United States District Court, D. Connecticut
RULING ON MOTION TO DISMISS
R. Underhill United States District Judge
Cicalo filed this action on March 1, 2016, against the law
firm Hunt Leibert Jacobson, P.C. ("Hunt"), and one
of its attorneys, Christopher J. Picard, alleging multiple
violations of the Fair Debt Collection Practices Act, 15
U.S.C. § 1692 etseq. ("FDCPA").
Cicalo alleges, inter alia, that the defendants sent false,
deceptive, or misleading communications in connection with
their efforts to collect on a mortgage debt. Cicalo also
alleges that the defendants failed to verify the debt in
accordance with the FDCPA requirements.
April 29, 2016, defendants moved to dismiss all claims for
failure to state a claim under the FDCPA. On September 6,
2016, Cicalo filed a motion to amend his complaint. The
proposed amended complaint ("Amended Complaint")
seeks to add factual allegations in an attempt to cure
defects in the complaint. The motion to amend will be granted
and the motion to dismiss will be considered against the
Standard of Review
motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6) is designed "merely to assess the legal
feasibility of a complaint, not to assay the weight of
evidence which might be offered in support thereof."
Ryder Energy Distribution Corp. v. Merrill Lynch
Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984)
(quoting Geisler v. Petrocelli, 616 F.2d 636, 639
(2d Cir. 1980)).
deciding a motion to dismiss pursuant to Rule 12(b)(6), the
court must accept the material facts alleged in the complaint
as true, draw all reasonable inferences in favor of the
plaintiffs, and decide whether it is plausible that
plaintiffs have a valid claim for relief. Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009); Bell Ail. Corp.
v. Twombly, 550 U.S. 544, 555-56 (2007); Leeds v.
Meltz, 85 F.3d 51, 53 (2d Cir. 1996).
Twombly, "[f]actual allegations must be enough
to raise a right to relief above the speculative level,
" and assert a cause of action with enough heft to show
entitlement to relief and "enough facts to state a claim
to relief that is plausible on its face." 550 U.S. at
555, 570; see also Iqbal, 556 U.S. at 679
("While legal conclusions can provide the framework of a
complaint, they must be supported by factual
allegations."). The plausibility standard set forth in
Twombly and Iqbal obligates the plaintiff
to "provide the grounds of his entitlement to relief
through more than "labels and conclusions, and a
formulaic recitation of the elements of a cause of
action." Twombly, 550 U.S. at 555 (quotation
marks omitted). Plausibility at the pleading stage is
nonetheless distinct from probability, and "a
well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of [the claims] is improbable, and .
. . recovery is very remote and unlikely." Id.
at 556 (quotation marks omitted).
instant dispute arises out of a mortgage loan transaction
between Cicalo and First Niagara Bank, N.A. ("First
Niagara"), which closed in 2004. On September 3, 2015,
Hunt sent a letter on behalf of First Niagara, which stated
that Cicalo owed the bank $115, 058.54. On September 10,
2015, Cicalo responded in writing, disputing the amount owed
and demanding an itemization of the debt. On November 19,
2015, Picard sent Cicalo a letter confirming that the amount
set forth in the initial letter was accurate, and enclosing
other documents related to the debt. Included in Picard's
letter were (1) a copy of a prior letter from Hunt to Picard,
dated October 19, 2015, which disclosed a balance of $124,
062.90, as of that date; (2) documents disclosing a balance
of $96, 354.27 as of August 15, 2015; and (3) documents
showing the assignment of the note and mortgage by the
predecessor of First Niagara to New Alliance Servicing
Company, now known as First Niagara Servicing Company.
November 24, 2015, Cicalo responded in writing, once again
disputing the balance and requesting an itemization of seven
of the purportedly new charges set forth in Picard's
November 19, 2015 letter. The defendants did not respond to
Cicalo's November letter and thereafter instituted a
foreclosure action on behalf of First Niagara against Cicalo
in December 2015. On December 30, 2015, Cicalo once again
disputed the balance listed in the foreclosure action and
requested an itemization of the debt. Though defendants have
not responded to the December 30, 2015 letter, Hunt sent a
letter that responded to what Cicalo alleges to be a
nonexistent request for a reinstatement figure, which
included additional charges.
March 1, 2016, Cicalo filed the instant action, alleging that
the charges claimed in the various letters from the
defendants were inconsistent, incorrect, or included amounts
not authorized by contract or law. Cicalo also asserts that
the charges included interest, costs, or fees not awarded by
the court. Such misrepresentation of the debt, Cicalo argues,
is in violation of the FDCPA.
defendants filed a Rule 12(b)(6) motion to dismiss (doc. #
10) on April 29, 2016, contending that they are neither
"debt collectors" nor are they engaged in
"debt collection" under the FDCPA. Furthermore they
assert a defense of absolute litigation immunity and argue
that, even if their conduct is regulated by the FDCPA, Cicalo
fails to allege a plausible FDCPA claim.
15, 2016, 1 held oral argument on the motion and then took
the motion under advisement. On September 6, 2016, Cicalo
filed a motion to amend his complaint, along with a proposed
amended complaint. See Doc. # 45.
Leave to Amend
15(a) of the Federal Rules of Civil Procedure provides that
courts should "freely give leave" to amend
"when justice so requires." Fed.R.Civ.P. 15(a)(2).
Under this liberal standard, courts generally allow a party
to amend its pleadings unless there has been "undue
delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, [or] futility of
amendment. . . ." Ruotolo v. City of New York,
514 F.3d 184, 191 (2d Cir. 2008) (quotingFoman v.
Davis, 371 U.S. 178, 182 (1962)).
main contention is that granting leave to amend would deprive
them of a ruling on the motion to dismiss and may require an
additional motion to dismiss. Because I treat defendants'
motion to dismiss as applied to the Amended Complaint, they
are not prejudiced by the amendment. Accordingly, I grant
Cicalo's motion to amend (doc. # 45) and treat
defendants' motion to dismiss (doc. # 10) as directed to
the Amended Complaint.
brings his claims under the Fair Debt Collection Practices
Act, 15 U.S.C. § 1692 et seq.
("FDCPA"). Specifically, Cicalo alleges that the
defendants violated sections "1692e, 1692e(2)(A),
1692e(5), 1692f, or 1692g." See Am.
Compl. ¶ 44 (emphasis added). It is unclear why Cicalo
uses the work ...