Raymond v. Arcadia Recovery Bureau, LLC
| Decision Date | 25 August 2021 |
| Docket Number | 20-CV-5295 (RA) |
| Citation | 556 F.Supp.3d 369 |
| Parties | Arthur RAYMOND, Plaintiff, v. ARCADIA RECOVERY BUREAU, LLC and Cornell University also known as Weill Cornell Medical College, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Novlette Rosemarie Kidd, Fagenson & Puglisi, New York, NY, for Plaintiff.
Arthur Jay Sanders, Law Offices of Arthur Sanders, New City, NY, for Defendant Arcadia Recovery Bureau, LLC.
Mark Siegmund, Weill Cornell Medicine, New York, NY, for Defendant Cornell University.
Plaintiff Arthur Raymond commenced this action on July 9, 2020, raising claims against Arcadia Recovery Bureau, LLC ("Arcadia"), under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. , which prohibits debt collectors from engaging in abusive and deceptive practices. Plaintiff alleges that Arcadia, a debt collector working on behalf of Defendant Cornell University a/k/a Weill Cornell Medical College ("Weill Cornell"), violated the FDCPA when it contacted him directly to collect a debt, rather than going through his attorneys at Fagenson & Puglisi. See First Amended Complaint ("FAC"), Dkt. 9, ¶¶ 25–30. Plaintiff also asserts state law claims against both Arcadia and Weill Cornell under the New York General Business Law and for negligence. Although Arcadia filed an answer to the FAC on October 5, 2020, see Dkt. 14, Weill Cornell has moved to dismiss the FAC in its entirety, including the FDCPA claims asserted against Arcadia only. For the following reasons, the complaint is dismissed without prejudice, and Plaintiff may file an amended complaint.
The following facts are drawn from Plaintiff's first amended complaint and are assumed to be true for the purpose of resolving this motion. See Stadnick v. Vivint Solar, Inc. , 861 F.3d 31, 35 (2d Cir. 2017). On February 12, 2020, Plaintiff received medical services from Weill Cornell Medical College ("Weill Cornell"). See FAC at 26, Ex. B. In March 2020, Weill Cornell sent Plaintiff an invoice for $126.67. See Plaintiff's Memorandum of Law in Opposition to Motion to Dismiss ("Pl. Mem."), Dkt. 27, at 1; FAC ¶ 21. Plaintiff did not believe that he owed Weill Cornell any money because he thought his health insurance either had already or would at some point cover the expense. FAC ¶ 22. His attorneys at Fagenson & Puglisi sent a letter dated March 17, 2020 to Weill Cornell, disputing the debt and asking that plaintiff not be contacted directly. Id. ¶¶ 25-26. Weill Cornell hired Arcadia to collect the debt. On June 3, 2020, Arcadia sent a collection letter directly to Plaintiff at his home, seeking a balance of $126.67. Id. ¶¶ 29-31.
Upon receipt of the debt collection letter, "plaintiff's blood pressure became elevated thereby placing his health in jeopardy, and plaintiff felt surprise, confusion, annoyance, irritation, upset, frustration and a sense that defendants were trying to intimidate and harass him into paying the disputed debt which he does not believe he owes, and further, upon receipt of the collection letter at his home plaintiff wondered and feared that Fagenson & Puglisi no longer represented him in the matter of the debt and as a consequence was obliged to seek further legal advice and representation." Id. ¶ 48.
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must plead "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, 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." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’ " Id. (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). On a Rule 12(b)(6) motion, the question is "not whether [the plaintiff] will ultimately prevail," but "whether his complaint [is] sufficient to cross the federal court's threshold." Skinner v. Switzer , 562 U.S. 521, 529-30, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011) (citation omitted). In answering this question, the Court must "accept[ ] all factual allegations as true, but ‘giv[e] no effect to legal conclusions couched as factual allegations.’ " Stadnick , 861 F.3d at 35 (quoting Starr v. Sony BMG Music Entm't , 592 F.3d 314, 321 (2d Cir. 2010) ).
Weill Cornell first moves to dismiss Plaintiff's claims asserted against Arcadia under the FDCPA.1 Plaintiff brings claims under two sections of that statute, 15 U.S.C. §§ 1692c(a)(2) and 1692e. Section 1692c(a)(2) prohibits "a debt collector" from "communicat[ing] with a consumer in connection with the collection of any debt ... if the debt collector knows the consumer is represented by an attorney with respect to such debt." Section 1692e generally prohibits using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." Plaintiff alleges that he informed Weill Cornell that he was represented by counsel and did not wish to be contacted directly, and argues that even if Arcadia lacked actual knowledge of this fact, Weill Cornell's knowledge is imputed to Arcadia. See Pl. Mem. at 12.
Weill Cornell's primary argument in support of dismissal is that Plaintiff has failed to allege that Arcadia had actual knowledge that Plaintiff was represented by counsel before directly contacting him. Although Plaintiff informed Weill Cornell that he was represented by counsel, Weill Cornell maintains that its own knowledge is not imputed to Arcadia as the debt collector and Arcadia was under no duty to affirmatively inquire whether Plaintiff was represented by counsel. See Defendant's Memorandum of Law in Support of Motion to Dismiss ("Def. Mem."), Dkt. 18, at 3. In response, Plaintiff argues that (1) Weill Cornell lacks standing to move to dismiss claims asserted only against Arcadia; and (2) it is sufficient for Plaintiff to show that Weill Cornell knew he was represented by counsel, since the creditor's knowledge is imputed to the debt collector and Arcadia had an affirmative duty to inquire of Weill Cornell whether Plaintiff had legal counsel before Arcadia contacted him.
As an initial matter, the Court agrees with Weill Cornell that it may consider the merits of the FDCPA claims against Arcadia, even though the motion to dismiss the claims was made by Weill Cornell. Assuming Plaintiff is in fact correct that Weill Cornell lacks standing to move to dismiss claims asserted only against Arcadia, the Court nonetheless has inherent authority to "dismiss a complaint sua sponte for failure to state a claim, as long as the plaintiff has been given an opportunity to be heard." Sonds v. St. Barnabas Hosp. Corr. Health Servs. , 151 F. Supp. 2d 303, 313 (S.D.N.Y. 2001). "In this case, plaintiff has been heard—in his responses to the existing motion." Id. Plaintiff has submitted full briefing on the question as to whether a creditor's knowledge that a debtor is represented by counsel should be imputed to the debt collector sufficient to create liability under 15 U.S.C. § 1692c. The Court therefore sees no unfairness in reaching the merits of this claim, particularly as Plaintiff will be granted leave to file an amended complaint and an additional opportunity to be heard. See Curkin v. City of New York , No. 18 CIV. 7541 (ER), 2020 WL 5628042, at *10 (S.D.N.Y. Sept. 21, 2020) (); Sanya Lanausse v. City of New York , No. 15 CIV. 1652 (LGS), 2016 WL 2851337, at *2 ().
15 U.S.C. § 1692c(a). The parties dispute whether a debt collector can be said to "know[ ] [that] the consumer is represented by an attorney" when the consumer has so informed the creditor (in this case, Weill Cornell) but not the debt collector (in this case, Arcadia).
The text of the statute is not especially helpful to Plaintiff. Nothing in the statutory language suggests that Congress intended for a creditor's knowledge of a consumer's representation by counsel to be imputed to a debt collector, or that a debt collector has an affirmative duty to ascertain whether a debtor is represented by counsel before contacting him directly. The statute says only that a debt collector is liable for contacting a consumer if it "knows the consumer is represented by an attorney." 15 U.S.C. § 1692c(a)(2). There is no indication from this language that "suggests a congressional intent to hold a debt collector liable when it does not actually know the debtor is represented." Hennington v. Am. Exp. Co. , No. 3:09-CV-569 (DPJ), 2010 WL 1329003, at *2 (S.D. Miss. Mar. 29, 2010).
For that reason, most courts to have considered this question have held that "a debt collector must have actual knowledge...
To continue reading
Request your trial