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Cicalo v. Hunt Leibert Jacobson, P.C.

United States District Court, D. Connecticut

January 10, 2016

SAMUEL CICALO, Plaintiff,
v.
HUNT LEIBERT JACOBSON, PC. and CHRISTOPHER PICARD, Defendants.

          RULING ON MOTION TO DISMISS

          Stefan R. Underhill United States District Judge

         Samuel 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.

         On 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 Amended Complaint.

         I. Standard of Review

         A 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)).

         When 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).

         Under 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).

         II. Background

         The 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.

         On 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.

         On 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.

         The 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.

         On June 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.

         III. Leave to Amend

         Rule 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)).

         Defendants' 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.

         IV. Discussion

         Cicalo 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. ΒΆ 44 (emphasis added). It is unclear why Cicalo uses the work ...


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