Bryan v. Credit Control, LLC
| Decision Date | 11 December 2018 |
| Docket Number | 18-cv-0865 (SJF)(SIL) |
| Parties | MICHAEL BRYAN, on behalf of plaintiff and all others similarly situated, Plaintiff, v. CREDIT CONTROL, LLC, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
REPORT AND RECOMMENDATION
Plaintiff Michael Bryan ("Plaintiff" or "Bryan"), on behalf of himself and others similarly situated, commenced this putative class action against Defendant Credit Control, LLC ("Defendant" or "Credit Control") alleging violations of his rights under the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Bryan's claims arise from a debt collection notice sent by Credit Control, which he asserts failed to comply with the FDCPA.
Presently before the Court, on referral from the Honorable Sandra J. Feuerstein for Report and Recommendation, are: (i) Defendant's motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), see Docket Entry ("DE") [20]; and (ii) Bryan's motion for leave to amend his Complaint.1 See DE [18].2 For the reasonsset forth below, the Court respectfully recommends that Credit Control's motion for judgment on the pleadings be granted and that Plaintiff's motion for leave to amend be denied.
The following facts are taken from Bryan's proposed Amended Complaint (the "Amended Complaint" or "AC")), DE [18-1], and are accepted as true.
At some unidentified point in time, Plaintiff incurred a credit card debt with Kohl's Department Stores, Inc. ("Kohl's") (the "Debt"). See AC ¶ 15. Bryan thereafter defaulted on the Debt, which led to Credit Control, a debt collector as defined by the FDCPA, becoming involved. See 15 U.S.C. § 1692a(6); AC ¶¶ 14, 16. On or about February 13, 2017, Defendant wrote to Plaintiff attempting to collect the Debt. See AC ¶ 17, Ex. A, DE [18-1] at 13 (the "Collection Letter"). Although the Debt stems from a credit card that could only be used to purchase goods from Kohl's, the store's credit accounts are issued and owned by third-party banks. See AC ¶¶ 25-27. Kohl's credit cards were issued by Chase Bank until 2011, and since then by Capital One Bank ("Capital One"). Id. ¶ 26. Thus, Plaintiff alleges that Kohl's is not the creditor or owner of the Debt at issue. Id. ¶ 33.
In the Collection Letter, Defendant identifies Kohl's as its "Client," labels Chase Bank USA N.A. as the "Original Credit Grantor," and provides Bryan's "Client Account #" ending in 7116. See Collection Letter. The communication further states that Credit Control is writing to "resolve [Bryan's] account and ... offer [him] ... options ... to pay off [the] account." Id.
Plaintiff commenced this action on February 8, 2018. DE [1]. Credit Control Answered the Complaint on March 23, 2018, DE [14], and filed its motion for judgment on the pleadings pursuant to Judge Feuerstein's bundle rule on July 18, 2018. DE [20]. In response to being served with Defendant's motion on June 8, 2018, Bryan filed a motion for leave amend his Complaint on June 13, 2018. DE [18]. Judge Feuerstein referred the motion for judgment on the pleadings to this Court on July 26, 2018. See Electronic Order dated July 26, 2018. The motion for leave to amend was referred to this Court pursuant to Judge Feuerstein's Individual Rule 4(H).
Plaintiff alleges that the Collection Letter violates two provisions of the FDCPA. See AC ¶¶ 37-41. Initially, Bryan claims that the Collection Letter is unlawful because it does not identify "the name of the [current] creditor to whom the debt is owed" as required by 15 U.S.C. §§ 1692g(a)(2) & (5). See AC ¶¶ 38, 40. In addition, Plaintiff contends that Credit Control's failure to disclose the name of the current creditor constitutes a violation of 15 U.S.C. §§ 1692e, which prohibits the use of "false, deceptive, or misleading representation[s] or means in connection with the collection of any debt." See id. ¶¶ 38, 41.
"Judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c) is appropriate where material facts are undisputed and a judgment on the merits is possible merely by considering the contents of the pleadings." Mennella v. Office of Court Admin., 938 F. Supp. 128, 131 (E.D.N.Y. 1996), aff'd 164 F.3d 618 (2d Cir. 1998) (citing Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988)). The standard foraddressing a Rule 12(c) motion is similar to that for a Rule 12(b)(6) motion to dismiss for failure to state a claim. See Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013); see also Cleveland v. Caplaw Enterprises, 448 F.3d 518, 521 (2d Cir. 2006). Thus, to survive a motion to dismiss pursuant to either Rule 12(b)(6) or Rule 12(c), 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, 1974 (2007). At this stage, the Court must accept Plaintiff's factual allegations as true and draw all reasonable inferences in his favor. See LaFaro v. New York Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009). Although the Court is "confined to the allegations ... of the complaint ... [it] may also consider documents attached to the complaint as an exhibit or incorporated in it by reference." Carlin v. Davidson Fink LLP, 852 F.3d 207, 212 (2d Cir. 2017) (internal quotations and citations omitted). Accordingly, a Rule 12(c) motion should be granted "if, from the pleadings, the moving party is entitled to judgment as a matter of law." Dargahi v. Honda Lease Trust, 370 F. App'x 172, 174 (2d Cir. 2010) (quoting Burns Int'l Sec. Servs., Inc. v. Int'l Union, 47 F.3d 14, 16 (2d Cir. 1995) (per curiam)).
Federal Rule of Civil Procedure 15(a)(2) provides that, Fed. R. Civ. P. 15(a)(2). Notwithstanding the liberal standard of Rule 15, leave to amend will be denied when such amendment will be futile. See Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002). "Aproposed amendment ... is futile when it could not withstand a motion to dismiss." Balintulo v. Ford Motor Co., 796 F.3d 160, 164-65 (2d Cir. 2015) (internal quotation and citation omitted); accord Bryan v. I.C. Sys., Inc., No. 15-cv-6984, 2017 WL 9485658, at *4 (E.D.N.Y. Aug. 28, 2017), report and recommendation adopted, 2017 WL 4326041 (E.D.N.Y. Sept. 28, 2017) (). "Ultimately, it is 'within the sound discretion of the court whether to grant leave to amend.'" Positano v. Zimmer, No. 12-cv-2288, 2013 WL 12084482, at *2 (E.D.N.Y. Dec. 9, 2013), aff'd 581 F. App'x 55 (2d Cir. 2014) (quoting John Hancock Mut. Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir. 1994)).
Where, as here, a plaintiff seeks "to amend his complaint while a motion to dismiss is pending, a court has a variety of ways in which it may deal with the pending motion to dismiss, from denying the motion to dismiss as moot to considering the merits of the motion in light of the amended complaint." Schwartzco Enterprises LLC v. TMH Mgmt., LLC, 60 F. Supp. 3d 331, 338 (E.D.N.Y. 2014). "[I]f the proposed amended complaint does not seek to add new claims or parties, and the Defendants have had a sufficient opportunity to respond to the new pleading, then, for the purposes of procedural efficiency, the merits of the pending motion to dismiss ought to be considered in light of the proposed amended complaint." Kilpakis v. JPMorgan Chase Fin. Co., LLC, 229 F. Supp. 3d 133, 139 (E.D.N.Y. 2017) (collecting cases).
Here, because Plaintiff does not seek to add new parties or claims and Defendant has had ample opportunity to respond to the Amended Complaint, theCourt considers Credit Control's motion for judgment on the pleadings as directed to the Amended Complaint.
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." 15 U.S.C. § 1692(e). "The FDCPA establishes certain rights for consumers whose debts are placed in the hands of professional debt collectors for collection, and requires that such debt collectors advise the consumers whose debts they seek to collect of specified rights." Kropelnicki v. Siegel, 290 F.3d 118, 127 (2d Cir. 2002) (internal quotation and citation omitted).
To that end, the FDCPA provides that, "a debt collector shall ... send the consumer [who owes a purported debt] a written notice containing ... the name of the creditor to whom the debt is owed...." 15 U.S.C. § 1692g(a). Further, debt collectors are prohibited from making "false, deceptive, or misleading representation[s] in connection with the collection of any debt." 15 U.S.C. § 1692e.
In the Second Circuit, "the question of whether a communication complies with the FDCPA is determined from the perspective of the 'least sophisticated consumer.'" Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 90 (2d Cir. 2008) (quoting Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir.1993)). This standard serves the "dual purpose" of both ensuring all consumers are protected from deceptive debt collection practices and protecting debt collectors against liability for "bizarre oridiosyncratic interpretations of collection notices." Clomon, 988 F.2d at 1320. "The critical question is therefore whether the notice fails to convey the required information clearly and effectively and thereby makes the least sophisticated consumer uncertain...
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