Genova v. Total Card, Inc.

• Decision Date: 08 June 2016
• Docket Number: Civ. No. 16-cv-1260 (WHW)(CLW)
• Citation: 193 F.Supp.3d 360
• Parties: Rocco GENOVA, Jr., on behalf of himself and all others similarly situated, Plaintiffs, v. TOTAL CARD, INC. and John Does 1-25, Defendants.
• Court: U.S. District Court — District of New Jersey

193 F.Supp.3d 360

Rocco GENOVA, Jr., on behalf of himself and all others similarly situated, Plaintiffs,

v.TOTAL CARD, INC. and John Does 1-25, Defendants.

Civ. No. 16-cv-1260 (WHW)(CLW)

United States District Court, D. New Jersey.

Signed June 8, 2016

Ari Hillel Marcus, Yitzchak Zelman, Marcus Zelman LLC, Ocean, NJ, for Plaintiffs.

Concepcion A. Montoya, Hinshaw & Culbertson LLP, New York, NY, for Defendants.

OPINION

Walls, Senior District Judge

In this putative class action, Plaintiff Rocco Genova, Jr. alleges that Defendants violated provisions of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), by sending Plaintiff a debt collection notice containing false, deceptive, or misleading statements about the legal status of Plaintiff's debt. Defendant Total Card, Inc. moves to dismiss the complaint. Decided without oral argument under Fed. R. Civ. P. 78, Defendant's motion is granted.

FACTUAL AND PROCEDURAL HISTORY

For purposes of this opinion, the Court will assume the truth of the following facts alleged in Plaintiff's complaint. ECF No. 1. Plaintiff Rocco Genova, Jr. is a resident of New Jersey. Id. ¶ 6. Defendant Total Card, Inc. ("TCI") is a collection agency with its principal office located in Sioux Falls, South Dakota. Id. ¶ 7. Defendant TCI regularly uses the mail, telephone, and facsimile to attempt to collect debts on behalf of itself and other buyers. Id. ¶¶ 8-10. John Does 1-25 (the "John Doe Defendants") are fictitious names of individuals and business entities that may become known to Plaintiff Genova in discovery. Id. ¶ 11.

"Some time prior to November 12, 2015"—but presumably more than six years before that date—Plaintiff incurred a debt (the "MBC Debt") to the creditor Merrick Bank Corporation ("MBC"). Id. ¶¶ 24-27. Plaintiff allegedly defaulted on the MBC Debt. Id. ¶ 30. Defendant TCI acquired the MBC Debt and was hired to collect it. Id. ¶¶ 28-29. About November 12, 2015, Defendant sent a collection letter (the "Letter") to Plaintiff. Id. ¶¶ 31-33; see also Letter, ECF No. 1-1. The Letter stated, in part, that Plaintiff owed MBC a total of $1,487.63, but that Plaintiff could "save" by making "6 monthly payments of $62.00" or "a one-time payment for $298" as a "full and final settlement on this account." ECF No. 1 ¶ 34; ECF No. 1-1 at 1. The Letter also stated that "[t]he law limits how long you can be sued on a debt. Because of the age of your debt, Merrick Bank Corporation will not sue you for it. If you do not pay the debt, Merrick Bank Corporation may report or continue to report it to the credit reporting agencies as unpaid." ECF No. 1-1 at 1.

More than six years had elapsed between Plaintiff's last payment on the MBC Debt and the date of the Letter. ECF No. 1 ¶ 35. In New Jersey, the limitations period for filing suit on a credit card debt is six years. Id. ¶ 36 (citing N.J.S.A. 2A:14–1 ). According to Plaintiff, however, the statute of limitations "restart[s]" if a debtor makes a partial payment on a debt. Id. ¶ 37. Defendant's Letter did not inform Plaintiff that, by selecting the installment option and making his first payment of $62, he would "restart" the statute of limitations, allowing Defendant or any other purchaser of the MBC Debt to bring a legal action against him to collect payment on the full amount of the Debt. Id. ¶¶ 37-40.

On March 4, 2016, Plaintiff filed a two-count complaint in this Court on behalf of himself and a class of all New Jersey individuals to whom Defendant sent, at any time between one year before and 21 days after the filing of the complaint, a collection letter on behalf of MBC offering a payment plan on a debt for which the last activity had occurred more than six years before the date of the letter, where that letter failed to disclose that making a payment would restart the New Jersey statute of limitations for collection actions. Id. ¶¶ 13-14.

In Count One of the complaint, Plaintiff alleges that Defendant violated 15 U.S.C. § 1692e by using a "false, deceptive, or misleading representation or means in connection with the collection of any debt." Id. ¶¶ 44-45. Specifically, Plaintiff claims Defendant TCI violated this section of the FDCPA by (a) failing to notify him that his partial payment would restart the statute of limitations, (b) "making false, deceptive, or misleading representations concerning the character, amount, or legal status" of the MBC Debt, and (c) using "false representations and/or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer." Id. ¶ 46 (citing 15 U.S.C. § 1692(e)(2)(A), (e)(10) ). In Count Two, Plaintiff claims that Defendant "violated various provisions of the FDCPA, including but not limited to 15 U.S.C. § 1692f," by using "unfair or unconscionable means to collect or attempt to collect any debt," again because Defendant allegedly failed to inform Plaintiff that a partial payment would restart the statute of limitations. Id. ¶¶ 48-52.

Defendant TCI now moves to dismiss the complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Mot. Dismiss, ECF No. 8; Mem. Supp. Mot. Dismiss, ECF No. 10. Defendant claims that the Letter did not misrepresent the character, amount, or legal status of the MBC Debt; that it used language approved by several regulatory agencies; that Plaintiff's partial payment would not restart the statute of limitations; and that the complaint fails to specifically allege how Defendants violated Section 1692f of the FDCPA. Plaintiff filed a brief in opposition on April 28, 2016, ECF No. 12, and Defendant filed a reply brief on May 9, 2016. ECF No. 13.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) allows a defendant to move to dismiss a complaint for failure to state a claim upon which relief can be granted. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id. (internal quotations and alterations omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘shown’—that the pleader is entitled to relief." Id. at 679, 129 S.Ct. 1937.

In considering the plaintiff's claims, the Court may consider the allegations of the complaint, as well as documents attached to or specifically referenced in the complaint. See Sentinel Trust Co. v. Universal Bonding Ins. Co. , 316 F.3d 213, 216 (3d Cir.2003) ; Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1357 at 299 (3d ed. 2014). "A ‘document integral to or explicitly relied on in the complaint’ may be considered ‘without converting the motion [to dismiss] into one for summary judgment.’ " Mele v. Fed. Reserve Bank of N.Y. , 359 F.3d 251, 256 n. 5 (3d Cir.2004) (citing In re Burlington Coat Factory Sec. Litig. , 114 F.3d 1410, 1426 (3d Cir.1997) ).¹

A court may also consider and take judicial notice of matters of public record. Sands v. McCormick , 502 F.3d 263, 268 (3d Cir.2007) ; Buck v. Hampton Tp. School Dist. , 452 F.3d 256, 260 (3d Cir.2006). Such matters of public record may include prior judicial proceedings, McTernan v. City of York, Penn. , 577 F.3d 521, 526 (3d Cir.2009), and government agency consent decrees. Group Against Smog and Pollution, Inc. v. Shenango Inc. , 810 F.3d 116, 127–28 (3d Cir.2016) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc. , 998 F.2d 1192, 1196 (3d Cir.1993) ("Courts have defined a public record, for purposes of what properly may be considered on a motion to dismiss, to include ... letter decisions of government agencies ... and published reports of administrative bodies.")).

If a complaint fails to state a claim upon which relief can be granted, a plaintiff should ordinarily be granted the right to amend its complaint. The Supreme Court has instructed that:

The grant or denial of an opportunity to amend is within the discretion of the District court, but outright refusal to grant the leave without any justifying reason ... is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.

Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). In the

Third Circuit, plaintiffs whose complaints fail to state a cause of action are entitled to amend their complaint unless doing so would be inequitable or futile. Fletcher – Harlee Corp. v. Pote Concrete Contrs., Inc. , 482 F.3d 247, 252 (3d Cir.2007).² In Shane v. Fauver , 213 F.3d 113 (3d Cir.2000), the Third Circuit counseled:

[W]e suggest that district judges expressly state, where appropriate, that the plaintiff has leave to amend within a specified period of time, and that application for dismissal of the action may be made if a timely amendment is not forthcoming within that time. If the plaintiff does not desire to amend, he may file an appropriate notice with the district court asserting his intent to stand on the complaint, at which time an order to dismiss the action would be appropriate.

Shane , 213 F.3d at 116 (citing Borelli v. City of Reading , 532 F.2d 950, 951 n. 1 (3d Cir....