Altieri v. Overton, Russell, Doerr, & Donovan, LLP

281 F.Supp.3d 254

Christina ALTIERI, on behalf of herself and all others similarly situated, Plaintiff,

v.OVERTON, RUSSELL, DOERR, AND DONOVAN, LLP, Defendant.

1:17–CV–303

United States District Court, N.D. New York.

Signed November 14, 2017

Filed November 15, 2017

Mitchell L. Pashkin, Office of Mitchell L. Pashkin, Huntington, NY, for Plaintiff.

Matthew J. Bizzaro, L'Abbate, Balkan Law Firm—Garden City Office, Garden City, NY, Paul A. Sanders, Barclay Damon LLP—Rochester Office, Rochester, NY, for Defendant.

DECISION & ORDER

Thomas J. McAvoy, Senior, U.S. District Judge

I. INTRODUCTION

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.

II. BACKGROUND

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

Plaintiff claims this letter violates the FDCPA in varying respects (analyzed below).

III. 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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).

IV. DISCUSSION

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). "To 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 Fed.Appx. 45 (2d Cir. 2017) (quoting Clomon v. Jackson , 988 F.2d 1314, 1318–19 (2d Cir.1993) ). The 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 , 875 F.3d 128, 135 (2d Cir. 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 consumer 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 v. American Home Mortg. Servicing, Inc. , 503 Fed.Appx. 89, 94 (2012) (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 may 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 232 ).

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, 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...