Chernyakhovskaya v. Resurgent Capital Servs. L.P.
| Decision Date | 18 August 2017 |
| Docket Number | Civil Action No. 2:16-cv-1235 (JLL) |
| Parties | IRINA CHERNYAKHOVSKAYA, on behalf of herself and all others similarly situated, Plaintiff, v. RESURGENT CAPITAL SERVICES L.P., AND LVNV FUNDING LLC, Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
This matter comes before the Court by way of Defendants', Resurgent Capital Services L.P. ("Resurgent") and LVNV Funding LLC ("LVNV")(collectively "Defendants"), Motion for Judgment on the pleadings and Motion to Dismiss, pursuant to Federal Rules of Civil Procedure 12(c) and 12(b)(1), Plaintiff Irina Chernyakhovskaya ("Plaintiff" or "Chernyakhovskaya")'s putative class action Complaint (ECF No. 21, "Am. Compl.") alleging Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"). In accordance with Federal Rule of Civil Procedure 78, the Court has considered the submissions of the parties and decides this matter without oral argument. For the reasons set forth below, the Court denies Defendants' motion as to Resurgent and grants Defendants motion as to LVNV.
On July 1, 2000, Plaintiff opened a Checking Plus account with Citibank (South Dakota), N.A. ("Citibank"). (Am. Compl. ¶ 14). At some time prior to 2005, Plaintiff's payment obligations on the account became past due and the principal amount incurred on the debt totaled $4,959.61 (the "Debt"). (Id.¶¶ 20, 22). During 2005, Plaintiff contends that Citibank charged-off the Debt in the amount of $4,959.61. (Id. ¶¶ 21, 22).
On or around December 30, 2011, LVNV ultimately acquired the Debt, which was sold more than once prior and, by this time, delinquent and in default. (Id. ¶¶ 23, 24). Plaintiff alleges that thereafter LVNV referred the Debt to Resurgent for collection. (Id. ¶ 25).
On or around March 4, 2015, Defendants sent Plaintiff a collection letter ("Collection Letter") with a balance due in the amount of $5,815.07 along with an Account Summary Report ("Account Summary Report") prepared by Resurgent. . Plaintiff alleges that the that the Account Summary Report indicates the date of last payment as September 15, 2004 and that the account was charged off on March 30, 2005. (Id. ¶ 27). Furthermore, Plaintiff asserts that the Account Summary Report sets forth that the balance due included interest in the amount of $855.46. . Plaintiff alleges that the Collection Letter and Account Summary Report unlawfully sought to collect an additional $855.46 in the form of an unreasonable collection fee, costs or interest in violation of multiple sections of the FDCPA. (Id. ¶ 33).
On March 3, 2016, Plaintiff commenced a putative class action against Defendants alleging several violations of the FDCPA. (ECF No. 1, "Compl."). Thereafter, in light of the Supreme Court decision Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) and the United States DistrictCourt for the District of New Jersey's decision in Veras v. LVNV Funding, LLC, No. 13-1745 2014 U.S. Dist. LEXIS 34176 (D.N.J. Mar. 17, 2014), Plaintiff moved for leave on September 7, 2016 to file an amended complaint in order to include allegations consistent with the Supreme Court decision and the United States District Court decision. (ECF No. 16)1. Magistrate Judge Joseph A. Dickson, U.S.M.J., granted Plaintiff's motion for leave to amend her Complaint pursuant to Federal Rule of Civil Procedure 15(a). (ECF No. 20)2.
Thereafter, on November 23, 2016, Plaintiff amended her putative class action Complaint to include allegations consistent with Spokeo and Veras. (ECF No. 21). Defendants filed an Answer (ECF No. 22) to Plaintiff's Amended Complaint on December 14, 2016. Thereafter, on May 8, 2017, Defendants filed the instant Motion to Dismiss for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and Motion for Judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). ). Plaintiff filed its opposition (ECF No. 35, "Pl.'s Opp'n") on June 5, 2017. On June 12, 2017, Defendants replied to Plaintiff's opposition ). In consideration of the United StatesSupreme Court decision Henson v. Santander Consumer USA, Inc., 137 S. Ct. 810 (2017) and in support of their motion, Defendants filed a Notice of Supplemental Authority (ECF No. 37) on June 15, 2017.
The one count Amended Complaint alleges that Defendants violated the following provisions of the FDCPA:
(Am. Compl. ¶ 59 (A)-(F)). Plaintiff alleges that she suffered "injury in fact by being subjected to unfair and abusive practices of Defendant" and "actual harm by being the target of Defendant's misleading debt collection communications." (Id.¶¶ 40, 41). Plaintiff additionally argues that Defendants violated her right "not to be the target of misleading debt collection communications" and "to a trustful and fair debt collection process." (Id.¶¶ 42, 43).
In further support of her standing argument, Plaintiff avers that the receipt of the Collection Letter, which Plaintiff alleges wrongly assessed the interest due on the Debt, constitutes a concrete injury and that said failure to provide accurate information impeded Plaintiff's ability tomake a well-reasoned decision. (Id. ¶¶ 50, 51). According to Plaintiff, Defendants alleged actions violated the FDCPA by frustrating Plaintiff's ability to intelligently respond to the purported Debt. (Id. ¶ 54). More specifically, Plaintiff asserts "Defendants failure to provide accurate information injured Plaintiff in that it impacted her ability to decide on how to proceed with respect to the matter - will she hire an attorney, represent herself, payoff the debt, engage in a payment plan, [or] file for bankruptcy." (Id. ¶ 54).
Plaintiff further claims that the incorrect debt information, provided by Defendants, may negatively impact her credit score, may hinder her from establishing credit and may also subject her to higher borrowing costs in the future. (Id. ¶ 53). Plaintiff asserts that within the last year, Defendants sent collection letters to various New Jersey consumers that included a demand for an amount that was greater than the amount actually due at the time the collection letters were sent and that included a demand for an amount that incorporated a collection fee, interest or other fee that Defendants were not entitled. (Id. ¶ 55).
Seeking actual and statutory damages, attorney's fees, and costs for Defendants' purported FDCPA violations, Plaintiff seeks to join a class of all New Jersey consumers and their successors in interest who have received debt collection letters and/or notices from the Defendants which are in violation of the FDCPA as described in the Amended Complaint. (Id. ¶ 11). Plaintiff maintains that the Class consists of all New Jersey consumers who were sent letters and/or notices from Defendants concerning a debt originally owed to Citibank and now owned by LVNV in which the Collection Letter identified a balance which impermissibly included interests, fees, penalties and other charges. (Id. ¶ 12). In the alternative, Plaintiff contends the class consists of all New Jersey consumers who were sent letters and/or notices from Defendants which contained violations of the FDCPA . (Id.).
Under Federal Rule of Civil Procedure 12(b)(1), a court must grant a motion to dismiss if it lacks subject matter jurisdiction to hear a claim. Standing is a jurisdictional matter thus "a motion to dismiss for want of standing is also properly brought pursuant to Rule 12(b)(1)." See Ballentine v. United States, 486 F. 3d 806, 810 48 V.I. 1059 (3d Cir. 2007); see also N. Jersey Brain & Spine Ctr. v. Aetna, Inc., 801 F.3d 369, 372 n.3 (3d Cir. 2015)("Ordinarily, Rule 12(b)(1) governs motions to dismiss for lack of standing, as standing is a jurisdictional matter."). A 12(b)(1) motion to dismiss may be treated as either a "facial or factual challenge to the court's subject matter jurisdiction." Gould Electronics Inc. v. U.S., 220 F.3d 169, 176 (3d Cir. 2000). Under a facial attack, the movant challenges the legal sufficiency of the claim and the court considers only the documents attached to the "the allegations of the complaint and documents referenced therein and attached thereto in the light most favorable to the plaintiff." Id. In regards to a factual attack, the attack challenges the actual alleged jurisdictional facts. Thus, when considering a factual attack, the court may consider evidence outside of the pleadings. Id. Once a 12(b)(1) challenge is raised the burden then shifts and the plaintiff must demonstrate the existence of subject-matter jurisdiction. PBGC v. White, 998 F.2d 1192, 1196 (3d Cir. 2000).
On a motion to dismiss for lack of standing, the plaintiff "bears the burden of establishing the elements of standing, and 'each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the...
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