Iyamu v. Clarfield, Okon, Salomone, & Pincus. P.L.
950 F. Supp. 2d 1271
S.D. Fla.2013Background
- Plaintiff Tunde Julius Iyamu sued Clarfield, Okon, Salomone & Pincus, P.L. and attorney Kenneth L. Salomone under the FDCPA for a January 16, 2012 demand letter about a One Main Financial debt.
- The letter replaced the statutory phrase “the debt will be assumed to be valid by the debt collector” with “the debt will be assumed valid by the creditor.”
- Plaintiff alleged this replacement was deceptive under the FDCPA and sought statutory damages and class certification under Rules 23(b)(2) and 23(b)(3).
- Defendants moved to dismiss, arguing the letter was not misleading, plaintiff failed to plead Salomone’s individual liability, and the class allegations were legally insufficient.
- The Court treated the complaint’s allegations as true for the motion-to-dismiss standard and denied the motion in full.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substituting “creditor” for “debt collector” in the validation notice violates the FDCPA by misleading the least-sophisticated consumer | The replacement is deceptive because it may lead consumers to believe the creditor (not the debt collector) will assume the debt is valid | The wording is not misleading and does not violate the FDCPA | The court held the change could mislead the least-sophisticated consumer and denied dismissal on the FDCPA claim |
| Whether Salomone can be individually liable under the FDCPA without veil-piercing allegations | Iyamu alleged Salomone is a debt collector who regularly collects debts; that suffices at pleading stage | Defendants argued plaintiff must pierce the corporate veil or otherwise plead more specific facts tying Salomone to collection activity | The court held veil-piercing is not required for FDCPA liability of attorneys and that the complaint’s allegation that Salomone is a debt collector is sufficient to survive dismissal |
| Whether the class-action allegations can be dismissed now for failing to meet local and Rule 23 requirements | Plaintiff pled class-wide conduct and sought declaratory relief under Rule 23(b)(2); discovery has just begun | Defendants argued class allegations fail local rule requirements and that 23(b)(2) is inapplicable because declaratory relief was not properly alleged | The court found it premature to dismiss the class claims and reserved class-certification challenges for later proceedings |
Key Cases Cited
- Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211 (11th Cir. 2012) (FDCPA prohibits false, deceptive, or misleading debt-collection practices)
- LeBlanc v. Unifund CCR Partners, 601 F.3d 1185 (11th Cir. 2010) (use of least-sophisticated-consumer standard to evaluate misleading notices)
- Heintz v. Jenkins, 514 U.S. 291 (1995) (lawyers who regularly collect consumer debts fall within the FDCPA definition of debt collector)
- Clomon v. Jackson, 988 F.2d 1314 (2d Cir. 1993) (collection notices are deceptive if open to a misleading reasonable interpretation)