Nichols v. FREDERICK J. HANNA & ASSOCIATES, PC
760 F. Supp. 2d 275
N.D.N.Y.2011Background
- Nichols, a Syracuse, NY resident, owed a debt to a creditor other than defendant.
- On May 5, 2010, defendant mailed a debt-collection letter on law firm letterhead with a Georgia address, representing it as representing the creditor.
- No attorney in defendant's firm was licensed to practice law in New York at that time.
- Nichols alleges the letter was misleading by implying defendant could take legal action in New York.
- Defendant moved to dismiss under Rule 12(b)(6); Nichols cross-moved to amend to add a §1692e(5) claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the May 5 letter violated §1692e(3). | Nichols claims the letter falsely implied NY licensure or attorney status. | §1692e(3) bars false attorney representations but allows letters from attorneys licensed elsewhere. | §1692e(3) claim dismissed; no misrepresentation as an attorney. |
| Whether Nichols may amend to add a §1692e(5) claim. | Amendment should be permitted to add §1692e(5) claim. | Amendment would be futile and improperly duplicative. | Amendment denied as futile. |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (pleading must be plausible on its face)
- Greco v. Trauner, Cohen & Thomas, LLP, 412 F.3d 360 (2d Cir. 2005) (view debt collection actions from least sophisticated consumer)
- Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22 (2d Cir. 1989) (imminence of allowed legal action considered from consumer perspective)
- Sluys v. Hand, 831 F. Supp. 321 (S.D.N.Y. 1993) (threats must be imminent; mere possibility insufficient)
- Ellis v. Solomon & Solomon, P.C., 591 F.3d 130 (2d Cir. 2010) (references to potential remedies do not equal threats of litigation)