Kurzdorfer v. Constar Fin. Servs., LLC

• Decision Date: 28 September 2020
• Docket Number: 19-CV-6430L
• Citation: 490 F.Supp.3d 663
• Parties: Catherine KURZDORFER, on behalf of plaintiff and the class defined herein, Plaintiff, v. CONSTAR FINANCIAL SERVICES, LLC, Defendant.
• Court: U.S. District Court — Western District of New York

490 F.Supp.3d 663

Catherine KURZDORFER, on behalf of plaintiff and the class defined herein, Plaintiff,

v.CONSTAR FINANCIAL SERVICES, LLC, Defendant.

19-CV-6430L

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

Signed September 28, 2020

Tiffany N. Hardy, Edelman Combs Latturner & Goodwin, LLC, Chicago, IL, for Plaintiff.

Charles Ben Bergin, Tressler LLP, New York, NY, for Defendant.

DECISION AND ORDER

DAVID G. LARIMER, United States District Judge

INTRODUCTION

Plaintiff Catherine Kurzdorfer ("Kurzdorfer") filed this class action against defendant Constar Financial Services, LLC ("Constar"), alleging claims under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. (Dkt. # 1). Kurzdorfer's claims arise from two debt collection letters she received from Constar in April 2019. Pending now is Constar's motion to dismiss Kurzdorfer's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. # 10). Constar's motion also includes a request for attorneys’ fees incurred in connection with this case. (See Dkt. # 10-2 at 11-12). For the following reasons, Constar's motion to dismiss is granted, and its request for attorneys’ fees is denied.

FACTUAL BACKGROUND ¹

In April 2019, Kurzdorfer received two debt collection letters from Constar related to an alleged debt she owes M&T Bank. (Dkt. # 1 at ¶¶ 13-17). The first letter is dated April 16, 2019 and was received by Kurzdorfer on April 22, 2019 (the "First Letter"), and the second letter is dated April 22, 2019 and was received by Kurzdorfer on April 27, 2019 (the "Second Letter," and together with the First Letter, the "Collection Letters"). (Id. at ¶¶ 14-17). Constar, an Arizona limited liability company, qualifies as a "debt collector" under the FDCPA. (Id. at ¶¶ 10-12).

The Collection Letters are exhibited to the complaint and appear to be effectively identical. (See Dkt. # 1-1 at 2-3, 6-7). They informed Kurzdorfer that M&T Bank had referred her debt to Constar for collection. (Id. at 2, 6). Both Collection Letters also reflected an alleged "past due" debt of $14,815.98 and stated that the debt "must be paid in full," listed M&T Bank as the creditor, contained the same account number and Constar number, indicated that they were "communication[s] ... from a debt collector [and were] an attempt to collect a debt and [that] any information obtained w[ould] be used for that purpose," provided Kurzdorfer with information to remit payment, and contained certain state- and municipal-specific information concerning consumer rights. (Dkt. # 1-1 at 2-3, 6-7 (emphasis omitted)). Moreover, the Collection Letters each stated that:

[u]nless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt, or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice that you dispute the validity of this debt or any portion thereof, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request in writing within 30 days after receiving this notice, this office will provide you the name and address of the original creditor, if different from the current creditor.

If payment in full is received in our office, all collection activity will cease.

(Id. at 2, 6).

Kurzdorfer alleges that the Collection Letters constitute "notices of debt" under section 1692g of the FDCPA and that Constar "often sends two or more ‘notices of debt’ in succession to the same address without any problem with the address being noted." (Dkt. # 1 at ¶¶ 18, 19).

DISCUSSION

I. Standard on a Motion to Dismiss

To survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, "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 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." Id. In deciding a motion to dismiss, a court must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. See Trs. of Upstate New York Eng'rs Pension Fund v. Ivy Asset Mgmt. , 843 F.3d 561, 566 (2d Cir. 2016), cert. denied , ––– U.S. ––––, 137 S.Ct. 2279, 198 L.Ed.2d 703 (2017). A court may also "consider any written instrument attached to the [c]omplaint as an exhibit or any statements or documents incorporated in it by reference." City of Pontiac Policemen's & Firemen's Ret. Sys. v. UBS AG , 752 F.3d 173, 179 (2d Cir. 2014) (alterations and quotations omitted).

II. Sufficiency of Kurzdorfer's Claims under the FDCPA

Kurzdorfer alleges that "Constar's [Collection] [L]etters contain[ed] contradictory validation notices that [were] inherently false, confusing and misleading," in that by sending the Second Letter in "close succession" to the First Letter, Kurzdorfer allegedly "d[id] not know when the [30-day validation period] expire[d]." (See Dkt. # 1 at ¶ 21; Dkt. # 13 at 8). In her view, Constar could not extend the validation period beyond the thirty days noticed in the First Letter and prescribed in section 1692g of the FDCPA, even by sending a second communication – like the Second Letter – that purported to do so. (See Dkt. # 13 at 14-15 ("[s]ubsequent communications do not extend the 30 day period under the [FDCPA]; there is no provision in the statute for extending the 30 day period or waiving other statutory limitations on the consumer's rights")). Accordingly, Kurzdorfer maintains that Constar's "sending of two ‘notices of debt’ one week apart is confusing as to Ms. Kurzdofer's [sic] § 1692g rights, in that the ‘least sophisticated consumer’ could readily believe that they have 30 days after receipt of the second letter to exercise their validation rights, when that is not the case. " (Id. at 14 (emphasis supplied)).

In moving to dismiss Kurzdorfer's complaint, Constar points out that the Collection Letters each complied with the requirements set forth in section 1692g(a) of the FDCPA. (See Dkt. # 10-2 at 2). Furthermore, Constar's principal contention is that it was permitted to send Kurzdorfer two debt collection letters within the initial thirty-day validation period because Kurzdorfer had not yet challenged the validity of the debt. (See id. at 4, 6-9). Constar also maintains that the Second Letter did not contradict or confuse the validation period identified in the First Letter because the Second Letter did not create the impression that Kurzdorfer had less than the statutory thirty days to dispute the debt and that, if anything, it only "extended [Kurzdorfer's] time to pay or dispute the debt." (Id. at 9).

A. Relevant Sections of the FDCPA

To state a claim under the FDCPA, a plaintiff must show that "(1) she has been the object of collection activity arising from consumer debt, (2) the defendant is a debt collector as defined by the FDCPA, and (3) the defendant has engaged in an act or omission prohibited by the FDCPA." Ossipova v. Pioneer Credit Recovery, Inc. , 2019 WL 6792318, *3 (S.D.N.Y. 2019) (citation omitted). Here, only the third element is in dispute; Kurzdorfer alleges that Constar's sending of the Collection Letters "in close succession" violated sections 1692g and 1692e of the FDCPA.² (Dkt. # 1 at ¶ 21).

Section 1692g of the FDCPA relates to "validation of debts." 15 U.S.C. § 1692g. It requires a debt collector to provide written notice, referred to as a "notice of debt" or a "validation notice," within five days after its initial communication with a consumer, indicating the amount of the alleged debt as well as the name of the creditor to whom the debt is owed. 15 U.S.C. §§ 1692g(a)(1)-(2) ; see also Ellis v. Solomon & Solomon, P.C. , 591 F.3d 130, 134 (2d Cir.), cert. denied , 560 U.S. 926, 130 S.Ct. 3333, 176 L.Ed.2d 1223 (2010). This notice must also include a "statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector." 15 U.S.C. § 1692g(a)(3). This thirty-day period is often referred to as the "validation period." See Ellis , 591 F.3d at 132. In addition, the notice must indicate that "if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt" and mail the verification to the consumer. 15 U.S.C. § 1692g(a)(4). Finally, the notice is required to state that "upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor." Id. at § 1692g(a)(5). Unless the consumer disputes the alleged debt in writing during the validation period, a debt collector "may continue" its "[c]ollection activities and communications ... during the 30-day period," but such conduct "may not overshadow or be inconsistent with the disclose of the consumer's right to dispute the debt." Id. at § 1692g(b) ; accord Ellis , 591 F.3d at 135 ("the validation period is not a grace period; in the absence of a dispute notice, the debt collector is allowed to demand immediate payment and to continue collection activity[;] ... [w]hile debt collectors are largely free to continue collection activities during the validation period, th[e] [Second Circuit] has long held that validation period collection activities and communications must not overshadow or contradict the validation notice") (quotations omitted).

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