DiMatteo v. Sweeney, Gallo, Reich & Bolz, L.L.P.
619 F. App'x 7
2d Cir.2015Background
- DiMatteo lived in a rent-controlled apartment; his roommate Hirko tendered rent payments which the landlord refused to accept, creating a dispute over whether rent was unpaid for 14 months.
- A law firm (Sweeney, Gallo, Reich & Bolz, LLP) and attorney David Gallo sent a collection letter and commenced a New York City Housing Court summary proceeding alleging unpaid rent.
- The collection letter asserted a debt and provided the FDCPA validation notice giving 30 days to dispute; DiMatteo did not allege he used that dispute procedure before suit.
- The Housing Court complaint included a demand for $750 in attorneys’ fees; defendants later conceded they knew of no agreement or legal basis authorizing such fees.
- District court dismissed all FDCPA and N.Y. Judiciary Law § 487 claims; Second Circuit vacated and remanded limited to the attorneys’ fees claim under the FDCPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the collection letter and Housing Court complaint were deceptive/misleading under FDCPA §1692e (least sophisticated consumer standard) | DiMatteo: communications mischaracterized the dispute as ordinary nonpayment and were misleading | Defendants: statement that debt was owing was accurate or at least not misleading given legal uncertainty and DiMatteo’s knowledge of the dispute | Court: Not deceptive — no obligation to narrate the rent dispute; validation notice sufficed; summary proceeding alone not unfair under §1692f |
| Whether filing the Housing Court action was an unfair or unconscionable means to collect under §1692f | DiMatteo: bringing summary eviction was unfair to collect a disputed debt | Defendants: they gave 30 days to dispute and DiMatteo knew rent had been refused for 14 months | Court: Filing the summary proceeding was not per se unfair or unconscionable on these facts |
| Whether demanding $750 attorneys’ fees in the Housing Court complaint violated FDCPA §§1692f(1) and 1692e(2) | DiMatteo: defendants sought fees with no contractual or legal basis, making the demand unlawful/misleading | Defendants: initially asserted fees but ultimately conceded no agreement or legal authority justified the demand | Court: Vacated dismissal and remanded — plausible FDCPA claim under §1692f(1) because fees were not expressly authorized by agreement or law; no need to resolve §1692e(2) separately |
Key Cases Cited
- Standard Inv. Chartered, Inc. v. Nat’l Ass’n of Sec. Dealers, Inc., 637 F.3d 112 (2d Cir. 2011) (standard of review for motions to dismiss)
- Clomon v. Jackson, 988 F.2d 1314 (2d Cir. 1993) (FDCPA interpreted under the least sophisticated consumer standard)
- Jacobson v. Healthcare Fin. Svcs., Inc., 516 F.3d 85 (2d Cir. 2008) (dual purpose of FDCPA: protect consumers and shield collectors from unreasonable interpretations)
- Easterling v. Collectco, Inc., 692 F.3d 229 (2d Cir. 2012) (discussion of limits on imputing debtor-specific circumstances to least sophisticated consumer test)
- McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939 (9th Cir. 2011) (demand for attorneys’ fees without contractual basis can violate FDCPA)
- Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292 (2d Cir. 2003) (demand for attorneys’ fees did not violate FDCPA where agreement authorized fees)
- Goldman v. Cohen, 445 F.3d 152 (2d Cir. 2006) (actions in furtherance of a lawsuit are not exempt from FDCPA liability)
- Donohue v. Quick Collect, Inc., 592 F.3d 1027 (9th Cir. 2010) (technical falsehoods that mislead no one do not violate FDCPA)