Case Information
‐ ‐ cv Elizabeth K. Cohen & Slamowitz LLP, et al.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE WITH THE NOTATION SUMMARY ORDER ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
At stated term United States Court Appeals Second Circuit, held at Thurgood Marshall United States Courthouse, Foley Square, City New York, th day December, two thousand seventeen. PRESENT: BARRINGTON D. PARKER,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges
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ELIZABETH K. ATWOOD, AKA ELIZABETH KING,
Plaintiff ‐ Appellant ‐ ‐ cv
COHEN & SLAMOWITZ LLP, MITCHELL SELIP,
MITCHELL G. SLAMOWITZ, DAVID A. COHEN,
Defendants ‐ Appellees
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FOR PLAINTIFF ‐ APPELLANT: Mitchell L. Pashkin, Huntington, New York. FOR DEFENDANTS APPELLEES: Mitchell Selip, Selip Stylianou, LLP,
Woodbury, New York. *2 Appeal from the United States District Court for the Eastern District New York (Bianco, J. ).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED the judgment the district court AFFIRMED
Plaintiff ‐ appellant Elizabeth K. appeals entered February 10, dismissing her claims brought pursuant Fair Debt Collection Practices Act (the ʺ ), et seq By order entered March 27, 2015, for reasons stated on record on March 26, 2015, district court granted part defendants ‐ appellees ʹ motion dismiss amended complaint pursuant Federal Rule Civil Procedure 12(b)(6). district dismissed claims except third fourth causes action. By memorandum entered February 2017, denied motion for granted defendants ‐ appellees ʹ on remaining claims. This appeal followed. assume parties ʹ familiarity with underlying facts, procedural history case, issues appeal.
After defaulted debt her account sold Portfolio Recovery Associates, LLC ( ʺ ʺ ), which turn retained defendant ‐ appellee Cohen Slamowitz LLP ) account balance. Defendants appellees Mitchell Selip, Mitchell G. Slamowitz, David A. Cohen are attorneys affiliated with during relevant period. filed consumer *3 against Atwood in state court and obtained default judgment later vacated. Atwood failed appear trial in state court action, but C&S never moved for another default judgment. The state court remained open.
Between and recalled Atwood ʹ s file and obtained new counsel, Foster Garbus F&G ), who attempted on underlying served information subpoenas and restraining notices invoking vacated judgment upon two banks, which subsequently placed holds on Atwood ʹ s accounts. Atwood filed an order show cause vacate liens and on basis state court against her vacated in 2007. Atwood served this order on C&S. responded by informing state court previously released restraints. parties appeared in state court February and, after mistake identified, court granted consent discontinue action. May brought district court. On appeal, argues district court erred by dismissing her second cause action, which alleged response show cause its appearance state February violated 1692e 1692f FDCPA. argues erred by denying her granting favor defendants, dismissing her third fourth causes action.
I. Motion Dismiss review de novo dismissal of a complaint pursuant Federal Rule Civil Procedure 12(b)(6), accepting all factual allegations true drawing all reasonable inferences in plaintiff favor. Biro v. Condé Nast , 807 F.3d 541, 544 (2d Cir. 2015). The complaint must plead ʺ enough facts state a claim relief is plausible its face. ʺ Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007); see Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Although a must accept true factual allegations complaint, requirement does not apply legal conclusions. Iqbal , 556 U.S. at 678.
Section 1692e FDCPA prohibits a debt collector from ʺ us[ing] any false, deceptive, or misleading representation or means connection with collection any debt. ʺ 15 1692e. Section 1692f prohibits a debt collector from ʺ us[ing] unfair unconscionable means or attempt collect debt. ʺ Id. at 1692f. A communication ʺ connection with collection a ʺ falls within FDCPA ʺ if consumer receiving letter could reasonably understand a communication connection with ʺ Hart v. FCI Lender Servs., Inc. , F.3d (2d Cir. 2015). Court evaluates whether communication violates perspective objective least sophisticated consumer. ʺ Eades Kennedy, PC Law Offices F.3d (2d Cir. 2015) (quoting Easterling Collecto, Inc. F.3d (2d Cir. 2012)).
We conclude that Atwood ʹ s second cause of action fails to state a plausible claim. C&S ʹ s response to ʹ s to vacate liens and restraints was not an attempt collect a debt and there no plausible FDCPA claim. [1] C&S ʹ s response conceded the been vacated and stated that PRA had released prior restraints ʹ s bank accounts. Moreover, the response stated that although PRA believed released, if was mistaken it would release accounts still being restrained. Even least sophisticated consumer would not have interpreted this response and an appearance agreeing with consumer ʹ s position an attempt a Therefore, second cause of action properly dismissed.
II. Summary Judgment her third fourth causes of action, alleged took failed take action in state court proceedings purportedly constitute violations of FDCPA, including failing inform about failure seek a an inquest clerk. argues 2005 state dismissed by operation of law, ʺ App. at therefore (1) ʹ appearance continuing efforts state proceedings, (2) failure inform PRA or that the case would be deemed closed and that any new would be time barred, violated because statute of limitations had expired, citing cases holding that it is violation of 1692e file lawsuit after expiration limitations. See, e.g., Phillips Asset Acceptance, LLC , 736 F.3d 1076, 1079 (7th Cir. 2013). district granted judgment dismissing these claims. review grant . . . judgment de novo , accepting as true factual allegations . . . complaint[] drawing inferences based upon these
allegations light most favorable . plaintiff[]. ʺ re Bank N.Y. Derivative Litig. 320 F.3d 291, 297 (2d Cir. 2003) (alteration original) (citation omitted). Summary judgment is appropriate only if it can established that ʹ there is no genuine issue any material fact moving party entitled matter law. ʹʺ Alibrandi Fin. Outsourcing Servs., Inc. F.3d 82, (2d Cir. 2003) (quoting Fed. R. Civ. P. 56(c) (citation internal quotation marks omitted)).
As concluded, uncontroverted evidence showed informed PRA vacated, there no false representation failure communicate character, amount or legal status ʺ 1692e(2)(A). informed PRA vacated November again on January 2007. informed on November sent letters bank institutions release *7 Atwood ʹ s bank accounts. Atwood stipulated to these facts. Atwood has not cited any authority proposition that C&S had an obligation under to inform PRA or F&G that it failed to seek an inquest or that action would deemed abandoned under N.Y. C.P.L.R. 3215(c), we are not persuaded that C&S had any such obligation. ʹ s argument there was dismissal by operation law ʺ
fails. case could have been dismissed or ʹ s own initiative pursuant to N.Y. C.P.L.R. 3215(c), but case had not been dismissed when C&S responded show cause. As case remained pending, ʹ s argument acted outside statute limitations period fails. Moreover, discussed above, response merely advised all had been lifted ‐‐ hardly an effort Finally, argument should have informed either new legal would fall outside statute limitations period fails because F&G, competent counsel, information it needed understand although case not closed, failure seek second default rendered impossible pursue further. Hence, not entitled did not err awarding defendants. . have considered remaining arguments fi nd them without merit. Accordingly, we AFFIRM court.
FOR THE COURT: Catherine O Hagan Wolfe, Clerk
[1] assume without deciding communications made within a lawsuit, such as, for example, a response an show cause, can be basis for a violation FDCPA. Compare Carlin Davidson Fink LLP F.3d (2d Cir. 2017) Congress amended clarify [a] communication form formal pleading a civil shall not treated an initial communication purposes subsection (a) section. ʹ 1692g(d). ) with Ellis Solomon Solomon, P.C. F.3d (2d Cir. 2010) (explaining possibility violation 1692g when collector initiates lawsuit during debt validation period).