# DEANGELO v. LVNV FUNDING LLC

> District Court, D. New Jersey · June 25, 2020

URL: https://www.frixlaw.com/law-library/cases/10268464

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** June 25, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10268464

## How later opinions describe it (automated extraction)

- discussing the remedial purposes of the FDCPA

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOSEPH DEANGELO 1:18-cv-15689-NLH-KMW

Plaintiff, OPINION

v.

LVNV FUNDING LLC, RESURGENT
CAPITAL SERVICES L.P.,
SHERMAN FINANCIAL GROUP LLC,
SHERMAN CAPITAL MARKETS LLC,
SHERMAN ORIGINATOR III LLC,
SHERMAN ACQUIITION L.P.,
SHERMAN ACQUISITION OO LP,
SHERMAN ACQUISITION II
GENERAL PARTNERSHIP LLC,
SHERMAN CAPITAL, LLC, ALEGIS
GROUP LLC, BENJAMIN W.
NAVARRO, LESLIE G. GUTIERREZ,
SCOTT E. SILVER, KEVIN P.
BRANIGAN, ROBERT A. RODERICK
and KENNETT KENDALL

Defendants.

APPEARANCES:

LAURA ROSSI
MICAHEL O. KASSAK
WHITE AND WILLIAMS LLP
1650 MARKET STREET
SUITE 1800
PHILADELPHIA, PA
Attorneys for the Plaintiff.

THOMAS MICHAEL BRODOS
MICHAEL RAY DARBEE
STEPHEN M. ORLOFSKY
BLANK ROME LLP
300 CARNEGIE CENTER, SUITE 220
PRINCETON, NJ 08540
Attorneys for the Defendants.
HILLMAN, District Judge,
This matter comes before the Court by way of Defendants’
motion to dismiss. Plaintiff filed a class action complaint and

demand for a jury trial in New Jersey Superior Court, Law
Division in Gloucester County on September 28, 2018. On
November 5, 2018, Defendants removed this case to the District
of New Jersey. On September 23, 2019, Plaintiff filed an
Amended Complaint. Defendants moved to dismiss this Complaint
on November 8, 2019. For the reasons stated below, the Court
will deny in part and grant in part Defendants’ motion to
dismiss.
BACKGROUND
The Parties
Plaintiff Joseph DeAngelo is an individual residing in
Gloucester County, New Jersey. Defendant LVNV Funding, LLC

(“LVNV Funding”) is a Delaware limited liability company with
its principal place of business in Nevada. Defendant Resurgent
Capital Services L.P. (“Resurgent”) is a Delaware limited
partnership with its principal place of business in South
Carolina. Defendants LVNV Funding and Resurgent will be
collectively referred to as “LVNV.”
Plaintiff’s complaint includes a number of other entities
created under Delaware law, referred to as the “Sherman
Organization Defendants.”1 Plaintiff contends that these
entities are vicariously liable for the actions of LVNV.
Plaintiff has also included a number of individuals residing in
South Carolina, known as the “Sherman Executive Defendants,”2 and

alleges they are also vicariously liable for LVNV’s actions.

1 These Defendants are as follows:

•
Sherman Financial Group LLC (“SFG”), a Delaware LLC with
its principal place of business in Charleston, South
Carolina;
•
Sherman Capital Markets LLC (“SCM”), a Delaware LLC with
its principal place of business in Charleston, South
Carolina;
•
Sherman Originator III LLC (“SO”), a Delaware LLC with its
principal place of business in Charleston, South Carolina;
•
Sherman Acquisition L.P. (“SALP”), a Delaware limited
partnership with its principal place of business in
Houston, Texas;
•
Sherman Acquisition II L.P. (“SAIILP), a Delaware limited
partnership with its principal place of business in
Charleston, South Carolina;
•
Sherman Acquisition II General Partnership LLC
(“SAIIGLLC”), a Delaware limited liability company with its
principal place of business in Charleston, South Carolina;
•
Sherman Capital LLC (“SC”), a Delaware limited liability
company with its principal place of business in Charleston,
South Carolina; and
•
Alegis Group LLC (“Alegis”), a Delaware limited liability
company with its principal place of business in Greenville,
South Carolina.

Plaintiff contends that the Sherman Organization is “a complex
web of shell, holding and operating companies.” ECF No. 21, ¶
50.

2 These Defendants, all of which Plaintiff alleges reside in
South Carolina, are as follows:

•
Benjamin W. Navarro
•
Leslie G. Gutierrez
Plaintiff’s Debt and Default Judgment
In 1999, Plaintiff purchased a car for his nephew. To do
so, he incurred debt held by CitiFinancial, Inc. (“Citi”). In

2003, Plaintiff restructured this debt to lower his payments.
At some point, Plaintiff defaulted on this loan. Plaintiff
alleges that his last payment on this loan was in 2004, at the
latest. The car was repossessed in 2004.
In July 2009, Resurgent brought an action against Plaintiff
in LVNV Funding’s name in the Superior Court of Gloucester
County, Law Division. This action was brought long after the
four-year statute of limitations for contract actions had
expired. In that proceeding, Defendants alleged that Plaintiff
owed a debt of $28,382.10. Defendants further alleged that
Plaintiff had made two payments by money order in November 2008.
Defendants argued that these payments had the legal effect of

restoring a cause of action for breach of contract.
In this action, Plaintiff alleges these payments were never
made and, in essence, were a fabrication to create a false but
colorable claim that the expired debt had been revived by
voluntary payments by the Plaintiff after the expiration of the

•
Scott E. Silver
•
Kevin P. Branigan
•
Robert A. Roderick
•
Kennett Rusty Kendall
statute of limitations. A default judgment was entered in
Defendants’ favor in the underlying action on February 8, 2010.
According to Plaintiff, he did not become aware of the

state court action against him and the default judgment until
October 5, 2017 when he received a Notice of Wage Application.3
On October 25, 2017, LVNV filed a Writ of Execution against
Wages with the Superior Court of New Jersey. On February 5,
2018, Plaintiff filed a motion to vacate this judgment,
asserting that the debt was time-barred and that the suit was
brought in violation of the FDCPA. On May 10, 2018, LVNV sent
DeAngelo a Notice of Application for Wage Execution. Together
the 2017 Notice, the 2017 Writ, and this 2018 Notice are
referred to as “the Garnishment Pleadings.”

3 Defendants allege, not without foundation, that Plaintiff’s
hands in this matter are not completely clean. In the
proceedings before the Superior Court of New Jersey, that court
found that Plaintiff had been personally served with the
complaint on August 24, 2009 despite his denial of being unaware
of the action and judgment until much later. Defendants alleged
that Plaintiff did not answer this complaint because he felt he
was “bulletproof.” Defendants also served two Notices of
Application for Wage Execution on March 4, 2010, and September
13, 2012, respectively. Plaintiff would have been well advised
to have contested the underlying debt, if he had a complete
defense, years earlier than he did. The record also suggests
that Plaintiff may have also engaged in certain misleading
conduct designed to frustrate collection efforts. Defendants
were not without their own miscues. Defendants concede that the
2010 and 2012 wage executions “were addressed to an employer
associated with a different ‘Joseph DeAngelo,’ leading to the
wage executions being vacated.” ECF No. 34-1 at 5.
On August 23, 2019, the Superior Court of New Jersey issued
an opinion granting Plaintiff’s motion to vacate and sua sponte
granting summary judgment in favor of Plaintiff.4 ECF No. 35-1,

at 26. The state court found both that Plaintiff had not made
the alleged payments by money order in November 2008 and, even
if he had, Defendants lacked a good faith basis to conclude
their cause the action was still viable. Id. at 25.
The Current Matter
Plaintiff has since filed a class action complaint against
Defendants for their debt collection practices, which he refers
to as “zombie” debt collection. According to Plaintiff’s
Amended Complaint, Defendants are engaged in part of a
nationwide “epidemic haunting hundreds of thousands of
individuals consumers all across the country.” ECF No. 21, ¶ 2.

4 This opinion was attached to Plaintiff’s complaint as Exhibit A
and the Court takes notice of Judge Chell’s opinion. Generally,
when reviewing the legal sufficiency of a complaint, a court is
not permitted to consider material beyond the pleadings without
converting the motion to dismiss into a motion for summary
judgment. See In re Burlington Coat Factory Sec. Litig., 144
F.3d 1410, 1426 (3d Cir. 1997). However, the Third Circuit
permits certain exceptions to this general rule. A court may
consider a “document integral to or explicitly relied upon in
the complaint” without converting a motion to dismiss into one
for summary judgment. Id. at 1410 (quoting Shaw v. Digital
Equipment Corp., 82 F.3d 1194, 1220 (1st Cir. 1996)); see also
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384
n.2 (3d Cir. 1994) (taking into consideration “matters of public
record, orders, exhibits attached to the complaint and items
appearing in the record of the case”). Judge Chell’s Opinion is
such a document as it forms part of Plaintiff’s complaint and is
attached as an exhibit.
Plaintiff alleges that Defendants routinely “attempt to collect
on debts that have been settled, paid off, discharged in
bankruptcy, or rendered uncollectible due to the statute of

limitations.” ECF No. 21, ¶ 39.
He further alleges that Defendants “get consumers to reset
the statute of limitations by threatening them with legal action
and misleading them about the legal status of their debt so that
these consumers will make a small payment in order to cease the
harassing calls and threats [from debt collectors].” ECF No.
21, ¶ 40. In support of his claims, Plaintiff introduced news
articles and cases from other jurisdictions that describe zombie
debt, claiming that Defendants have a “long history of
flagrantly violating state and federal debt collection laws.”
ECF No. 21, ¶ 71.
Plaintiff has identified two classes of similarly situated
persons in this case: (1) the legal action class5 and (2) the

false representations class.6 Plaintiff’s complaint includes
three counts: the First Cause of Action alleges violations of

5 Plaintiff defines this class as “all persons against who
Resurgent or LVNV took any legal action to collect a time-barred
debt on or after September 28, 2017” ECF No. 21, ¶ 115(a).

6 Plaintiff defines this class as “all persons towards whom
Resurgent or LVNV falsely, deceptively, or misleading [sic]
misrepresented, either explicitly or impliedly, the legal status
of a time-barred debt, including by threatening to take legal
action, on or after September 28, 2017.” ECF No. 21, ¶ 115(b).
the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §
1692f(1) (against Defendants Resurgent and LVNV Funding) on
behalf of the legal action class; the Second Cause of Action

alleges violations of the FDCPA, 15 U.S.C §§ 1692e(2)(A),
1692e(5), and 1692f(1) (against Defendants Resurgent and LVNV
Funding) on behalf of the false representations class; and the
Third Cause of Action, which does not allege a separate
statutory theory but rather alleges vicarious liability for the
first two counts against all Sherman Executive Defendants and
all Sherman Organization Defendants except Resurgent and LVNV
Funding on behalf of both classes.
Plaintiff seeks to permanently enjoin Defendants from
engaging in the zombie debt collection practices he describes,
restore monies owed to Plaintiff and the classes, including
monies spent in defense or settlement of time-barred claims,

compensatory, direct, consequential, and punitive damages, and
attorneys’ fees and costs.
Defendants Resurgent and LVNV Funding moved to dismiss this
complaint on November 8, 2019. Defendants allege, somewhat
ironically, that Plaintiff’s claims are time-barred and that he
has failed to state a claim under the FDCPA. This matter has
been fully briefed and is ripe for adjudication.
DISCUSSION
A. Subject Matter Jurisdiction
This Court has original federal question jurisdiction over
this case under 28 U.S.C. § 1331. Plaintiff has alleged
violations of the Fair Debt Collection Practices Act (FDCPA), 15

U.S.C. § 1692 et seq. The Court has supplemental jurisdiction
over any common law causes of action asserted by Plaintiff under
28 U.S.C. § 1367 because these claims are part of the same case
or controversy.
B. Standard for a Motion to Dismiss Pursuant to Fed. R. Civ.
P. 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) provides that a
court may dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In
considering a motion under Federal Rule of Civil Procedure
12(b)(6), a court must accept all well-pleaded allegations in
the complaint as true and view them in the light most favorable
to the pleader. Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir.
2005); see also Philips v. Cnty. Of Allegheny, 515 F.3d 224, 228
(3d Cir. 2008) (“[I]n deciding a motion under Fed. R. Civ. P.
12(b)(6), [a district court is] . . . required to accept as true
all factual allegations in the complaint and draw all inferences
from the facts alleged in the light most favorable to” the
plaintiff). A pleading is sufficient if it contains a “short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2).
When weighing a motion to dismiss, the Court does not ask
“whether a plaintiff will ultimately prevail, but whether the
claimant is entitled to offer evidence to support the

claims[.]’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 n. 8
(2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974));
see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our
decision in Twombly expounded the pleading standard for ‘all
civil actions.’”) (citations omitted).
In applying the Twombly/Iqbal standard, a district court
will first “accept all of the complaint’s well-pleaded facts as
true, but may disregard any legal conclusion.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Iqbal,
556 U.S. at 678). Next, the Court will “determine whether the
facts alleged in the complaint are sufficient to show that the
plaintiff has a ‘plausible claim for relief.’” Id. at 211

(citing Iqbal, 556 U.S. at 679).
To meet this standard, a “complaint must do more than
allege the plaintiff’s entitlement to relief.” Id.; see also
Philips, 515 F.3d at 234 (“The Supreme Court's Twombly
formulation of the pleading standard can be summed up thus:
‘stating . . . a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element. This
‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of’
the necessary element.”) (citing Twombly, 550 U.S at 556). The
party moving to dismiss under 12(b)(6) “bears the burden of

showing that no claim has been presented.” Hedges, v. United
States, 404 F.3d 744, 750 (3d Cir. 2005).
C. Analysis
1. Whether Plaintiff’s claims are time-barred
Defendants argue that all of Plaintiff’s claims are barred
by the one-year statute of limitations found in the FDCPA, 15
U.S.C. § 1692k(d). According to Defendants, the statute of
limitations begins to run either (1) when the complaint is filed
or (2) when the complaint is served on the debtor. See ECF No.
34-1, at 11 (citing Schaffhauser v. Citibank (S.D.) N.A., 340
Fed.App’x 128, 130 (3d Cir. 2009)).
Defendants argue that Plaintiff’s FDCPA claims were brought

over nine years after the original collection complaint was
filed. Defendants further assert that LVNV’s participation in
debt collection litigation in 2017 and 2018 does not constitute
an ongoing violation.
Plaintiff argues that his claims are not time-barred
because he filed them within one year of the Garnishment
Pleadings. According to Plaintiff, actions undertaken during
the course of litigation can constitute an independent violation
of the FDCPA in a case like the present one. Plaintiff asserts
that time-barred debt “is not cured by the fact that a debt
collector . . . obtained a default judgment on that debt.” ECF
No. 35, at 15. Plaintiff also asserts that he has adequately

pleaded independent violations of the FDCPA in relation to the
Garnishment Pleadings.
“An action under the FDCPA must be brought ‘within one year
from the date on which the violation occurs.’” Schaffhauser,
340 Fed.App’x at 130 (citing 15 U.S.C. § 1692k(d)). Several
courts have found that “[c]onduct which independently violates
the FDCPA, however, is actionable if it falls within the statute
of limitations within the limitations period, even if undertaken
in pursuit of litigation that was filed outside the limitations
period.” Brown v. Urden Law Officers PC, No. 11-cv-2697, 2011
WL 4011411, at *5-6 (E.D. Pa. Sept. 9, 2011) (citing Jones v.
Inv. Retrievers, LLC, No. 10-cv-1714, 2011 WL 1565851, at *3

(M.D. Pa. Apr. 25, 2011)); see Strader v. U.S. Bank Nat’l
Assoc., No. 17-cv-685, 2018 WL 741425, at *13 (W.D. Pa. Feb. 7,
2018). The court in Brown denied the defendants’ motion to
dismiss because the complaint “was filed within one year of the
most recent alleged FDCPA violation.” Brown, 2011 WL 4011411,
at *6.
In this case, Plaintiff has brought his case within one
year of the most recent alleged FDCPA violation. Plaintiff has
alleged that the Garnishment Pleadings were independent
violations of the FDCPA. Though Defendants highlight that these
actions and the default judgment appear on the same docket and
bear the same case number and caption, the Court agrees with

Plaintiff, given the allegations in the complaint as a whole,
that later efforts to collect debt that Defendants knew was
time-barred when the action resulting in a default judgment was
first brought is new conduct within the one-year statute of
limitations and the filing of this action is timely.
Schaffhauser v. Citibank (S.D.) N.A., 340 Fed.App’x 128 (3d
Cir. 2009), which rejected the “continuing violation” theory of
extending the statute of limitations, and upon which Defendants
rely, is not to the contrary. First, as a non-precedential
opinion it is merely persuasive and not binding authority on
this Court. It is also distinguishable in a material way.
Although the plaintiff in Schaffhauser also appears to have

alleged an attempt to collect “zombie” debt and other debt
collection misconduct, that claim was rejected by the state
court. See id., 340 Fed.App’x at 129-30 (noting Court of Common
Pleas entered judgment against debtors presumably rejecting
claims of deceptive and abusive debt collection efforts). Here,
the opposite occurred with Plaintiff prevailing in state court,
especially as it relates to alleged litigation misconduct by
Defendants in the original underlying proceeding. Even if
Schaffhauser were binding authority it would not directly bar
Plaintiff’s claims in this action.
2. Whether Plaintiff has failed to state a claim under the
FDCPA

The Third Circuit has held that “[t]he FDCPA is a remedial
statute and we construe its language broadly so as to effect its
purposes.” Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d
364, 367 (3d Cir. 2011) (citing Brown v. Card Serv. Ctr., 464
F.3d 450, 453 (3d Cir. 2006)). The Third Circuit has further
stated that “[t]he FDCPA is a strict liability statute to the
extent that imposes liability without proof of an intentional
violation.” Id. at 368 n. 7.
With this gloss over the statute in mind, the Court will
now turn to the requirements for stating a claim under the
FDCPA. To state a claim under the FDCPA, a plaintiff must
allege that “(1) [he or she] is a consumer, (2) the defendant is
a debt collector, (3) the defendant’s challenged practice
involves an attempt to collect a ‘debt’ as the Act defines it,
and (4) the defendant has violated a provision of the FDCPA in
attempting to collect the debt.” Douglass v. Convergent
Outsourcing, 765 F.3d 299, 303 (3d Cir. 2014); see also Thomas

v. John A. Youderian Jr., LLC, 232 F.Supp.3d 656, 671 (D.N.J.
2017).
Though not explicitly stated in the briefs, it appears that
only the fourth criterion is in dispute. At this stage, the
Court will accept all of Plaintiff’s well-pleaded facts and

allegations as true. See Evancho, 423 F.3d at 350; see also
Philips, 515 F.3d at 228. Defendants have the burden of
demonstrating that Plaintiff has failed to state a violation of
the FDCPA.
The First Cause of Action
Plaintiff’s first “Cause of Action” alleges that Defendants
tried to collect time-barred debt when it served the 2017 Writ
of Execution and 2018 Notice of Wage Execution. According to
Plaintiff, these attempts to collect upon time-barred debt
violated 15 U.S.C. § 1692f(1). Defendants respond that this
count should be dismissed because the Garnishment Pleadings were
permitted by law. Plaintiff contends that the Garnishment

Pleadings were illegal under federal law because the default
judgment in New Jersey state court violated federal law.
Section 1692f has been characterized as “a catchall
provision providing that a ‘debt collector may not use unfair or
unconscionable means to collect or attempt to collect any
debt.’” John A. Youderian Jr., LLC, 232 F.Supp.3d at 672
(quoting 15 U.S.C. § 1692f). Section 1692f(1) specifically
addresses “[t]he collection of any amount (including any
interest, fee, charge, or expense incidental to the principal
obligation) unless such amount is expressly authorized by the
agreement creating the debt or permitted by law.” 15 U.S.C. §
1692f(1).

In this case, construing the language of the FDCPA broadly
to effect its purposes, the Court finds that Plaintiff has
alleged facts in his complaint that are sufficient to show that
he has a plausible claim for relief under § 1692f(1). See Allen
ex rel. Martin, 629 F.3d at 367 (discussing the remedial
purposes of the FDCPA). The Court recognizes that at the time
Defendants filed the Garnishment Pleadings, they had a facially
valid state court judgment. And it follows, of course, that an
attempt to collect on a judgment through established and lawful
state court post-judgment procedures is ordinarily conduct
“permitted by law” within the meaning of the statute.
However, Defendants’ argument is only superficially

attractive as it ignores both the extraordinary nature of the
underlying state court opinion vacating the default judgment and
other core factual averments made by Plaintiff. Not only did
the state court determine that Defendants brought the default
judgment action on the original debt after the statute of
limitations had barred such an action, it also determined that
Defendants lacked a good faith basis in law and fact to assert
that alleged payments made after the expiration of the statute
of limitations renewed the claim. As the Third Circuit has
held, the FDCPA is a strict liability statute and Plaintiff is
not required to show that Defendants willfully violated the
FDCPA. But here, Plaintiff alleges such willfulness adding that

Defendants “knew or should have known that [their collection
efforts] were time-barred, but pursued collection of the debt
anyway ...” First Amended Class Action Complaint, ECF No. 21, ¶
130.
It remains to be seen if Plaintiff will ultimately support
his assertions, of course. But here, Plaintiff’s allegations go
beyond the strict liability requirements of the statute and
allege Defendants tried to collect a debt through legal action
they knew of should have known was time-barred. This is more
than sufficient to state a plausible claim that the Defendants
engaged in “unfair or unconscionable means” to collect a debt in
violation of 1692f(1) by filing the Garnishment Pleadings.

The Second Cause of Action
Plaintiff’s second cause of action focuses not on the
filing of the Garnishment Pleadings themselves but conduct
related to or associated with those filings. The Second Cause
of Action is also, unhelpfully, compound as it alleges
violations of at least two separate subsections of Section
1692e, specifically § 1692e(2)(A) and § 1692e(5) and a violation
of 1692f(1) separate from the First Cause of Action.7 The common
thread in the Second Cause of Action is that Defendants falsely
represented the legal status of his debt by impliedly

representing that the debt was not time-barred and that
Defendants’ communications with Plaintiff included threats
intending to induce Plaintiff to make payments on time-barred
debt.
Plaintiff argues that in serving the 2017 and 2018 Notices,
Defendants made implied threats to take legal action to collect
a time-barred debt. Plaintiff alleges that there were three
implied threats within the Notice of Application for Wage
Execution. First, Plaintiff alleges Defendants implied that it
would “in fact file the Notice with the court.” Second,
Plaintiff alleges the Notice implied that “should the judgment-

7 Similar to Plaintiff’s First Cause of Action, Plaintiff alleges
in the Second Cause of Action that Defendants made false
representations in conjunction with the Garnishment Pleadings
which violated Section 1692f(1) separate and independent from
the filings themselves. While the Court recognizes that each
separate act may constitute a separate violation of the FDCPA,
the conduct related to the Garnishment Pleading is so inherently
intertwined with the filings themselves as to render this
statutory theory for the Second Cause of Action duplicative of
the First Cause of Action at least as it relates to § 1692f(1).
Whether it is the Garnishment Pleadings themselves or statements
and actions associated with them, any of Defendants’ alleged
conduct in using “unfair or unconscionable means” to collect a
debt in violation of § 1692f(1) is fairly encompassed within the
First Cause of Action. To the extent the Second Cause of Action
asserts a claim under § 1692f(1) it will be dismissed as
duplicative.
debtor file an opposition to the notice that the debt collector
will cause a lawyer to appear at a hearing.” Finally, Plaintiff
alleges that the notice implied that “the applicant will, as

soon as legally allowed, file a Writ of Execution with the
court, actually effectuating the execution of wages.”
Defendants argue that this cause of action should be
dismissed because the identified statements were not false at
the time they were made. Furthermore, Defendants support their
motion to dismiss by arguing that the statements were not
directed to the Plaintiff, but rather his lawyer. Next
Defendants assert that because Plaintiff denied Defendants’
statements, he could not have been misled by Defendants’
statements. Finally, Defendants argue that this claim should be
dismissed because Defendant’s statements did not communicate
threats as defined under the FDCPA. According to Defendants,

the statements Plaintiff identifies as threats were merely
statements regarding legal actions Defendants had already taken.
Turning first to Plaintiff’s claim under Section 1692e,
that provision of the FDCPA prohibits “any false, deceptive, or
misleading representation or means in connection with the
collection of any debt” and provides a non-exhaustive list of
prohibited conduct. See 15 U.S.C. § 1692e. Section 1692e(2)(A)
prohibits debt collectors from making false representations of
“the character, amount or legal status of any debt.” 15 U.S.C.
§ 1692e(2)(A). The Court finds that Plaintiff has asserted a
plausible claim that Defendants made an implicit representation
that the underlying default judgment had been properly obtained

in New Jersey Superior Court in 2010 separate and independent of
the mere filing of the Garnishment Pleadings. Defendants’
related representations were false, Plaintiff alleges, as
Defendants knew or should have known that this debt was time-
barred, that alleged payments made in November 2008 were a
fabrication, and that the judgment was obtained in violation of
the FDCPA. The Court finds that Plaintiff has stated a separate
claim under 15 U.S.C § 1692e(2)(A) in the Second Cause of
Action.
To establish a claim under § 1692e(5), a plaintiff must
show that “the debt collector ‘threat[ened] to take any action
that cannot legally be taken or that [was] not intended to be

taken.’” See Devito v. Zucker, Goldberg & Ackerman, LLC, 908
F.Supp.2d 564, 570 (D.N.J. 2012) (citing Brown v. Card Serv.
Ctr., 464 F.3d at 455)(emphasis added). The statute is
therefore in the disjunctive and conduct within either prong
could constitute a violation.
This part of Plaintiff’s theory represents a closer call.
While an action to collect time-barred debt may be the use of
“unfair or unconscionable means” and associated false
representations of “the character, amount or legal status of any
debt” separately actionable under § 1692f(1) and § 1692e(2)(A)
respectively, the fact remains that Defendants held a valid
judgment at the time of the filing of the Garnishment Pleadings.

As for the first prong, the filings themselves and associated
statements could have been “legally” undertaken within the
meaning of § 1692e(5), at least until the judgment was vacated,
even if such conduct violated other provisions of the statute.
As for the second prong, Defendants actually undertook the
complained of action rendering them something different than
idle threats within the plain meaning of § 1692e(5).
Accordingly, the Court finds that Plaintiff has failed to state
a separate plausible claim under § 1692e(5) in the Second Cause
of Action.
In sum, the Court will partially deny and partially grant
the motion to dismiss as it relates to the Second Cause of

Action. Plaintiff’s claims under § 1692e(2)(A) will not be
dismissed. Plaintiff’s claims under § 1692e(5) and § 1692f(1)
will be dismissed.
3. Whether Plaintiff has failed to state a claim for vicarious
liability

Defendants argue that Plaintiff’s claims against the
Sherman Organization Defendants and the Sherman Executive
Defendants must be dismissed because the claims against LNVN, as
the alleged agent, are time-barred and fail to make a claim.
Both parties have stated that the fate of this claim rests
with the fate of the previous two. If Plaintiff has failed to
state a claim on either Causes of Action, it follows that no one

can be held vicariously liable for that claim. Having denied in
part Defendants’ motion to dismiss the First and Second Causes
of Action, the Court will allow Count III to proceed in an
manner consistent with this Opinion and accompanying Order.
CONCLUSION
For the reasons stated above, Defendants’ motion to dismiss
will be denied in part and granted in part. An appropriate
order will be entered.

Date: June 25, 2020____ __s/ Noel L. Hillman ____
At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10268464. Public record. Not legal advice.