Garcia v. Dezba Asset Recovery, Inc.

665 F.Supp.3d 390

Christopher GARCIA, Plaintiff, v. DEZBA ASSET RECOVERY, INC. andCapital One Auto Finance, Inc., Defendants.

No. 22-CV-01736 (KMK)

United States District Court, S.D. New York

Signed March 29, 2023

Yitzchak Zelman, Esq., Marcus & Zelman, LLC, Asbury Park, NJ, Counsel for Plaintiff.

Aviva Stein, Esq., Wilson & Chan LLP, New York, NY, Counsel for Defendants.

Ian B. Forman, Esq., Malapero & Prisco LLP, New York, NY, Counsel for Defendants.

Blaec Croft, Esq., Philip Goldstein, Esq., McGuireWoods LLP, Pittsburgh, PA, Counsel for Defendants.

OPINION & ORDER

KENNETH M. KARAS, United States District Judge:

Christopher Garcia ("Plaintiff") brings this Action, for violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692f, and for violations of New York law, including claims for unlawful repossession, N.Y. U.C.C § 9-609, unfair and deceptive practices in trade or commerce, N.Y. Gen. Bus. Law § 349, and conversion against Dezba Asset Recovery Inc. ("Dezba") and Capital One Auto Finance Inc. ("Capital One", altogether, "Defendants"), alleging that Defendants illegally repossessed Plaintiff's vehicle, breached the peace, and tricked Plaintiff into making a payment only to then repossess his vehicle. (See generally Second Am. Compl. ("SAC") (Dkt. No. 30).) Before the Court is Defendants' Motion To Dismiss the claims brought in the Second Amended Complaint (the "Motion") pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Dec. in Support of Mot. (Dkt. No. 34).)

For the reasons stated herein, the Motion is granted in part and denied in part.

I. Background

A. Allegations and Materials Appropriately Considered

As a threshold matter, the Court must determine whether it may consider the following documents at this stage of the litigation: (1) the Retail Installment Sale Contract ("Original Contract") and (2) the Temporary Payment Reduction Agreement ("TPRA"), both attached to Defendants' Motion to Dismiss; and (3) the Capital One email ("Email") attached to Plaintiff's Opposition.

1. Applicable Law

Generally, "[w]hen considering a motion to dismiss, the Court's review is confined to the pleadings themselves," because "[t]o go beyond the allegations in the [c]omplaint would convert the Rule 12(b)(6) motion to dismiss into one for summary judgment pursuant to [Rule] 56." Thomas v. Westchester Cnty. Health Care Corp., 232 F. Supp. 2d 273, 275 (S.D.N.Y. 2002) (citation omitted). However, "the Court's consideration of documents attached to, or incorporated by reference in the [c]omplaint, and matters of which judicial notice may be taken, would not convert the motion to dismiss into one for summary judgment." Id. (citations omitted); see also Bellin v. Zucker, 6 F.4th 463, 473 (2d Cir. 2021) (explaining that "when ruling on Rule 12(b)(6) motions to dismiss," courts may "consider the complaint in its entirety . . . , documents incorporated into the complaint by reference, and matters of which a court may take judicial notice") (quotation marks omitted); Hu v. City of N.Y., 927 F.3d 81, 88 (2d Cir. 2019) ("In deciding a Rule 12(b)(6) motion, the court may consider 'only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings, and matters of which judicial notice may be taken.' ") (alteration omitted) (quoting Samuels v. Air Transp. Loc. 504, 992 F.2d 12, 15 (2d Cir. 1993)).

2. Application

Defendants argue that the Original Contract is incorporated by reference into the pleadings. (See Mem. of Law in Supp. of Mot. ("Defs.' Mem.") 2 (Dkt. No. 35).) "Generally, a court may incorporate documents referenced where (1) [the] plaintiff relies on the materials in framing the complaint, (2) the complaint clearly and substantially references the documents, and (3) the document's authenticity or accuracy is undisputed." Stewart v. Riviana Foods Inc., No. 16-CV-6157, 2017 WL 4045952, at *6 (S.D.N.Y. Sept. 11, 2017) (emphasis omitted) (collecting cases); see also Dunkelberger v. Dunkelberger, No. 14-CV-3877, 2015 WL 5730605, at *5 (S.D.N.Y. Sept. 30, 2015) ("To be incorporated by reference, the complaint must make a clear, definite, and substantial reference to the documents, and to be integral to a complaint, the plaintiff must have (1) actual notice of the extraneous information and (2) relied upon the documents in framing the complaint." (alterations omitted) (quoting Bill Diodato Photography LLC v. Avon Prods., Inc., No. 12-CV-847, 2012 WL 4335164, at *3 (S.D.N.Y. Sept. 21, 2012))).

Here, Plaintiff clearly relied on the Original Contract in framing the Second Amended Complaint and the Original Contract is clearly and substantially referenced in the Second Amended Complaint. (See generally SAC.) Moreover, Plaintiff does not appear to object to the incorporation of the Original Contract in the Second Amended Complaint. (See generally Pl.'s Mem.) As such, the Court will consider the Original Contract in ruling on the matters subject to Defendants' Motion To Dismiss. See Jacob v. Lorenz, No. 21-CV-6807, 2022 WL 4096701, at *5 (S.D.N.Y. Sept. 7, 2022) (holding contract was incorporated by reference when the complaint made "clear, definite, and substantial reference" to a contract).

Next, the Email from Capital One that Plaintiff attaches to his Opposition is quoted from directly in his Second Amended Complaint—as such, it is clearly incorporated by reference. (SAC ¶ 21.) Accordingly, the Court will consider the Email 2nd amended in ruling on the matters subject to Defendants' Motion To Dismiss. See Cromwell-Gibbs v. Staybridge Suite Times Square, No. 16-CV-5169, 2017 WL 2684063, at *1 n.2 (S.D.N.Y. June 20, 2017) (holding email chain was incorporated by reference when the complaint made "direct reference to the e-mail chain [and] the contents of the e-mails exchanged").

Finally, Defendants argue that Plaintiff "incorporated communications between himself and Capital One regarding the Temporary Payment Reduction Agreement into his [Second Amended Complaint] by identifying emails and phone calls with Capital One" and that, therefore, the Court may consider the TPRA as integral to the Second Amended Complaint. (Defs.' Mem. 2.) Even if not incorporated by reference, a document on which the complaint "solely relies and which is integral to the complaint," Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (citation, emphasis, and quotation marks omitted), or a document on which "the complaint relies heavily on upon its terms and effect," DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (quotation marks omitted), may also be considered by the Court on a motion to dismiss. Documents are "integral" where the plaintiff had to rely on their content "in order to explain what the actual unlawful course of conduct was on which the [d]efendants embarked." Thomas, 232 F. Supp. 2d at 276; see also Gantt v. Ferrara, No. 15-CV-7661, 2017 WL 1192889, at *14 (S.D.N.Y. Mar. 29, 2017) (holding documents were integral to the complaint where the plaintiff "relied heavily upon [them] in framing the [c]omplaint" (alterations in original) (citation omitted)). Additionally, "no serious question as to [the documents'] authenticity can exist," Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991), and it must be "clear on the record that no dispute exists regarding the authenticity or accuracy of the document," DiFolco, 622 F.3d at 111 (citation and quotation marks omitted). It appears that Plaintiff is alleging he did not receive the TPRA until it was attached to Defendants' Motion. (SAC ¶ 23; Reply to Mot. to Dismiss ("Pl.'s Mem.") 6 (Dkt. No. 38).) Accordingly, Plaintiff could not have relied on the content of the TPRA in his Second Amended Complaint to explain Defendants' unlawful course of conduct because Plaintiff alleges he never received the TPRA. Because the TPRA is not integral to the Second Amended Complaint, the Court will not consider the TPRA.

B. Factual Background

Plaintiff owned a 2018 Dodge Challenger, which was financed with a loan through Capital One. (SAC ¶ 14.) The Original Contract between Capital One and Plaintiff specified a payment schedule of 72 monthly payments beginning October 30, 2020 of $525.26. (Defs.' Mem. Ex. 1.) The Original Contract contained a clause stating that "[a]ny change to this contract must be in writing and we must sign it. No oral changes are binding." (Id.) Sometime prior to January 7, 2022, Plaintiff fell behind on his obligations to Capital One. (SAC ¶ 17.) On January 7, 2022, Plaintiff called Capital One and explained that he had experienced a loss of income due to the pandemic. (Id. ¶ 18.) Plaintiff alleges that at that time, the Capital One representative advised Plaintiff that he "qualified for a new loan program for the next six months, and that all he had to do was to make a good faith payment prior to January 16, 2022." (Id. ¶ 19.) On that call, the Capital One representative also advised Plaintiff that Capital One would be sending him a document to sign as part of this new loan program. (Id. ¶ 20.) On January 12, 2022, Capital One then sent Plaintiff an Email confirming the agreement to enroll Plaintiff in this new loan program, stating:

Please make your good faith payment of $262.63 by January 16, 2022 in order to move forward with your Temporary Payment Reduction Plan enrollment. If you made a partial good faith payment, please pay the remaining amount. If we don't receive your payment by January 16, 2022, you may not be enrolled in the plan and collections activities may resume. After we receive your good faith payment, please make sure to also sign and return your agreement letter to complete your enrollment in the Temporary Payment Reduction Plan.

(Id. ¶ 21.) Plaintiff then made his good faith payment on January 14, 2022. (Id. ¶ 22.) Plaintiff alleges he never received the document that Capital One said they would send him as part of the Temporary Payment Reduction Plan ("TPRP"). (Id. ¶ 23.)

Capital...