Roth v. Solomon and Solomon, P.C.

Filing 34

MEMORANDUM & ORDER denying 27 Motion to Dismiss for Failure to State a Claim; For the foregoing reasons, Defendant's motion to dismiss is DENIED. So Ordered by Judge Joanna Seybert on 2/5/2018. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
BETSY ROTH,
Plaintiff,
MEMORANDUM & ORDER
17-CV-0868(JS)(AKT)

-againstSOLOMON AND SOLOMON, P.C.,

Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Craig B. Sanders, Esq.
David M. Barshay, Esq.
Jonathan Mark Sanders, Esq.
Sanders Law Firm, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
For Defendant:

John P. Borowski, Esq.
7 Midland Avenue
Glen Ridge, NJ 07028
Zilka A. Saunders, Esq.
Linda C. Devaney, Esq.
Solomon and Solomon, P.C.
Five Columbia Circle
Box 15019
Albany, NY 12212-5019

SEYBERT, District Judge:
Plaintiff Betsy Roth (“Plaintiff”) commenced this action
against

Defendant

Solomon

and

Solomon,

P.C.

(“Defendant”)

on

February 16, 2017, alleging violations of the Fair Debt Collection
Practices

Act

(“FDCPA”),

Docket Entry 1.)

15 U.S.C. § 1692,

et

seq.

(Compl.,

On April 12, 2017, Plaintiff filed an Amended

Complaint asserting FDCPA claims against Defendant on behalf of
herself and a class of similarly situated individuals in New York.

(Am. Compl., Docket Entry 10.)

Before the Court is Defendant’s

Motion to Dismiss the Amended Complaint under Rule 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure.
Docket

Entry

27,

at

1.)

For

the

reasons

set

(Def.’s Br.,
forth

below,

Defendant’s motion is DENIED.
BACKGROUND
I.

The Amended Complaint1
Plaintiff incurred a debt on her Synchrony Bank-financed

Walmart credit card (the “Debt”) and fell behind on her payments.
(Am.

Compl.

¶¶

10-12,

29;

Letter,

Docket

Entry

10-1.)

Significantly, Plaintiff alleges that at all relevant times, the
Debt accrued and was subject to interest and late fees.
Compl.

¶¶

30-31.)

The

Debt

was

assigned

or

(Am.

transferred

to

Defendant, and by letter dated February 24, 2016 (the “Letter”),
Defendant contacted Plaintiff in an effort to collect the Debt.
(Am. Compl. ¶ 13-14; Letter.)

The Letter indicated that the

“[a]mount due as of 02/24/2016” is $1,659.58, but failed to provide
other information that Plaintiff claims is necessary to adequately
inform

her

of

“the

amount

of

the

debt”

under

15 U.S.C. § 1692g(a)(1), including, inter alia, whether the stated

The allegations in the Amended Complaint are assumed to be true
for the purposes of this motion to dismiss. Dick v. Enhanced
Recovery Co., LLC, No. 15-CV-2631, 2016 WL 5678556, at *2
(E.D.N.Y. Sept. 28, 2016) (citing Harris v. Mills, 572 F.3d 66,
71 (2d Cir. 2009)).
1

2

amount may increase due to interest or late fees and whether
payment of the stated amount would satisfy the Debt.
¶¶ 33-45, 67.)

(Am. Compl.

Plaintiff claims that the “least sophisticated

consumer” would be unable to conclude what amount she would need
to pay to satisfy the Debt.
Additionally,

(Am. Compl. ¶¶ 46-67.)

Plaintiff

alleges

that

the

Letter

is

deceptive under 15 U.S.C. § 1692e because the least sophisticated
consumer may read it inaccurately or may read it to have two or
more meanings, one of which is inaccurate.

(Am. Compl. ¶¶ 69-73.)

Specifically, Plaintiff claims that because the Letter is silent
as to interest and fees, it can be read as meaning either that (1)
payment of the stated amount will satisfy the Debt because it is
static, or (2) payment of the stated amount will not satisfy the
Debt because it is increasing due to interest and late fees.

(Am.

Compl. ¶¶ 50-52, 74-81.)
Plaintiff

also

alleges

putative

class

more

than

“persons

from

of
whom

Defendant

violations

thirty-five
attempted

to

on

behalf

similarly
collect

of

a

situated
delinquent

consumer debts without disclosing whether the balance stated in
the collection letter may increase due to interest and fees.” (Am.
Compl. ¶¶ 82-88.)
II.

The Bankruptcy Proceeding
On

September

6,

2016,

Plaintiff

filed

a

voluntary

Chapter 7 Bankruptcy Petition in the U.S. Bankruptcy Court in this
3

District.

(Bankruptcy Petition, Docket No. 16-74055 (“Bankruptcy

Docket”), Bankruptcy Docket Entry 1.)

In her Petition, Plaintiff

listed a debt to Synchrony Bank in the amount of $1,659.00, which
represents the rounded-down value of the Debt at issue here.
(Bankruptcy Petition at ECF page 26.)

Plaintiff listed $76,734.24

in total liabilities and a number of creditors, but she did not
initially list any potential recoveries from lawsuits as assets of
the bankruptcy estate.

(See Bankruptcy Petition at ECF pages 8,

13, 19-28; Def.’s Br., Docket Entry 27-9, at 4.)

On October 10,

2016, Plaintiff amended her Bankruptcy Schedules A/B and C--on
which debtors are directed to identify their property interests
and the property they claim as exempt from the bankruptcy estate,
respectively--listing
$2,000.00.

as

assets

“FDCPA

Actions”

2016,

at

(Am. Schedule A/B, Bankruptcy Docket Entry 9-1, at 4-

5; Am. Schedule C, Bankruptcy Docket Entry 9-2, at 2.)
17,

valued

the

bankruptcy

trustee

entered

a

On October

“Report

of

No

Distribution,” in which he reported that after making a diligent
inquiry into Plaintiff’s financial affairs, he found “no property
available for distribution from the [bankruptcy] estate over and
above that exempted by law.”
No Distribution.)

(Oct. 17, 2016 Electronic Report of

Plaintiff’s debts were discharged and the

bankruptcy case was closed on December 20, 2016.
Discharge, Bankruptcy Docket Entry 11.)

4

(Order of

III. Plaintiff’s Other Lawsuits
After the bankruptcy discharge, Plaintiff filed this
matter and three other FDCPA actions in this District.

(See Roth

v. Credit Control, LLC, Docket No. 17-CV-1346; Roth v. United
Collection Bureau, Inc., Docket No. 17-CV-2720; Roth v. Convergent
Healthcare Recoveries, Inc., Docket No. 17-CV-4626.)

Plaintiff

filed her Credit Control, LLC action on March 9, 2017, her United
Collection Bureau, Inc. action on May 4, 2017, and her Convergent
Healthcare Recoveries, Inc. action on August 7, 2017.

Plaintiff’s

counsel in this action represented her in the other matters, all
of which were voluntarily dismissed with prejudice.
IV.

Defendant’s Motion to Dismiss
On August 6, 2017, Defendant moved to dismiss the Amended

Complaint under Rule 12(b)(1) and 12(b)(6), asserting that: (1)
Plaintiff lacks standing because she has not suffered a concrete
injury in fact; (2) Plaintiff lacks standing to assert, or is
judicially estopped from asserting, her claims because she did not
adequately disclose them during her bankruptcy proceeding; and (3)
Plaintiff fails to state a claim upon which relief can be granted.
(Def.’s Br. at 6-12.)

Plaintiff opposed Defendant’s motion on

September 7, 2017, contending that: (1) Plaintiff has standing
because she suffered an injury in fact; (2) Plaintiff’s disclosure
of “FDCPA Actions” during her bankruptcy proceeding was adequate;
and

(3)

Plaintiff

has

stated

a
5

claim.

(Pl.’s

Opp.,

Docket

Entry 32, at 5-9, 18-19.)

Defendant filed a reply in further

support of its motion on September 21, 2017, in which it (1) asks
the Court to rely on evidence that the Debt was not increasing;
(2) argues that Plaintiff’s allegation that interest and fees were
accruing on the Debt is a legal conclusion; and (3) reasserts its
bankruptcy-disclosure argument.

(Def.’s Reply, Docket Entry 33,

at 2-3.)
DISCUSSION
Because Defendant’s Motion to Dismiss implicates the
Court’s subject matter jurisdiction, the Court will first address
issues of standing.
I.

Lack of Subject Matter Jurisdiction
“A case is properly dismissed for lack of subject matter

jurisdiction under Rule 12(b)(1) when the district court lacks the
statutory or constitutional power to adjudicate it.”
United States, 201 F.3d 110, 113 (2d Cir. 2000).

Makarova v.

In resolving a

motion to dismiss for lack of subject matter jurisdiction, the
Court may consider materials beyond the pleadings.

See Morrison

v. Nat’l Austl. Bank, Ltd., 547 F.3d 167, 170 (2d Cir. 2008),
aff’d, 561 U.S. 247 (2010).

Though the Court must accept the

factual allegations contained in the Amended Complaint as true, it
will not draw argumentative inferences in favor of Plaintiff;
subject matter jurisdiction must be shown affirmatively.

See id.

Additionally, “[a] plaintiff asserting subject matter jurisdiction
6

has the burden of proving by a preponderance of the evidence that
it exists.”
A.

Makarova, 201 F.3d at 113.

Article III Standing
Article

III

of

the

U.S.

Constitution

restricts

the

jurisdiction of federal courts to actual cases or controversies.
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547, 194 L. Ed. 2d 635
(2016) (quoting Raines v. Byrd, 521 U.S. 811, 818, 117 S. Ct. 2312,
2317, 138 L. Ed. 2d 849 (1997)).

Standing to sue, “a doctrine

rooted in the traditional understanding of a case or controversy,”
“limits the category of litigants empowered to maintain a lawsuit
in federal court to seek redress for a legal wrong.”

Id. (citing

Valley Forge Christian Coll. v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464, 473 (1982); Warth v. Seldin,
422 U.S. 490, 498–99, 45 L. Ed. 2d 343 (1975)).
To

establish

standing,

a

plaintiff

“must

have

(1)

suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.”
fact

must

be

“‘concrete

and

Id.

particularized’

imminent, not conjectural or hypothetical.’”

An injury in

and

‘actual

or

Id. at 1548 (quoting

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130,
2136, 119 L. Ed. 2d 351 (1992)).
Supreme

Court

held

that

a

In its Spokeo decision, the

plaintiff

does

not

“automatically

satisf[y] the injury-in-fact requirement whenever a statute grants
7

a person a statutory right and purports to authorize that person
to sue to vindicate that right.”

Id. at 1549.

Instead, “Article

III standing requires a concrete injury even in the context of a
statutory violation.”

Id.

Relying on Spokeo, Defendant argues that Plaintiff lacks
Article III standing because she has not alleged that she suffered
an injury in fact, but only asserts “‘bare procedural violations’
of the FDCPA, ‘divorced from any concrete harm.’”
at 6 (quoting Spokeo, 136 S. Ct. at 1547-49.)

(Def.’s Br.

Plaintiff contends

that violations of Sections 1692e and 1692g of the FDCPA, standing
alone, give rise to concrete injuries sufficient to establish
Article III standing.

(Pl.’s Opp. at 13, 18.)

Plaintiff’s alleged failure to plead injuries beyond
FDCPA violations does not divest her of Article III standing.

In

Papetti v. Does 1-25, 691 F. App’x 24 (2d Cir. 2017), the Second
Circuit addressed this issue and explained that “Spokeo does not
‘categorically . . . preclude[
mandated

procedures

from

]

violations

qualifying

as

of

concrete

statutorily
injuries.’

Rather, ‘some violations of statutorily mandated procedures may
entail the concrete injury necessary for standing.’”2

Id. at 26

While the Court recognizes that Papetti is a Summary Order and
lacks precedential effect, “the Court is nevertheless persuaded
by the court’s reasoning in Papetti, which is apparently
dispositive on this issue and finds substantial support in the
body of post-Spokeo district court cases in this Circuit.”
2

8

(alterations in original) (quoting Strubel v. Comenity Bank, 842
F.3d 181, 189 (2d Cir. 2016)).

To determine whether a procedural

violation is an injury in fact, a court should consider “‘whether
Congress conferred the procedural right in order to protect an
individual’s concrete interests.’”

Id. (quoting Strubel, 842 F.3d

at 189). According to the Second Circuit, Sections 1692e and 1692g
of the FDCPA--the provisions that Plaintiff alleges Defendant
violated here--“protect an individual’s concrete interests” and
their alleged violation fulfills Article III’s injury-in-fact
requirement.

Id. (quoting Strubel, 842 F.3d at 189).

Therefore,

“the FDCPA violations alleged by [Plaintiff], taken as true,
‘entail the concrete injury necessary for standing.’” Id. (quoting
Strubel, 842 F.3d at 189).
B.

Standing After Bankruptcy Proceeding
Upon filing a bankruptcy petition, the debtor must file

a financial statement, including a schedule of all assets that are
part

of

the

estate,

11 U.S.C. § 521(a)(1)(B).

with

the

bankruptcy

court.

The bankruptcy estate includes, and the

debtor must list on the schedule, all of the debtor’s legal or
equitable interests in property, “wherever located and by whomever
held.”

Id. § 541(a)(1).

“In addition, the debtor must disclose

in the schedule all ‘causes of action owned by the debtor or

Balke v. All. One Receivables Mgmt., Inc., No. 16-CV-5624, 2017
WL 2634653, at *3 (E.D.N.Y. June 19, 2017) (compiling cases).
9

arising from property of the estate.’”

Eun Joo Lee v. Forster &

Garbus LLP, 926 F. Supp. 2d 482, 489 (E.D.N.Y. 2013) (quoting
Chartschlaa v. Nationwide Mut. Ins. Co., 538 F.3d 116, 122 (2d
Cir. 2008) (per curiam)).

Generally, property listed on the

schedule

the

is

“abandoned

to

debtor”

if

it

has

not

been

administered by the trustee by the time the bankruptcy case is
closed.

11 U.S.C. § 554(c).

“Abandoned” assets typically return

to the debtor at the conclusion of the bankruptcy case.

Eun Joo

Lee, 926 F. Supp. 2d at 489 (quoting Chartschlaa, 538 F.3d at 122).
If the debtor does not disclose property on the schedule,
however, that property remains part of the estate.
Chartschlaa,

538

F.3d

at

122;

Id. (citing

11 U.S.C. § 554(d)).

Because

unscheduled claims remain “‘the property of the bankruptcy estate,
the debtor lacks standing to pursue the claims after emerging from
bankruptcy, and the claims must be dismissed.’”

Id. (quoting

Rosenshein v. Kleban, 918 F. Supp. 98, 103 (S.D.N.Y. 1996)) (citing
In

re

Drexel

Burnham

(S.D.N.Y. 1993)).

Lambert

Grp.,

Inc.,

160

B.R.

508,

514

The doctrine of judicial estoppel may also bar

debtors from bringing unscheduled claims.

Id. (citing Coffaro v.

Crespo, 721 F. Supp. 2d 141, 145 (E.D.N.Y. 2010)).
“‘[F]ew courts have addressed the level of specificity
with which debtors must describe assets [on the schedule] in order
to comply with 11 U.S.C. § 521(a)(1).’”

Romeo v. FMA All., Ltd.,

No. 15-CV-6524, 2016 WL 3647868, at *6 (E.D.N.Y. June 30, 2016)
10

(first alteration in original) (quoting Tilley v. Anixter Inc.,
332 B.R. 501, 509 (D. Conn. 2005)). There are no bright-line rules
governing the degree of itemization and specificity required;
instead, “‘[w]hat is required is reasonable particularization
under the circumstances.’”
389,

395

(Bankr.

Id. (quoting In re Mohring, 142 B.R.

E.D.

Cal.

1992)

(alteration

in

original), aff’d, 153 B.R. 601 (B.A.P. 9th Cir. 1993), aff’d, 24
F.3d 247 (9th Cir. 1994)).

Notably, bankruptcy trustees have a

duty

financial

to

“investigate

the

affairs

of

the

debtor”

11 U.S.C. § 704(a)(4), and as such, the debtor “‘must do enough
itemizing to enable the trustee to determine whether to investigate
further.’”

Romeo, 2016 WL 3647868, at *6 (quoting In re Mohring,

142 B.R. at 395).

As observed by another court in this District,

“courts typically look at whether the schedule gives the trustee
enough information about the claim so he or she can decide if the
claim is worth pursuing.”

Eun Joo Lee, 926 F. Supp. 2d at 489

(compiling cases).
Here, after receiving the Letter, Plaintiff filed for
bankruptcy but did not initially disclose her FDCPA claim against
Defendant (or the other three parties she sued) in her schedule of
assets.

(Def.’s Br. at 4.)

While she amended the schedules to

include “FDCPA Actions” valued at $2,000, Defendant argues that
the disclosure was inadequate because it failed to identify the
party against whom Plaintiff had a claim and did not sufficiently
11

disclose the number or value of her FDCPA claims, which Defendant
avers are worth $5,000 or more. (Def.’s Br. at 10-11; Def.’s Reply
at 3-6.)

Thus, Defendant contends, Plaintiff lacks standing or is

barred by the doctrine of judicial estoppel from bringing this
suit.

(Def.’s

Br.

at

8-12.)

Plaintiff

counters

that

her

disclosure was sufficient because it gave the bankruptcy trustee
“‘inquiry notice’ sufficient to allow him to have duly investigated
her

financial

Plaintiff

affairs.”

argues

that

(Pl.’s
the

Opp.

description

at

7.)

“FDCPA

Specifically,
Actions”

gave

adequate notice of the nature of the claim and that the declared
value of $2,000 was, at most, an undervaluation of her claims.
(Pl.’s Opp. at 7-9.)
Defendant relies heavily on Romeo, in which a court in
this District found that one plaintiff lacked standing to bring an
FDCPA action and another plaintiff was judicially estopped from
doing so.

Romeo, 2016 WL 3647868, at *9-11, *14-15.

The court

held that plaintiff Romeo lacked standing to bring the action
because he (1) filed two other actions one month after commencing
his bankruptcy proceeding, without having initially disclosed the
claims; (2) amended his petition after the bankruptcy trustee
issued a “report of no distribution,” which advised the court-based

on

inaccurate

schedules--that

Romeo

possessed

no

distributable assets; (3) withheld supporting details about the
claims; and (4) despite having filed two actions, listed the assets
12

as “only one ‘Possible Fair Debt Collection Claim.’”

Id. at *9.

The court found that Romeo’s disclosure was incomplete and that he
lacked standing as a result.

Id. at *1-3, *10-11.

Additionally,

the Romeo court found that plaintiff Arpino was judicially estopped
from bringing her claim because she (1) filed a separate lawsuit
within

three

weeks

of

filing

for

bankruptcy,

without

having

initially disclosed the claim; (2) amended her filing to add one
“possible” FDCPA claim, even though the claim was “actualized”;
(3) failed to include supporting details about the claim; and (4)
having

disclosed

only

a

single

potential

claim,

subsequently

commenced an additional four actions in four different districts.
Id. at *3-4, *14-15.
This Court finds that Romeo is factually distinguishable
and that Plaintiff’s disclosure--“FDCPA Actions” valued at $2,000-was adequate.

First, “due to the specialized nature of the

FDCPA,” Plaintiff’s description of the claim “gave basic notice of
the underlying factual scenario.”

Id. at *11.

Second, the

disclosure specified that she had several “Actions” and thus
provided the trustee with notice that there was more than a single
claim. The Court recognizes that Plaintiff had at least four FDCPA
claims while her $2,000 valuation of the actions arguably suggested
that she had only two, given the $1,000 cap on statutory damages
available to a plaintiff in an FDCPA case.
3647868, at *11.

See Romeo, 2016 WL

However, the declared value was not facially
13

deceptive because, among other things, a court may award less than
$1,000 in statutory damages per case.

See, e.g., Cordero v.

Collection Co., No. 10-CV-5960, 2012 WL 1118210, at *2 (E.D.N.Y.
Apr. 3, 2012) (noting that the size of a statutory damages award
is committed to the sound discretion of the district court and
awarding each plaintiff $250 for the defendant’s FDCPA violation).
In any event, the disclosure gave the trustee notice of multiple
actions; he could have investigated further to determine the exact
number of Plaintiff’s claims.

Third, while Plaintiff did not

identify the parties against whom she had claims, “[t]he trustee
would have needed only to take a cursory look at” the Letter (or
the

other

three

collection

letters)

to

see

that

Defendant’s (or the other creditors’) letterhead.
926 F. Supp. 2d at 490.

it

was

on

Eun Joo Lee,

“Although it would have been more helpful

for” Plaintiff to itemize the actions she planned to bring, her
failure to do so does not deprive her of standing.

See Romeo,

2016 WL 3647868, at *12 (quoting Cusano v. Klein, 264 F.3d 936,
946–47 (9th Cir. 2001)). Fourth, it does not appear that Plaintiff
attempted to deceive the trustee about the existence of the claims.
Cf. id. at *9-10 (finding that plaintiff Romeo lacked standing and
noting that his “inaccurate characterization of [his] claims was
‘deceptive’ and ‘cryptic’”).

Unlike in Romeo, Plaintiff amended

her bankruptcy schedules before the trustee issued his report of
no distribution, so the trustee was able to consider the existence
14

of

Plaintiff’s

claims

distributable assets.

before

finding

See id.

that

she

possessed

no

Therefore, because Plaintiff’s

disclosure was sufficiently detailed to provide the trustee with
notice of this claim, the claim was abandoned at the close of the
bankruptcy case and it reverted back to Plaintiff. Thus, Plaintiff
has standing and is not judicially estopped from bringing this
action.3

See Eun Joo Lee, 926 F. Supp. 2d at 489-90 (holding that

plaintiff was “not barred from bringing [her FDCPA] action either
on standing or judicial estoppel grounds” after determining that
she

sufficiently

disclosed

the

claim

during

her

bankruptcy

proceeding).
Because Plaintiff has standing to bring this action, the
Court next considers whether Plaintiff states a claim upon which
relief can be granted.

Judicial estoppel requires a party to show that “‘(1) his
adversary advanced an inconsistent factual position in a prior
proceeding, and (2) the prior inconsistent position was adopted
by the first court in some manner.’” Romeo, 2016 WL 3647868, at
*13 (quoting Wight v. BankAmerica Corp., 219 F.3d 79, 90 (2d
Cir. 2000)) (internal quotation marks omitted). Because
Plaintiff adequately disclosed this action during her bankruptcy
proceeding, Defendant cannot show that Plaintiff “advanced an
inconsistent factual position” in that proceeding. See Eun Joo
Lee, 926 F. Supp. 2d at 489-90.
3

15

II.

Failure to State a Claim
A.

Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), the

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), and allow the Court “to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Ashcroft
plaintiff

v.

Iqbal,

need

not

556

U.S.

provide

662,

678

“detailed

(2009).
factual

Although
allegations”

the
to

support her claims, Twombly, 550 U.S. at 555–56, Rule 12(b)(6)
demands “more than an unadorned, the-defendant-unlawfully-harmedme accusation.”

Iqbal, 556 U.S. at 678.

Generally, the Court is “‘required to look only to the
allegations on the face of the complaint.’”

Volpe v. Nassau Cty.,

915 F. Supp. 2d 284, 291 (E.D.N.Y. 2013) (quoting Roth v. Jennings,
489 F.3d 499, 509 (2d Cir. 2007)).

In certain circumstances,

however, the Court may consider documents other than the complaint,
including: (1) documents attached to the complaint or incorporated
in it by reference, in which case they are deemed part of the
pleading; (2) “a document upon which [the complaint] solely relies
and which is integral to the complaint”; and (3) “public records
that are integral” to the complaint, of which the Court may take

16

judicial notice.4

Epstein v. N.Y. City Dist. Council of Carpenters

Benefit Funds, No. 15-CV-2866, 2016 WL 1718262, at *2 (S.D.N.Y.
Apr. 28, 2016) (alterations and emphasis in original) (quoting
Roth, 489 F.3d at 509).
only

‘to

determine

“But the court may take judicial notice

what

statements

[the

public

records]

contained’; the court may not take judicial notice ‘for the truth
of the matters asserted.’”

Id. (quoting Roth, 489 F.3d at 509)

(alterations and emphases in original).

A motion to dismiss under

“Rule 12(b)(6) is not an occasion for the court to make findings
of fact.”

Id. (quoting Roth, 489 F.3d at 509).
Defendant takes great pains to dispute the allegations

in the Amended Complaint.

Based on two affidavits attached to its

motion, filings from Plaintiff’s bankruptcy proceeding, creditor
account

statements,

and

Plaintiff’s

counsel’s

alleged

representations during the July 6, 2017 pre-motion conference,
Defendant argues that the Debt was not accruing or subject to
interest or late fees.

(Solomon Aff., Docket Entry 27-1; Bankr.

Filings, Docket Entry 27-2; Jacques Aff., Docket Entry 27-6; Acct.
Statements,

Docket

Entries

27-7,

27-8;

Def.’s

Br.

at

7-8.)

Defendant also contends that Plaintiff failed to allege that the

Federal Rule of Evidence 201 provides that a court may
“judicially notice a fact that is not subject to reasonable
dispute because it . . . is generally known within the trial
court’s jurisdiction; or . . . can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned.” FED. R. EVID. 201(b).
4

17

amount stated in the Letter was not accurate, or that the amount
had the potential to increase due to interest and fees.
Br. at 12.)

(Def.’s

Finally, Defendant interprets Plaintiff’s theory of

the case to be that “the least sophisticated consumer (but not
Plaintiff), would be unable to determine the amount due or how to
satisfy the debt” “because the Letter did not affirmatively state
a negative, that interest and/or fees were not accruing on the
Account.”

(Def.’s Br. at 13.)
Plaintiff

argues

that

the

Court

should

disregard

Defendant’s attempt to dispute the facts pled in the Amended
Complaint and deny the motion because the Amended Complaint alleges
that the Debt was accruing and subject to interest and late fees
but the Letter failed to disclose that fact.

(Pl.’s Opp. at 18-

19.)
Thus,

the

first

question

is

whether

the

Court

may

conclude that the Debt was not accruing and subject to interest
and late fees, despite the Amended Complaint’s allegations to the
contrary.
As an initial matter, while the Court may consider the
Letter because it is attached to and incorporated in the Amended
Complaint, see Epstein, 2016 WL 1718262, at *2 (quoting Roth, 489
F.3d at 509) (“‘Documents that are attached to the complaint or
incorporated in it by reference are deemed part of the pleading
and may be considered.’”), the Letter does not address whether
18

interest and late fees were accruing. It simply states the “Amount
due” as of February 24, 2016.
However,

the

Court

(See Letter.)
cannot

consider

the

affidavits

supplied by Defendant because it may not consider “‘affidavits and
exhibits submitted by defendants or rel[y] on factual allegations
contained in legal briefs or memoranda in ruling on a 12(b)(6)
motion to dismiss.’”

See Plains Mktg., L.P. v. Kuhn, No. 10-CV-

2520, 2011 WL 4916687, at *3 (E.D.N.Y. Oct. 17, 2011) (quoting
Friedl v. City of N.Y., 210 F.3d 79, 83–84 (2d Cir. 2000)).
Additionally, the Court may not consider the creditor’s account
statements, which purportedly show that no interest accrued and no
late fees were assessed on the Debt on or after January 9, 2015.
(See Def.’s Br. at 4.)

The Amended Complaint does not incorporate

the account statements by reference as it makes no “‘clear,
definite and substantial reference to the documents.’”

See id. at

*3 (quoting DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 60
(S.D.N.Y.

2010)).

Moreover,

the

account

statements

are

not

“integral” to the Amended Complaint and there is no indication
that the Amended Complaint relied on them: The Amended Complaint
does not reference the account statements or cite information
contained exclusively within them.
at *2.

See Epstein, 2016 WL 1718262,

Even if the Court were to take judicial notice of the

account statements as “source[s] whose accuracy cannot reasonably
be questioned,” FED. R. EVID. 201(b)(2), it could not rely on them
19

to establish the truth of the matters they purport to assert--that
interest and late fees were not accruing on the Debt.

See Finn v.

Barney, 471 F. App’x 30, 32 (2d Cir. 2012) (citing Staehr v.
Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008))
(holding that the district court did not abuse its discretion in
taking judicial notice of various documents where “it did not
consider the documents for their truth”).5
Finally, while the Court may take judicial notice of
Plaintiff’s bankruptcy filings, FED. R. EVID. 201(b), it may only
take notice that Plaintiff asserted the Debt’s value to be $1,659,
not that the amount due on the Debt was in fact $1,659.
471 F. App’x at 32 (citing Staehr, 547 F.3d at 425).

See Finn,

Plaintiff’s

bankruptcy filing does not establish that the Debt was not accruing
or subject to interest or late fees, but only that Plaintiff did
not list the Debt as having increased.
Therefore, for the purposes of Defendant’s motion to
dismiss,

the

Court

accepts

as

true

the

Amended

Complaint’s

allegation that the Debt was accruing and subject to interest and

Moreover, the Court will not dismiss the Amended Complaint
based on Plaintiff’s counsel’s alleged admissions at the pretrial conference. First, Plaintiff’s counsel disputes the
substance of the purported representations. (Pl.’s Opp. at 23
n.11.) Second, though Defendant claims that Plaintiff
“represented on the record . . . that interest was not accruing
on the debt at issue,” (Def.’s Br. at 4 n.1), there is no
transcript to support its assertion. (See Minute Entry, Docket
Entry 25.)
5

20

late fees.

The next question is whether Plaintiff’s allegations,

taken as true, and drawing all reasonable inferences in Plaintiff’s
favor, state a claim upon which relief may be granted.
B.

The Fair Debt Collection Practices Act
The FDCPA “establishes certain rights for consumers

whose debts are placed in the hands of professional debt collectors
for collection.”

DeSantis v. Computer Credit, Inc., 269 F.3d 159,

161 (2d Cir. 2001); see also 15 U.S.C. § 1692(e) (describing that
the purpose of the statute is “to eliminate abusive debt collection
practices”).

To assert a claim under the FDCPA, Plaintiff must

satisfy three threshold requirements: (1) she was a “consumer”;
(2) Defendant was a “debt collector”; and (3) Defendant’s act or
omission violated the FDCPA.

See Polanco v. NCO Portfolio Mgmt.,

Inc., 132 F. Supp. 3d 567, 578 (S.D.N.Y. 2015) (internal quotation
marks and citation omitted).
whether

a

communication

Courts in this Circuit determine

complies

with

the

FDCPA

“from

the

perspective of the ‘least sophisticated consumer.’” Thomas v.
Midland Credit Mgmt., Inc., No. 17-CV-0523, 2017 WL 5714722, at *3
(E.D.N.Y. Nov. 27, 2017) (quoting Jacobson v. Healthcare Fin.
Servs., Inc., 516 F.3d 85, 90 (2d Cir. 2008)).
Plaintiff alleges that she is a consumer, that Defendant
is a debt collector, and that Defendant’s conduct violated Sections
1692e and 1692g of the FDCPA.

(Am. Compl. ¶¶ 6, 9, 67, 81.)

21

Section 1692e prohibits a debt collector from using “any
false,

deceptive,

or

misleading

representation

or

means

in

connection with the collection of any debt.”

15 U.S.C. § 1692e.

“The

set

sixteen

subsections

of

Section

1692e

forth

a

non-

exhaustive list of practices that fall within this ban, including
‘the false representation of the character, amount, or legal status
of any debt.’”

Avila v. Riexinger & Assocs., LLC, 817 F.3d 72, 75

(2d Cir. 2016) (quoting 15 U.S.C. § 1692e(2)(A)).
Section 1692g requires that “[w]ithin five days after
the initial communication with a consumer in connection with the
collection of any debt, a debt collector shall . . . send the
consumer

a

written

15 U.S.C. § 1692g(a).

notice,”

known

as

a

validation

notice.

The notice is required to contain certain

information, including “the amount of the debt,” “the name of the
creditor to whom the debt is owed,” and a series of statements
outlining the dispute procedures.

15 U.S.C. § 1692g(a); see also

Douyon v. N.Y. Med. Health Care, P.C., 894 F. Supp. 2d 245, 255
(E.D.N.Y. 2012), amended on reconsideration, No. 10-CV-3983, 2013
WL 5423800 (E.D.N.Y. Sept. 25, 2013).
The Court finds that the allegations in the Amended
Complaint, taken as true, state a claim under Sections 1692e and
1692g of the FDCPA.

In Avila, where the plaintiffs alleged that

interest was accruing on their debt, the Second Circuit held that
a debt collector must disclose that a consumer’s account balance
22

may increase due to interest and late fees.

Avila, 817 F.3d at

74, 76-77. In light of Avila,6 Plaintiff sufficiently alleges that
the Letter violates Section 1692e because the Letter indicates the
amount due as of February 24, 2016 without disclosing that the
amount may increase due to interest and late fees.7

Id. at 77

(“The collection notices at issue here stated only the ‘current
balance’ but did not disclose that the balance might increase due
to interest and fees.

Thus, [p]laintiffs have stated a claim that

these notices were ‘misleading’ within the meaning of Section
1692e.”). Additionally, Plaintiff has stated a claim under Section
1692g.

See Carlin v. Davidson Fink LLP, 852 F.3d 207, 216 (2d

Cir. 2017) (holding that a statement under Section 1692g is

As discussed, Defendant attempts to bring this matter outside
of Avila’s reach by disputing whether the amount due on the Debt
was actually increasing due to interest and late fees,
positioning the issue as whether a debt collector is required to
inform a consumer that interest and late fees are not accruing
on a debt when they are not, in fact, accruing. (Def.’s Br. at
7-8, 12-13.) However, as discussed above, Defendant may not
prevail at this stage of the litigation by disputing Plaintiff’s
well-pled factual allegations. See Thomas, 2017 WL 5714722, at
*4. Similarly, Defendant’s argument that Plaintiff’s
allegations regarding interest and fees are legal conclusions
rather than factual allegations is untenable, and fails.
(Def.’s Reply at 2-3.)
6

In light of Plaintiff’s allegation that the Debt was accruing
and subject to interest and late fees, the Court does not decide
whether the Letter would violate the FDCPA if interest and late
fees were not, in fact, accruing. Moreover, the Court does not
rule on Plaintiff’s theory that the Letter is deceptive under
Section 1692e because it is open to more than one reasonable
interpretation, one of which is inaccurate, even if interest and
late fees are not accruing on the Debt. (Pl.’s Opp. at 24-25.)
7

23

incomplete where it omits information that would allow the least
sophisticated consumer to “determine . . . what she will need to
pay to resolve the debt at any given moment in the future, and an
explanation of any fees and interest that will cause the balance
to increase”); Thomas, 2017 WL 5714722, at *4-5.
Analyzing similar allegations, a sister court in this
District has found that the plaintiff stated a claim.

In Thomas,

2017 WL 5714722, the court denied the defendant’s motion to dismiss
pursuant to Rule 12(b)(6), noting that “the [p]laintiff alleges
that interest was accruing during the relevant period. The [c]ourt
must accept the [p]laintiff’s allegations as true at this stage of
the litigation.”

Id. at *4-5.

It then found that the plaintiff

alleged sufficient facts to state claims for relief under 1692e
and 1692g because it was unclear, due to the possible accumulation
of interest, whether the plaintiff could resolve her debt by paying
the amount stated on the collection letter.

Id. at *4-5.

Defendant’s reliance on Dick v. Enhanced Recovery Co.,
2016 WL 5678556, where the court dismissed the plaintiff’s FDCPA
claims, is misplaced.

The plaintiff in Dick, unlike Plaintiff

here, did not allege that charges, interest, or fees were actually
accruing or that they were going to accrue.
court found that Avila did not apply.

Id.

Id. at *5.

Thus, the

(“The Second Circuit’s

holding in Avila II--that it is misleading for a debt collector to
list the amount owed without disclosing the fact that said amount
24

is

increasing--does

not

support

Dick’s

argument

that

it

is

misleading to list the amount owed without affirmatively noting
that the amount is not increasing.”) (emphasis in original).
CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss
is DENIED.
SO ORDERED.

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

February
5 , 2018
Central Islip, New York

25