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Garcia v. Law Offices Howard Lee Schiff P.C.

United States District Court, D. Connecticut

March 30, 2017

LUIS GARCIA Plaintiff
v.
LAW OFFICES HOWARD LEE SCHIFF P.C. Defendant.

          RULING ON DEFENDANT'S MOTION TO DISMISS

          VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE

         Plaintiff, Luis Garcia, brought this action against Defendant, the Law Offices of Howard Lee Schiff, P.C. (“Schiff”), alleging violations of the Fair Debt Collections Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”), arising out of a collection letter concerning the balance due on Mr. Garcia's First Premier Bank Visa credit card. Schiff has moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

         For the reasons that follow, Schiff's motion is GRANTED in part and DENIED in part. The Court grants the motion to dismiss Mr. Garcia's claims for violations of 15 U.S.C. § 1692d and 15 U.S.C. § 1692f. It denies the motion to dismiss Mr. Garcia's claims for violations of 15 U.S.C. § 1692e and § 1692e(10), but notes that Mr. Garcia has not stated a claim under subsections § 1692e(2), § 1692e(5), § 1692e(7), and § 1692e(8).

         I. Factual Allegations

         Mr. Garcia is a resident of Waterbury, Connecticut. Compl. ECF No. 1, ¶ 4. Schiff, a law firm specializing in creditor's rights litigation, is located in East Hartford, Connecticut. Id. at ¶ 5. Schiff is a “debt collector” as the phrase is defined in 15 U.S.C. § 1692(a)(6) and as used in the FDCPA. Id.

         On or around February 12, 2016, Mr. Garcia received a collection letter from Schiff concerning his First Premier Bank account. Compl. ¶ 9, see also Letter, Mot. to Dismiss, Ex. 1, ECF No. 11 (“the Letter”). The Letter informed him that:

[Y]our First Premier Bank account is being serviced by Law Offices of Howard Lee Schiff, P.C. Midland Funding, LLC, is the current owner of this account. We are required to provide some additional information pertaining to this account.

Letter, 1. The Letter further stated that the “charge off balance” was $633.94, and the “current balance” was $565.46. Compl. ¶ 10. The Letter did not provide information “as to the discrepancy and a further breakdown of the balance [and did not list any] credits, payments, or interest accrued.” Id. at ¶ 12. In fact, the Letter listed “$0” next to “post charge-off payments & credits.” Letter, 1.

         Mr. Garcia alleges that the Letter “ma[de] it impossible for a consumer to know how much is owed and if the debt will be considered paid if payment is made in full.” Compl. ¶ 13. He further alleges that the letter violated the FDCPA, which prohibits “deceptive, misleading, and unfair debt collection practices.” Id. at ¶¶ 15-17.

         II. Standard of Review

         Schiff seeks to dismiss Mr. Garcia's Complaint under both Rule 12(b)(1) and Rule 12(b)(6), making two standards of review applicable.

         First, when a court reviews a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), it “must accept as true all material factual allegations in the complaint, but [it is] not to draw inferences from the complaint favorable to plaintiffs.” J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004). The burden of proving subject matter jurisdiction by a preponderance of the evidence is on the plaintiff. Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). “In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside the pleadings” to resolve the jurisdictional issue, Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)), but “may not rely on conclusory or hearsay statements contained in the affidavits, ” Attica Cent. Schs., 386 F.3d at 110.

         Second, to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 570. Although “detailed factual allegations” are not required, a complaint must offer more than “labels and conclusions, ” “formulaic recitation[s] of the elements of a cause of action, ” or “naked assertion[s]” devoid of “further factual enhancement.” Id. at 557.

         When determining whether the plaintiff has stated a plausible claim for relief, the Court may consider only “the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court must accept the allegations in the complaint as true and draw all reasonable inferences in the light most favorable to the non-moving party. In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007).

         III. Discussion

         Schiff moves to dismiss under Rule 12(b)(1), arguing that Mr. Garcia does not have standing to sue because he has not suffered an injury-in-fact. See Mot. to Dismiss, ECF No. 10, 4-5. In the alternative, Schiff moves to dismiss Mr. Garcia's Complaint under Rule 12(b)(6), arguing that he has not alleged a violation of the FDCPA or, at most, that he has alleged a “single, trivial and unintentional violation” for which the Court should not award damages. Id. at 6 (citing Piples v. Credit Bureau of Lockport, 886 F.2d 22, 28 (2d Cir. 1989)). Mr. Garcia responds that he has suffered a cognizable injury that gives him standing to assert his claim and, furthermore, that Defendant's Letter violated the FDCPA. The Court agrees with Mr. Garcia that he has standing to sue and concludes that only his claims under 15 U.S.C. § 1692e and § 1692e(10) may proceed.

         A. Dismissal for Lack of Jurisdiction ...


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