Kelsey v. Forster & Garbus, LLP

• Decision Date: 11 February 2019
• Docket Number: 6:18-CV-06099 EAW
• Court: U.S. District Court — Western District of New York
• Parties: William B. KELSEY, Plaintiff, v. FORSTER & GARBUS, LLP, Defendant.

353 F.Supp.3d 223

William B. KELSEY, Plaintiff,

v.FORSTER & GARBUS, LLP, Defendant.

6:18-CV-06099 EAW

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

Signed February 11, 2019

Alexander Jerome Douglas, Douglas Firm, P.C., Rochester, NY, for Plaintiff.

Glenn M. Fjermedal, Davidson Fink LLP, Rochester, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiff William B. Kelsey ("Plaintiff") commenced this action on February 1, 2018, alleging that defendant law firm Forster & Garbus, LLP ("Defendant") sought to collect a debt from Plaintiff in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"). (Dkt. 1). Plaintiff claims that Defendant filed an attorney affirmation in an underlying state court action commenced against him that falsely asserted that he had failed to answer the summons and complaint or otherwise appear in that action. (Id. at 3-4).

Presently before the Court is Defendant's motion for judgment on the pleadings. (Dkt. 6). For the following reasons, Defendant's motion is granted, and Plaintiff's Complaint is dismissed.

BACKGROUND

The following facts are drawn from Plaintiff's Complaint unless otherwise indicated and are assumed true for purposes of this motion. (Dkt. 1). Plaintiff alleges that on March 24, 2017, Defendant filed a lawsuit on behalf of Navient Credit Finance Corporation ("Navient") against Plaintiff in New York State Supreme Court, County of Orleans. (Id. at ¶ 10). Defendant served Plaintiff with a summons and complaint on May 22, 2017, and Plaintiff filed his answer "with the court and mailed the same to [Navient]." (Id. at ¶¶ 11-12). However, on August 15, 2017, Defendant filed an attorney affirmation with the state court, affirming that the time for Plaintiff "to appear or answer has expired" and that Plaintiff has "not appeared or answered." (Id. at ¶ 13; see id. at ¶ 14). As a result, Defendant "obtained a default judgment against Plaintiff." (Id. at ¶ 14).

On or about November 2, 2017, Plaintiff filed an order to show cause with the state court to vacate the default judgment rendered against him. (See Dkt. 6-4 at 14-17 (state court filings) ). On or about November 17, 2017, a state court judge set a return date on the motion for December 15, 2017. (Id. at 16). By attorney affirmation, dated December 11, 2017, Defendant consented to the vacatur of the default judgment and agreed to accept the answer filed with the state court. (Id. at 18-19). The default judgment has since been vacated. (Dkt. 8 at 3 (Plaintiff's response papers) ).

PROCEDURAL HISTORY

On February 1, 2018, Plaintiff commenced this action against Defendant alleging that the attorney affirmation filed in state court falsely represented that Plaintiff failed to answer the summons and complaint and had not otherwise appeared in the state action. (Dkt. at 3-4). Plaintiff alleges that he "both appeared and answered by filing the answer with the court and serving it on [Navient]." (Id. at ¶ 21). Plaintiff claims that by filing this false affirmation in state court, Defendant violated § 1692e of the FDCPA. (Id. at ¶ 23).

On March 15, 2018, Defendant filed a motion for judgment on the pleadings, seeking dismissal of this action. (Dkt. 6). Defendant argues that Plaintiff did not comply with state court procedures in answering the summons and complaint, and thus, Plaintiff failed to properly appear in the state action. (Dkt. 6-1 at 3-4). Defendant also contends that Plaintiff's attempts to serve his answer did not constitute an "informal appearance" in that action, and even if they did, Defendant's affirmation was "technically accurate" because Plaintiff "did not appear in the [state court] action as contemplated under CPLR 320(a)." (Id. at 5-6). Plaintiff opposes Defendant's motion. (Dkt. 8).

DISCUSSION

I. Defendant's Motion for Judgment on the Pleadings is Granted

A. Legal Standard

"Judgment on the pleadings may be granted under Rule 12(c) where the material facts are undisputed and where judgment on the merits is possible merely by considering the contents of the pleadings." McAuliffe v. Barnhart , 571 F.Supp.2d 400, 402 (W.D.N.Y. 2008). "In deciding a Rule 12(c) motion for judgment on the pleadings, the court should ‘apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.’ " Aboushama v. EMF Corp. , 214 F.Supp.3d 202, 205 (W.D.N.Y. 2016) (quoting Mantena v. Johnson , 809 F.3d 721, 727-28 (2d Cir. 2015) ).

"In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C. , 622 F.3d 104, 111 (2d Cir. 2010). To withstand dismissal, a complaint must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has 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." Turkmen v. Ashcroft , 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).

"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 entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal quotations and citations omitted). "To state a plausible claim, the complaint's ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’ " Nielsen v. AECOM Tech. Corp. , 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

B. General Principles to Consider when Applying the FDCPA

"The Second Circuit has established two principles to assist courts in applying the [FDCPA]. First, ‘because the FDCPA is primarily a consumer protection statute,’ its terms must be construed liberally to achieve its congressional purpose." Derosa v. CAC Fin. Corp. , 278 F.Supp.3d 555, 559 (E.D.N.Y. 2017) (quoting Avila v. Riexinger & Assocs., LLC , 817 F.3d 72, 75 (2d Cir. 2016) ), aff'd , 740 F. App'x 742 (2d Cir. 2018). "Congress enacted the FDCPA 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.’ " Arias v. Gutman, Mintz, Baker & Sonnenfeldt LLP , 875 F.3d 128, 134 (2d Cir. 2017) (quoting 15 U.S.C. § 1692(e) ). "The second principle is that, in considering whether a collection notice violates Section 1692e, [courts in this Circuit] apply the ‘least sophisticated consumer’ standard." Avila , 817 F.3d at 75 ; see Jacobson v. Healthcare Fin. Servs., Inc. , 516 F.3d 85, 90 (2d Cir. 2008) ("In this Circuit, the question of whether a communication complies with the FDCPA is determined from the perspective of the ‘least sophisticated consumer.’ " (quoting Clomon v. Jackson , 988 F.2d 1314, 1318 (2d Cir. 1993) ) ); Kropelnicki v. Siegel , 290 F.3d 118, 127 (2d Cir. 2002) (stating that the "least-sophisticated-consumer standard" is used to "effectuate" the FDCPA's laudable purpose of "protect[ing] consumers from deceptive or harassing actions taken by debt collectors").

"This hypothetical consumer is a ‘naive’ and ‘credulous’ person," Ceban v. Capital Mgmt. Servs., L.P. , No. 17-CV-4554 (ARR) (CLP), 2018 WL 451637, at *2 (E.D.N.Y. Jan. 17, 2018) (quoting Altman v. J.C. Christensen & Assocs., Inc. , 786 F.3d 191, 193 (2d Cir. 2015) ), who is absent "the astuteness of a ‘Philadelphia lawyer’ or even the sophistication of the average, everyday, common consumer," Avila , 817 F.3d at 75 (quoting Russell v. Equifax A.R.S. , 74 F.3d 30, 34 (2d Cir. 1996) ). "However, she is ‘neither irrational nor a dolt.’ " Ceban , 2018 WL 451637, at *2 (quoting Ellis v. Solomon & Solomon, P.C. , 591 F.3d 130, 135 (2d Cir. 2010) ). As the Seventh Circuit has aptly explained, "[t]he ‘unsophisticated consumer’ isn't a dimwit. She may be uninformed, naive, [and] trusting, but she has rudimentary knowledge about the financial world and is capable of making basic logical deductions and inferences." Wahl v. Midland Credit Mgmt., Inc. , 556 F.3d 643, 645 (7th Cir. 2009) (quotations and citations omitted); accord Greco v. Trauner, Cohen & Thomas, L.L.P. , 412 F.3d 360, 363 (2d Cir. 2005) ("We have observed ... 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." (quotations and citations omitted) ).

C. Defendant's Attorney Affirmation Did Not Describe the Full Scope of Plaintiff's Participation in the State Action

The FDCPA provides that "[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. This provision applies to "communications and practices that could mislead a putative-debtor as to the nature and legal status of the underlying debt, or that could impede a consumer's ability to respond to or dispute collection." Gabriele v. Am. Home Mortg. Servicing, Inc. , 503 F. App'x 89, 94 (2d Cir. 2012).

Defendant argues that the attorney affirmation...