OPINION & ORDER
I. INTRODUCTION
Plaintiffs Mayfield, Millien and Porter bring this action alleging that a debt-buying company, a law firm and associated individuals orchestrated a scheme fraudulently to obtain and enforce consumer debt judgments against them and thousands of similarly situated individuals in state court. Plaintiffs allege that Defendants brought consumer debt lawsuits against them without sufficient evidence to prove the debt, filed fraudulent affidavits in support of their claims, and engaged in “sewer service” so that Plaintiffs never received notice of the suits. When Plaintiffs failed to appear in court, Defendants obtained and enforced default judgments.
Plaintiffs sue on behalf of themselves and all others similarly situated, asserting claims under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1601, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1691, New York General Business Law (“GBL”) § 349, and New York Judiciary Law § 487. Plaintiffs seek damages, injunctive relief and declaratory relief.
Defendants move to compel arbitration, strike class action allegations and dismiss various claims in the Complaint. For the reasons that follow, all of Defendants’ motions are denied.
The allegations in the Complaint are assumed to be tine for the purposes of the motion to dismiss and are as follows:
A. The Parties
Plaintiffs Charlette Mayfield, Claude Millien and Ebony Porter (collectively, “Plaintiffs”) allege that Defendants conspired fraudulently to obtain and enforce consumer debt judgments against them. (Compl. ¶¶ 3-4.) Between 2005 and 2007, each named Plaintiff was sued by Defendants in New York City Civil Court to collect on alleged defaulted AT & T Wireless accounts. (Id. 171, 173, 235, 237, 299, 301.) Mayfield and Millien never had accounts with AT & T Wireless, and Porter did not owe any money to AT & T Wireless. (Id. ¶¶ 185, 248, 298, 312.)
None of the named Plaintiffs was notified of the actions until years after default judgments were entered against them. (Id. ¶¶ 169-171, 195, 211, 234-35, 256, 298-, 99, 322.) Millien and Porter only became aware of the judgments in 2013 when they learned their employers were garnishing their wages. (Id. ¶¶ 234, 298.) Plaintiffs bring this class action on behalf of all victims and potential victims of the alleged scheme — that is, all those who have been sued or may be sued by Defendants in New York City Civil Court to collect alleged AT & T Wireless debts. (Id. ¶ 156.)
Defendants are a debt-buying company, a law firm that specializes in debt collection, and individuals affiliated with the scheme alleged in the Complaint.
Defendants Asta Funding, Inc. (“Asta”), and Palisades Collection, LLC (“Palisades”), .a wholly-owned subsidiary of Asta, are in the business of purchasing and collecting dеfaulted consumer debts. (Id. ¶¶ 2, 10-12.) Asta and Palisades are led by Defendant Gary Stem (“Stern”), President, CEO and Chairman of the Board of Asta. (Id. ¶¶ 2, 13.) Together, along with affiliated individuals, they comprise the “Asta Defendants.” (Id. ¶¶ 10-13.)
Defendants Pressler & Pressler, LLP (“Pressler”) is a law firm regularly engaged in the business of collecting consumer debts on behalf of its clients, including Asta Defendants. (Id. ¶¶ 2, 17.) Defendants Richard A. Franklin, Tin-an A. Wang, Mitchell E. Zipkin and Craig Stiller are attorneys who were at relevant times employed at Pressler and personally engaged in the business of collecting consumer debts on behalf of Asta Defendants. (Id. ¶¶ 18-21.) Along with affiliated individuals, they comprise the “Pressler Defendants.” (Id. ¶¶ 17-24.)
B. The Alleged Scheme
Debt buyers purchase deeply discounted, defaulted debts and then seek to collect the full face value for profit.
In July 2004, Asta Defendants entered into an agreement to batch purchase charged-off debt from AT & T Wireless. (Id. ¶¶ 34-35.) For debts purchased under this agreement, Asta Defendants received
Asta Defendants, through their attorneys at Pressler, devised a strategy to collect on the unsubstantiated debts. Pressler, on behalf of Palisades, filed tens of thousands of mass-generated “verified complaints” against the alleged debtors in New York City Civil Court. (Id. ¶ 63.) All told, Pressler and Palisades filed nearly 60,000 suits between 2005 and 2007. (Id. ¶ 158.) The same week they sued Plaintiff Mayfield, Defendants sued over 1,200 others in New York City. (Id. ¶ 172). Defendants supported thesе actions with fraudulent Affidavits of Fact, signed by employees of Palisades, attesting to their “personal knowledge” of facts and circumstances surrounding the alleged debt when in fact they did not have access to documents substantiating the debt. (Id. ¶¶ 114-22.) Pressler Defendants ' also swore they were “in possession of the salient papers in connection with the action” and had verified the information in the complaint. (Id. ¶ 71-79.)
The vast majority of alleged debtors did not appear in court to defend themselves because they never received notice of the actions against them. (Id. ¶¶ 92-94.) Pressler retained process serving agencies known to engage in “sewer service” — filing fraudulent affidavits of service where no service had been made. (Id. ¶¶ 81-84, 91-104.) In 2007, only 6% of those sued by Pressler appeared in court. (Id. ¶ 92.) When allеged debtors failed to appear, the court issued default judgments against them. (Id. ¶¶ 103-04, 127.)
After securing default judgments, Defendants proceeded to garnish Plaintiffs’ wages, restrain their bank accounts, and impair their credit histories, resulting in the denial of specific credit opportunities including mortgages for their homes. (Id. ¶ 130, 169, 229-32, 293-96, 348-50.) Plaintiffs incurred litigation costs and suffered emotional distress on account of the fraudulent suits. (Id.) Defendants harassed and aggressively opposed those who sought to vacate the improperly obtained judgments. (Id. ¶¶ 214-20; 222-23; 225-26; 228; 278-84; 286-93; 340-43; 347.) If an alleged debtor succeeded in having the judgment vacated and insisted on proceeding to trial, Defendants would either admit that they were unprepared for trial or press for a settlement. (Id. ¶¶ 149-53, 228, 292.)
C. Procedural History
This is a successor action to Bernhart v. Asta Funding, Inc., 13 Civ. 2935(RPP), which alleged the same schemе by Asta and Pressler Defendants as the instant Complaint. After Judge Robert P. Patterson, Jr. denied Defendants’ motions to compel arbitration, to dismiss, and for related relief, the four named plaintiffs and Defendants reached a settlement, and Bernhart was dismissed, without prejudice to claims on behalf of the putative class. Plaintiffs Mayfield, Millien and Porter were members of the putative class in Bernhart. They filed this action on April 11, 2014 on behalf of themselves and similarly situated individuals.
On July 7, 2014, Asta Defendants filed a motion to compel arbitration and for relat
III. DISCUSSION
Defendants move to compel arbitration, strike class action allegations, and dismiss the RICO, FDCPA, and state law claims.
A. Motion to Compel Arbitration
“Arbitration is a matter of contract.” Howsam v, Dean Witter Reynolds, Inc.,
In Bernhart, Judge Patterson denied Defendants’ nearly identical motion on two grounds. (Order, Bernhart (“Bernhart Denial Order”) at 1, Dec. 16, 2013, ECF No. 63.) First, the Court held that Defendants failed to meet their burden because they “ha[d] not identified the arbitration agreements that mandate arbitration” for the named Plaintiffs. (Tr. of Oral Arg., Bernhart (“Bernhart Tr.”) at 47:15-17, Dec. 12, 2013, ECF No. 60.) Defendants did not produce any contracts bеtween any Plaintiff and any Defendant or between any Plaintiffs and AT & T Wireless. (Bernhart Tr. at 4:3-6.) Instead, Defendants offered only sample contracts between non-parties and AT & T Wireless and asked the Court to infer that Plaintiffs were bound by similar clauses. (Asta Mem. in Supp. of Mot. to Compel, Bernhart, at 3-4, ECF No. 28; Decl. of Karen F. Lederer, Exs. 1-4, Sept. 4, 2013.)
Defendants’ motion to compel arbitration fails for the same reasons today. After Bemhart, Defendants subpoenaed AT & T. Far from producing Plaintiffs’ alleged contracts, known as “Welcome Guides,” “[i]n response, an AT & T representative attested that ... AT & T has destroyed all Welcome Guides and customer records from 2001 and 2002,” the years the named Plaintiffs allegedly opened accounts with AT & T. (Asta Mem. at 2.) Lacking the contracts at issue in this case, Defendants submit eightеen sample contracts between non-parties and AT & T Wireless. Defendants’ submission is supplemented only by a declaration from an AT & T employee, Mr. Don Van Hise, who attests that Welcome Guides from 2001-2002 “governed the contractual relationship between AT & T ... and its customers” and contained a provision requiring customers to bring disputes against AT & T or its assignees through arbitration. (Asta Mem. at 2; Van Hise Decl. ¶¶ 2-4.) Notably, Mr. Van Hise’s declaration never descends from this level of generality. He does not attest to any Plaintiffs alleged status as an account holder, and he does not purport to have personal knowledge of Plaintiffs’ alleged accounts or the terms and conditions that governed them.
In other words, Mr. Van Hise’s declaration does nothing to cure Defendants’ primary evidentiary deficiency on this motion: Defendants have still not produced any contracts between any Plaintiff and AT & T or any other admissible and probative evidence to establish that these Plaintiffs entered into binding agreements to arbitrate with AT & T.
The Second Circuit has declined to compel arbitration where the moving party submitted far more compelling evidence of an agreement to arbitrate than Defendants have submitted here. In Opals on Ice Lingerie v. Bodylines Inc.,
Here, Defendants submit only sample agreements of non-parties; they have not produced a single word of a contract between any Plaintiff and AT & T Wireless. Moreover, the eighteen sample arbitration agreements are not identical, and Defendants have not proved or even identified which set of terms apрlies to any Plaintiff. One sample contract provides that the costs of arbitration will be divided equally between the customer and AT & T for all claims over $200 (J. Berman Decl. Ex. 11 at 25), whereas another limits the customer’s arbitration fees to the equivalent of a court filing fee for all claims under $75,000. (J. Berman Deck Ex. 13 at 13.) Even if Defendants had demonstrated that Plaintiffs’ alleged agreements to arbitrate existed, such agreements would be unenforceable because Defendants have failed to prove their terms. Dreyfuss.
As Judge Patterson recognized in Bemhart, there is an alternative basis for denying the motion to compel arbitration. Each of the eighteen sample agreements expressly provides that “you or we may choose to pursue claims in court if the claims relate solely to the collection of any debts you owe us.” (J. Berman Ex. 4 at 35.) In Bernhart, Judge Patterson held that this clause allows Plaintiffs to bring this class action in a court of law because “Plaintiffs’ action relates solely to the Defendants’ debt collection practices.” (See Bemhart Denial Order at 1-2.) Defendants present no concrete basis for reconsidering Judge Patterson’s conclusion, other than to suggest that he did not give sufficient weight to the word “solely” аnd to cite eleven state and federal cases that have enforced the arbitration clause in AT & T’s Welcome Guides. (Asta Mem. at 4, 14.) However, these cases are not on point — none of them involved debt collection and none of them considered whether the exception for matters related to debt collection applied. The Court finds no reason to depart from Judge Patterson’s reading of the sample arbitration clause and holds, as in Bernhart, that the exception for claims that “relate solely to the collection of any debts [Plaintiffs] owe [AT & T]” would allow Plaintiffs to bring the present class action in a court of law because Plaintiffs’ claims relate solely to Defendants’ collection of debts allegedly owed to AT & T Wireless.
Thus, for the same reasons in Bemhart, Defendants’ motion to compel arbitration is denied.
B. Motion to Strike Plaintiffs’ Class Allegations
Defendants contend that all Welcome Guides in 2001 and 2002 contained a class action waiver and that anyone who entered into wireless contracts with AT & T during 2001 and 2002 would have waived his or her right to pursue their claims on a class or consolidated basis. (Asta Mem. at 9; see Van Hise Deck ¶ 4.) Defendants pro
“Motions to strike are generally looked upon with, disfavor.” Ironforge.com v. Paychex, Inc.,
Defendants contend that, by including class members who had accounts with AT & T, “on its face, Plaintiffs have defined a class that contains individuals who are barred from participating in class actions.” (Asta Reply at 4.) This hypothetical fails to satisfy Defendants’ burden for two reasons. First, it assumes that Defendants can prove Plaintiffs not only had accounts with AT & T, but also that they waived their class action rights and established a “meeting of the minds on all essential terms” of any such waiver. Opals on Ice Lingerie v. Bodylines Inc.,
Second, even if Defendants can ultimately prove that individual Plaintiffs waived their class action rights, the mere possibility of individualized defenses will not preclude certification of a class where common questions of law or fact predominate over questions affecting individual class members. See Sykes v. Mel S. Harris & Associates LLC,
C. Motion to Dismiss Plaintiffs’ RICO Claims
Defendant Asta moves to dismiss Plaintiffs’ RICO claims on three separate grounds. Defendants contend that (1) the alleged “litigation misconduct” is insufficient, as a matter of law, to establish predicate acts for RICO liability;
i. Plaintiffs Sufficiently Plead Predicate Acts For RICO Liability
Defendants first contend that the sole basis for Plaintiffs’ RICO claim is that Defendants committed mail and wire fraud by filing fraudulent court documents and sending them through the mail. Defendants maintain that these alleged acts of litigation misconduct are insufficient, as a matter of law, to constitute “predicate acts” under RICO.
To establish a civil RICO violation, a plaintiff must show that he was injured by defendants’ “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., Inc.,
A complaint alleging mail and wire fraud as the predicate acts of a RICO claim must show: “(1) the existence of a scheme to defraud; (2) defendant’s knowing or intentional participation in the scheme; and (3) the use of interstate mails or transmission facilities in furtherance of the scheme.” S.Q.K.F.C., Inc. v. Bell Atl. Tricon Leasing Corp.,
As described above, Plaintiffs have alleged a broad scheme to defraud tens of thousands of New Yorkers by fraudulently obtaining default judgments against them in state court. In furtherance of the scheme. Defendants are alleged to have used the interstate mails and wires on numerоus occasions, including but not limited to mailing summonses, complaints, judgment notices, affirmations in opposition to orders to show cause, notices of garnishment and at least one letter refusing to stop garnishing wages. (Compl. ¶¶ 374-77.) Although use of the mails in furtherance of a scheme to defraud is sufficient to state a claim under RICO, Plaintiffs allege that many of the mailings themselves contained false or misleading representations, including fraudulent affidavits of facts, fraudulent affidavits of service, and falsely “verified” complaints. (Id. ¶¶ 372-74.)
Notwithstanding the fact that these allegations appear to establish the elements of
Given this precedent, the Court declines to fashion a judge-made exception to RICO liability for litigation activities. “RICO is to be read broadly” and should be “liberally construed to effectuate its remedial purposes.” Sedima,
ii. Plaintiffs Plead RICO with Particularity as to Defendants Asta and Stern
Under Rule 9(b), Plaintiffs are required to plead RICO claims with particularity. Fed.R.Civ.P. 9(b). In cases where the plaintiff allеges the mails and wires were used “in furtherance of a master plan to defraud,” Rule 9(b) is satisfied if the complaint contains “a detailed description of the underlying scheme and the connection therewith of the mail and/or wire communications.” In re Sumitomo Copper Litig.,
Rule 9(b) does not require Plaintiffs to allege a “specific connection between fraudulent representations ... and particular defendants ... where ... defendants are insiders or affiliates participating in the [allegedly fraudulent conduct] in question.” DiVittorio v. Equidyne Extractive Indus., Inc.,
Asta asserts that Plaintiffs plead “a litany” of allegedly fraudulent misconduct by Pressler, but plead nothing about Asta other than that Asta and Pressler developed and implemented Pressler’s litigation strategy. (Asta Mem. at 18-19; Compl. ¶ 48.) According to Asta, the other acts they allegedly committed — buying debt, retaining counsel and obtaining judgments — were innocuous, ordinary and proper conduct that Plaintiffs imbue with a “sinister cast” by including them alongside the allegations against Pressler. (Asta Mem. at 20.) Asta adds that there are no allegations against Gary Stern, CEO of Asta, other than that actions were taken “at his direction.” (Astа Mem. at 19 n. 12.) Asta maintains that this “group pleading” is insufficient as a matter of law to state a claim against Asta under RICO. (Id. at 19.)
The Complaint contains numerous specific allegations of Asta’s involvement in the scheme underlying the RICO claim, and Asta’s actions, as alleged, are hardly “innocuous.” Plaintiffs allege that Asta devised and executed the scheme (Compl. ¶ 2), purchased the debts without the documentation required to substantiate them (Id. ¶¶ 34-42), retained Pressler to collect on the debts (Id. ¶¶ 47-50), helped Pressler devise a litigation strategy (Id.), served as plaintiff in the suits Pressler brought (Id. ¶¶ 52, 54, 56, 68), and furnished Pressler with fraudulent affidavits — signed by Asta’s employees — for use in the litigation (Id. ¶¶ 114-22). Regarding Mr. Stern, Plaintiffs allege that the legal scheme was his idea and that he personally “orchestrated, supervised, and monitored” it. (Id. ¶¶ 3, 43-44, 359-60, 365.) These allegations sufficiently “inform [Asta and Stern] of the nature of [their] alleged participation in the fraud.” Angermeir,
iii. Plaintiffs Plead the Existence of an Enterprise
Asta Defendants contend that Plaintiffs have failed adequately to plead the existence of an enterprise. A RICO enterprise is broadly defined as “a group of persons associated together for a common purpose of engaging in a course of conduct,” United States v. Turkette,
Plaintiffs have sufficiently pleaded the existence of a RICO enterprise. The Complaint alleges the Defendants were associated together for the common purpose of securing default judgments in debt collection actions through fraudulent means. The Complaint details the actions of each of the Defendants in furtherance of the scheme and describes their relationships to each other. Plaintiffs allege that Asta, at Stern’s direction, conceived the “legal strategy” underlying the alleged scheme and directed the purchase of the debts from AT & T. (Compl. ¶¶2, 3, 34-35.) Palisades Collection, a subsidiary of Asta,
D. Motion to Dismiss the GBL Claim for Failure to State a Cause of Action
Pressler Defendants move to dismiss Count IV for failure to state a cause of action under New York General Business Law § 349. Section 349 prohibits “[deceptive acts or practices in the сonduct of any business, trade or commerce or in the furnishing of any service in this state.” N.Y. Gen. Bus. L. § 349(a). “To maintain a cause of action under § 349, a plaintiff must show: (1) that the defendant’s conduct is ‘consumer oriented’; (2) that the defendant is engaged in a ‘deceptive act or practice’; and (3) that the plaintiff was injured by this practice.” Wilson v. Nw. Mut. Ins. Co.,
Courts construe the consumer-oriented requirement liberally. New York v. Feldman,
Defendants argue that the alleged fraudulent activities were not “consumer-oriеnted” in that they were directed at the court and at Plaintiffs’ employers, rather than at the consumers themselves. (See, e.g., Pressler Mem. at 15-16 (“The only allegedly deceptive statements that resulted in any loss for Plaintiff Millien were directed at the court (i.e. complaint, affidavit of fact and affidavit of service) or his employer (i.e. execution notice).”).) This parsing of the statutory language is unavailing. The Complaint alleges that Defendants brought fraudulent debt collection lawsuits against thousands of New York consumers. (Compl. ¶¶ 51-60.) Passing fraudulent communications through the court en route to consumers does not cleanse Defendants of liability under § 349. See, e.g., Sykes v. Mel Harris & Associates, LLC,
E. Motion to Dismiss Claims Against the Individual Defendants
Pressler moves to dismiss the GBL and FDCPA claims as to the individual Defendant employees of Pressler.
i. GBL Claims
Pressler contends the GBL claim should be dismissed as to the individual defendant employees of Pressler because “employees of a law firm cannot be held liable for violations of Gen. Bus. Law § 349 by their employer.” (Pressler Mem. at 17.)
Pressler misconstrues the nature of Plaintiffs’ claim. Plaintiffs are not holding individual defendants liable by virtue of their employment; rather, their individual liability arises from their own conduct that violates the GBL. A corporate employee or officer who himself “participates in a tort, even if it is in the course of his duties, may be held individually responsible.” Nat’l Survival Game, Inc. v. Skirmish, U.S.A., Inc.,
This Court has already found that the Complaint sufficiently states a claim under § 349. Thus, the inquiry is whether Plaintiffs have sufficiently pleaded the individual Defendants’ personal involvement in prohibited conduct. Plaintiffs allege that Defendants Franklin and Wang verified and filed complaints against class members without sufficient review. (Compl. ¶¶ 175-81, 239-44.) For example, Franklin is alleged to have falsely stated, on pain of perjury, that he was “in possession of the salient papers in connection with the action” against Mayfield, when in fact he did not have access to Mayfield’s alleged account agreement, terms and conditions, account application, signed con-, tract, original billing statements, payment records or dispute history at the time he verified the complaint. (Id. ¶¶ 175-81.) Wang is alleged to have made identical misrepresentations in the action against Millien. . (Id. ¶¶ 239—44.) Plaintiffs also allege that Franklin signed and submitted an application for default judgment supported by fraudulent affidavits. (Id. ¶¶ 199-201.) When alleged debtors sought to vacate improperly obtained default judgments, Plaintiffs allege that Defendants filed fraudulent oppositions to orders to show cause supported by false affirmations signed by Defendant Zipkin. (Id. ¶¶ 141, 214-20, 278-84.) Those who succeeded in vacating the judgments against them were met with further harassing litigation practices, such as legally improper interrogatories and notices to admit facts reasonably known to be in dispute at trial, signed by Zipkin or Stiller. (Id. ¶¶ 145-48, 151, 222-26, 286-90.)
Plaintiffs have sufficiently pleaded the individual Defendants’ personal participation in deceptive business practices prohibited by the GBL. Defendants’ motion to dismiss the GBL claims is denied.
ii. FDCPA Claims
Pressler also moves to dismiss the FDCPA claims as to the Individual Defendants. The FDCPA was enacted “to eliminate abusive debt collection practices by debt collectors.” 15 U.S.C.A. § 1692(e). The FDCPA prohibits a wide range of abusive actions, including “false or misleading representations ... in connection with the collection of any debt,” ,“us[ing] unfair or unconscionable means to collect or attempt to collect any debt,” and engaging in “any conduct the natural conse
Pressler contends that the “question of liability of employees of a debt collector for violations of the FDCPA has not been answered in the Second Circuit.” (Pressler Mem. at 17-18). Once again, Defendants either misread the law or Plaintiffs’ allegations that Individual Defendants personally participated in activities prohibited by the FDCPA. The FDCPA explicitly extends liability to any “person” who violates the Act. 15 U.S.C. § 1692a(6). As with liability under the GBL, courts within this Circuit have routinely found that employees of debt collectors can be held liable where they personally participate in conduct that violates the FDCPA. See Clomon v. Jackson,
As discussed previously, the Complaint alleges in detail the personal involvement of the individual defendants in thе alleged scheme to collect debts through fraudulent means. The FDCPA claims against the individual defendants are proper and the motion to dismiss is denied.
F. Motion to Dismiss Counts II, III, IV and V as to Plaintiff Mayfield for Lack of Adequately Pleaded Damages
Pressler seeks to dismiss Plaintiffs’ RICO, GBL and New York Judiciary Law claims as to Plaintiff Mayfield on the basis that Plaintiffs failed adequately to plead damages.
The Complaint includes various allegations of specific injuries sustained by Plaintiff Mayfield. Mayfield first learned of the judgment against her in 2013 when her employer received an order directing it to withhold Mayfield’s wages. (Compl. ¶ 169.) At around the same time, Mayfield was denied a mortgage due to her negative credit history, which included the Palisades Collection judgment that had stained her credit report, unbeknownst to her, since 2007. (Id. ¶ 169.) Mayfield also incurred costs and suffered stress and emotional distress defending the fraudulent lawsuit. (Id. ¶ 232.) In order to have the judgment vacated and the lawsuit dismissed, Mayfield had to travel to the courthouse for appearances and filings on multiple occasions over the course of five months. (Id. ¶¶ 229-30.) Each time, she missed work, expended personal days and incurred transportation costs. (Id. ¶¶ 229-30.)
These injuries constitute “[i]njury to business or property” sufficient to sustain a RICO claim. 18 U.S.C. § 1962(c); see, e.g., Sykes v. Mel Harris & Associates, LLC,
Plaintiffs’ injuries are also sufficient under the GBL. See, e.g., Midland Funding, LLC v. Giraldo,
Finally, Plaintiffs have adequately pleaded damages under the New York Judiciary Law, which grants a cause of action to any party “injured” by deceptive practices. N.Y. Jud. Law § 487; Amalfitano v. Rosenberg,
Plaintiffs have adequately pleaded damages as to all counts. Defendants’ motion to dismiss on this ground is denied.
IV. CONCLUSION
For the foregoing reasons, all of Defendants’ motions [ECF Nos. 29-36] are denied. Counsel shall appear for a conference on April 14, 2015 at 10:00 AM.
SO ORDERED.
Notes
. In 2013, the Federal Trade Commission reported its concern with the growth of the debt-buying industry. (Compl. ¶ 32.) ”[D]ebt buyers [] may have insufficient or inaccurate information when they collect on debts, which may result in collectors seeking to recover from the wrong consumer or recover the wrong amount.” (Id.) ”[T]he sufficiency and accuracy of the information used in the collection of debts remains a significant consumer protection concern.” (Id.)
. In addition to the arguments addressed below, Pressler Defendants moved to dismiss the FDCPA claims, and all claims as to Plaintiff Porter, on the theory that they are time-barred by statutes of limitations. (Pressler Mem. at 9-13.) However, Defendants withdrew these motions at oral argument on October 30, 2014. (Tr. of Oral Arg., at 50-51, ECF No. 44.)
. Although Mr. Van Hise confidently declares, "My name is Don Van Hise. I am the Area Retail Sales Manager at AT & T Mobility,” it appears from the signature page and from information readily available on the internet that Mr. Van Hise may be more accurately characterized as an Area Retail Sales Manager for AT & T Mobility in Springfield, Missouri. See Asta Mem. at 2; Van Hise Decl. ¶¶ 1-4; see also Don Van Hise, LinkedIn (March 16, 2015, 12:16 PM), http://www. linkedin. eom/pub/don-van-hise/76/472/31 a. There is insufficient information in the record to determine the vastness of the "Area” Mr. Van Hise manages, but it is sufficient to note that his declaration lacks any statement of how he is qualified to attest to information concerning accounts opened in New York.
. Pessler joins in this argument. (Pressler Mem. at 5-9.)
. For support, Defendants rely on reasoning applied in an unpublished opinion in the Western District of New York. Snyder v. United States Equities Corp.,
. Defendants only move to dismiss the claims as to Plaintiff Mayfield, however it should be noted that Plaintiffs Millien and Porter have alleged similar harms, as well as pecuniary harm in the form of garnished wages, which is sufficient to plead "injury to ... property” under RICO, See Clark v. Conahan,