Faherty v. Rubin & Rothman, LLC

• Decision Date: 06 April 2022
• Docket Number: CIVIL 3:21-cv-650(AWT)
• Court: U.S. District Court — District of Connecticut
• Parties: KATHLEEN S. FAHERTY, Plaintiff, v. RUBIN & ROTHMAN, LLC and JOHN DOES 1-25, Defendants.

KATHLEEN S. FAHERTY, Plaintiff, v. RUBIN & ROTHMAN, LLC and JOHN DOES 1-25, Defendants.

CIVIL No. 3:21-cv-650(AWT)

United States District Court, D. Connecticut

April 6, 2022

RULING ON MOTION FOR JUDGMENT ON THE PLEADINGS

Alvin W. Thompson United States District Judge

The plaintiff, Kathleen S. Faherty, brings this action on behalf of herself and all others similarly situated against defendants Rubin & Rothman, LLC and John Does 1-25. The complaint has one count: a claim for abusive debt collection in violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. The defendants move for judgment on the pleadings on two grounds 1) lack of standing; and 2) failure to state a claim against the defendants for violations of the FDCPA. Because the plaintiff lacks standing, the court does not reach the second ground.

For the reasons set forth below, the defendants' motion is being granted.

I. Factual Background

At some point prior to April 20, 2021, the plaintiff incurred one or more financial obligations to Bank of America by purchasing goods and services, which were primarily for personal family, and household purposes. First Am. Class Action Compl. and Demand for Jury Trial (“Am. Compl.”) at ¶¶ 18-20, ECF No. 7. The debt amounted to approximately $27, 213.56. Am. Compl., Ex. E.

On November 9, 2020, D & A Services, LLC, a debt collection agency, sent an initial collection letter to the plaintiff. See Am. Compl., Ex. A. On November 22, 2020, the plaintiff sent a letter to D & A Services, LLC, asking for documentation relating to the agency's authority to collect on the debt. See Am. Compl., Ex. B. On January 7, 2021, having received no response from D & A Services, the plaintiff sent a second letter to the agency. The letter stated, “[t]his is a second notice that your claim is disputed and validation is requested.” Am. Compl., Ex. C. On April 2, 2021, the plaintiff sent a third letter to D & A Services, asking for documentation to validate the debt. See Am. Compl., Ex. D. The plaintiff never received the requested verification from D & A Services. Am. Compl., at ¶ 28.

At some point prior to April 12, 2021, Bank of America solicited assistance from Rubin & Rothman to collect on the plaintiff's debt. On April 12, 2021, Rubin & Rothman sent a collection letter to the plaintiff. See Am. Compl., Ex. E. On April 20, 2021, Rubin & Rothman sent a letter to the plaintiff, enclosing verification of the plaintiff's debt.

The plaintiff contends that by sending the April 12, 2021 debt collection letter to the plaintiff, the defendants violated Section 1692g(b) of the FDCPA. Section 1692g(b) sets forth a debt collector's obligations in the event that a consumer notifies the debt collector in writing, within a thirty-day period, that a debt is disputed:

If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt or request the name and address of the original creditor.

15 U.S.C. § 1692g(b). The plaintiff argues that the April 12, 2021 letter violated this provision because the plaintiff had already disputed the debt and requested verification of it in the letters sent to D & A Services. She contends that the requests for validation sent by her to D & A Services triggered obligations under Section 1692g(b) with respect to Rubin & Rothman and that by sending the April 12, 2021 debt collection letter, the defendants violated Section 1692g(b)'s mandate to cease debt collection efforts upon receipt of a written notice disputing the debt until validation is provided to the debtor.

The plaintiff also claims that sending the April 12, 2021 letter violated Section 1692(e) of the FCDPA. Section 1692(e)(10) of the FDCPA prohibits debt collectors from using “any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.” 15 U.S.C. § 1692(e)(10). The plaintiff contends that no attorney meaningfully reviewed the plaintiff's file prior to sending the April 12, 2021 letter because had an attorney done so, they would have known that the plaintiff already disputed the debt. The plaintiff argues that by sending the April 12, 2021 letter without any meaningful attorney involvement, and with no indication as to the level of attorney involvement in reviewing her file, the defendants engaged in deceptive means to collect the debt in violation of Section 1692(e)(10).

II. Legal Standard

“Rule 12(c) provides that ‘[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.'” Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 301 (2d Cir. 2021) (quoting Fed.R.Civ.P. 12(c)). “The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that for granting a Rule 12(b)(6) motion for failure to state a claim.” Id. (quoting Lynch v. City of New York, 952 F.3d 67, 75 (2d Cir. 2020)). “To survive a Rule 12(c) motion, [the plaintiff's] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (alteration in original) (quoting Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010)). “The assessment of whether a complaint's factual allegations plausibly give rise to an entitlement to relief . . . calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of illegal conduct.” Id. (alteration in original) (quoting Lynch, 952 F.3d at 75). In making this assessment, the court “will accept all factual allegations in the complaint as true and draw all reasonable inferences in [the plaintiff's] favor.” Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009) (citing ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)).

III. Discussion

“Standing is ‘the threshold question in every federal case, determining the power of the court to entertain the suit.'” Ross v. Bank of Am., N.A. (USA), 524 F.3d 217, 222 (2d Cir. 2008) (quoting Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir. 2006)). “That is, where a party lacks standing to bring a claim, the court lacks subject matter jurisdiction over that claim and must dismiss it.” Kola v. Forster & Garbus LLP, No. 19-CV-10496, 2021 WL 4135153, at *3 (S.D.N.Y. Sept. 10, 2021) (citing SM Kids, LLC v. Google LLC, 963 F.3d 206, 210 (2d Cir. 2020)).

“Article III standing requires plaintiffs to show (1) an ‘injury in fact,' (2) a ‘causal connection' between that injury and the conduct at issue, and (3) a likelihood ‘that the injury will be redressed by a favorable decision.'” Maddox v. Bank of New York Mellon Tr. Co., N.A., 19 F.4th 58, 62 (2d Cir. 2021) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, (1992)). “Each element of standing ‘must be supported . . . with the manner and degree of evidence required at the successive stages of litigation,' and at the pleading stage, ‘general factual allegations of injury resulting from the defendant's conduct may suffice.'” New York v. Yellen, 15 F.4th 569, 575 (2d Cir. 2021) (quoting Lujan, 504 U.S. at 561). “Where, as here, the defendants' challenge to the plaintiffs' standing is ‘facial,' meaning that the defendants do not offer any evidence of their own, our task is to determine whether, ‘accepting as true all material factual allegations of the complaint, and drawing all reasonable inferences in favor of the plaintiff[],' the complaint ‘alleges facts that affirmatively and plausibly suggest that the plaintiff[] ha[s] standing to sue.'” Id. (quoting Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56-57 (2d Cir. 2016)).

“To demonstrate injury in fact, a plaintiff must show the invasion of a [1] legally protected interest that is [2] concrete and [3] particularized and [4] actual or imminent not conjectural or hypothetical.” Maddox, 19 F.4th at 62 (quoting Strubel v. Comenity Bank, 842 F.3d 181, 188 (2d Cir. 2016)). In determining whether an injury is concrete, “courts should assess whether the alleged injury to the plaintiff has a ‘close relationship' to a harm ‘traditionally' recognized as providing a basis for a lawsuit in American courts.” TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2204 (2021) (quoting Spokeo v. Robins, 578 U.S. 330, 341 (2016)). “That inquiry asks whether plaintiffs have identified a close historical or common-law analogue for their asserted injury.” Id. “[C]ertain harms readily qualify as concrete injuries under Article III. The most obvious are traditional tangible harms, such as physical harms and monetary harms. If a defendant has caused physical or monetary injury to the plaintiff, the plaintiff has suffered a concrete injury in fact under Article III. “ Id. “Various intangible harms can also be...