Bluming v. Enhanced Recovery Company, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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AVROHOM BLUMING,

On behalf of himself and all other similarly MEMORANDUM AND ORDER

situated consumers

Case No. 1: 18-cv-3517 (FB)(RLM)

Plaintiff,

-against-

ENHANCED RECOVERY COMPANY, LLC

Defendants.

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Appearances:

For the Plaintiff: For the Defendant:

ADAM J. FISHBEIN, ESQ. SMITH, GAMBRELLS & RUSSELL, LLP

735 Central Ave SCOTT S. GALLAGHER, ESQ

Woodmere, New York 10022 50 North Laura Street, Suite 2600

Jacksonville, Florida 32202

BLOCK, Senior District Judge:

Plaintiff Avrohom Bluming brings this action under the Fair Debt Collection

Practices Act (“FDCPA”), 15 U.S.C. §1692, et seq, against Enhanced Recovery

Company, LLC. The defendant moves to dismiss for failure to state a claim under

Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the defendant’s

motion is granted.

I.

For purposes of this motion, the Court must take as true all the allegations of

the complaint and must draw all inferences in plaintiff’s favor. See Weixel v. Board

of Educ., 287 F.3d 138, 145 (2d Cir. 2002). To survive a motion to dismiss, a

complaint “does not need detailed factual allegations,” but “a formulaic recitation of

the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007). The “[f]actual allegations must be enough to raise a right to relief

above the speculative level.” Twombly, 550 U.S. at 555. The Court may also consider

“documents attached to the complaint as an exhibit or incorporated in it by

reference.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).

II.

In the complaint, the plaintiff alleges that the defendant violated the FDCPA

by sending a letter that misrepresented the plaintiff’s right to dispute a debt. Plaintiff

claims the letter required the dispute be made in writing. The plaintiff has not filed

any opposition.

The FDCPA requires the debt collector to send a written notice to the

consumer stating that the consumer has 30 days to dispute the validity of the debt

before it will be assumed valid. 15 U.S.C. §1692g. It does not require that disputes

be in writing. See Hooks v. Forman, Holt, Eliades & Ravin, LLC, 717 F.3d 282, 286

(2d Cir. 2013).

However, Hooks did not determine whether a letter that tracks the statue can

be misleading. Notably, the Ninth Circuit has held, “[c]ollection notices that include

the statute’s verbatim language have been held not to be confusing.” Camacho v.

Bridgeport Financial, Inc., 430 F.3d 1078, 1082 (9th Cir. 2005). Subsequent to

Hooks and Camacho, District Courts in this Circuit have also held that notices that

track §1692g are not misleading. See Thomas v. Midland Credit Mgmt., Inc., No.

17-cv-0523, 2017 WL 5714722, at *6 (E.D.N.Y. Nov. 27, 2017); Kagan v. Selene

Fin. L.P., 210 F. Supp. 3d 535, 543 (S.D.N.Y. 2016).

Here, the letter tracks §1692 nearly verbatim and contains no overshadowing

or contradicting statements. See Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir.

1996) (“A notice is overshadowing or contradictory if it would make the least

sophisticated consumer uncertain as to her rights” or is “reasonably susceptible to

an inaccurate reading.”). Therefore, it is not misleading. Additionally, the letter

provides a telephone number to hear disputes. The Complaint alleges that the

number “refers only to payments,” but the letter contains no such limitation.

Because the letter is not misleading as to whether a dispute must be made in

writing, the plaintiff cannot sustain claims under the FDCPA. Therefore, the

defendant’s motion to dismiss is granted.

IT IS SO ORDERED.

/S/ Frederic Block _________

FREDERIC BLOCK

Senior United States District Judge

October 3, 2019

Brooklyn, New York