Altieri v. Overton, Russell, Doerr, and Donovan, LLP
DECISION AND ORDER granting in part and denying in part Deft's 15 Motion to Dismiss for Failure to State a Claim. The motion is granted in that the First, Second, Fourth, Fifth, and Sixth Causes of Action are dismissed with prejudice. The motion is denied as to the Third Cause of Action, and Deft is granted leave to file a second Rule 12 motion by 11/29/17. Signed by Senior Judge Thomas J. McAvoy on 11/14/17. (sfp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CHRISTINA ALTIERI, on behalf of
herself and all others similarly situated,
OVERTON, RUSSELL, DOERR, and
THOMAS J. McAVOY,
Senior United States District Judge
DECISION & ORDER
Plaintiff Christina Altieri (“Plaintiff” or “Altieri”) alleges in the Amended Complaint, dkt.
# 14, that Defendant Overton, Russell, Doerr, and Donovan, LLP (“Defendant” or
“Overton”) violated the Fair Debt Collections Practices Act, 15 U.S.C. § 1692, et seq.
(“FDCPA”), when it sent her a debt collection letter. See Compl., dkt. # 1. Defendant
moves pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the Amended Complaint, dkt. # 15,
which Plaintiff opposes. Dkt. # 18. The Court has determined to decide the motion without
oral argument and has fully considered the parties’ submissions relative to this motion. For
the reasons that follow, the motion is granted in part and denied in part.
The Amended Complaint alleges that Overton sent a debt collection letter to Plaintiff
that stated, in pertinent part:
OVERTON, RUSSELL, DOERR and DONOVAN, LLP
Attorneys and Counselors at Law
DEBT COLLECTION NOTICE
CREDITOR: ALBANY MEDICAL CENTER
AMOUNT DUE: $5794.54
WE ARE A DEBT COLLECTOR ATTEMPTING TO COLLECT THIS DEBT
AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.
UNLESS WITHIN 30 DAYS AFTER THE RECEIPT OF THIS LETTER, YOU
DISPUTE THE VALIDITY OF THIS DEBT, OR ANY PORTION THEREOF, WE WILL
ASSUME THE DEBT IS VALID. IF YOU NOTIFY US IN WRITING WITHIN THE 30
DAY PERIOD THAT THE DEBT, OR ANY PORTION THEREOF, IS DISPUTED, WE
WILL OBTAIN VERIFICATION OF THE DEBT OR A COPY OF A JUDGMENT (IF
APPLICABLE) AND MAIL IT TO YOU. UPON WRITTEN REQUEST WITHIN THE 30
DAY PERIOD, WE WILL PROVIDE YOU WITH THE NAME AND ADDRESS OF
THE ORIGINAL CREDITOR, IF DIFFERENT FROM THE CURRENT CREDITOR.
AT THIS TIME, NO ATTORNEY WITH THIS FIRM HAS
PERSONALLY REVIEWED THE PARTICULAR CIRCUMSTANCES OF
YOUR ACCOUNT. HOWEVER, YOUR FAILURE TO RESPOND TO THIS
LETTER WITHIN THE 30 DAY PERIOD WILL RESULT IN THE
CONTINUATION OF OUR EFFORTS TO COLLECT THIS DEBT AND THE
REPORTING OF THIS ACCOUNT TO A CREDIT REPORTING AGENCY.
Very Truly Yours,
Overton, Russell, Doerr and Donovan, LLP
Am. Compl., Ex. A (“Overton Letter”).1
The Overton Letter is attached to the Amended Complaint and relied on by Plaintiff throughout the
Amended Complaint, therefore the Court considers it as a document incorporated by reference and integral
to the Amended Complaint. See Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.
Plaintiff claims this letter violates the FDCPA in varying respects (analyzed below).
STANDARD OF REVIEW
Rule 8(a) provides that a pleading shall contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). On a motion to
dismiss, the Court must accept “all factual allegations in the complaint as true, and draw all
reasonable inferences in the plaintiff's favor." Holmes v. Grubman, 568 F.3d 329, 335 (2d
Cir. 2009) (internal quotation marks omitted). This tenet does not apply to legal
conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face." Id. (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice." Id. While Rule
8(a)(2) “does not require detailed factual allegations, ... it demands more than an
unadorned, the-defendant-harmed-me-accusation.” Id. (citation and internal quotation
marks omitted). A claim will only have “facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. A complaint which “tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement’” is insufficient. Id. (citation omitted).
1995) (“[T]he complaint is deemed to include any written instrument attached to it as an exhibit or any
statements or documents incorporated in it by reference.”)(quoting Cortec Indus., Inc. v. Sum Holding L.P.,
949 F.2d 42, 47 (2d Cir. 1991)).
a. The FDCPA
Congress enacted the FDCPA in order “to eliminate abusive debt collection practices
by debt collectors, to insure that those debt collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged, and to promote consistent State
action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). “T o
achieve this goal, and to protect the most vulnerable population of debtors from abusive
and misleading practices, courts have construed the FDCPA to require that debt collection
letters be viewed from the perspective of the ‘least sophisticated consumer.’” Wendel v.
Mullooly, Jeffrey, Rooney & Flynn, L.L.P., No. 15-CV-936-JTC, 2016 WL 1365483, at *4
(W.D.N.Y. Apr. 6, 2016), aff'd 689 F. App'x 45 (2d Cir. 2017)(quoting Clomon v. Jackson,
988 F.2d 1314, 1318–19 (2d Cir.1993)). T he least sophisticated consumer is a hypothetical
individual who “lacks the sophistication of the average consumer and may be naive about
the law, but is rational and possesses a rudimentary amount of information about the world.”
Arias v. Gutman, Mintz, Baker & Sonnenfeldt LLP, No. 16-2165-CV, --- F.3d ----, 2017 WL
5330081, at *4 (2d Cir. Nov. 14, 2017) (citation omitted). “The standard is objective, pays
no attention to the circumstances of the particular debtor in question, and asks only whether
the hypothetical least sophisticated consumer could reasonably interpret the representation
in a way that is inaccurate.” Id. (interior quotation marks and citation omitted, underscoring
in original). “The Second Circuit observed, however, that ‘in crafting a norm that protects
the naive and the credulous the courts have carefully preserved the concept of
reasonableness,’ and that some courts have held that ‘even the least sophisticated
consumer can be presumed to possess a rudimentary amount of information about the
world and a willingness to read a collection notice with some care.’” Wendel, 2016 WL
1365483, at *4 (quoting Clomon, 988 F.2d at 1318–19). “In this way, the Second Circuit's
‘least sophisticated consumer’ standard is an objective analysis that seeks to protect ‘the
naive’ from abusive practices, while simultaneously shielding debt collectors from liability for
‘bizarre or idiosyncratic interpretations’ of debt collection letters.” Id. (quoting Clomon, 988
F.2d at 1320); see Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 173 (2d Cir.
2015)(FDCPA protection “does not extend to every bizarre or idiosyncratic interpretation of
a collection notice[,] and courts should apply the standard in a manner that protects debt
collectors against liability for unreasonable misinterpretations of collection notices.”).
“‘Although courts are divided on whether breach of the least sophisticated consumer
standard is a question of law or fact, the trend in the Second Circuit is to treat this question
as a matter of law that can be resolved on a motion to dismiss.’” Moukengeschaie v.
Eltman, Eltman & Cooper, P.C., No. 14-CV-7539 (MKB), 2016 WL 1274541, at *4 (E.D.N.Y.
Mar. 31, 2016)(quoting Beauchamp v. Fin. Recovery Servs., Inc., No. 10-CV-4864, 2011
WL 891320, at *2 n.18 (S.D.N.Y. Mar. 14, 2011) and citing Quinteros v. MBI Assocs., Inc.,
999 F. Supp. 2d 434, 437 (E.D.N.Y. 2014) (“[B]ecause the least sophisticated consum er
standard is objective, the determination of how the least sophisticated consumer would view
language in a defendant's collection letter is a question of law” that the court may resolve on
a motion to dismiss. (internal quotation marks omitted)), Jones-Bartley v. McCabe,
Weisberg & Conway, P.C., 59 F. Supp. 3d 617, 642 (S.D.N.Y. 2014) (same)).
The FDCPA imposes a standard of strict liability, so liability under the statute does
not require intent. Moukengeschaie, 2016 WL 1274541, at *4 (citing Russell, 74 F.3d at 33
(“Because the [FDCPA] imposes strict liability, a consumer need not show intentional
conduct by the debt collector to be entitled to damages.”); Bentley v. Great Lakes Collection
Bureau, Inc., 6 F.3d 60, 63 (2d Cir. 1993) (“The FDCPA is a strict liability statute, and the
degree of a defendant's culpability may only be considered in computing damages.”
(citations omitted)). A collection letter will be considered deceptive under the FDCPA if it
“could mislead a putative-debtor as to the nature and legal status of the underlying debt, or
[if it] could impede a consumer's ability to respond to or dispute collection.” Gabriele, 503 F.
App'x at 94 (citing Easterling v. Collecto, Inc., 692 F.3d 229, 235 (2d Cir. 2012)). This
includes practices that are “contradictory, vague, or threatening.” Id. at 96 (citing Russell v.
Equifax A.R.S., 74 F.3d 30, 35 (2d Cir. 1996) and Pipiles v. Credit Bureau of Lockport, Inc.,
886 F.2d 22, 25–26 (2d Cir. 1989)). “A collection letter m ay also violate the FDCPA when
its language is ‘open to more than one reasonable interpretation, at least one of which is
inaccurate.’” Moukengeschaie, 2016 WL 1274541, at *3 (quoting Easterling, 692 F.3d at
b. First Cause of Action
Plaintiff asserts in the First Cause of Action that the Overton Letter violated 15 U.S.C.
§§ 1692e, 1692e(2)(A), 1692e(3), and 1692e(10). Am . Compl. ¶24.2 In this regard,
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. Section
1692e(2)(A) prohibits a debt collector from "false[ly] represent[ing] . . . the character, amount, or legal status
of any debt. " Id., § 1692e(2)(A). Section 1692e(3) specifically prohibits a debt collector from “false[ly]
represent[ing] or impl[ying] that any individual is an attorney or that any communication is from an attorney.”
Id. § 1692e(3). Section 1692e(10) prohibits a debt collector from “us[ing] any false representation or
deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.” Id.
Plaintiff alleges that Overton violated the FDCPA by indicating, following the disclaimer that
no attorney from the Overton law firm had reviewed the particular circumstances of the
subject account, that Plaintiff’s “failure to respond to [the Overton letter] within the 30 day
period will result in the continuation of [Overton’s] efforts to collect this debt and the
reporting of this account to a credit reporting agency.” Am. Compl. ¶¶ 13-24. Plaintiff
contends that given the letterhead identifying Overton as a law firm, “the ‘least sophisticated
consumer’ will assume that actions which only an attorney and counselor at law can take
such as the filing of a lawsuit will in fact be a part of the continuation of [Overton’s] efforts to
collect the debt which ‘will’ occur.” Id., ¶ 22. Plaintiff also argues that, “to the ‘least
sophisticated consumer’, the [second sentence of the disclaimer paragraph] of the
collection letter at issue overshadows, confuses, and or conflicts with the . . . . disclaimer. If
nothing else, the nature of an attorney’s involvement is ambiguous and therefore
deceptive.” Pl. Mem. L. p. 5.
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, and Section 1692e(3) specifically prohibits “[t]he false representation or implication
that any individual is an attorney or that any communication is from an attorney.” Id., §
1692e(3). A violation of these sections occurs when an attorney or law firm sends a debt
collection letter implying that an attorney has reviewed the legal status of the debt when, in
fact, that review did not occur. Moukengeschaie, 2016 WL 1274541, at *16 (“Such a letter
may violate section 1692e(3) where ‘the attorney or firm had not, in fact, engaged in [the]
implied level of involvement.’”)(quoting Greco v. Trauner, Cohen & Thomas, L.L.P., 412
F.3d 360, 364 (2d Cir. 2005) and citing Clomon, 988 F.2d at 1320 (finding “unpersuasive”
the attorney's argument that the “overstatement of the degree of an attorney's involvement
in individual debtors' cases does not violate” section 1692e(3)). However, attorneys may
“participate in debt collection ... without contravening the FDCPA, so long as their status as
attorneys is not misleading” to a consumer “regarding meaningful attorney involvement in
the debt collection process.” Greco, 412 F.3d at 364. A law firm or an attorney may send a
debt collection letter “without being meaningfully involved as an attorney,” provided a “clear
disclaimer” explains “that the law firm or attorney sending the letter is not, at the time of the
letter's transmission, acting as an attorney.” Id.
In Greco, a law firm’s debt collection letter contained a notice advising the recipient
to notify the law firm within 30 days if he or she disputed the validity of the debt, and, in the
absence of such notification, the law firm would consider the debt valid. Id. at 361.3 The
letter also stated:
The firm of Trauner, Cohen & Thomas is a law partnership representing
financial institutions in the area of creditors rights. In this regard, this office
represents the above named BANK OF AMERICA who has placed this matter,
1. Unless, within 30 days after receipt of this notice you dispute the validity of the debt, or any
portion thereof, the debt will be assumed to be valid by the creditor and by this Firm.
2. If you notify us in writing within said 30 days that the debt, or any portion thereof is
disputed, we will obtain verification of the debt, or a copy of any judgment against you, and
we will mail such verification to you.
3. In addition, upon your written request within said 30 days, this Firm will provide the name
and address of the original creditor if the original creditor is different from the current creditor.
4. This firm is attempting to collect a debt on behalf of the creditor and any information
obtained will be used for that purpose.
Greco, 412 F.3d at 361.
in reference to an original account with [sic] for collection and such action as
necessary to protect our client.
At this time, no attorney with this firm has personally reviewed the particular
circumstances of your account. However, if you fail to contact this office, our
client may consider additional remedies to recover the balance due.
In addressing whether representations in the Greco letter violated the FDCPA, the
Second Circuit found:
[T]he defendants’ letter included a clear disclaimer explaining the limited
extent of their involvement in the collection of Greco's debt. The defendants
stated that, although “this office represents the above named BANK OF
AMERICA” in the collection of Greco's debt, “at this time, no attorney with this
firm has personally reviewed the particular circumstances of your account.”
Nothing else in the letter confused or contravened this disclaimer of attorney
Id., at 365.
In light of the disclaimer in the letter sent to Greco, the Second Circuit agreed with
the district court “that the least sophisticated consum er, upon reading this letter, must be
taken to understand that no attorney had yet evaluated his or her case, or made
recommendations regarding the validity of the creditor's claims.” Id. Accordingly, the
Greco Court affirmed the district court’s conclusion that, “as a matter of law, . . . the
defendants had not used any ‘false, deceptive, or misleading representation or means in
connection with the collection of any debt,’ 15 U.S.C. § 1692e, including the ‘false
representation or implication that any individual is an attorney or that any communication is
from an attorney,’ 15 U.S.C. § 1692e(3), with meaningful involvement as an attorney in the
debtor's case.” Id.
The first sentence of the Overton Letter’s disclaimer paragraph (“At this time, no
attorney with this firm has personally reviewed the particular circumstances of your
account.”) is identical to the first sentence of the disclaimer paragraph approved in Greco.
“Since Greco, the Second Circuit has reaffirmed the dismissal of section 1692e(3) claims
based on collection letters containing similar disclaimer language.” Moukengeschaie, 2016
WL 1274541, at *17 (citing cases). But Plaintiff asserts that given the letterhead identifying
Overton as a law firm, "the ‘least sophisticated consumer' will assume that actions which
only an attorney and counselor at law can take such as the filing of a lawsuit will in fact be a
part of the continuation of [Overton's] efforts to collect the debt which ‘will' occur," Am.
Compl. ¶ 22, and argues that the second sentence (“However, your failure to respond to
this letter within the 30 day period will result in the continuation of our efforts to collect this
debt and the reporting of this account to a credit reporting agency.”) overshadows,
confuses, and/or conflicts with the disclaimer language in the first sentence. The Court
In Wendel v. Mullooly, Jeffrey, Rooney & Flynn, LLP, 689 F. App'x 45 (2d Cir.
2017)(summary order), the Second Circuit reviewed a district court’s Rule 12(b)(6) dismissal
of FDCPA claims based on a law firm’s debt collection letter. The letter indicated that the
law firm had been “retained” by the creditor in connection with an alleged debt, and that the
creditor “may invoke its right to file a lawsuit against you.” Id., at 46. In addition to providing
30-day notices about disputing the debt, the Wendel letter also indicated:
This communication is from a debt collector. We are attempting to collect a
debt and any information obtained will be used for that purpose.
At this time, no attorney with this firm has personally reviewed the particular
circumstances of your account.
The Second Circuit found the Wendel letter contained “the same disclaimer that we
approved in Greco,” and even went “further by explaining that ‘[t]his communication is from
a debt collector.’” Id. Furthermore, the Second Circuit rejected the debtor’s arguments that
the disclaimer was rendered ineffective by (1) the use of the word “retained” in the letter's
opening sentence; (2) the warning that “the [creditor] may invoke its right to file a lawsuit
against you”; and (3) the location of the Greco disclaimer at the end of the letter, below the
30-day notices. Id. The Circuit found the word “retained” to be no more suggestive of
attorney involvement than “represents,” the word used in Greco. Id. Regarding the
reference to the creditor’s right to file a lawsuit, the Circuit found the statement “is arguably
stronger than the euphemisms in Greco,”4 but “does not ‘confuse[ ] or contravene[ ]’ the
explicit disclaimers of attorney involvement that appear later in the letter.” Id. (quoting
Greco, 412 F.3d at 365). The Circuit also found that the “[i]nsertion of the Greco disclaimer
in the fourth paragraph, rather than the first, does not bury it.” Id., at 47. In this regard, the
Second Circuit wrote: “The body of the letter contains eight sentences that fit on
approximately half of a page. Even an unsophisticated individual can be expected to read
the entire letter and comprehend the full text.” Id. (citing Greco, 412 F.3d at 363 (“even the
least sophisticated consumer can be presumed to possess a rudimentary amount of
information about the world and a willingness to read a collection notice with some care”
(internal quotation marks omitted)). Accordingly, the Second Circuit affirmed the judgment
of the district court. Id.
In Greco the letter referred to “such action as necessary to protect our client” and warning that “our
client may consider additional remedies to recover the balance due.” Greco, 412 F.3d at 361.
The Overton Letter, only six (6) sentences long, contains not only a clear Greco
disclaimer but also a bolded statement at the top of the letter indicating that Overton is “A
DEBT COLLECTOR ATTEMPTING TO COLLECT THIS DEBT. ” Overton Letter. This
combination is functionally equivalent to the disclaimers found sufficient in Wendel.
Further, unlike in Wendel or Greco, there is no indication that the Overton law firm had been
retained by, or represented, the creditor.
Also unlike in Wendel, here there is no indication in the Overton Letter that Overton
or the creditor were considering legal action. The use of the phrase "will result in the
continuation of our efforts to collect this debt" in the Overton Letter, when read in context,
would not signify to the least sophisticated consumer that Overton was acting in the
capacity of attorney at the time the letter was sent, or that future legal action such as a
lawsuit was contemplated at the time.5 The language is contingent on a future event (i.e.
the failure to challenge the validity of the debt within 30 days) and indicates only that
Overton would continue its "efforts to collect this debt and the reporting of this account to a
credit reporting agency" if the recipient did not respond. Plaintiff is correct that the use of
the active verb “will” makes the sentence an unequivocal statement that Overton intends to
take some action to collect the debt if the recipient does not challenge its validity within 30
days, but, beyond reporting to a credit reporting agency, the statement is equivocal as to
what other collection efforts would be employed. The fact that the statement appears in a
letter from a law firm does not, by itself, mean that Overton was threatening legal action.
See Avila v. Riexinger & Assocs., LLC, 644 F. App'x 19, 22 (2d Cir. 2016)(summary
Plaintiff has not pleaded that the Overton Letter violated Section 1692e(5), which prohibits a debt
collector from “threat[ening] to take any action that cannot legally be taken or that is not intended to be taken.”
order)(“[T]he letters do not threaten legal action. Rather, they simply state that the debt
collector ‘may consider additional remedies’ and that the accounts were placed with an
attorney for ‘such action as necessary.’ Such equivocal statements do not give rise to
liability under Section 1692e.”)(emphasis in original, citation to the record omitted).
Applying the least sophisticated consumer standard, and reading the sentence in context,
does not result in FDCPA liability. Id. The sentence does not overshadow, confuse, or
conflict with the disclaimer in the preceding sentence. See Wendel, 689 F. App'x at 46;
Greco, 412 F.3d at 365. To conclude otherwise would amount to an unreasonable
interpretation of the debt collection letter. See Wendel, 689 F. App'x at 47 (“The body of the
letter contains eight sentences that fit on approximately half of a page. Even an
unsophisticated individual can be expected to read the entire letter and comprehend the full
Plaintiff’s reliance on Lesher v. Law Offices of Mitchell N. Kay, PC, 650 F.3d 993 (3d
Cir. 2011) is misplaced. In Lesher, unlike in the instant case, the attorney involvement
disclaimer was printed on the back of the collection letter. See id., at 1003 (“Nor do we
believe that the disclaimers included in the letters, which are printed on the backs, make
clear to the least sophisticated debtor that the Kay Law Firm is acting solely as a debt
collector and not in any legal capacity in sending the letters.”). Here, by contrast, the Greco
disclaimer appears on the front of the short letter. Greco is the controlling authority in this
Circuit, see Avila, 644 F. App'x at 22 ("Whatever the merits of Greco, we are bound by that
decision."), and based upon Greco and its progeny, the Court finds that the second
sentence of the disclaimer paragraph in the Overton letter would not mislead the least
sophisticated consumer as to attorney involvement at the time the letter was sent. See
Wendel, 2016 WL 1365483, at *5 (“In light of the Greco disclaimer, the court finds that the
least sophisticated consumer, upon reading this letter, must be taken to understand that no
attorney had yet evaluated the case or made recommendations regarding the validity of the
Accordingly, the Court finds that the Overton Letter does not contain any “false,
deceptive, or misleading representation or means in connection with the collection of any
debt,” 15 U.S.C. § 1692e, including the “false representation or implication that any
individual is an attorney or that any communication is from an attorney,” id. § 1692e(3), with
meaningful involvement as an attorney in the debtor's case. Further, the Court finds that
representations in the Overton Letter about the nature of attorney involvement do not
constitute violations of Sections 1692e(2)(A) 6 and/or 1692e(10). Thus, Defendant’s motion
is granted as to the First Cause of Action. Because Plaintiff, who is represented by counsel,
amended the Complaint after Defendant first moved to dismiss the Complaint, and because
Plaintiff does not ask for leave to amend a second time or proffer facts that would change
the result reached on the First Cause of Action, the First Cause of Action is dismissed
without leave to replead. See Shomo v. New York, 374 Fed. Appx. 180, 182 (2d Cir.
2010)(As a general matter, “‘the district court has discretion whether or not to grant leave to
amend, and its decision is not subject to review on appeal except for abuse of
discretion.’”)(quoting Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)); Cuoco v.
Although Plaintiff does not cite Section 1692e(2)(A) in support of the claim made in the Second
Cause of Action, she alleges there that the Overton Letter is deceptive as to the “Amount Due” because the
letter does not disclose that interest on the debt could be assessed. See Am. Compl. ¶¶ 25-38. This
contention is addressed in the text, infra, but does not defeat the portion of the motion addressed to the First
Cause of Action.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)(An opportunity to amend is not required where
“the problem with [plaintiff's] causes of action is substantive” such that “better pleading will
not cure it.”)(citation omitted); Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.
1993)(“Where it appears that granting leave to amend is unlikely to be productive, ... it is not
an abuse of discretion to deny leave to amend.”).
b. Second Cause of Action
Plaintiff alleges in the Second Cause of Action that Defendant violated 15 U.S.C. §
1692e by stating in the Overton Letter that the “Amount Due” was $5794.54 but failed to
indicate that this amount could increase due to interest assessed pursuant to N.Y . C.P.L.R.
§ 5001. See Am. Compl. ¶¶ 25-38. In this regard, Plaintiff asserts: “[Overton] or Albany
Medical College could seek [N.Y. C.P.L.R. § 5001] interest that was accumulating after [the
Overton Letter] was sent but before the ‘Amount Due’ of $5794.54 . . . was paid.” Id. ¶ 36.
Plaintiff also asserts: “In the alternative, . . . Albany Medical College could have sold Altieri’s
debt to a third party and such third party could seek the interest that accrued after [the
Overton Letter] was sent but before the “Amount Due” of $5794.54 . . . was paid.” Id. ¶ 37.
In Avila v. Riexinger & Assocs., LLC, 817 F.3d 72 (2d Cir. 2016)(“Avila II”), the
Second Circuit found that a debt collection letter violated Section 1692e when it failed to
advise of accruing interest, writing:
Because the statement of an amount due, without notice that the amount is
already increasing due to accruing interest or other charges, can mislead the
least sophisticated consumer into believing that payment of the amount stated
will clear her account, we hold that the FDCPA requires debt collectors, when
they notify consumers of their account balance, to disclose that the balance
may increase due to interest and fees. We think that requiring such disclosure
best achieves the Congressional purpose of full and fair disclosure to
consumers that is embodied in Section 1692e. It also protects consum ers
such as plaintiffs who may hold the reasonable but mistaken belief that timely
payment will satisfy their debts.
Id., at 76.
Plaintiff does not allege that interest could be assessed on any basis other than N.Y.
C.P.L.R. § 5001. Rather, Plaintiff argues that because interest could be assessed pursuant
to N.Y. C.P.L.R. § 5001, the failure to advise her of this possibility constitutes a violation of
Section 1692e as recognized in Avila II. The Court does not agree.
New York C.P.L.R. § 5001 allows a court, in a civil action, to award prejudgment
interest “upon a sum awarded because of a breach of performance of a contract.” Id., at §
5001(a); see id., at § 5001(b)(“Interest shall be computed from the earliest ascertainable
date the cause of action existed . . . .”). However, as Defendant correctly argues, N.Y.
C.P.L.R. § 5001 interest cannot be assessed unless and until a civ il action is commenced.
See Cruz, v. Credit Control Services, Inc., No. 217CV1994ADSGRB, 2017 W L 5195225, at
*5 (E.D.N.Y. Nov. 8, 2017) (“While the Plaintiff alleges that pre-judgment interest under N.Y.
C.P.L.R. § 5001 should be disclosed in the [debt collection] Letter, such a position doesn't
conform to the nature of such interest. Any request for pre-judgment interest must 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 Cruz that the Defendant or Geico 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. Neither Geico nor the Defendant had any legal right to assess such pre-judgment
interest on the Plaintiff's account.”)(citations omitted). Here, there is no allegation that, at
the time the Overton Letter was sent, a civil action concerning the debt had been
commenced. Thus, “[t]he amount owed stated in the [Overton] Letter was not false
because Defendant had not yet commenced any legal action.” Bird v. Pressler & Pressler,
L.L.P., No. 12-CV-3007 JS ETB, 2013 WL 2316601, at *2 (E.D.N.Y. May 28, 2013)(the
plaintiff claimed that the collection letter violated the FDCPA because the debt collector did
not indicate in the collection letter that interest was accruing but thereafter commenced a
civil action seeking N.Y. C.P.L.R. § 5001 interest).
Further, there are no allegations in the Amended Complaint that interest on the
“Amount Owed” accrued on any other basis, see Am. Compl. ¶ 32 (“Altieri owed this past
due debt owed to Albany Medical College under a theory of contract or quantum meruit; and
therefore NY CPLR 5001 is applicable to the past due debt owed to Albany Medical College
set forth in [the Overton Letter]”), or that at the time Plaintiff received the Overton Letter she
could not satisfy the debt by paying $5794.54. Thus, contrary to the situation addressed in
Avila II, the Overton Letter’s statement of the Amount Due is not false and would not
mislead the least sophisticated consumer from the belief that, at the time, payment of the
Amount Due would clear her account. See Taylor v. Fin. Recovery Servs., Inc., 252 F.
Supp. 3d 344, 352 (S.D.N.Y. 2017) (“The Second Circuit held [in Avila II] the plaintiff stated
a claim because a reasonable consumer could ‘be misled into believing that she could pay
her debt in full by paying the amount listed on the notice’ when interest and fees were
continuing to accrue daily after receipt of the notice. But such confusion is not possible
here: Plaintiffs adduce no evidence that paying the stated balance due in their respective
letters would not satisfy their debts.”)(quoting Avila II, 817 F.3d at 76).
The possibility that Albany Medical College could sell Plaintiff’s debt to a third party
who, in turn, could seek N.Y. C.P.L.R. § 5001 interest also fails to state a claim under the
FDCPA. For the reasons just discussed, the potential of future events (i.e. the debt is sold
to a third party and the third party commences a civil action seeking N.Y. C.P.L.R. § 5001
interest) does not make the Overton Letter’s statement of the Amount Due false or a
violation of the rule announced in Avila II. See Bird, 2013 WL 2316601, at *2; Taylor, 252
F. Supp. 3d at 352. Consequently, that portion of Defendant’s addressed to the Second
Cause of Action is granted. For the reasons discussed with regard to the First Cause of
Action, the Second Cause of Action is dismissed without leave to replead.
c. Third Causes of Action
In support of the Third Cause of Action, Plaintiff re-asserts the first 12 paragraphs of
the Amended Complaint (which essentially set forth the allegations regarding Plaintiff’s
receipt of the Overton Letter), see Am. Compl. ¶ 39, id. ¶¶, 1-12, and reasserts the
allegation that the “Amount Due” in the Overton Letter is $5794.54. Plaintiff then alleges:
If the alleged original creditor, a subsequent assignee, the entity that owned
the debt on the date of [the Overton Letter], or [Overton] had a legal right to
charge and/or collect from Altieri interest, late charges, and/or other charges in
addition to the aforementioned “Amount Due”, then the failure of [the Overton
Letter] to notify Altieri that this “Amount Due” may increase due to interest, late
charges, and/or other charges amounted to a violation by Defendant of 15
USC § 1692e.
Am. Compl. ¶ 41.
In its moving Memorandum of Law, Overton offers no argument addressed to the
Third Cause of Action, mistakenly asserting that “[t]here is no Third Cause of Action.” Def.
Mem. L. p. 15. Presumably because Overton offered no argument addressed to the Third
Cause of Action, Plaintiff did not address this claim in her opposition papers. See generally,
Pl. Mem. L. Overton argues in its reply memorandum of law, however, that the Third
Cause of Action should be dismissed “since the Third Cause of Action does not affirmatively
allege facts establishing the accrual of contractual interest and fees.” Reply Mem. L., p. 9.
Although the Court fails to see a difference between the allegations in the Third
Cause of Action and the allegation contained in paragraph 37 of the Second Cause of
Action, courts generally do not address arguments raised for the first time in a reply
memorandum of law. See, e.g., Gilmore v. Bouboulis, No. 315CV0686GTSDEP, 2016 WL
4532146, at *16 (N.D.N.Y. Aug. 29, 2016)(“The Court declines to reach Defendants'
argument . . . because it was raised for the first time in Defendants' reply memorandum of
law, foreclosing a response from Plaintiffs and preventing the issue from being more fully
fleshed out.); Ditullio v. Vill. of Massena, 81 F. Supp. 2d 397, 408-09 (N.D.N.Y. 2000)
(“Defendant may not first raise arguments ... in its reply papers because Plaintiff would not
have a fair opportunity to respond.”). In keeping with these decisions, that portion of
Defendant’s motion directed to the Third Cause of Action is denied with leave to renew. If
Defendant intends to renew this portion of the motion, it should do so by filing a Rule 12
motion within two (2) weeks of the date of this Decision and Order.
d. Fourth Cause of Action
In support of the Fourth Cause of Action, Plaintiff reasserts the first 12 paragraphs of
the Amended Complaint and then alleges: “As a result of sending [the Overton Letter] to
Altieri, [Overton] violated 15 USC 1692g.” Am. Compl. ¶ 43. Defendant argues that the first
12 paragraphs of the Amended Complaint “assert no wrongdoing whatsoever,” and that the
Fourth Cause of Action should be dismissed because it “generically asserts [a] FDCPA
violation.” Def. Mem. L. p. 15. Plaintiff argues in opposition:
In Carlin v. Davidson Fink LLP No. 15-3105-cv, FN 3 (2nd Cir., 2017), the Second
Circuit held that a letter required under 15 USC 1692g also required certain language
similar to the “safe-harbor language” set forth in Avila, supra, in order for the letter
required under 15 USC 1692g to properly set forth the amount of the “debt”. For the
same reasons why the letter in the case at bar runs afoul of Avila, supra, the letter
also runs afoul of Carlin, supra. Therefore, Plaintiff’s Fourth Cause of Action is
properly plead [sic].
Pl. Mem. L., p. 14.
Section 1692g(a) provides in pertinent part:
(a) 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....
15 U.S.C. § 1692g(a).
In addressing a claimed violation under Section 1692g, the Second Circuit held that a
mortgage Payoff Statement was incomplete because it omitted 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). In making this determination, the
Second Circuit acknowledged the safe-harbor statement formulated in Avila II,7 but found
In Avila II the Second Circuit held:
[A] debt collector will not be subject to liability under Section 1692e for failing to disclose that
the consumer's balance may increase due to interest and fees if the collection notice either
accurately informs the consumer that the amount of the debt stated in the letter will increase
over time, or clearly states that the holder of the debt will accept payment of the amount set
forth in full satisfaction of the debt if payment is made by a specified date.
that the Payoff Statement was insufficient because it “only expressed that the Total Amount
due may include estimated fees and costs” but there was “no clarity as to whether new fees
and costs are accruing or as to the basis for those fees and costs.” Carlin, 852 F.3d at 217
(emphases in original). The Carlin Court further noted in footnote 3:
As we explained in Avila, though not required by the text of the statute, a
notice would also satisfy § 1692g if it used language such as : “As of today,
[date], you owe $___. This amount consists of a principal of $___, accrued
interest of $___, and fees of $___. This balance will continue to accrue
interest after [date] at a rate of $___per [date/week/month/year].” 817 F.3d at
77 n. 2 (citing Jones v. Midland Funding, LLC., 755 F. Supp.2d 393, 397 n. 7).
Id., n. 3.
While the Overton Letter does not contain language similar to that referenced in
footnote 3 of Carlin, there is no plausible Avila II violation here because Plaintiff fails to
allege facts from which to conclude that, at the time the Overton Letter was sent, there
existed a basis for the Amount Owed to increase. Plaintiff also does not allege that the
Overton Letter constitutes a communication following an “initial communication,” as required
by Section 1692g. See Carlin, 852 F.3d at 212 (“In assessing Carlin's claim, § 1692g(a)
calls upon us to make three determinations: (1) whether any of the communications
between the parties were ‘initial communications’ within the meaning of § 1692g, (2)
whether any of the communications between the parties were ‘in connection with the
collection of any debt,’ and (3) whether Davidson Fink provided the amount of the debt
within five days of such a communication.”). Thus, that portion of Defendant’s motion
addressed to the Fourth Cause of Action is granted. For the reasons discussed above with
817 F.3d at 77.
regard to the First and Second Causes of Action, the dismissal is without leave to replead.
e. Fifth and Sixth Causes of Action
The Fifth and Sixth Causes of Action are pled similarly to the Fourth Cause of Action,
with Plaintiff re-alleging the first 12 paragraphs of the Amended Complaint and then
asserting that: (1) “[The Overton Letter] amounted to a false, deceptive or misleading
means in connection with the collection of a debt in violation of 15 USC 1692e, 15 USC
1692e(2)(A), and 15 USC 1692e(10),” (Fifth Cause of Action); and (2) “[The Overton Letter]
amounted to an unfair or unconscionable means to collect or attempt to collect a debt in
violation of 15 USC 1692f, and/or 15 USC 1692f (1),” (Sixth Cause of Action). Am. Compl.
¶¶ 45, 47. Like with regard to the Fourth Cause of Action, Defendant argues that these
Causes of Action merely assert generic FDCPA violations “based upon the first 12
paragraphs of the Amended Complaint, which asserts no wrongdoing whatsoever,” and that
to the extent these claims are based upon the First and Second Causes of Action, they are
subject to dismissal. Def. Mem. L. p. 15. Plaintiff offers no opposition to dismissal of the
Fifth and Sixth Causes of Action.
The Fifth and Sixth Causes of Action, as pled, amount to unadorned,
the-defendant-harmed-me-accusations that lack factual content that allows the Court to
draw the reasonable inference that Defendant is liable for the misconduct alleged. See
Ashcroft, 556 U.S. at 678. Accordingly, Defendant’s motion addressed to the Fifth and
Sixth Causes of Action is granted. For the reasons discussed with regard to the First,
Second, and Fourth Causes of Action, the Fifth and Sixth Causes of Action are dismissed
without leave to replead.
For the reasons discussed above, Defendant’s motion to dismiss the Amended
Complaint [dkt. # 15] is GRANTED in part and DENIED in part. The motion is granted in
that the First, Second, Fourth, Fifth, and Sixth Causes of Action are DISMISSED with
prejudice. The motion is denied as to the Third Cause of Action, and Defendant is granted
leave of two (2) weeks from the date of this Decision and Order to file a second Rule 12
IT IS SO ORDERED.
Dated:November 14, 2017
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