the notion that “collection
actions are invalid unless the original creditor for a debt
provides prior notice to the debtor of the assignment of the
debt, with a variety of documentation . . . .” (emphasis in
original)).

However,

as

Plaintiff

asserts,

her

claim

somewhat more nuanced than Defendant’s argument suggests.
Pl.’s

Opp.

Br.

at

17-19

(arguing

that

Defendant’s

is
(See

arguments

regarding Doubleday are irrelevant).)
To

reiterate,

the

Complaint

alleges

that

“the

collection letter is deceptive in that [Defendant] cannot be the
creditor of [Plaintiff], as the Doubleday Book Club has not
provided [Plaintiff] with a Notice of Assignment.”
(emphasis

added).)

In

opposing

Defendant’s

(Compl. ¶ 14

motion,

however,

Plaintiff subtly attempts to amend her allegation, essentially
breaking

it

down

into

two

components:

(1)

that

Defendant

attempted to “confuse and mislead the Plaintiff into assuming
that Defendant has in fact purchased Plaintiff’[s] alleged debt”
11

and (2) “that Plaintiff was in fact previously and properly
notified of the assignment when no such notice had ever been
given.”

(Pl.’s

Plaintiff,

Opp.

though,

opposition brief.

Br.

may

at

not

17

amend

(emphasis
the

in

original).)

pleadings

through

an

See Fadem v. Ford Motor Co., 352 F. Supp. 2d

501, 516 (S.D.N.Y. 2005) (“It is long-standing precedent in this
circuit that parties cannot amend their pleadings through issues
raised solely in their briefs); O’Brien v. Nat’l Prop. Analysis
Partners,

719

F.

Supp.

222,

229

(S.D.N.Y.

1989)

(“[I]t

is

axiomatic that the Complaint cannot be amended by the briefs in
opposition to a motion to dismiss.”).

The allegation that the

Letter is deceptive in that Defendant cannot be the creditor of
Plaintiff

because

assignment

is

Doubleday

different

did

from

not

the

provide

allegation

the
that

notice

of

Defendant

misled Plaintiff into assuming that it had in fact purchased
Plaintiff’s

debt.

sophisticated

The

consumer

former
would

be

relates

to

deceived

whether
into

the

thinking

least
that

Defendant is the creditor, when this “cannot” be the case due to
a lack of notice of assignment; the latter relates to whether
the least sophisticated consumer would be misled as to whether
Defendant “purchased” the debt, and Plaintiff has not clarified
whether any such allegation would be contingent upon a proper
notice of assignment.

12

Moreover, relevant case law suggests that a technical
failure to comply with the requirements of Section 5019(c) does
not

invalidate

the

assignment.

See

Musah

v.

Houslanger

&

Assocs., PLLC (“Musah I”), No. 12-CV-3207, 2012 WL 5835293, at
*3 (S.D.N.Y. Nov. 16, 2012) (“[S]ection 5019(c) does not require
assignments to be recorded in order for those assignments to be
deemed valid, and the assignee of a judgment may attempt to
enforce that judgment and collect from the debtor even if the
filing requirement of 5019(c) has not been satisfied.” (internal
quotation marks and citation omitted)).

Thus, there was nothing

deceptive about any apparent statement that Defendant is the
creditor flowing from Doubleday’s alleged failure to provide a
Notice of Assignment.
As

to

Plaintiff’s

allegation

that

the

Letter

is

deceptive insofar as it suggests that Plaintiff was previously
and properly notified of the assignment when no such assignment
took place, again such claim fails.
consumer

standard

serves

dual

The least sophisticated

purposes--“the

need

to

protect

unsuspecting consumers from unscrupulous debt collectors and the
need

to

ensure

that

debt

collectors

unreasonable misinterpretations.’”

are

held

liable

‘for

Walsh, 2012 WL 4372251, at

*3 (quoting Clomon, 988 F.2d at 1319).

It does not protect the

consumer who would have to reject common sense and personal
experience in order to be potentially deceived.
13

See Clomon, 988

F.2d at 1319 (the least sophisticated consumer “can be presumed
to

possess

world”).

a

rudimentary

Additionally,

the

amount

of

notice

of

information
assignment

about

the

requirement

under New York law was designed to protect the assignee, not the
debtor.

Musah I, 2012 WL 5835293, at *3 (Section “5019(c) is

not meant to benefit the debtor, should the assignment not be
recorded, but rather is clearly intended for the benefit of the
assignee, being designed to protect him against payment of the
judgment

to

the

wrong

party.”

(internal

quotation

marks

and

citation omitted)).
Finally, any perceived deception regarding receipt, or
lack thereof, of the notice of assignment would not be material.
See Corazzini v. Litton Loan Servicing LLP, No. 09-CV-0199, 2010
WL 6787231, at *7 (N.D.N.Y. June 15, 2010) (“[E]ven if defendant
did

provide

a

false

statement

in

one

or

more

of

its

communications with plaintiff, plaintiff has failed to establish
that the alleged false statement was material to her decision to
pay her debt or that it impaired her ability to challenge the
debt.”).

Accordingly, Defendant’s motion for judgment on the

pleadings on this claim is GRANTED.
III. Amendment
Although

Plaintiff

has

not

specifically

sought

to

amend her Complaint, the Second Circuit has stated that “[w]hen
a motion to dismiss is granted, the usual practice is to grant
14

leave to amend the complaint.”
F.3d

42,

53

(2d

Cir.

Hayden v. Cnty. of Nassau, 180

1999),

overruled

on

other

grounds

by

Gonzaga v. Doe, 536 U.S. 273, 122 S. Ct. 2268, 153 L. Ed. 2d 309
(2002); see also FED. R. CIV. P. 15(a)(2) (“The court should
freely

give

leave

[to

amend]

when

justice

so

requires.”).

“However, a district court has the discretion to deny leave to
amend where there is no indication from a liberal reading of the
complaint

that

a

valid

claim

might

be

stated.”

Perri

v.

Bloomberg, No. 11-CV-2646, 2012 WL 3307013, at *4 (E.D.N.Y. Aug.
13, 2012) (citing Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.
2010)).
Here,

the

Court

finds

that

leave

to

replead

Plaintiff’s claim regarding the BBB’s accreditation and rating
would be futile as Plaintiff’s reading proffers an idiosyncratic
interpretation of the Letter and any statement in this regard is
not materially false or misleading.
DISMISSED WITH PREJUDICE.

Accordingly, such claim is

However, the Court GRANTS Plaintiff

leave to replead her claim regarding the notice of assignment.
While it is unclear whether Plaintiff can successfully state a
claim for an FDCPA violation, the Court cannot say definitively
that amendment would be futile.
If Plaintiff intends to file an Amended Complaint, she
must

do

so

within

thirty

(30)

15

days

of

the

date

of

this

Memorandum and Order.

If she does not do so, her Complaint will

be dismissed with prejudice in its entirety.
CONCLUSION
For

the

foregoing

reasons,

Defendant’s

motion

is

GRANTED.

The claim regarding BBB accreditation and rating is

DISMISSED

WITH

assignment

is

PREJUDICE.
DISMISSED

The

WITHOUT

claim

regarding

PREJUDICE

and

a

with

notice

of

LEAVE

TO

REPLEAD.

If Plaintiff intends to file an Amended Complaint, she

must

so

do

within

Memorandum and Order.

thirty

(30)

days

of

the

date

of

this

If she does not do so, the Complaint will

be dismissed with prejudice in its entirety.

SO ORDERED.

Dated:

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

February
6 , 2014
Central Islip, NY

16