Kassel v. Universal Fidelity LP

Filing 24

MEMORANDUM & ORDER granting 10 Motion to Dismiss Case as Frivolous; granting 10 Motion to Dismiss for Failure to State a Claim. For the foregoing reasons, Defendant's motion is GRANTED and the Complaint is DISMISSED WITH PREJUDICE. The Clerk of the Court is directed to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 3/3/2014. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
KATHERINE KASSEL,
Plaintiff,

MEMORANDUM & ORDER
13-CV-3756(JS)(AKT)

-againstUNIVERSAL FIDELITY LP,
Defendant.
----------------------------------------X
APPEARANCES
For Plaintiff:
Alan J. Sasson, Esq.
Yitzchak Zelman, Esq.
Law Office of Alan J. Sasson, P.C.
1669 East 12th Street
Brooklyn, NY 11229
Mark H. Rephen, Esq.
M. Harvey Rephen & Associate
708 3rd Avenue, 6th Floor
New York, NY 10017
For Defendant:

Aaron Twersky, Esq.
Twersky PLLC
747 Third Avenue, 32nd Floor
New York, NY 10017
Elchanan E. Engel, Esq.
Nathan D. Adler, Esq.
Neuberger, Quinn, Gielen, Rubin & Gibber
1 South Street, 27th Floor
Baltimore, MD 21202

SEYBERT, District Judge:
On
(“Plaintiff”)
defendant

July

7,

commenced

Universal

2013,
this

Fidelity

plaintiff
putative

LP

Katherine

class

(“Defendant”)

action

Kassel
against

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,

Defendant’s

et

motion

summary judgment.

seq.
to

Presently

dismiss

or,

in

before
the

the

Court

alternative,

is
for

For the following reasons, Defendant’s motion

is GRANTED.
BACKGROUND1
Plaintiff is a resident of Staten Island, New York.
(Compl. ¶ 2.)

Defendant is a Texas limited partnership engaged

in the business of debt collection.

(Compl. ¶ 3.)

Plaintiff is

a “consumer” and Defendant is a “debt collector” as those terms
are defined by the FDCPA.

(Compl. ¶¶ 4, 5.)

Plaintiff alleges that, on or about August 3, 2012,
Defendant mailed Plaintiff a “pre-printed, computer generated,
mass produced ‘Collection Letter.’”

(Compl. ¶ 23.)

Plaintiff

alleges that the Collection Letter, which is not attached to the
Complaint,2 includes the heading “‘VALUED CUSTOMER’ in a typeface
larger

and

different

than

(emphasis in the original).)
body

of

the

letter

any

on

the

page.”

(Compl. ¶ 24

Plaintiff also alleges that “[t]he

states:

‘According

to

our

client’s

accounting records, you have ignored the terms of this purchase
The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.
1

Although Plaintiff states that the Collection Letter is
attached to her memorandum of law in opposition to Defendant’s
motion, Plaintiff failed to include it with her submission.
2

2

agreement

with

them.

We

are

somewhat

surprised,

since

our

client indicated that YOU ARE A VALUED CUSTOMER of theirs.”
(Compl. ¶ 24

(emphasis

in

the

original).)

Plaintiff

further

alleges that the Collection Letter has a pre-printed signature
of “C. Hearn, Director of Payment Control.”
Plaintiff

maintains

that

the

(Compl. ¶ 25.)
Collection

Letter

violates the FDCPA, 15 U.S.C § 1692e and its preface in two
ways.

First, the Complaint alleges that the Collection Letter

violates
regard

the

to

FDCPA

the

“by

creditor

deceptively
that

‘YOU

informing
ARE

A

Plaintiff

VALUED

with

CUSTOMER

of

theirs,’ . . . when Defendant knows this to be untrue in view of
the fact that Plaintiff had one solitary transaction with the
creditor and in no way can be perceived as a ‘valued customer.’”
(Compl. ¶ 28.)
of

a

Second, the Complaint alleges that the inclusion

pre-printed

signature

of

“C.

Hearn”

“mislead[s]

the

consumer into believing that their [sic] particular file was
reviewed

by

creditor

who

Ms.
in

or

Mr.

turn

C.

Hearn

described

who
the

discussed
consumer

it
as

with
‘a

the

valued

customer,’ causing Ms. or Mr. Hearn to be ‘somewhat surprised’
to learn this.”

(Compl. ¶ 28.)

Defendant now moves to dismiss,

or in the alternative, for summary judgment.

3

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 more specifically.
I.

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

Court

applies

a

“plausibility

“[t]wo working principles.”

standard,”

which

is

guided

by

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).
Court

must

accept

“inapplicable

all

to

allegations

legal

as

First, although the

true,

conclusions;”

this

thus,

“tenet”

is

“[t]hreadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
accord Harris, 572 F.3d at 72.

Iqbal, 556 U.S. at 678;

Second, only complaints that

state a “plausible claim for relief” can survive a Rule 12(b)(6)
motion to dismiss.

Iqbal, 556 U.S. at 679.

Determining whether

a complaint does so is “a context-specific task that requires
the

reviewing

common sense.”

court

to

draw

on

its

judicial

experience

and

Id.; accord Harris, 572 F.3d at 72.

The Court is confined to “the allegations contained
within the four corners of [the] complaint.”
Blue

Cross

However,

Blue

this

has

Shield,
been

152

F.3d

interpreted
4

67,

71

broadly

Pani v. Empire
(2d
to

Cir.

1998).

include

any

document attached to the complaint, any statements or documents
incorporated
which

the

in

the

complaint

complaint

heavily

by

reference,

relies,

judicial notice may be taken.

and

any

document

anything

of

on

which

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
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

WL

Arroyo v. Solomon & Solomon, P.C., No. 991590520,

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
in

false,

deceptive,

connection

with

or
the

15 U.S.C. § 1692e; see also id. §

1692e(10) (including as a violation of the FDCPA, “[t]he use of
any

false

representation

or

deceptive

means

to

collect

or

attempt to collect any debt or to obtain information concerning
a consumer”).
To

determine

whether

a

debt

collector

has

violated

Section 1692e, courts use “an objective standard, measured by
5

how

the

notice

‘least
[received

sophisticated
from

the

consumer’
debt

would

interpret

collector].”

Soffer

the
v.

Nationwide Recovery Sys., Inc., No. 06-CV-0435, 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

Clomon

v.

The Second

sophisticated

consumer”

standard as “an objective analysis that seeks to protect the
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).
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

actionable under the FDCPA.”

false

or

misleading

to

be

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 &
6

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

(alterations in original))).
and

misleading

ability

to

if

pay

they

or

challenge

F.2d

22,

27

(2d

Cir.

1989)

“Statements are materially false

influence
a

a

consumer’s

debt.”

Klein

decision
v.

Solomon

or
&

Solomon, P.C., No. 10-CV-1800, 2011 WL 5354250, at *2 (D. Conn.
Oct. 28, 2011).
Applying the “least sophisticated consumer” standard
here, the Court finds that Plaintiff fails to state a claim
under 15 U.S.C. § 1692e.

As noted above, Plaintiff finds the

Collection Letter’s reference to her as a “valued customer” of
the

creditor

deceptive

because

“Plaintiff

had

one

solitary

transaction with the creditor and in no way can be perceived as
a ‘valued customer.’”

(Compl. ¶ 28.)

Even if it is true that

Plaintiff only engaged in one transaction with the creditor, the
Court

fails

to

see

how

the

term

“valued

customer”

violates

§ 1692e, as it is simply a comment regarding the creditor’s
perception of Plaintiff.
302

F.

Supp.

2d

56,

58

See Turner v. Asset Acceptance, LLC,
(E.D.N.Y.
7

2004)

(“[W]hile

Congress

enacted the FDPCA in order to address many odious practices used
by the debt collection industry, friendliness was not one of
those odious practices.”).
The Complaint next alleges that the inclusion of the
pre-printed

signature

of

“C.

Hearn”

“mislead[s]

the

consumer

into believing that their [sic] particular file was reviewed by
Ms. or Mr. Hearn who discussed it with the creditor who in turn
described the consumer as ‘a valued customer,’ causing Ms. or
Mr. Hearn to be ‘somewhat surprised’ to learn this.”
¶ 28.)

(Compl.

The Court finds that this allegation is nothing more

than a “bizarre or idiosyncratic interpretation[] of [a] debt
collection

letter[]”,

Greco,

412

F.3d

at

363

(internal

quotation marks and citation omitted), and fails to see how this
statement would “affect a consumer’s ability to make intelligent
decisions

concerning

an

alleged

debt.”

See

Walsh,

2012

WL

4372251, at *4 (internal quotation marks and citation omitted)).
Finally,

citing

the

Eleventh

Circuit’s

decision

in

Jeter v. Credit Bureau, 760 F.2d 1168, 1178-79 (11th Cir. 1985),
Plaintiff

also

argues

that

“the

decision

of

whether

the

Defendant made false or misleading statements in its letter is
beyond the purview of this Court” because “[w]hether a debt
collector’s conduct violates the FDCPA is ordinarily a question
for the jury.”

(Pl.’s Opp. Br., Docket Entry 21, at 4.)

Court disagrees.
8

The

In Jeter, the Eleventh Circuit addressed an alleged
violation of 15 U.S.C. § 1692d, which prohibits “conduct the
natural consequence of which is to harass, oppress, or abuse any
person in connection with the collection of a debt.”
§ 1692d.

Here,

Defendant’s

the

question

Collection

before

the

is

“false,

Letter

Court

15 U.S.C.
is

whether

deceptive,

or

misleading” under 15 U.S.C. § 1692e, which is an issue of law
that may be determined by the Court.

See Berger v. Suburban

Credit Corp., No. 04-CV-4006, 2006 WL 2570915, at *3 (E.D.N.Y.
Sept. 5, 2006) (“[T]he Second Circuit has indicated that the
determination of how the least sophisticated consumer would view
language in a defendant’s collection letter is a question of law
because the standard is an objective one.” (citing Schweizer v.
Trans

Union

Corp.,

136

F.3d

233,

237-38

(2d

Cir.

1998))).

Accordingly, Defendant’s motion to dismiss is GRANTED.3
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
leave to amend the complaint.”

Hayden v. Cnty. of Nassau, 180

F.3d 42, 53 (2d Cir. 1999); see also FED. R. CIV. P. 15(a)(2)
(“The court should freely give leave [to amend] when justice so
In reaching this conclusion, the Court did not rely on the
extrinsic evidence submitted with Defendant’s motion. Thus, the
motion was not converted to one for summary judgment.
3

9

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 would be futile as Plaintiff’s reading of the Collection
Letter proffers an idiosyncratic interpretation of it and the
alleged

deceptive

misleading.

statements

Accordingly,

are
such

not

materially

claim

is

false

DISMISSED

or
WITH

PREJUDICE.
CONCLUSION
For

the

foregoing

reasons,

Defendant’s

motion

GRANTED and the Complaint is DISMISSED WITH PREJUDICE.

is
The

Clerk of the Court is directed to mark this matter CLOSED.

SO ORDERED.

Dated:

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

March
3 , 2014
Central Islip, NY

10