Abbott v. Second Round Sub, LLC

Filing 16

DECISION AND ORDER GRANTING Defendant's 11 Motion for Judgment on the Pleadings; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, United States District Judge on 9/27/2017. (MEAL)- CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROSEMARY ABBOTT,
Plaintiff,
v.

DECISION AND ORDER
17-CV-336S

SECOND ROUND SUB, LLC,
Defendant.

I.

INTRODUCTION

Plaintiff, Rosemary Abbott, brings this action alleging that Defendant, Second
Round Sub, LLC (“Second Round”), violated the Fair Debt Collection Practices Act, 15
U.S.C. § 1692a, et seq. (“FDCPA”) and New York General Business Law (“NYGBL”).
Presently before this Court is Second Round's motion for judgment on the pleadings. For
the following reasons, that motion is granted.
II.

BACKGROUND1

Plaintiff alleges that she incurred a financial obligation for personal, family or
household purposes that is therefore a “debt” under the FDCPA.

(Docket No. 1-1,

Complaint ¶ 15.) She further alleges that she received correspondence from Second
Round dated December 28, 2016 and January 7, 2017, in which Second Round sought
payment of that debt. (Id. ¶ 17.) Plaintiff responded to Second Round in a letter dated
January 13, 2017, in which she stated:
Pursuant to the Fair Debt Collections Practices Act (FDCPA), I hereby
demand that you terminate any and all contact with me, or any members of
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For the sake of brevity and clarity, this Court will recite only those facts pertinent to the pending motion.
The facts are drawn from the pleadings and the attached exhibits, and are undisputed unless otherwise
noted.

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my family or household, regarding the collection of an alleged debt you have
sought to collect under the above-captioned account number.
...
This debt is disputed as to the amount. I hereby request validation of the
debt. I authorize you to provide such validation to me in a single written
communication. Other than that one exception, I expressly demand that
you cease any and all communication about this debt, pursuant to the
FDCPA §1692c.
(Docket No. 6-1, the “January 2017 Letter”.)

Second Round replied to Plaintiff on

February 1, 2017 (Docket No. 6-2, the “February 2017 Letter”). The February 2017 Letter
contained the requested verification of debt, including three billing statements for a
“LORD & TAYLOR CARD” in Plaintiff’s name, as well as a bill of sale reflecting the
assignment of receivables from GE Capital to Second Round (the “Verification
Documents”). The February 2017 Letter also included a dated cover letter (the “Cover
Letter”), noting the amount of the debt, account name, original creditor, and current
creditor. The Cover Letter states: “We have received your claim of dispute, fraud or
identity theft on the above referenced account. In order to help complete the investigation
process we request you supply documents to Second Round,” and sets forth a list of
requests based on potential disputes, including disputes as to balance and claims of
identity theft or fraud. (Id. at 1.) The Cover Letter further states: “Second Round may
return your account to active collections without supporting documentation from you.”
(Id., emphasis removed.) No further correspondence is alleged to have passed between
the parties after the February 2017 Letter.
Plaintiff commenced this action on March 10, 2017, in the Supreme Court of the
State of New York, County of Erie, asserting claims under 15 U.S.C. §§ 1692c(c), 1692e,

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1692e(2)(A), 1692g(b), and NYGBL § 349(a). (Complaint, ¶¶ 32, 34-36.) Second Round
removed the action to this Court on April 19, 2017.
III.

DISCUSSION

Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are
closed—but early enough not to delay trial—a party may move for judgment on the
pleadings.” Fed. R. Civ. P. 12(c). The standard by which to decide a 12(c) motion is the
same as for a 12(b)(6) motion to dismiss for failure to state a claim upon which relief may
be granted. Bank of New York v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010)
(citing Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994)). In order to withstand
dismissal, the complaint must plead “enough facts to state a claim to relief that is plausible
on its face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974, 167 L.
Ed. 2d 929 (2007). Further, this Court accepts as true all factual allegations in the nonmoving party’s pleadings and draws all reasonable inferences in favor of the party
opposing the motion. See Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010).
A.

Section 1692c(c)
Section 1692c(c) of the FDCPA is intended to protect consumers against

unwanted communication from debt collectors. It provides:
If a consumer notifies a debt collector in writing that the consumer refuses
to pay a debt or that the consumer wishes the debt collector to cease further
communication with the consumer, the debt collector shall not communicate
further with the consumer with respect to such debt, except—
(1) to advise the consumer that the debt collector's further efforts are being
terminated;
(2) to notify the consumer that the debt collector or creditor may invoke
specified remedies which are ordinarily invoked by such debt collector or
creditor; or

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(3) where applicable, to notify the consumer that the debt collector or
creditor intends to invoke a specified remedy.
15 U.S.C. § 1692c(c). “Courts in the Second Circuit evaluate claims under the FDCPA
according to how the ‘least sophisticated consumer’

would understand the

communication.” Sussman v. I.C. Sys., Inc., 928 F. Supp. 2d 784, 795 (S.D.N.Y. 2013)
(citing Ellis v. Solomon & Solomon, P.C., 591 F.3d 130, 135 (2d Cir. 2010)).
Plaintiff’s January 2017 Letter included a request that Second Round cease
communications, thereby invoking §1692c(c). It also requested validation of the debt and
expressly waived its request that Second Round cease communications with respect to
a “single written communication” on that subject. (See Docket No. 6-1.) Although
§ 1692c(c) does not directly address waiver, courts have held that communications like
Plaintiff’s January 2017 Letter “constitute[ ] a waiver of [the] cease communication
directive, but only with respect to the verification information.”

Crumel v. Kross,

Lieberman & Stone, Inc., No. 5:14-CV-80-BR, 2015 WL 1565432, at *5 (E.D.N.C. Apr. 8,
2015) (citing Mammen v. Bronson & Migliaccio, LLP, 715 F. Supp. 2d 1210, 1217 (M.D.
Fla. 2009) (“The Court notes that Plaintiff's request for verification of debt is a waiver of
the ‘cease communication’ directive with respect to verification of the debt.”); see also
Johnson v. Equifax Risk Mgmt. Servs., No. 00 CIV.7836(HB), 2004 WL 540459, at *9
(S.D.N.Y. Mar. 17, 2004).

Here, Plaintiff’s waiver was limited to one written

communication regarding validation, “[t]hus, the only remaining question is whether
[Second Round’s February 2017 Letter] exceeded the scope of” that waiver. See id.
Plaintiff does not argue that the Verification Documents (the three bill statements
and proof of ownership transfer for the debt) exceeded the scope of her waiver; she
disputes only the Cover Letter, in which Second Round requested proof of payment, theft,
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or identity fraud. In support of her argument that the Cover Letter exceeded the scope of
the waiver, Plaintiff relies on Johnson, 2004 WL 540459. In Johnson, as here, the plaintiff
requested that the defendant cease communications except to verify an alleged debt.
The defendant responded by fax with verification accompanied by an affidavit of forgery.
Id. at *1-2. After the verification, the defendant sent several letters, including two further
demands for payment and three additional affidavits of forgery. Id. While the court found
that the later affidavits and demands for payment violated § 1692c(c), id. at *9, it did not
find that the initial affidavit of forgery, which was sent by fax together with verification of
the debt, violated the FDCPA. Accordingly, Johnson would not necessarily support a
finding that the Cover Letter, sent together with the verification documents, violated
§ 1692c(c).
Plaintiff’s reliance on this Court’s decision in Marino v. Hoganwillig, PLLC, 910 F.
Supp. 2d 492, 494 (W.D.N.Y. 2012), is similarly misplaced. In Marino, the defendant
responded to plaintiff’s cease-and-desist and request for verification with the relevant
verification documents, but later sent two additional letters demanding payment. Id. at
494. This Court found that the initial verification response “did not violate the FDCPA,”
but that the later demands were violations of the FDCPA because they did not fall into the
enumerated exceptions to § 1692c(c). Id. at 497. In both Johnson and Marino, the
defendants sent unequivocal demands for payment after the plaintiffs had requested that
communications cease. See also Crumel, 2015 WL 1565432, at *6 (defendant’s letter,
which included “an unequivocal demand for full payment of the debt . . . violated plaintiff's
request that defendant not contact him apart from verifying the debt”). Here, Plaintiff does
not allege that Second Round made any communication after her cease-and-desist

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request other than the Verification Documents and Cover Letter contained in the February
2017 Letter. The February 2017 Letter, on its face, is not a demand for payment. Indeed,
the language of the Cover Letter implies that attempts at collection have been suspended.
(See Docket No. 6-2 at 1 (“Second Round may return your account to active collections
without supporting documentation from you.”).)
Instead, the February 2017 Letter is more akin to the communications made by the
defendant in Garcia v. Gurstel Chargo, P.A., No. 2:12-CV-1930 JWS, 2013 WL 4478919,
at *5 (D. Ariz. Aug. 21, 2013). In Garcia, the court dismissed a § 1692c(c) claim, finding
that a fraud affidavit sent to the plaintiff after he had requested that communications cease
fell into the second exception to § 1692c(c). 2013 WL 4478919, at *5 (citing Lewis v. ACB
Bus. Servs., Inc., 135 F.3d 389, 399 (6th Cir. 1998)). The court held that the solicitation
for further information regarding fraud in order to resolve the dispute was “notice of a
specific remedy” that the defendant might invoke, and therefore not a violation of the
FDCPA. Id. Plaintiff attempts to distinguish Garcia by arguing that she did not claim
identity theft, but her January 2017 Letter states that she disputes the balance of the debt.
The Cover Letter’s request that Plaintiff supply documents to assist in Second Round’s
investigation of that dispute is analogous to the fraud affidavit, and falls within the
exception to the statute because it “represents an effort by [Second Round] to help
resolve the matter amicably.” Garcia, 2013 WL 4478919, at *5.
Although Plaintiff argues that the Cover Letter was “assertive[ ] contact” from
Second Round “in an attempt to collect” on the debt (Docket No. 14, Plaintiff’s Opp. at 2),
this Court can discern no language in Second Round’s February 2017 Letter that seeks
to collect on the debt or otherwise violates §1692c(c). Accordingly, because “no plausible

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inference of wrongdoing can be drawn from the face of the correspondence at issue and
the well-pled allegations of the complaint,” even “from the perspective of the ‘least
sophisticated consumer,’” the §1692c(c) claim must be dismissed. See Vazquez v. Prof'l
Bureau of Collections of Maryland, Inc., 217 F. Supp. 3d 1348, 1352 (M.D. Fla. 2016).
B.

FDCPA Sections 1692g(b), 1692e, and NYGBL § 349(a)
Abbott also asserts that Second Round violated FDCPA §§ 1692g(b) and 1692e,

as well as NYGBL § 349(a). In its motion, Second Round Sub argued that each of these
claims should be dismissed. Plaintiff made no argument opposing dismissal of these
claims, and responded only to those arguments regarding § 1692c(c). Accordingly, this
Court deems the claims to be abandoned. See Brandon v. City of New York, 705 F.
Supp. 2d 261, 268 (S.D.N.Y. 2010) (dismissing claims in motion for judgment on the
pleadings where plaintiff did not raise any arguments opposing defendants’ motion).
IV.

CONCLUSION

Because Plaintiff has failed to state any viable claims, Second Round’s motion for
judgment on the pleadings is granted and the case is dismissed.
V.

ORDERS

IT HEREBY IS ORDERED, that Defendant’s Motion for Judgment on the Pleadings
(Docket No. 11) is GRANTED;
FURTHER, that the Clerk of Court is directed to close this case.
SO ORDERED.
Dated: September 27, 2017
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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