Abbott v. Second Round Sub, LLC
1:17-cv-00336
W.D.N.Y.Sep 28, 2017Background
- Plaintiff Rosemary Abbott allegedly incurred a consumer debt and received collection letters from Second Round Sub, LLC in Dec 2016 and Jan 2017.
- On Jan 13, 2017 Abbott sent a written demand that Second Round "cease any and all communication" under 15 U.S.C. § 1692c and simultaneously requested validation of the debt, authorizing a single written validation response.
- Second Round sent a February 1, 2017 letter that included verification documents (three billing statements and a bill of sale) and a cover letter requesting documents to support disputes (e.g., proof of payment, identity theft) and warning it may return the account to active collections without such documentation.
- Abbott sued in New York state court asserting FDCPA claims (including §1692c(c), §1692g(b), §1692e) and NY GBL §349; Second Round removed to federal court.
- Second Round moved for judgment on the pleadings under Rule 12(c). The court treated Abbott’s arguments as limited to the §1692c(c) claim and deemed other claims abandoned where Abbott did not oppose dismissal.
- The district court granted the motion, holding the February 2017 letter did not violate §1692c(c) and dismissing the case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Second Round violated §1692c(c) by sending the Feb. 2017 letter after Abbott’s cease-communication request (waived for one written validation) | Abbott contends the cover letter’s solicitation for documents and its reference to possibly returning the account to collections exceeded the limited waiver and amounted to prohibited further communication/collection attempts | Second Round argues Abbott waived cease-communication protection for one written validation; the February letter provided verification and solicited documents to investigate the dispute — a permitted communication (e.g., notice of potential remedies/investigative step) | The court held the February 2017 letter fell within the limited waiver and the statutory exceptions (notice of potential remedies/investigation), and did not constitute a prohibited communication under §1692c(c); claim dismissed |
| Whether Abbott’s claims under §1692g(b), §1692e, and NY GBL §349 survive the motion | Abbott asserted these claims in the complaint (failure/false statements in collection) | Second Round moved to dismiss those claims | The court deemed these claims abandoned because Abbott failed to oppose dismissal and dismissed them |
| Whether the complaint met the Rule 12(c)/Twombly plausibility standard | Abbott argued facts support FDCPA violations | Second Round argued pleadings and attached correspondence show no plausible violation | The court applied the Twombly/Iqbal standard and found no plausible FDCPA violation based on the letters; judgment on the pleadings granted |
Key Cases Cited
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (plausibility standard for pleadings)
- Bank of New York v. First Millennium, Inc., 607 F.3d 905 (12(c) standard same as 12(b)(6))
- Sheppard v. Beerman, 18 F.3d 147 (pleading standards)
- Hayden v. Paterson, 594 F.3d 150 (district courts draw inferences for non-moving party)
- Ellis v. Solomon & Solomon, P.C., 591 F.3d 130 (least sophisticated consumer standard in FDCPA cases)
- Lewis v. ACB Business Servs., Inc., 135 F.3d 389 (communications that notify of potential remedies can fall within §1692c exceptions)
- Marino v. Hoganwillig, PLLC, 910 F. Supp. 2d 492 (initial verification may not violate §1692c, later collection demands can)
- Mammen v. Bronson & Migliaccio, LLP, 715 F. Supp. 2d 1210 (request for verification can waive cease-communication directive limited to verification)
- Vazquez v. Professional Bureau of Collections of Maryland, Inc., 217 F. Supp. 3d 1348 (no plausible FDCPA violation where correspondence on its face lawful)