Hart v. FCI Lender Services, Inc.

Filing 56

-CLERK TO FOLLOW UP-DECISION AND ORDER granting 46 Motion to Dismiss for Failure to State a Claim. Action is dismissed with prejudice. Signed by Hon. Charles J. Siragusa on 1/15/14. (KAP)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MATTHEW J. HART, on behalf of plaintiff
and the class defined herein,
Plaintiff,

DECISION AND ORDER
13-CV-6076 CJS

-vFCI LENDER SERVICES, INC.,
Defendant.

APPEARANCES
For Plaintiff:

Mark F. Viencek, Esq.
290 Linden Oaks, 1st Floor
Rochester, New York 146254
Tiffany N. Hardy, Esq.
Edelman Combs Latturner & Goodwin, LLC
120 S. LaSalle Street, Suite 1800
Chicago, Illinois 60603

For Defendant:

Andrew J. Wells, Esq.
Phillips Lytle LLP
437 Madison Avenue, 34th Floor
New York, New York 10027
Preston Lee Zarlock, Esq.
William D. Christ, Esq.
Phillips Lytle LLP
3400 HSBC Center
Buffalo, New York 14203

INTRODUCTION
This is an action alleging a violation of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq. Now before the Court is Defendant’s motion (Docket

No. [#46]) to dismiss the Amended Complaint [#47] for failure to state a claim. The
application is granted and this action is dismissed.
BACKGROUND
Unless otherwise noted, the following facts are taken from the Amended Complaint
[#47], including attached exhibits. At all relevant times Plaintiff was the borrower in
connection with a mortgage loan. Prior to June 27, 2012, Plaintiff’s mortgage loan was
serviced by GMAC Mortgage, LLC (“GMAC”). Effective June 28, 2012, the owner of the
debt, whose identity is not set forth in the record, retained Defendant FCI Lender Services,
Inc. (“FCI”), to service the mortgage loan. FCI regularly services mortgage loans, and is
involved in the restructuring of loans and foreclosures. At the time FCI took over the
servicing of the loan from GMAC, Plaintiff was behind in his payments.1
Pursuant to the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §
2605(c), as the new servicer of Plaintiff’s loan, FCI was required to send Plaintiff a notice,
informing him that it was assuming responsibility for servicing the loan.2 RESPA requires
that such notices contain the following information:
(A) The effective date of transfer of the servicing described in such
paragraph.
(B) The name, address, and toll-free or collect call telephone number of the
transferee servicer.

1
The Amended Complaint [#47], Exhibit B, is a statement dated December 28, 2012, which indicates
that Plaintiff owed “past due payments” in the amount of $31,736.43. Moreover, on July 28, 2010, GMAC
Mortgage sent Plaintiff a notice indicating that the mortgage loan was “116 days in default.” Id., Ex. C.
2

That section of RESPA states, in pertinent part, that “[e]ach transferee servicer to whom the servicing
of any federally related mortgage loan is assigned, sold, or transferred shall notify the borrower of any such
assignment, sale, or transfer. “ 12 U.S.C. § 2605(c)(1).

2

(C) A toll-free or collect call telephone number for (i) an individual employed
by the transferor servicer, or (ii) the department of the transferor servicer,
that can be contacted by the borrower to answer inquiries relating to the
transfer of servicing.
(D) The name and toll-free or collect call telephone number for (i) an
individual employed by the transferee servicer, or (ii) the department of the
transferee servicer, that can be contacted by the borrower to answer
inquiries relating to the transfer of servicing.
(E) The date on which the transferor servicer who is servicing the mortgage
loan before the assignment, sale, or transfer will cease to accept payments
relating to the loan and the date on which the transferee servicer will begin
to accept such payments.
(F) Any information concerning the effect the transfer may have, if any, on
the terms of or the continued availability of mortgage life or disability
insurance or any other type of optional insurance and what action, if any, the
borrower must take to maintain coverage.
(G) A statement that the assignment, sale, or transfer of the servicing of the
mortgage loan does not affect any term or condition of the security
instruments other than terms directly related to the servicing of such loan.
12 U.S.C. § § 2605(b)(3) & (c)(3). On or about July 17, 2012, FCI sent Plaintiff a notice
that contained all of the information referenced above in subsections (A),(B),(C),(D),(E) and
(G).3 See, Amended Complaint [#47], Ex. A.

3

The notice did not contain information concerning insurance, referenced in subsection (F),
presumably because the transfer of servicing had no effect on Plaintiff’s insurance. See, 12 U.S.C. §
2605(b)(3)(F) (“Any information concerning the effect the transfer may have, if any, on the terms of or the
continued availability of mortgage life or disability insurance or any other type of optional insurance and what
action, if any, the borrower must take to maintain coverage.”) (emphasis added).

3

More specifically, FCI sent Plaintiff a form letter,4 entitled “Transfer of Servicing
Letter” (“the notice” or “the RESPA letter”). Amended Complaint [#47], Ex. A. The notice
begins, “Please be advised that effective June 28, 2012 the servicing of your mortgage
loan with GMAC Mortgage, LLC, secured by a Deed of Trust/Mortgage on real property,
has been assigned to FCI Lender Services, Inc.” Id. The notice then indicates that such
transfer of servicing does not “affect any term or condition of the mortgage instruments.”
Id. The notice also indicates where Plaintiff should send payments, and states, in pertinent
part:
Beginning June 28, 20125 you should mail your payments, including all past
due payments, to FCI Loan Services, Inc. at the address indicated below[.]
***
The last day that your present Servicer will accept payments from you is
June 27, 2012. The date that FCI Lender Services, Inc. starts accepting
payments from you is June 28, 2012. Send all payments due on or after that
date to your new Servicer.
Id. The notice, though, does not set forth any dollar amounts, such as the total owed, the
amount of each monthly payment, or any past due amount. Nor did the notice indicate that
the loan was in default.
The notice also contains certain notifications pursuant to the FDCPA. In particular,
page three of the notice contains the following language:
NOTICE
THIS IS AN ATTEMPT TO COLLECT UPON A DEBT, AND ANY
INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.
Plaintiff refers to the notice as a “form letter.” See, Amended Complaint [#47] at ¶ 17 (“Exhibit A is
a form letter.”).
4

5

The notice itself is dated July 17, 2012, which is after that date.

4

YOU HAVE THE FOLLOWING RIGHTS
THIS DEBT WILL BE ASSUMED TO BE VALID UNLESS YOU DISPUTE
ITS VALIDITY WITHIN 30 DAYS AFTER RECEIVING THIS NOTICE.
IF YOU NOTIFY THIS OFFICE IN WRITING THAT THE DEBT IS
DISPUTED WITHIN 30 DAYS, THIS OFFICE WILL MAIL TO YOU
VERIFICATION OF THE DEBT OR A COPY OF THE JUDGMENT AGAINST
YOU.
THIS OFFICE WILL PROVIDE YOU WITH THE NAME AND ADDRESS OF
THE ORIGINAL CREDITOR (IF DIFFERENT FROM THE CURRENT
CREDITOR) UPON YOUR WRITTEN REQUEST WITHIN 30 DAYS.
IT IS IMPORTANT THAT YOU UNDERSTAND THAT YOU HAVE THE
RIGHT TO ENFORCE THE ABOVE NOTICE.
Amended Complaint [#47], Ex. A. The notice specifically references the FDCPA, and it is
obvious that the foregoing quoted language tracks the language of 15 U.S.C. § 1692g,
though not exactly. For example, the notice indicates that unless the Plaintiff disputes the
debt’s validity, the “debt will be assumed to be valid,” while the actual statutory language
indicates that unless the debtor disputes the debt’s validity, “the debt will be assumed to
be valid by the debt collector.” (emphasis added). The notice also fails to state “the
amount of the debt” and “the name of the creditor to whom the debt is owed,” contrary to
15 U.S.C. § 1692g(a)(1)&(2).
Subsequent to sending the foregoing notice, Defendant sent “payment statements”
to Plaintiff. See, Amended Complaint [#47], Ex. B. For example, Defendant sent Plaintiff
the “payment statement” attached to the pleading as Exhibit B, dated “December 28,
2012,” that contains information such as the principal balance of the loan, the interest rate,
the payment amount, past due amounts, and late charges. The statement indicates that
5

the “total amount due” is “$33,332.73.” Such billing statement did not include any FDCPA
notices.
On February 13, 2013, Plaintiff commenced this action as a proposed class action.6
The initial Complaint [#1] alleged that Defendant violated the FDCPA, because the notices
in the RESPA transfer-of-serving letter did not comply with 15 U.S.C. § 1692g. The claim
was based solely on Plaintiff’s receipt of the transfer-of-servicing letter, and did not allege
that Plaintiff had received any further correspondence or billing statements from
Defendant.
On May 16, 2013, Defendant filed a motion [#26] for judgment on the pleadings, on
the grounds that no FDCPA violation was pleaded, since the complaint did not plead that
Defendant was a debt collector7 and the RESPA letter was not a debt collection
communication. In support of the motion, Defendant cited, inter alia, Thompson v. BAC
Home Loan Servicing LP, No. 2:09-CV-311-TS, 2010 WL 1286747 (N.D.Ind. Mar. 26,
2010) (“Thompson”), in which, on almost identical facts,8 the same law firm that is
representing Plaintiff in this action had unsuccessfully argued that a similar RESPA
transfer-of-servicing letter was an attempt to collect a debt.

6

Plaintiff filed a motion for class certification, which has been held in abeyance pending the outcome
of Defendant’s motion to dismiss.
7

With regard to whether Defendant was a “debt collector” within the meaning of the FDCPA,
Defendant argued that “Congress did not intend . . . for the FDCPA’s definition of a debt collector to include
mortgage servicing companies and others who service outstanding debts for others, so long as the debts were
not in default when taken for servicing.” Def. Memo of Law [#26-3] at p. 11 (citations omitted). The Complaint
[#1] did not mention whether the mortgage loan was in default when Defendant sent the RESPA letter.
8

The facts of Thompson are very similar, including the fact that the loan was already in default when
the RESPA servicing notice was sent. Id., 2010 WL 1286747 at * 4. One slight difference between Thompson
and this action, upon which Plaintiff is attempting to capitalize, is that the RESPA notice in this action
contained the words “including all past due payments.” However, as discussed below, the Court does not
find that distinction to be significant.

6

In response to Defendant’s motion, Plaintiff moved [#27] for leave to file an
amended complaint. In that regard, Plaintiff explained that he wanted to amend the
pleading to allege both that Defendant was a debt collector and that Defendant had made
a subsequent demand for payment, after the RESPA letter. See, Pl. Motion to Amend
[#27]. Along with the motion, Plaintiff filed a proposed First Amended Complaint, which,
in pertinent part, added allegations that Defendant regularly collected debts, that the
subject mortgage loan was in default when it was transferred to Defendant for servicing,
that Defendant sent Plaintiff the billing statement, dated December 28, 2012, for amounts
owed on the loan, including past due amounts, and that prior to January 5, 2013, the only
document that Plaintiff received from Defendant which could have been a validation notice
required by the FDCPA, 15 U.S.C. § 1692g, was the RESPA letter, which does not comply
with § 1692g.9 The proposed pleading attaches, as Exhibit B, the December 28, 2012,
billing statement showing a total amount due of $33,332.73. That exhibit, however, is
marked “redacted,” and does not specifically identify what information was redacted.
However, it appears that the only information redacted may have been Plaintiff’s address.
See, Proposed First Amended Complaint, Ex. B. The Amended Complaint does not allege
when Exhibit B was sent by Plaintiff, or when it was received by Plaintiff. Nor does the
pleading specifically allege that Defendant failed to send Plaintiff the notice required by 15
U.S.C. § 1692g within five days of sending him Exhibit B.

See, Proposed First Amended Complaint at ¶ ¶ 30-36, explaining why the FDCPA notice contained
in the RESPA letter fails to comply with 15 U.S.C. § 1692g. Plaintiff alleges, for example, that the RESPA
letter does not identify the current owner of the debt or the current balance of the loan, and misstates a
provision intended to give the debtor 30 days in which to challenge the validity of the loan.
9

7

On June 12, 2013, the Honorable Jonathan W. Feldman, United States Magistrate
Judge issued a Scheduling Order [#32] in this action. The Scheduling Order stated, in
pertinent part, that “All motions to join other parties and to amend the pleadings shall be
filed on or before September 12, 2013.”

The Scheduling Order further stated: “No

extension of the above cutoff dates will be granted except upon written application, made
prior to the cutoff date, showing good cause for the extension. Application for extensions
should be made to the Magistrate Judge.” (emphasis in original).
Subsequently, Plaintiff and Defendant agreed to resolve the then-pending motions.
Specifically, the parties agreed that Defendant would withdraw its motion for judgment on
the pleadings and allow Plaintiff to file the First Amended Complaint, and that Defendant
would then file another dispositive motion against the First Amended Complaint.

On

August 22, 2013, the Court approved the parties’ agreement and set a briefing schedule
for Defendant’s forthcoming dispositive motion. See, Order [#42].
On August 30, 2013, Defendant filed the subject motion to dismiss [#46] the First
Amended Complaint for failure to state a claim. In this application, Defendant does not
argue, as it previously did, that it is not a debt collector within the meaning of the FDCPA.
However, Defendant reiterates that the RESPA transfer-of-servicing letter, First Amended
Complaint, Exhibit A, is not a communication in connection with the collection of any debt,
and is therefore not subject to the FDCPA. See, Def. Memo of Law [#46-3]. Defendant
maintains that the revisions in the First Amended Complaint do not correct that fatal defect.
In response to Defendant’s motion to dismiss, Plaintiff did not, as he had previously
done, seek further leave to amend his pleading. Nor did he request any extension of
Magistrate Judge Feldman’s deadline for filing amended pleadings.
8

Instead, on

September 6, 2013, Plaintiff filed his response [#48] to the motion. Plaintiff characterizes
his claim as being that Defendant “violated the FDCPA by sending multiple
communications which expressly demanded payment, none of which contained the
disclosures required by § 1692g,” and that the RESPA transfer-of-servicing letter was
Defendant’s “only attempt to comply with § 1692g,” which it did not do. Pl. Memo of Law
[#48] at pp. 3-4. Plaintiff contends that the RESPA transfer-of-servicing letter was “a
communication in connection with the collection of a debt,” because it referred to “all past
due payments.” Id. at p. 6. Plaintiff further maintains that the December 28, 2012, billing
statement was also a communication to collect a debt, and that Defendant never gave a
proper notice under § 1692g, since the RESPA letter did not contain a sufficient notice and
no other notice was sent. As already mentioned, though, the actual factual assertions in
the First Amended Complaint are more narrow.10
On December 5, 2013, counsel for the parties appeared before the Court for oral
argument. During oral argument, the Court discussed with counsel whether the First
Amended Complaint would state a claim under the FDCPA if the Court found that the initial
communication from Defendant, the RESPA transfer-of-service letter, was not a
communication “in connection with the collection of any debt.”

Plaintiff’s counsel

essentially indicated that Plaintiff’s claim was not restricted to the initial communication,

10

In his memo of law, Plaintiff states: “Even on [Defendant’s] incorrect theory that [the RESPA letter]
does not count [as an attempt to collect a debt], [Defendant] had to furnish the disclosures mandated by §
1692g in some form ‘within five days after’ the initial correspondence demanding payment. Whether that initial
correspondence is [the RESPA transfer-of-servicing letter] or [the December 28, 2012 billing statement],
[Defendant] did not comply.” Docket No. [#48] at p. 10. However, the First Amended Complaint is limited to
what it actually says, and Plaintiff cannot re-shape the pleading in a memorandum of law to avoid dismissal
on a 12(b)(6) motion. Nor can counsel’s comments during oral argument re-shape the pleading. In that
regard, during oral argument, Plaintiff’s counsel stated, “”[N]owhere after exhibit B has there been compliance
with [ § ] 1692g.” Revised Transcript [#55] at p. 14. However, that is not what the pleading says.

9

and more broadly, that his claim was that Defendant had failed to comply with 15 U.S.C.
§ 1692g in connection with the overall collection effort. However, when the Court pressed
Plaintiff’s counsel as to whether the First Amended Complaint adequately pleaded a standalone claim with regard to the December 28, 2012, billing statement (First Amended
Complaint, Exhibit B), she indicated that Plaintiff would want to file a Second Amended
Complaint. The Court believes that Plaintiff’s counsel was correct in that regard, since as
already suggested above, the Court does not believe that the First Amended Complaint
presently pleads sufficient facts to establish a FDCPA claim as to the December 28, 2012,
billing statement. However, at that point in the oral argument, the discussion turned to
whether Plaintiff should be allowed to file a further amended pleading, given that
Magistrate Judge Feldman’s deadline for filing amended pleadings had already passed,
and Plaintiff had not requested any extension. In response to the Court’s questioning on
that point, Plaintiff’s counsel did not identify any good cause for extending that deadline.
DISCUSSION
Defendant has moved to dismiss the complaint for failure to state a claim, and the
standard for such motions is well settled:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain
statement of the claim showing that the pleader is entitled to relief, in order
to give the defendant fair notice of what the claim is and the grounds upon
which it rests. While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff's obligation to
provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do. Factual allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).

10

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929
(2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d
Cir.2007) (“To survive dismissal, the plaintiff must provide the grounds upon which his
claim rests through factual allegations sufficient ‘to raise a right to relief above the
speculative level.’ ”) (quoting Bell Atl. Corp. v. Twombly ) (footnote omitted).
When applying this “plausibility standard,” the Court is guided by “two working
principles”:
First, although a court must accept as true all of the allegations contained in
a complaint,11 that tenet is inapplicable to legal conclusions, and threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss, and determining whether a
complaint states a plausible claim for relief will be a context-specific task that
requires the reviewing court to draw on its judicial experience and common
sense.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations and internal quotation marks
omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not shown—that the
pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950
(2009) (citation omitted).

11

The Court must accept the allegations contained in the complaint as true and draw all reasonable
inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999), cert. den.
531 U.S. 1052, 121 S.Ct. 657 (2000).

11

The RESPA letter is not covered by the FDCPA
Plaintiff maintains that Defendant violated the FDCPA, 15 U.S.C. § 1692g, by
sending a notice, the RESPA transfer-of-servicing letter, that did not comply with the
statute. That statute provides, in pertinent part:
a) Notice of debt; contents
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.
15 U.S.C.A. § 1692g(a) (West 2013). On this point, the Amended Complaint states, in
pertinent part:
Exhibit A is the document which defendant uses for the purpose of
attempting to comply with 15 U.S.C. § 1692g, prior to sending borrowers
other correspondence demanding payment.
12

Nothing other than Exhibit A purporting to contain the matters required by 15
U.S.C. § 1692g was sent to plaintiff prior to January 5, 2013.
Defendant did not send any other documents purporting to include the
matters rquired by 15 U.S.C. § 1692g to plaintiff within five days after Exhibit
A.
Amended Complaint ¶ ¶ 24-25. The Amended Complaint further alleges that the RESPA
letter did not comply with § 1692g. Id. at ¶ ¶ 30-36.
However, the Court agrees with Defendant that the transfer-of-servicing letter was
not a communication with a consumer in connection with the collection of any debt, and,
therefore, was not subject to 15 U.S.C. § 1692g. Significantly, the RESPA letter did not
attempt to induce Plaintiff to make payment, but rather, it assumes that he will be making
payments and directs where he should send them. The notice is informational in nature,
and does not reference an amount owed or threaten to take any action if payment is not
made. In making this determination, the Court adopts the reasoning of Thompson, 2010
WL 1286747 at *2-5, Shelley v. Ocwen Loan Servicing, LLC, No. 1:13-cv-506-RLY-DKL,
2013 WL 4584649 at *3-7 (S.D.Ind. Aug. 28, 2013) (“Shelley”) and Kelly v. Nationstar
Mortgage, LLC, Civil Action No. 3:13-cv-00311-JAG, 2013 WL 5874704 at *3-4 (E.D.Va.
Oct. 31, 2013) (“Kelley”), which are directly on point.
Plaintiff contends, though, that the RESPA transfer-of-servicing letter was an
attempt to collect a debt because it included the words: “Beginning June 28, 2012, you
should mail your payments, including all past due payments, to FCI Lender Services, Inc.
at the address indicated below.” (emphasis added).

Plaintiff insists that the words

“including all past due payments” show that Defendant was attempting to collect Plaintiff’s
past due payments. The Court disagrees. Viewing the overall tone and content of the
13

notice, which does not specifically reference any actual past due amount, the phrase
“including all past due payments” essentially means “all past due payments, if any.” The
Court does not believe that the words “including all past due payments” change the fact the
RESPA notice was informational, or that they distinguish this case from Thompson, Shelley
or Kelly.
Plaintiff nevertheless contends that the Court should not rely on those cases, since
they are contrary to the law of this Circuit. Specifically, Plaintiff states:
[C]ourts in the Second Circuit have not fallen into the error found in
Thompson. [The decision in] Foti v. NCO, [424 F.Supp.2d 643 (S.D.N.Y.
2006)] and its progeny have consistently held that any communication
intended to establish contact with a defaulted debtor or facilitate later
communications that demand payment from a defaulted debtor is a
communication subject to the FDCPA, even if it does not itself demand
payment.
Pl. Memo of Law [#48] at p. 11. It is true that in Foti, the district court found that a prerecorded telephone message, directing the debtor to call a toll-free number about “a
personal business matter that requires your immediate attention,” was subject to the
FDCPA even though it did not specifically reference a debt. Foti, 424 F.Supp.2d at 648.
However, Foti is factually inapposite, since in Foti the only reason that the debt collector
left the message was to induce the debtor to call the number so that a collector could
verbally attempt to persuade the debtor to pay the debt. In the instant case, Defendant
was required by RESPA to send the transfer-of-serving notice, and the document itself
establishes that it was not sent in order to induce Plaintiff to make a payment. The Court
is not aware of any case in this Circuit that has applied Foti to find that a transfer-of-service
notice sent pursuant to RESPA, 12 U.S.C. § 2605(c), was covered by the FDCPA. On the
14

other hand, courts in this Circuit have held that certain communications from debt
collectors are not covered by the FDCPA. See, Derisme v. Hunt Leibert Jacobson P.C.,
880 F.Supp.2d 339, 372 (D.Conn. 2012)

(“[C]ourts have routinely held that

communications that are merely informational and do not demand payment cannot be
considered communications ‘in connection with the collection of any debt’ under the
FDCPA.”) (citation omitted). Consequently, the Court finds, as a matter of law, that the
RESPA notice in this action was not a communication “in connection with the collection of
any debt,” and therefore it did not need to comply with the FDCPA.
The First Amended Complaint Fails to otherwise state a claim
For the reasons mentioned above, the Court also finds that the First Amended
Complaint fails to plead sufficient facts to plausibly state an independent FDCPA claim
relating to the December 28, 2012, billing statement. Although Plaintiff’s papers submitted
in opposition to the motion to dismiss contend that Defendant failed to provide the notices
required by § 1692g with regard to the billing statement, the pleading itself does not allege
such facts.
Plaintiff has not shown good cause for failing to comply with the
deadline for filing amended pleadings.
Having found that the First Amended Complaint fails to state a claim, the question
is whether the Court should dismiss the action with prejudice, or permit Plaintiff to file
another pleading. Having considered the matter, the Court determines that the action will
be dismissed with prejudice. In that regard, the Court notes, first, that Plaintiff already had
one opportunity to amend. Moreover, Plaintiff’s opposition papers did not request further
leave to amend in the event that the Court granted Defendant’s motion. Instead, Plaintiff’s
15

counsel made a verbal request during oral argument. And finally, Plaintiff has not shown
good cause for failing to request an extension of Magistrate Judge Feldman’s deadline for
filing motions to amend.12
CONCLUSION
Defendants’ motion to dismiss [#46] is granted, and this action is dismissed with
prejudice.
SO ORDERED.
Dated:

January 15, 2014
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

12

See, Velez v. Burge, 483 Fed.Appx. 626, 628, 2012 WL 1889402 at *1 (2d Cir. 2012) (“Although
“[a] court should freely give leave [to amend] where justice so requires,” Fed.R.Civ.P. 15(a)(2), this must be
balanced against the requirement under Rule 16(b) that the Court's scheduling order shall not be modified
except upon a showing of good cause.”) (citations omitted).

16