Homa v. GC Services Limited Partnership
Filing
24
ORDER granting 19 : Defendant's motion to dismiss pursuant to Rule 12(b)(6) is granted as to all claims. See attached Order. The Clerk of Court is directed to enter judgment and close the case. Ordered by Judge Denis R. Hurley on 9/27/2018. (Bochner, Francesca)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------X
DENISE K. HOMA, on behalf of herself and
all others similarly situated,
Plaintiff,
- against –
GC SERVICES LIMITED PARTNERSHIP,
Defendant.
-------------------------------------------------------X
CATHERINE C. VAUGHAN, on behalf of
herself and all others similarly situated,
Plaintiff,
- against –
GC SERVICES LIMITED PARTNERSHIP,
Defendant.
-------------------------------------------------------X
APPEARANCES
MITCHELL L. PASHKIN
Attorney for Plaintiffs
775 Park Avenue Suite 255
Huntington, NY 11743
By:
Mitchell L. Pashkin, Esq.
KIRSCH & NIEHAUS
Attorney for Defendant
150 East 58th Street
New York, NY 10155
By:
Emily B. Kirsch, Esq.
Page 1 of 14
MEMORANDUM AND ORDER
2:17-cv-1661 (DRH)(AYS)
2:17-cv-3914 (DRH)(AYS)
HINSHAW & CULBERTSON, LLP
Attorneys for Defendant
800 Third Avenue
New York, NY 10022
By:
Matthew B. Corwin, Esq.
Bryce Wallace Newell, Esq.
Concepcion A. Montoya, Esq.
HURLEY, Senior District Judge:
INTRODUCTION
Plaintiffs Denise K. Homa (“Homa”) and Catherine C. Vaughan (“Vaughan,” collectively
“Plaintiffs”) brought two separate, and now related, actions against Defendant GC Services
Limited Partnership (“Defendant”) for violations of the Fair Debt Collection Practices Act
(“FDCPA”) in connection with two identical collection letters. Presently before the Court is
Defendant’s joint motion to dismiss both actions pursuant to Fed. R. Civ. P. (“Rule”) 12(b)(6)
for failure to state a claim. For the reasons explained below, the motion to dismiss is granted.
BACKGROUND
The following relevant facts come from the Amended Complaints and are assumed true
for purposes of this motion.
On November 5, 2015, Defendant sent Plaintiff Homa a letter (the “Homa Letter”)
seeking to collect a past-due debt she had incurred on a Chase Bank USA, N.A. (“Chase”) credit
card. (Compl. [DE 11] No. 17-cv-1661 (hereinafter “Homa Compl.”) ¶ 7.) On February 4,
2016, Defendant sent Plaintiff Vaughan an identical letter (the “Vaughan Letter”) seeking to
collect a past-due debt she had likewise incurred on a Chase credit card. (Compl. [DE 9] No. 17cv-3914 (hereinafter “Vauaghan Compl.”) ¶ 7.) Neither the Homa nor the Vaughan Complaints
allege that the Plaintiffs have made any payments toward their debts.
Page 2 of 14
Plaintiff Homa originally brought this action in New York State Court in November
2016. Plaintiff Vaughan originally brought this action in New York State Court in February
2017. Defendant removed the Homa action to this Court on March 24, 2017, and removed the
Vaughan action to this Court on June 30, 2017. The Vaughan case was related to the Homa
action and was therefore reassigned to the undersigned on August 1, 2017. Defendant brought a
single motion to dismiss both the Homa and Vaughan actions on November 20, 2017.
LEGAL STANDARD
In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court
should “draw all reasonable inferences in Plaintiff[‘s] favor, assume all well-pleaded factual
allegations to be true, and determine whether they plausibly give rise to an entitlement to relief.”
Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks
omitted). The plausibility standard is guided by two principles. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)); accord Harris v. Mills, 572
F.3d 66, 71–72 (2d Cir. 2009).
First, the principle that a court must accept all allegations as true is inapplicable to legal
conclusions. Thus, “threadbare recitals of the elements of a cause of action supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Although “legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.” Id. at
679. A plaintiff must provide facts sufficient to allow each named defendant to have a fair
understanding of what the plaintiff is complaining about and to know whether there is a legal
basis for recovery. See Twombly, 550 U.S. at 555.
Second, only complaints that state a “plausible claim for relief” can survive a motion to
dismiss. Iqbal, 556 U.S. at 679. “A claim has facial plausibility when the plaintiff pleads factual
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content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ but asks
for more than a sheer possibility that defendant acted unlawfully. Where a complaint pleads
facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line’ between
possibility and plausibility of ‘entitlement to relief.’” Id. at 678 (quoting Twombly, 550 U.S. at
556-57) (internal citations omitted); see In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.
2007). Determining whether a complaint plausibly states a claim for relief is “a context specific
task that requires the reviewing court to draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679; accord Harris, 572 F.3d at 72.
DISCUSSION
I.
The Parties’ Arguments
In the Vaughan Complaint, Plaintiff Vaughan sets out six causes of action: (1) failure to
set forth the amount of the “debt” in the Vaughan Letter by omitting an explanation that the
stated amount may increase in violation of 15 U.S.C. § 1692g(a)(1); (2) failure to notify Plaintiff
Vaughan that her “balance due” may be recalled by Chase in violation of 15 U.S.C. § 1692e and
§ 1692g(a)(1); (3) failure to explain that the “balance due” may increase due to pre-judgment
interest pursuant to N.Y. C.P.L.R. § 5001(a) in violation of 15 U.S.C. § 1692e and
§ 1692g(a)(1); (4) failure to identify in any manner or properly identify the “creditor” in
violation of 15 U.S.C. § 1692e, § 1692e(10), and § 1692g(a)(2); (5) using false, deceptive, or
misleading means to collect a debt in violation of 15 U.S.C. § 1692e, § 1692e(2)(A), and
§ 1692e(10); and (6) using unconscionable means to collect or attempt to collect a debt in
violation of 15 U.S.C. § 1692f and/or § 1692f(1). (Vaughan Compl. ¶¶ 14–59.)
Page 4 of 14
Plaintiff Homa sets out the same six causes of action as Plaintiff Vaughan, in addition to
a seventh cause of action for failing to identify the Letter as the “Initial Written Notice.” (Homa
Compl. ¶¶ 19–20.) Plaintiff Homa argues that this exclusion confuse the least sophisticated
consumer concerning the time frame to dispute the debt or seek validation of the debt in violation
of 15 U.S.C. § 1692g(a)(3), (4), and/or (5), and § 1692e. (Id.)
II.
FDCPA § 1692g(a)(3) – Time to Dispute the Debt
a. Legal Standard
FDCPA § 1692g(a) provides that:
Within five days after the initial communication with a consumer in
connection with the collection of any debt, a debt collector shall, unless the
following information is contained in the initial communication or the
consumer has paid the debt, send the consumer a written notice
containing—(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; (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.
“The FDCPA prohibits debt collectors from using not only false representations, but also
‘deceptive . . . or misleading ones.’” DiMatteo v. Sweeney, Gallo, Reich & Bolz, L.L.P., 619 F.
App’x 7, 9 (2d Cir. 2015) (quoting 15 U.S.C. § 1692e)). The Second Circuit has explained that
to evaluate whether a communication is deceptive or misleading, courts should use “an objective
standard based on the ‘least sophisticated consumer,’ in order ‘to ensure that the FDCPA protects
all consumers, the gullible as well as the shrewd.’” DiMatteo, 619 F. App’x at 9 (quoting
Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993)). Collection communications are
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deceptive under this standard “if they are open to more than one reasonable interpretation, at
least one of which is inaccurate.” Id.
b. The Motion to Dismiss Count 1 of the Homa Complaint is Granted
Plaintiff Homa claims that the failure to identify the Homa Letter as the “Initial Written
Notice” “could confuse the least sophisticated consumer concerning the time frame to dispute the
debt or seek validation of the debt.” (Homa Compl. ¶ 19.) In support of this proposition,
Plaintiffs cite to Chavez v. MCS Claim Services, Inc., a in which the court granted a default
judgment and held that the Communication could confuse the least sophisticated consumer by
stating: “unless you within thirty (30) days after your receipt of MCS claim Services, Inc. initial
written notice to you concerning this debt, dispute the validity of the debt . . . .” 2016 WL
1171586, at *2 (E.D.N.Y. March 23, 2016).
The Court finds Plaintiff’s argument unavailing. As an initial matter, the facts here are
readily distinguishable from the facts in Chavez. In Chavez, the letter said that the recipient had
thirty days from receipt of “the initial written notice to you[.]” Id. Here, the Letters state that the
recipient has “thirty (30) days after your receipt of this letter [to] dispute the validity of the debt,
or any portion thereof[.]” (Letter from Defendant to Homa [DE 9-1] Ex. A. to Homa Compl. at 2
(emphasis added).) As such, Defendant’s failure to specifically identify the Letter as the “Initial
Written Notice” would not confuse the least sophisticated consumer given that the Letter
explicitly states that the time frame to dispute the debt commences upon receipt of the Letter
itself.
Moreover, numerous courts in New York have held that similar language “tracks the
statutory language” and fulfills the debt collector’s requirements under § 1692g(a)(3). See, e.g.,
Kagan v. Selene Finance L.P., 210 F. Supp. 3d 535, 543 (S.D.N.Y. 2016) (holding that a notice
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stating that the debt dispute must be made orally or in writing within 30 days complied with the
FDCPA); see also Nasca v. GC Servs. Ltd. P’ship, 2002 Wl 31040647, at *7 (S.D.N.Y. Sept. 12,
2002) (holding that a notice that provided that the plaintiff must notify the debt collector “within
30 days of receipt of this notice that [she] disputes the validity of the debt, or any portion thereof
. . . tracks the statutory language”); Sebrow v. NCO Fin. Sys., Inc., 2009 WL 2707341, at *3
(E.D.N.Y. Aug. 27, 2009) (finding that a notice “parallel[ed] the language of 1692g(a)(3)” in
stating that “[u]nless you notify this office within 30 days after receiving this notice that you
dispute the validity of the debt or any portion thereof, this office will assume this debt is valid”
(internal quotation marks omitted)). Accordingly, Defendant’s motion to dismiss is granted as to
Plaintiff Homa’s first cause of action for violations of § 1692g(a).
III.
FDCPA § 1692g(a)(1) and § 1692e– The Amount of the Debt
a. Legal Standard
As quoted above, FDCPA § 1692g(a)(1) requires that a debt collector must provide a
written notice that sets forth the amount of debt that the collector is seeking to collect. FDCPA
§ 1692e further provides that “[a] debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any debt.” The false representations
that are explicitly forbidden include the false representation of “the character, amount, or legal
status of any debt[.]” 15 U.S.C. § 1692e(2)(A).
b. The Motion to Dismiss Count 1 of the Vaughan Complaint and Count 2 of the
Homa Complaint is Granted
Plaintiffs argue that Defendant has violated § 1692g(a)(1), as well as § 1692e, by failing
to explain that the “balance due” may increase as a result of late charges or interest. In their
Memorandum in Opposition, Plaintiffs specifically take issue with the fact that the Letters do not
include the “safe harbor” approach the Second Circuit adopted in Avila v. Riexinger & Assoc.,
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LLC, 817 F.3d 72, 74 (2d Cir. 2016). Under the safe harbor approach, a debt collector can
satisfy the duty to state the amount of debt by including the following provision:
As of the date of this letter, you owe $____ [the exact amount due]. Because
of interest, late charges, and other charges that may vary from day to day,
the amount due on the day you pay may be greater. Hence, if you pay the
amount shown above, an adjustment may be necessary after we receive your
check, in which event we will inform you before depositing the check for
collection. For further information, write the undersigned or call 1–800–
[phone number].
Id. at 77 (quoting Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, & Clark, L.L.C., 214 F.3d
872, 876 (7th Cir. 2000)). However, in both Avila and Miller, the Courts specified that this safe
harbor approach only applies to cases “where the amount varies from day to day[.]” Id.
Moreover, the Second Circuit has recently addressed the question of whether a collection
notice must lay out all potential interests and fees in a case with facts analogous to those before
this Court. In Taylor, the Second Circuit explained that:
The collection notices [defendant] sent to [plaintiffs], which stated their
respective balances due without discussing interest or fees, could likewise
have been read to mean that prompt payment of the amounts stated would
satisfy the debts in question. The difference is that, while that message was
prejudicially misleading on the facts of Avila, on the facts of this case it was
accurate: prompt payment of the amounts stated in [plaintiff’s] notices
would have satisfied their debts.
Taylor v. Fin. Recovery Servs., 886 F.3d 212, 214 (2d Cir. 2018) (emphasis in original).
Here, Plaintiffs have not alleged that interest or any other fees have accrued on their debt
since they received their Letters. Nor do Plaintiffs allege that prompt payment of the amount
stated in their notices would not have satisfied their debts.1 As the balance in question does not
1
This conclusion also comports with the line of cases that consider whether a debt collector is required to
explain that interest and fees are not accruing. “Although a collection letter must notify a debtor that her
balance is accruing interest and/or fees, Avila [], plaintiff has not identified any authority for her
argument that a collection letter must affirmatively notify a debtor that her balance is not accruing interest
or fees.” Polizois v. Vengroff Williams, Inc., 2018 WL 1443875, at *6 (E.D.N.Y. March 22, 2018)
(emphasis in original). Rather, “courts that have considered the issue have correctly concluded that no
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“var[y] from day to day” under Avilla, the safe harbor language is not required. Accordingly,
Count 1 of the Vaughan Complaint and Count 2 of the Homa Complaint are dismissed.
c. The Motion to Dismiss Count 2 of the Vaughan Complaint and Count 3 of the
Homa Complaint is Granted
Plaintiffs argue that Defendant violated § 1692g(a)(1) and § 1692e by failing to explain
that Chase could recall2 their accounts at any time. In support of this claim, Plaintiffs attach a
letter addressed to a third party, Rosa Savage, who is not involved in any way in either of these
actions before the Court.3 This document does not support Plaintiffs’ position, as there is no
reason for the Court to conclude that Ms. Savage’s contractual relationship with Chase has any
bearing on the Plaintiffs’ relationship to Chase. Even if a recall could occur, this does not
necessarily mean that Chase would seek interest and late charges. Under Taylor, “if a collection
notice correctly states a consumer’s balance without mentioning interest or fees, and no such
interest or fees are accruing, then the notice will be neither misleading within the meaning of
Section 1692e, nor fail to state accurately the amount of the debt under Section 1692g.” 886
such affirmative duty exists. Id. (citing Kraus v. Prof’l Bureau of Collections of Md., Inc., 2017 WL
6398744, at *7 (E.D.N.Y. Nov. 27, 2017) (“If a collection letter simply states a debtor’s account balance
without mentioning interest or affirmatively indicating that the balance is static, then the letter is not
‘open to more than one reasonable interpretation’ as to whether interest is accruing.”) The same logic
applies to whether the balance may increase in the future. See Dick v. Enhanced Recovery Co., LLC,
2016 WL 5678556, at *5 (E.D.N.Y. Sept. 28, 2016) (“[T]here is no requirement that every statement in a
debt collection notice include an extra assurance that the fact stated will not change in the future.”);
Taylor v. Fin. Recovery Servs., Inc., 252 F. Supp. 3d 344, 352 (S.D.N.Y. 2017), aff’d, 886 F.3d 212 (2d
Cir. 2018) (finding that no confusion was possible regarding whether the plaintiff “could pay her debt in
full by paying the amount listed on the notice” when plaintiff “adduce[d] no evidence that paying the
stated balance due in their respective letters would not satisfy their debts.”).
2
According to Plaintiffs, a recall means that Chase “would exercise its [] right to seek from [Plaintiffs]
the aforementioned accrued interest, late charges, and/or other charges in addition to any ‘Balance Due.’”
(See Homa Compl. ¶ 27.)
3
The Court may consider this letter as it is attached to the Complaint. Bank of New York Mellon Trust
Co. v. Morgan Stanley Mortg. Capital, Inc., 2011 WL 2610661, at *3 (S.D.N.Y. June 27, 2011) (“In
deciding a motion to dismiss, this Court may consider the full text of documents that are quoted in or
attached to the complaint[.]”)
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F.3d at 215. Moreover, “there is no requirement that every statement in a debt collection notice
include an extra assurance that the fact stated will not change in the future.” Dick, 2016 WL
5678556, at *5. In Avila, the Second Circuit sought to protect the plaintiff from events that had
already transpired and that the defendant had concealed; not from hypothetical future events that
had no impact on the amount of the debt at the time the plaintiff received the collection letter.
See 817 F.3d at 74.
In the cases at bar, there are no allegations that Chase has recalled or will recall their
accounts. Nor do Plaintiff claim that interest or late fees were accruing pursuant to Chase’s
recall option. Under Taylor and Avila, Defendant did not violate its duty to set forth the amount
due because Plaintiffs could have satisfied their debts by making prompt payment of the amount
set forth in their respective Letters. Therefore, Count 2 of the Vaughan Complaint and Count 3
of the Homa Complaint are dismissed.
d. The Motion to Dismiss Count 3 of the Vaughan Complaint and Count 4 of the
Homa Complaint is Granted
Plaintiffs also claim that Defendant violated § 1692g(a)(1) and § 1692e by failing to
explain that the “amount” could increase due to pre-judgment interest sought by Chase. As
explained by this Court in Bird v. Pressler, “the prayer for relief of pre-judgment interest is a
request upon the Court. . . . It is not a representation of a sum certain.” 2013 WL 2316601, at *2
(E.D.N.Y. May 28, 2013) (citing Argentieri v. Fisher Landscapes, Inc., 15 f. Supp. 2d 55, 61 (D.
Mass. 1998)). Plaintiffs argue that Bird has been overruled by Avila, and that pre-judgment
interest under N.Y. C.P.L.R. § 5001 was accruing so the Letters had to contain some reference to
it. Other courts in the Eastern District have held, since Avila, that:
While the Plaintiff alleges that pre-judgment interest under N.Y. C.P.L.R.
§ 5001 should be disclosed in the Letter, such a position does not conform
to the nature of such interest. Any request for pre-judgment interest must
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be made to a court. Such an award by a court would be for an uncertain
sum as at the time the Letter was sent; no request was made nor was any
calculation of such an award attempted. The allegations by [plaintiff] that
the Defendant or [the original debt-holder] could assess interest under
§ 5001 are entirely speculative at best, and misstate the law at worst, as only
a court may enter such a judgment.
Cruz v. Credit Countrol Servs., Inc., 2017 WL 5195225, at *5 (E.D.N.Y. Nov. 8, 2017) (citing
Bird, 2013 WL 2316601, at *2) (internal citations omitted, emphasis in original).
Plaintiff also avers that the Second Circuit’s holding in Carlin controls. In Carlin, the
Second Circuit found that “a statement is incomplete where . . . it omits information allowing the
least sophisticated consumer to determine the minimum amount she owes at the time of the
notice, 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.” Carlin v. Davidson
Fink LLP, 852 F.3d 207, 216 (2d Cir. 2017). However, the Second Circuit has explained that
Carlin “concerned a debt collector’s obligation under Section 1692g of the FDCPA to state ‘the
amount of the debt’ within five days of its initial communication with a consumer[;]”not whether
a debt collector must disclose possible future changes to the “amount of the debt” that have not
occurred and may never occur. Taylor, 886 F.2d at 215 (citing 852 F.3d at 207)). The Court
finds that the issue of pre-judgment interest under N.Y. C.P.L.R. § 5001 fits squarely within the
Second Circuit’s holding in Taylor, as “no such interest [was] accruing” at the time the Letters
were sent and prompt payment would have satisfied the Plaintiffs’ debt. See Taylor, 886 F.3d at
215. Accordingly, the lack of a reference to pre-judgment interest in the Letters was “neither
misleading within the meaning of Section 1692e, nor [did it] fail to state accurately the amount
of the debt under Section 1692g.” See id. Therefore, the Court 3 of the Vaughan complaint and
Count 4 of the Homa Complaint are dismissed.
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IV.
FDCPA § 1692g(a)(2), 15 U.S.C. § 1692e, § 1692e(10) – The Name of the Creditor
a. Legal Standard
As quoted above, FDCPA § 1692g(a)(2) mandates that a debt collector provide “the
name of the creditor to whom the debt is owed[.]” 15 U.S.C. § 1692g(a)(2). Additionally,
FDCPA § 1692g(e)(10) prohibits “[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.” 15
U.S.C. § 1692g(e)(10).
a. The Motion to Dismiss Count 4 of the Vaughan Complaint and Count 5 of the
Homa Complaint is Granted
In their Amended Complaints, Plaintiffs argue that the Letters “did not identify in any
manner or did not clearly or properly identify the ‘creditor’ and/or entity to whom the debt is
currently owed or on whose behalf [Defendant] was attempting to collect the debt.” (Vaughan
Compl. ¶ 54; Homa Compl. ¶ 61.) Plaintiffs do not reference this claim in their Memorandum in
Opposition, perhaps because they have realized that it is fruitless.
In the Letters that Plaintiffs attach to their Amended Complaints, Chase is denominated
twice: first in bold, capitalized letters above the text of the letter stating “YOU OWE: CHASE
BANK USA, N.A. . . . [;]” and second, in the very first sentence of the letter, when it states: “We
are writing to let you know that your account with CHASE BANK USA, N.A., with an overdue
balance of $[X], has been referred to us.” (Ex. A to Homa Compl. at 1; Ex. A to Vaughan
Compl. at 1.)
Courts in the Eastern District have held that even if a collection letter does not use the
words “creditor” or “owner” to identify the current holder of the debt, “the FDCPA does not
require debt collectors to use ‘magic words’ to avoid liability.” Romano v. Schachter Portnoy,
L.L.C., 2017 WL 2804930, at *3 (E.D.N.Y. June 28, 2018) (citing Shanker v. Fair Collection &
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Outsourcing, LLC, 2009 WL 1767580, at *4 (D.N.J. June 19, 2009)). For example, when “the
subject line of the Collection Letter identified both the creditor, Chase, and plaintiff’s account
number with Chase Bank[] [t]his ‘strongly suggests’ that Chase is the current creditor.” Taylor
v. MRS BPO, LLC, 2017 WL 2861785, at *3 (E.D.N.Y. July 5, 2017) (quoting Santibanez cv.
Nat. Credit Sys., Inc., 2017 WL 126111, at *3 (D. Or. Jan 12, 2017) (“Here, the subject line
contains a single name (EMC) and a single account number. This strongly suggests that EMC is
the creditor”.)). The facts in the cases at bar mirror those in Taylor v. MRS. As in Taylor v.
MRS, the Court finds that the subject line of the Letters contain a single name (Chase) and
Plaintiffs’ respective account numbers. Defendant may not have used “magic words,” but
Defendant has identified the creditor in such a way that even the “least sophisticated consumer”
would know to whom the debt is owed and on whose behalf Defendant seeks to collect such
debt. Therefore, Count 4 of the Vaughan Complaint and Count 5 of the Homa Complaint are
dismissed.
V.
The Remaining Causes of Action Pursuant to FDCPA §§ 1692e(2)(A), 1692e(10),
1692f, and 1692f(1)
a. Legal Standard
FDCPA § 1692f provides in relevant part that “[a] debt collector may not use unfair or
unconscionable means to collect or attempt to collect any debt.” FDCPA § 1692f(1) prohibits
“[t]he collection of any amount (including any interest, fee, charge, or expense incidental to the
principal obligation) unless such amount is expressly authorized by the agreement creating the
debt or permitted by law.”
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a. The Motion to Dismiss Counts 5 and 6 of the Vaughan Complaint and Counts 6
and 7 of the Homa Complaint is Granted
The extent of Plaintiffs’ allegations that the Letters violated § 1692e, § 1692(2)(A), and
§ 1692e(10) are that the Letters “amounted to a false, deceptive, or misleading means in
connection with the collection of a debt[.]” (Homa Compl. ¶ 64; Vaughan Compl. ¶ 57.) In
other words, Plaintiffs have done nothing more than provide “threadbare recitals of the elements
of a cause of action supported by mere conclusory statements[.]” See Iqbal, 556 U.S. at 678. As
Plaintiffs have not included a single factual allegation in support of their claims, these claims
must be dismissed.
Similarly, the extent of Plaintiffs’ allegations that the Letters violated § 1692f and/or
§ 1692f(1) are that the Letters “amounted to an unfair or unconscionable means to collect or
attempt to collect a debt in violation of [these sections].” (Homa Compl. ¶ 66; Vaughan Compl.
¶ 59). Again, this is nothing more than a threadbare recital of the elements of the cause of action.
See Iqbal, 556 U.S. at 678. Accordingly, Homa’s and Vaughan’s final causes of action must also
be dismissed.
CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss pursuant to Rule 12(b)(6) is
granted as to all claims. The Clerk of Court is directed to enter judgment and close the case.
SO ORDERED.
Dated: Central Islip, New York
September 27, 2018
/s/
_
Denis R. Hurley
Unites States District Judge
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