Wendel v. Mullooly, Jeffrey, Rooney & Flynn, LLP
689 F. App'x 45
| 2d Cir. | 2017Background
- Plaintiff Elaine Wendel allegedly defaulted on a debt to Bank of America; Mullooly, Jeffrey, Rooney & Flynn, LLP sent a one-page debt-collection letter on January 13, 2015.
- Letter stated the firm had been "retained" by the Bank, warned the Bank "may invoke its right to file a lawsuit," included the 30-day dispute/verification notices, and also stated: "At this time, no attorney with this firm has personally reviewed the particular circumstances of your account."
- Wendel sued under the Fair Debt Collection Practices Act (15 U.S.C. § 1692 et seq.), alleging the letter falsely implied attorney involvement in violation of §§ 1692e, 1692e(3), and 1692e(10).
- The district court dismissed the complaint under Fed. R. Civ. P. 12(b)(6); Wendel appealed.
- The Second Circuit reviewed the dismissal de novo, assuming familiarity with the record, and considered whether the disclaimers rendered the letter non-misleading to the least sophisticated consumer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the letter falsely implied meaningful attorney involvement in violation of FDCPA §§ 1692e, 1692e(3), 1692e(10) | "Retained" plus threat of suit and placement of disclaimer mislead consumers into thinking an attorney reviewed the file | The letter contains an explicit disclaimer that no attorney reviewed the account and identifies the sender as a debt collector, so it is not misleading | Affirmed dismissal: disclaimers (including "no attorney has personally reviewed") cure any implication of attorney involvement |
| Whether placement of the disclaimer below the 30-day notice renders it ineffective | Moving the Greco-style disclaimer to a later paragraph buries it and misleads the least sophisticated consumer | The disclaimer is not buried; the short letter can be read in full by the least sophisticated consumer | Placement did not render disclaimer ineffective; consumers can read entire short letter |
| Whether use of the word "retained" and explicit mention that the Bank "may invoke its right to file a lawsuit" create misleading attorney implication | Those phrases are stronger indicators of attorney involvement than words in Greco and thus misleading | Similar or stronger language alone does not overcome explicit disclaimer of attorney review | Word choice and threat of suit do not overcome the explicit disclaimer; no FDCPA violation |
Key Cases Cited
- Greco v. Trauner, Cohen & Thomas, L.L.P., 412 F.3d 360 (2d Cir.) (attorney can send collection letter without being "meaningfully involved" if it contains clear disclaimers)
- Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561 (2d Cir.) (standard of review for Rule 12(b)(6) dismissal)
- Nicosia v. Amazon.com, Inc., 834 F.3d 220 (2d Cir.) (incorporation by reference doctrine for documents integral to complaint)
- JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418 (2d Cir.) (argument waiver for issues not raised in opening brief)