Kirshenbaum v. GE Money Bank et al

Filing 10

MEMORANDUM AND ORDER granting 3 Motion to Dismiss filed by Capital Management Services, LP; Dynia & Associates LLC; National Enterprise Systems; Northland Group, Inc.; and, granting 4 Motion to Dismiss filed by Tate & Kirlin Associates. So Ordered by Judge Mary M. Lisi on 9/5/2014. (A copy of the attached Memorandum and Order was forwarded to pro se Plaintiff.) (Duhamel, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

SALLY KIRSHENBAUM,
Plaintiff,
v.

C.A. No. 14-294

GE MONEY BANK, NATIONAL ENTERPRISE
SYSTEMS, TATE & KIRLIN ASSOCIATES,
NORTHLAND GROUP, INC., CAPITAL
MANAGEMENT SERVICES, LP, DYNIA &
ASSOCIATES LLC, STELLAR RECOVERY, INC.,
ALLIED INTERSTATE, LLC, J.C. CHRISTENSEN AND
ASSOCIATES, INC., and ARROW FINANCIAL SERVICES
LLC,
Defendants.

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’, National Enterprise Systems
(“National”), Northland Group, Inc., (“Northland”), Capital Management Services, LP
(“Capital”), Dynia & Associates (“Dynia”), and Tate & Kirlin Associates (“Tate”) (collectively
“Moving Defendants”) motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). See Docket ##
3,4. For the reasons stated herein, the motions are granted.1

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Plaintiff’s responses to the motions were due on July 28, 2014. On August 28, 2014, one month out of
time, Plaintiff filed her response to both of the motions. See Motion and Objection; Docket at # 9. Plaintiff objects
to the motions to dismiss “as set forth in Plaintiff’s Motion dated July 14, 2014.” Id. The Court is not in receipt of
any filing by Plaintiff dated July 14, 2014.

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I. Background
On or about May 23, 2014, Plaintiff, acting pro se, filed this action.2 The complaint
alleges that, on June 22, 2007, Plaintiff purchased a television set and accessories for $2,443.67
from Bernie’s, a retail appliance store, in Warwick, Rhode Island. The merchandise was
delivered to Plaintiff’s residence in Cranston, Rhode Island on or about June 24, 2007. Plaintiff
immediately notified Bernie’s that she did not like the picture quality of the television set.
Plaintiff requested that Bernie’s “take back” the merchandise; Bernie’s complied. Complaint at
¶ 4; Docket # 1-1. Bernie’s “issued two credits [to Plaintiff] totaling $2,443.67, leaving a
balance of $0.” Complaint at ¶ 6. On December 1, 2007, Plaintiff purchased another television
set and accessories for $2,417.14 from Bernie’s. Plaintiff purchased the merchandise by using
her CaptialOne credit card. The television set and accessories were delivered to Plaintiff on or
about December 3, 2007.
“Despite the return of the first TV set and accessories and receiving full credit for these
purchases, and payment in full for the second TV set and accessories, Plaintiff began receiving
bills and/or offers to settle from . . . GE Money Bank, from July 10, 2007 through April 4, 2008 .
. . .” Id. at ¶ 8. In November 2008, Plaintiff began receiving letters from Moving Defendants
which demanded payment. Plaintiff received a “bill” from National, dated November 24, 2008,
“re Arrow for GE Money Bank, claiming $616.21.” Id. at ¶ 13. Plaintiff “received a letter from
Tate . . . dated July 27, 2009, claiming $703.23, but offering to settle for $281.28.” Id. at ¶ 14.
Plaintiff received another “letter from Tate . . . dated September 16, 2009, claiming $703.23, but
offering to settle for $351.62.” Id. at ¶ 15. In a letter dated October 10, 2009, Plaintiff informed

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The matter was filed in Rhode Island District Court and subsequently removed to this Court.

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Tate that “she would not pay anything . . . because she did not owe anything to Bernie’s.” Id. at
¶ 16. In the October 2009 letter, Plaintiff also requested that Tate forward to Plaintiff “copies of
all communications and any other materials sent to Plaintiff from Arrow Financial Services LLC
and Bernie’s . . . .” Id. Plaintiff alleges that Tate did not forward the information that she
requested. On November 7, 2009, Plaintiff sent a second letter to Tate and included “the bill
from Capital One showing that the second television set had been paid in full.” Id. at ¶ 17.
Plaintiff also informed Tate “that if any of the credit bureaus had been notified of the alleged
outstanding transaction, then the credit bureaus should be instructed to delete these accounts
from their records.” Id. In January 2010, Plaintiff followed up with a third letter to Tate. In that
letter Plaintiff informed Tate that: (1) she “owed nothing to Bernie’s or its successors, GE
Money Bank and/or collection agents Arrow Financial Services and National. . . and Northland .
. . and Capital[;]” (2) the “credit bureaus be notified that nothing is owing[;]” and (3) she would
sue “the Defendants for libel and harassment, if her demands were not met.” Id. at ¶ 18.
Notwithstanding Plaintiff’s letters to Tate, Plaintiff “received letters from Northland . . .
dated April 19, 2010, May 19, 2010, and October 14, 2010, demanding $703.23 but willing to
accept less in settlement.” Id. at ¶ 31. Plaintiff also “received letters dated March 9, 2011, and
May 18, 2011 from Capital . . . demanding $703.23, but willing to take less in settlement.” Id. at
¶ 32. Finally, Plaintiff “received a letter from Dynia . . . dated December 21, 2012, demanding
$834.47, but willing to accept less in settlement.” Id. at ¶ 33. Plaintiff concludes that “one or
more or all of the Defendants have wrongfully . . . impaired [her] credit standing and have
harassed [her] . . . with the constant wrongful billings, and have tried to collect on a non-existent
claim.” Id. at ¶ 25.

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Plaintiff brings four causes of action against Moving Defendants: (1) violations of the
Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”); (2) violations of the
Truth in Lending Act, 15 U.S.C. § 1601 et seq. (“TILA”); (3) libel; and (4) harassment.
II. Standard of Review
The only issue for the Court to decide in a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure is “whether, construing the well-pleaded facts of the
complaint in the light most favorable to the plaintiff[], the complaint states a claim for which
relief can be granted.” Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 7 (1st Cir. 2011). In
order to withstand a motion to dismiss, a complaint “must contain sufficient factual matter . . . to
state a claim to relief that is plausible on its face.” Katz v. Pershing, LLC, 672 F.3d 64, 72-73
(1st Cir. 2012) (internal quotation marks and citation omitted). The plaintiff is required to
“include factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. at 73 (internal quotation marks and citation omitted).
In evaluating a motion to dismiss, the Court takes “the complaint’s well-pled (i.e., nonconclusory, non-speculative) facts as true, drawing all reasonable inferences in the pleader’s
favor, and [determines] if they plausibly narrate a claim for relief.” Schatz v. Republican State
Leadership Committee, 669 F.3d 50, 55 (1st Cir. 2012). However, “statements in the complaint
that simply offer legal labels and conclusions or merely rehash cause-of-action-elements” must
be isolated and ignored. Id. “Dismissal for failure to state a claim is appropriate if the complaint
does not set forth factual allegations, either direct or inferential, respecting each material element
necessary to sustain recovery under some actionable legal theory.” Feingold v. John Hancock
Life Insurance Co., 753 F.3d 55, 60 (1st Cir. 2014) (internal quotation marks and citation

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omitted).
The Court acknowledges Plaintiff’s pro se status and thus reads the complaint liberally.
Rodi v. Southern New England School of Law, 389 F.3d 5 (1st Cir. 2004). Pro se litigants,
however, are not excused from compliance with procedural rules and substantive law. Ahmed v.
Rosenblatt, 118 F.3d 886 (1st Cir. 1997). While the Court must grant Plaintiff some leeway
because of her pro se status, her complaint must set forth some factual basis to support the claims
asserted. Ducally v. Rhode Island Department of Corrections, 160 F. Supp. 2d 220 (D.R.I.
2001).
III. Analysis
A. FDCPA
Moving Defendants first argue that the FDCPA claims should be dismissed because the
claims are barred by the statute of limitations. Granting a motion to dismiss based on a statute of
limitations defense is appropriate when the pleader’s allegations leave no doubt that an asserted
claim is time-barred. LaChapelle v. Berkshire Life Insurance Co., 142 F.3d 507 (1st Cir. 1998).
The FDCPA contains a one-year statute of limitations. Jones v. FMA Alliance Ltd., 978 F.
Supp. 2d 84 (D. Mass. 2013); see also 15 U.S.C. § 1692k(d) (FDCPA action “may be brought . .
. within one year from the date on which the violation occurs”). Because Plaintiff brought this
action in May 2014, the FDCPA statute of limitations bars claims for violations occurring before
May 2013. Plaintiff alleges that she received several collection letters from Moving Defendants
dated between November 2008 and December 2012. Plaintiff also alleges that she wrote three
letters to Tate, the last letter in January 2010. Given the FDCPA’s one year statute of
limitations, however, any claimed violation of the FDCPA based on these letters is clearly out of

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time.
B. TILA
TILA governs consumer credit transactions. Piche v. Clark County Collection Service,
LLC, 119 F. App’x 104 (9th Cir. 2004). Plaintiff alleges that “Defendants” violated TILA by
“not forwarding the information requested by the Plaintiff . . . .” Complaint at pg. 5. The only
Moving Defendant that Plaintiff alleges she requested information from was Tate. As noted
above, in October 2009, Plaintiff alleges that she forwarded a letter to Tate requesting “copies of
all communications and any other materials sent to Plaintiff from Arrow Financial Services LLC
and Bernie’s, which it did not do.” Id. at ¶ 16. Assuming, without deciding, that this failure to
forward the requested information is a violation of TILA, it is out of time. Plaintiff brings this
action seeking damages. The statute of limitations for a claim for damages under TILA is one
year from the date of the occurrence of the violation. Salois v. Dime Savings Bank of New
York, FSB, 128 F.3d 20 (1st Cir. 1997); Karim v. Bank of America, N.A., No. CA 10-519 S,
2011 WL 4457212 (D.R.I. May 6, 2011), report and recommendation adopted, No. CA 10-519 S,
2011 WL 4458765 (D.R.I. Sept. 23, 2011).
C. Libel
To prevail on a claim for libel under Rhode Island law, Plaintiff must prove (1) a false
and defamatory statement concerning another; (2) an unprivileged communication to a third
party; (3) fault amounting at least to negligence; and (4) damages. Mills v. C.H.I.L.D., Inc., 837
A.2d 714, 720 (R.I. 2003) (per curiam). Plaintiff has failed to allege that any one or more of

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Moving Defendants published any information to third parties.3 Thus, Plaintiff’s libel claim
cannot survive a motion to dismiss.
D. Harassment
It appears that Plaintiff bases her harassment claim on the premise that Moving
Defendants attempted to collect a debt from her that she did not owe. Debt collection practices,
however, are generally governed by the FDCPA and the Rhode Island Fair Debt Collection
Practices Act, (“RIFDCPA”), R.I. Gen. Laws § 19-14.9-1 et seq. As noted above, any FDCPA
claim against Moving Defendants is barred by the one-year statute of limitations. Likewise, any
RIFDCPA claim is barred by a one-year statute of limitations. See R.I. Gen. Laws § 19-14.913(5) (“[a]n action to enforce any liability created by the provisions of this article may be
brought . . . within one year from the date on which the violation occurs”).
IV. Conclusion
For the reasons stated herein, Moving Defendants’ motions to dismiss are granted.

SO ORDERED
/s/ Mary M. Lisi
Mary M. Lisi
United States District Judge
September 5 , 2014.

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While the complaint includes allegations that other Defendants reported Plaintiff’s information to credit
bureaus incorrectly, Plaintiff does not allege that any of Moving Defendants incorrectly reported information to a
credit bureau.

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