Ritter v. Cohen & Slamowitz, LLP

118 F. Supp. 3d 497, 2015 U.S. Dist. LEXIS 97459, 2015 WL 4523266
CourtDistrict Court, E.D. New York
DecidedJuly 24, 2015
DocketNo. 14-cv-5736 (ADS)(ARL)
StatusPublished
Cited by8 cases

This text of 118 F. Supp. 3d 497 (Ritter v. Cohen & Slamowitz, LLP) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ritter v. Cohen & Slamowitz, LLP, 118 F. Supp. 3d 497, 2015 U.S. Dist. LEXIS 97459, 2015 WL 4523266 (E.D.N.Y. 2015).

Opinion

DECISION AND ORDER

SPATT, District Judge:

Presently before the Court in this action under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., is a motion to dismiss pursuant to Federal Rule.of Civil Procedure 12(b)(6). For the reasons stated in this opinion, the motion is granted and the Plaintiffs Complaint is dismissed in its entirety.

I. Background;

The following facts are drawn from the' Complaint and aré construed in favor of the Plaintiff. '

A. The Parties

The Plaintiff Tracy Ritter (“Ritter” or the “Plaintiff’) is an individual residing in New York City and is a “consumer” within the meaning of the Fair Debt Collection Practices Act (the “FDCPA”).

Defendant Cohen & Slamowitz, LLP (the “Firm”) is a law firm located in Wood-bury, New York. The Firm is primarily engaged in the. collection of debts and is a “debt collector” within the meaning of the FDCPA.

Defendants Mitchell Selip (“Selip”), Mitchell Slamowitz (“Slamowitz”), and David A. .Cohen (“Cohen”) are attorneys. Slamowitz and Cohen are partners in the Firm. Selip allegedly maintains a principal place of business at the Firm and controls the Firm’s, debt collection activities, although it is unclear what his position is [498]*498within the Firm. Selip, Cohen, and Sla-mowitz are “debt collectors” within the meaning of the FDCPA.

The Firm, Selip, Slamowitz, and Cohen are each referred to herein as a “Defendant” and collectively as the “Defendants.”

B. The Debt

On May 7, 2014, the Defendants sent a letter to the Plaintiff seeking to collect an alleged $918.78 credit card debt (the “Debt”) that the Plaintiff owed to Midland Funding LLC (the “Creditor”). This letter indicated that the Creditor had acquired the Debt from Credit One Bank, N.A. (the “Bank”).

In a response letter, the Plaintiff, through counsel, claimed to have no memory of the Debt. She claimed not to remember ever using a credit card issued by the Bank and, to jog her memory, requested statements showing her alleged use of the card. In her letter, the Plaintiff stated that she disputed the validity of the Debt.

The Defendants then provided the Plaintiff with account statements for the credit card at issue for the period December 2011 through December 2013. These statements, which clearly contain the Plaintiffs name and home address, do not identify the purchases underlying the Debt. However, the statements show periodic payments that were made in partial satisfaction of the Debt, each of which originated in Las Vegas, Nevada.

Over the course of the ensuing two weeks, the parties exchanged six more letters. The gist of the entire discourse can be summed up as follows: the Defendants contend that they adequately verified the Debt through the above-referenced credit card statements, which the Plaintiff contends are legally insufficient to verify the Debt.

Of importance, the Court notes that the Plaintiff never explicitly denies that the credit card belongs to her; that the Debt is hers; or that the Debt is otherwise invalid. In fact, the Plaintiff does not even deny that she made the periodic payments shown on the statements in partial satisfaction of the card balance. Instead, she states only that such payments are not reflected in her bank records. Apparently, the entire basis of the Plaintiffs case is that the Defendants did not provide enough information or facts to help her remember one way or the other whether she legitimately incurred the Debt before they made further collection efforts.

On September 4, 2014, after more than two months of inaction by both parties following their last correspondence, the Defendants commenced an action in the New York County Civil Court (the “State Action”) on behalf of the Creditor to collect the Debt. The State Action is currently pending.

C. The Instant Action

On September 30, 2014, the Plaintiff commenced this action, alleging that the Defendants’ conduct, outlined above, violates the FDCPA in three ways.

Principally, the First Cause of Action contends that the Defendants violated 15 U.S.C. § 1692g(b) by commencing the State Action without adequately verifying the Debt.

The Second and Third Causes of Action are largely predicated upon the First Cause of Action. In particular, the Second and Third Causes of Action contend that, because the Defendants commenced the State Action without adequately verifying the Debt, the State Action contains false and misleading representations, concerning the Debt, in violation of the FDCPA.

[499]*499In this regard, the Plaintiff alleges that the Defendants had actual or constructive knowledge that they lacked evidence to establish their entitlement to the Debt. In addition, the Plaintiff alleges that the attorneys who investigated, prepared, signed, and filed the State Action were inadequately trained; careless in investigating, reviewing and drafting the pleading; or did not understand whether there was a good faith basis for commencing the action.

The Defendants materially deny these allegations.

D. The Instant Motion

On December 1, 2014, the Defendants filed the instant motion pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 12(b)(6), seeking to dismiss the Complaint in its entirety.

In particular, the Defendants contend that: (i) the First Cause of Action based on the Defendants’ allegedly deficient verification of the Debt should be dismissed because the information supplied by the Defendants in response to the Plaintiffs dispute was sufficient under the FDCPA; and (ii) the Second and Third Causes of Action based on allegedly false and misleading representations concerning the Debt, which both presuppose the legal conclusion that the Debt was not adequately verified, should be dismissed because they are premised on speculative and concluso-ry allegations that cannot form the basis of a cognizable claim.

E. The Plaintiffs Sur-Replies

On December 30, 2014 and April 16, 2016, the Plaintiff filed sur-replies, which are in violation of the Federal Rules of Civil Procedure and the Eastern District’s Local Rules. See Braten v. Kaplan, 07-cv-8498, 2009 WL 614657, at *2 n. 1, 2009 U.S. Dist. LEXIS 18127, at *4-*5 n. 1 (S.D.N.Y. Mar. 10, 2009) (noting that neither the Fed.R.Civ.P. or this Court’s Local Rules authorize sur-replies), aff'd, 406 Fed.Appx. 516 (2d Cir.2011). Apparently, the Defendants felt compelled to respond to each of these sur-replies. The Court declines to consider all of these unauthorized submissions, and in the future, the parties are advised to comply with all federal, local, and Individual Rules before filing papers with the Court.

II. Discussion

A. The Legal Standards

Under Fed.R.Civ.P.

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118 F. Supp. 3d 497, 2015 U.S. Dist. LEXIS 97459, 2015 WL 4523266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ritter-v-cohen-slamowitz-llp-nyed-2015.