Benzemann v. Citibank N.A., 2015 U.S. App. LEXIS 19875

In 2003 a judgment against "Andrew Benzemann" was obtained by New Century (assignee of Citibank); Alexander Benzemann (plaintiff) was not the judgment debtor.
April 30, 2008: Citibank froze Alexander Benzemann’s account after receiving a restraining notice from Houslanger (attorney for New Century) that misidentified the debtor but used Alexander’s SSN and address; the restraint was later withdrawn after counsel’s intervention.
December 2011: Houslanger again sent a restraining notice with the same errors; Citibank froze Benzemann’s account "on or about" December 14, 2011 (disputed; counsel suggested December 13).
December 14, 2012: Benzemann sued Houslanger under the FDCPA (15 U.S.C. § 1692e, § 1692f). District court dismissed as time-barred, reasoning the violation "occurred" on December 6, 2011 (date restraining notice was sent).
The Second Circuit reviewed de novo and considered whether the FDCPA’s one-year limitations period begins when the restraining notice is sent or when the bank actually freezes the account.

Issue	Plaintiff's Argument	Defendant's Argument	Held
When does an FDCPA violation “occur” under 15 U.S.C. § 1692k(d) for a restraining notice sent to a bank?	Benzemann: the violation occurred when the bank froze his account (when he suffered injury and had notice).	Houslanger: the violation occurred when the restraining notice was sent to the bank (the allegedly misleading act).	Court: A violation "occurs" when the bank freezes the debtor’s account; not when the notice is sent.
Was Benzemann’s December 2012 suit timely as to the second freeze?	Benzemann: timely if freeze occurred Dec 14, 2011 (within one year).	Houslanger: untimely because notice was sent Dec 6, 2011.	Court: Remanded to determine the actual freeze date (uncertain between Dec 13–14).
Should the statute of limitations start before plaintiff can sue or has notice?	Benzemann: limitations should not run before plaintiff can sue and has notice.	Houslanger: limitations may run from the sending of the notice.	Court: Limitations period should not run before plaintiff has a complete cause of action and notice.
Are precedents holding mailing = occurrence (Maloy/Mattson) controlling here?	Benzemann: those cases are inapplicable because mailing is not the last opportunity to comply and freeze date is ascertainable.	Houslanger: relied on circuits treating mailing as the triggering event.	Court: Distinguished Maloy and Mattson; mailing rule does not apply to bank freezes.

Kropelnicki v. Siegel, 290 F.3d 118 (2d Cir. 2002) (FDCPA’s purpose and remedial nature)
Leonhard v. United States, 633 F.2d 599 (2d Cir. 1980) (cause of action accrues when injury occurs)
Bates v. C & S Adjusters, Inc., 980 F.2d 865 (2d Cir. 1992) (harm from unlawful collection notices occurs on receipt)
Serna v. Law Office of Joseph Onwuteaka, P.C., 732 F.3d 440 (5th Cir. 2013) (FDCPA accrual when plaintiff is served/has notice; protects remedial purpose)
Johnson v. Riddle, 305 F.3d 1107 (10th Cir. 2002) (statute should not run from filing where creditor could delay service to evade suit)
Maloy v. Phillips, 64 F.3d 607 (11th Cir. 1995) (mailing date can trigger FDCPA accrual for collection notices)
Mattson v. U.S. W. Commc’ns, Inc., 967 F.2d 259 (8th Cir. 1992) (same: accrual tied to mailing of notice)
Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of California, Inc., 522 U.S. 192 (1997) (cause of action becomes complete for limitations only when plaintiff can file and obtain relief)
Reiter v. Cooper, 507 U.S. 258 (1993) (avoid anomalous accrual rules unless statute indicates otherwise)
Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85 (2d Cir. 2008) (FDCPA private right of action and role of private plaintiffs)
Mangum v. Action Collection Serv., Inc., 575 F.3d 935 (9th Cir. 2009) (treating FDCPA limitations as subject to a discovery rule)