Altieri v. Overton, Russell, Doerr, and Donovan, LLP
1:17-cv-00303
N.D.N.Y.Dec 20, 2017Background
- Plaintiff Altieri sues Overton LLP alleging a FDCPA violation from a debt-collection letter.
- The court previously dismissed all but the Third Cause of Action and granted leave to Defendants to move to dismiss that action.
- Overton Letter, dated October 14, 2015, stated “DEBT COLLECTION NOTICE” and “AMOUNT DUE: $5,794.54.”
- Third Cause reasserts that if the creditor or assignee had right to charge interest or fees, failure to warn that the amount may increase could violate the FDCPA.
- Allegations regarding accrual of interest/charges are hypothetical; no fact shows interest accruing at the time of the letter or beyond, and the Amended Complaint lacks a basis for accrual.
- Court declines to permit further amendment and grants dismissal of the Third Cause with prejudice after noting arguments about NY CPLR § 5001 are unavailing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Overton’s letter violate FDCPA by not disclosing accruing interest? | Altieri argues accrual could increase the balance per Avila II. | Overton contends no accruing-interest basis was alleged. | No FDCPA violation; allegations about accruing interest were hypothetical. |
| Is Avila II applicable given the facts here? | Avila II requires disclosure of potential interest increases. | Facts do not show actual accrual; Avila II distinguishable. | Avila II not controlling; claim inadequate as pled. |
| Can NY CPLR § 5001 interest salvage the claim? | Possible NY interest could create liability. | Court has rejected this as a basis for liability. | Rejected; § 5001 interest not a basis to deny dismissal. |
| Should the Third Cause be amended again? | (Not stated in decision as opposed to general pleadings) | Amendment unlikely to cure deficiencies. | Dismissal with prejudice; no leave to replead. |
Key Cases Cited
- Avila v. Riexinger & Assocs., LLC, 817 F.3d 72 (2d Cir. 2016) (holding debt collector must disclose accruing interest to avoid misleadings of balance)
- Shomo v. New York, 374 Fed. Appx. 180 (2d Cir. 2010) (discussion on leave to amend and pleading sufficiency)
- Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000) (abuse of discretion in denying leave to amend when pleading defect is substantive)
- Ruffolo v. Oppenheimer & Co., 987 F.2d 129 (2d Cir. 1993) (standard on leave to amend when cure unlikely)