Bicking v. Law Offices of Rubenstein and Cogan
2011 U.S. Dist. LEXIS 48623
E.D. Va.2011Background
- This is a putative FDCPA class action in the E.D. Virginia alleging improper debt collection letters by the Law Offices of Rubenstein and Cogan.
- Plaintiffs Bicking and Mauro allege the June 8, 2010 and September 7, 2010 dunning letters referred accounts to the Law Offices for collection.
- Letters stated that unless the account was in dispute, payment was expected, and claimed no attorney had reviewed the account.
- The Verification Notice allegedly failed to inform that requests under 15 U.S.C. § 1692g(a)(4) and (a)(5) must be in writing.
- Plaintiffs seek damages from the Law Offices and their owners for personal liability, and Defendants moved to dismiss under Rule 12(b)(6).
- The court denied the motion, finding plausible FDCPA violations and allowing the claims to proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Verification Notice violated 1692g(a)(4) and (a)(5). | Bicking and Mauro contend the notice omits the in-writing requirement. | Rubenstein & Cogan argue the notice informs rights and does not restrict them. | Yes; notice violated the in-writing requirement. |
| Whether the failure to include in-writing language supports a 1692e(10) claim. | Plaintiffs claim the omission renders the notice deceptive under 1692e(10). | Defendants contend no deceptive conduct beyond the statutory rights was shown. | Yes; supports a 1692e(10) claim alongside 1692g(a)(4)-(5). |
| Whether the complaint plausibly states claims under the FDCPA based on the Verification Notice. | Plaintiffs allege objective violation given the plain language and least sophisticated debtor standard. | Defendants argue the notice is compliant or expansive of rights. | Plaintiffs state a plausible FDCPA claim. |
Key Cases Cited
- Camacho v. Bridgeport Fin. Inc., 430 F.3d 1078 (9th Cir. 2005) (interprets 1692g(a) rights and emphasis on in-writing requirement)
- Grief v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 217 F. Supp. 2d 336 (E.D.N.Y. 2002) (unwritten writing requirement and least sophisticated debtor standard)
- Nat'l Fin. Servs., Inc. v. Nat'l Consumer Debt, 98 F.3d 131 (4th Cir. 1996) (strict liability; deception assessed from consumer perspective)
- Withers v. Eveland, 988 F. Supp. 942 (E.D. Va. 1997) (if oral dispute occurs, protections may not be triggered without written dispute)
- Nero v. Law Office of Sam Streeter, P.L.L.C., 655 F. Supp. 2d 200 (E.D.N.Y. 2009) (verification duty triggered only upon written dispute)
- McCabe v. Crawford & Co., 272 F. Supp. 2d 736 (N.D. Ill. 2003) (analysis of 1692g(a)(4)-(5) unwritten elements)
- Twombly v. Bell Atl. Corp., 550 U.S. 544 (U.S. 2007) (plausibility standard for pleading a claim)