Shetiwy v. Midland Credit Management
Shetiwy v. Midland Credit Management
Opinion of the Court
OPINION AND ORDER
I. INTRODUCTION
Plaintiffs are eight individuals who claim that defendants obtained tens of thousands of state court debt collection judgments against them using false affidavits, misleading evidence, and other improper litigation tactics. Defendants consist of two groups: creditors or their affiliates (“Creditor Defendants”);
In their Second Amended Complaint (“SAC”), plaintiffs request injunctive relief and damages based on a wide variety of legal theories, including: (1) the Racketeer Influenced and Corrupt Organizations Act (“RICO”); (2) the Fair Debt Collection Practice Act (“FDCPA”); (3) unjust enrichment; (4) intentional infliction of emotional distress; (5) Section 349 of the New York General Business Law; and (6) Section 487 of the New York Judiciary Law.
Defendants now move to dismiss plaintiffs’ claims with prejudice under Rule 12(b)(6) and to strike the class allegations under Rule 12(f).
II. BACKGROUND
A. Procedural History
Plaintiffs filed their initial Complaint on September 19, 2012 and their First Amended Complaint (“FAC”) on December 6, 2012. The FAC was filed by fifteen individuals purporting to sue on behalf of all “unknowledgeable citizens” in the United States who “were brought to Court and had their money taken (stolen) from them using illegal tactics — under the cover of so-called legality of process.”
The FAC alleged that twenty defendants — nine Creditor Defendants and eleven Debt Buyer Defendants — conspired to collect debts through “fraudulently obtained judgments of default” in state courts throughout the country.
On July 12, 2013, I granted a motion by four Creditor Defendants to compel arbitration and stay all remaining proceedings against them pending the completion of that arbitration.
[The SAC] must comply in full with Rule 8 and Rule 9(b), as well as Rule 11, which prohibits frivolous legal arguments and sets minimum standards for factual contentions. If plaintiffs’ [SAC] displays the confused, unintelligible, argumentative, speculative, or rambling qualities of plaintiffs’ [FAC], the [SAC] will be dismissed without leave to amend.14
B. The Second Amended Complaint
On October 18, 2013, eight of the original plaintiffs filed the SAC, asserting putative class action claims against three Creditor Defendants and seven Debt Buyer Defendants. Although plaintiffs have abandoned several of their legally invalid claims, the bulk of the SAC remains identical to the FAC.
As with the FAC, the factual allegations and legal arguments in the SAC are difficult to discern. In plaintiffs’ words, “[e]very allegation is based upon the perjury by the conspiracy group’s attorneys when they falsely swore to documents (Complaints) as being true when ... they had no knowledge as to the truth to which they were swearing.”
Finally, plaintiffs still seek to certify a class consisting of “[a]ll persons in the United States who ... were brought to Court and had their money taken (stolen) from them using illegal tactics — under the cover of so-called legality of process.”
III. LEGAL STANDARD
A. Motion to Dismiss
In deciding a motion to dismiss under Rule 12(b)(6), the court must “ ‘accept[ ] all
Under the second prong, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”
B. Pleading Requirements
1. Rule 8
Under Rule 8, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” “Such a statement must ... ‘give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.’ ”
2. Rule 9(b)
“All claims sounding in fraud — including those under RICO — must comply with Rule 9(b)’s heightened pleading standard.”
A. RICO
RICO provides a private right of action for treble damages for a “person injured in his business or property by reason of a violation of section 1962.”
An enterprise “is an entity separate and apart from the pattern of activity in which it engages” and must be proven separately.
A “pattern of racketeering activity” must include at least two predicate acts of racketeering within ten years of each other.
In addition to an “enterprise” and a “pattern of racketeering activity,” section 1962(c) requires the plaintiff to allege that each defendant participated in the “operation or management” of the enterprise.
B. FDCPA
In enacting the FDCPA, Congress sought to “eliminat[e] abusive practices in the debt collection industry, and ... en
Further, section 1692e of the FDCPA prohibits debt collectors from using any “false, deceptive, or misleading representation or means in connection with the collection of any debt.” The provision provides a non-exhaustive list of examples of conduct that violates the FDCPA, including “[t]he false representation of (A) the character, amount, or legal status of any debt; or (B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.”
Finally, section 1692f prohibits the use of “unfair or unconscionable means to collect or attempt to collect any debt.” Prohibited acts include but are not limited to: (1) “the solicitation ... of any ... postdated payment instrument for the purpose of threatening or instituting criminal prosecution;” and (2) “[c]ausing charges to be made to any person for communications by concealment of the true purpose of the communication.”
V. DISCUSSION
A. The RICO Claim
Plaintiffs claim that defendants violated sections 1962(a) and 1962(c) of the RICO statute.
When I dismissed the FAC, I noted that “[a]bove all, plaintiffs’ conclusory allegations fail to make any concrete factual assertions as to the mechanics of the interactions among defendants.”
In the alternative, plaintiffs allege that each defendant is also an enterprise unto itself.
Nor have plaintiffs alleged a pattern of racketeering activity. Plaintiffs recite a number of predicate acts: (1) obstruction of justice, (2) obstruction of state law with the intent to facilitate an illegal gambling business, (3) bank fraud, (4) mail fraud, and (5) wire fraud.
First, plaintiffs rely on statutes that do not constitute predicate acts under the RICO statute. Obstruction of justice as a predicate act applies only to obstruction of justice in federal proceedings, but the SAC alleges misconduct in state court debt collection proceedings.
Plaintiffs’ mail and wire fraud claims are also unavailing. Both are based on defendants’ allegedly fraudulent litigation tactics in state debt collection proceedings.
B. The FDCPA Claim
Plaintiffs next allege that the “civil conspiracy group” violated sections 1692e and 1692f of the FDCPA by “making false and misleading representations and engaging in unfair and abusive practices.”
In response, plaintiffs point to the attorney affidavit of George Bassias, which states that each plaintiffs “debt” came from his or her personal expenses.
Moreover, even if plaintiffs had asserted the existence of a “debt,” the SAC includes no facts to support their claims under section 1692e or 1692f. Section 1692e prohibits the use of “false, deceptive, or misleading representations” to collect a debt. Section 1862f prohibits use of “unfair or unconscionable means” to collect or attempt to collect a debt. The SAC includes recitations of the legal elements of an FDCPA claim and blanket conclusions that Debt Buyer Defendants violated these sections. Plaintiffs contend that:
the entire [SAC] is based upon — only one premise and one premise only — and that being that the Debt Buyers sent their attorneys into court with perjured documents and who then falsely testified that they knew the contents of what they were presenting to the court when they had no knowledge of the papers*447 that they were presenting to the court.76
This general refrain is repeated throughout the SAC but never with sufficient factual support to state a plausible claim.
In addition, plaintiffs allege that Debt Buyer Defendants filed complaints and affidavits without “personal knowledge” of the underlying debt.
The mass filing of form affidavits and other submissions containing false or deceptive representations may — under certain circumstance — give rise to an actionable FDCPA claim.
C. State Law Claims
“[A] district court ‘may decline to exercise supplemental jurisdiction over a claim’ if it ‘has dismissed all claims over which it has original jurisdiction.’ ”
VI. CONCLUSION
For the foregoing reasons, defendants’ motion is granted. The Clerk of the Court is directed to close defendants’ motion [Dkt. No. 119] and this case.
SO ORDERED.
. Creditor Defendants are (1) Bank of America, N.A., (2) FIA Card Services, N.A., and (3) Chase Bank, N.A. See Memorandum of Law in Support of Defendants’ Motion to Dismiss the Second Amended Complaint and Strike Class Allegations ("Def. Mem.”) at 1 n. 1.
. Debt Buyer Defendants are (1) Associated Recovery Systems, (2) CACH LLC, (3) Calvary Portfolio Service LLC, (4) Equable Ascent Financial LLC, (5) LVNV Funding LLC, (6) Midland Credit Management, and (7) Portfolio Recovery Associates LLC. See id.
.See SAC ¶¶ 154-256. Plaintiffs erroneously plead several requests for relief as additional "causes of action.” These include “Punitive
. See id. ¶¶ 108-136.
. See Def. Mem. at 1. Debt Buyer Defendants join in defendants’ collective motion and have filed a separate brief arguing that plaintiffs’ claims against them under the FDCPA and New York Judiciary Law Section 487 should be dismissed. See Memorandum of Law in Support of the Debt Buyer Defendants’ Motion to Dismiss Plaintiffs’ SAC (“DB Def. Mem.”).
. FAC ¶ 81.
. id. ¶ 104. See also id. ¶¶ 110128.
. See id. ¶¶ 58-60.
. Id. ¶¶ 82-83, 137.
. See id. ¶¶ 31-50.
. See Shetiwy v. Midland Credit Mgmt., 959 F.Supp.2d 469 (S.D.N.Y. 2013). The four Creditor Defendants — American Express Company, GE Capital Consumer Lending, Inc., Citigroup, Inc., and Citibank, N.A. — are not named in the SAC.
. See Shetiwy v. Midland Credit Mgmt., No. 12 Civ. 7068, 980 F.Supp.2d 461, 2013 WL 5328075 (S.D.N.Y. Sept. 20, 2013). I then declined to exercise supplemental jurisdiction over plaintiffs’ state law claims. See id. at 475-76, at *7.
. See id.
. Id. at 476-77, at *8.
. The facts are drawn from the SAC. As discussed below, many of the allegations in the SAC are not presumed true because they are conclusory statements or threadbare recitals of causes of action. See Bigio v. Coca-Cola Co., 675 F.3d 163, 173 (2d Cir. 2012).
. SAC ¶ 107.
. See, e.g., id. ¶¶ 15-16 (citing unrelated New York City Civil Court cases), 18 n. 5 ("Part of the [SAC] is taken from New York Times articles describing how Debt Collection Firms hire Debt Collection attorneys to sue consumers ....”), 63-65, 79-83, 96-104.
. See id. ¶¶ 131, 180, 186, 190. See supra text accompanying notes 10-11.
. See SAC at p. 59 (pleading "Equitable Relief" as a cause of action and asking the Court to "restore the money that was taken illegally from Plaintiffs” by state court judgments).
. Id. ¶ 108.
. Id. ¶ 109.
. Wilson v. Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011) (quoting Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009)).
. See 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
. Id. at 679, 129 S.Ct. 1937.
. Id. at 678, 129 S.Ct. 1937.
. Id. at 679, 129 S.Ct. 1937.
. Id. at 678, 129 S.Ct. 1937.
. Id. (quotation marks omitted).
. Because plaintiffs are represented by counsel, I do not evaluate the SAC under the more lenient standard applied to pro se pleadings. See Kalderon v. Finkelstein, 495 Fed.Appx. 103, 106 (2d Cir. 2012) (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)) (While "dismissal is disfavored [in pro se cases] unless the complaint is ‘so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised,’ th[is] rationale ... has significantly less force when a party is represented by counsel.”).
. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), overruled in part on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561-63, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
. Boritzer v. Calloway, No. 10 Civ. 6264, 2013 WL 311013, at *4 (S.D.N.Y. Jan. 24, 2013). Accord Spool v. World Child Int'l Adoption Agency, 520 F.3d 178, 184-85 (2d Cir. 2008).
. Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 197 (2d Cir. 2013) (citing Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir. 1993)).
. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir. 2007).
. 18 U.S.C. § 1964(c).
. Hinterberger v. Catholic Health Sys., Inc., 536 Fed.Appx. 14, 16 (2d Cir. 2013) (internal quotation marks omitted).
. United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981).
. Id.
. First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 174 (2d Cir. 2004) (internal citations omitted).
. Cruz v. FXDirectDealer LLC, 720 F.3d 115, 120 (2d Cir. 2013) (quoting City of New York v. Smokes-Spirits.com, Inc., 541 F.3d 425, 438 n. 15 (2d Cir. 2008)).
. 18 U.S.C. § 1961(5).
. See DeFalco v. Bernas, 244 F.3d 286, 306 (2d Cir. 2001).
. Moore v. Guesno, 301 Fed.Appx. 17, 18 (2d Cir. 2008).
. See Curtis v. Law Offices of David M. Bushman, Esq., 443 Fed.Appx. 582, 584 (2d Cir. 2011).
. Reves v. Ernst & Young, 507 U.S. 170, 183, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993).
. Ideal Steel Supply Corp. v. Anza, 652 F.3d 310, 321 (2d Cir. 2011).
. Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 89 (2d Cir. 2008) (quoting 15 U.S.C. § 1692e).
. See Beggs v. Rossi, 145 F.3d 511, 512 (2d Cir. 1998) (holding that activity surrounding the collection of personal property tax obligations is not a "debt” within the meaning of section 1692a(5)); Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1371 (11th Cir. 1998) (holding that tort obligations are not "debts”); Zimmerman v. HBO Affiliate Grp., 834 F.2d 1163, 1167 (3d Cir. 1987) (finding that theft of cable service does not constitute “debt”).
. 15 U.S.C. § 1692a(5).
. Goldman v. Cohen, 445 F.3d 152, 154 n. 1 (2d Cir. 2006).
. 15 U.S.C. § 1692e(2).
. Id.
. See SAC ¶¶ 154-206.
. See Hinterberger, 536 Fed.Appx. at 16.
. Shetiwy, 980 F.Supp.2d at 476, 2013 WL 5328075, at *7.
. SAC ¶¶ 176, 183.
. Id. ¶ 176.
. See id. ¶ 177.
. Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 162, 121 S.Ct. 2087, 150 L.Ed.2d 198 (2001).
. See SAC ¶ 171.
. See Abra Const. Corp. v. Merchants Bank of N.Y., 258 Fed.Appx. 379, 381 (2d Cir. 2007) ("[O]bstruction of justice under 18 U.S.C. § 1512 must relate to federal proceedings.”).
. See 18 U.S.C. § 1511 (prohibiting obstruction of state law enforcement “with the intent to facilitate an illegal gambling business.”).
. United States v. Rigas, 490 F.3d 208, 231 (2d Cir. 2007). See 18 U.S.C. § 1344 (defendants must either "defraud a financial institution” or "obtain any of the moneys ... owned by ... a financial institution, by means of false or fraudulent pretenses.”).
. See SAC ¶¶ 188-206.
. See Koch v. Christie’s Int’l PLC, 699 F.3d 141, 150 (2d Cir. 2012) (holding that plaintiffs must "plead RICO fraud claims with particularity under Rule 9(b)”).
. Knoll v. Schectman, 275 Fed.Appx. 50, 51 (2d Cir. 2008) (internal citations omitted).
. SAC ¶¶ 25, 30, 34, 43, 50.
. Knoll, 275 Fed.Appx. at 51 ("Describing a predicate fraud only as ... ‘complaint ... containing numerous false statements and instances of perjury’ or ‘fraudulent statement of purchase of mortgage’, as the plaintiff does, is ... the kind of conclusory [pleading] that Rule 9(b) is meant to dissuade.”).
. To the extent plaintiffs attempt to allege a RICO conspiracy under section 1962(d), their claim is dismissed. See First Capital, 385 F.3d at 182 (holding that where a plaintiff fails to "adequately allege a substantive violation of RICO,” his claim under section 1962(d) must fail as well).
. SAC ¶ 218.
. See DB Def. Mem. at 2-4.
. See, e.g., SAC ¶ 26 (Yeostros alleges only that he was sued “for the same apparent debt”); 32-33 (Murphy alleges only that he was sued and that default judgment was entered against him on "an account”).
. Id. ¶ 22. See also Boosahda v. Providence Dane LLC, 462 Fed.Appx. 331, 334-35 (4th Cir. 2012) (holding that plaintiff in FDCPA case has "burden of showing the credit card debt was consumer debt”); Dina v. Cuda & Assocs., 950 F.Supp.2d 396, 401 (D.Conn. 2013) (finding that credit card debt was primarily for personal purposes where consumer never had a business credit card and purchases on card were for a moving company, manicure, jewelry, and clothing).
. See 15 U.S.C. § 1692a(5).
. See Pi. Mem. at 39.
. See Chechele v. Scheetz, 466 Fed.Appx. 39, 40-41 (2d Cir. 2012) (finding that district court properly declined to consider documents for “the truth of their assertions,” where the document was not incorporated by the complaint).
. PI. Mem. at 43.
. See SAC ¶¶ 186, 189.
. See id. ¶¶ 34, 37, 161, 190, 195.
. Gabriele v. American Home Mortg. Servicing, Inc., 503 Fed.Appx 89, 94-95 (2d Cir. 2012).
. See id. at 95 (noting that "statements made and actions taken in furtherance of a legal action are not, in and of themselves, exempt from liability under the FDCPA”).
. See SAC ¶¶ 19, 63, 75, 77-79 (reciting text of news articles about non-party, Cohen & Slamowitz, which is alleged to specialize in debt collection and filed “roughly 80,000 lawsuits a year”).
. Basile v. Connolly, 538 Fed.Appx. 5, 8 (2d Cir. 2013) (quoting 28 U.S.C. § 1367(c)).
Reference
- Full Case Name
- Amal SHETIWY, Louis C. Yeostros, John Murphy, Plamen Pankoff, Spiros Argyros, Nicole Gagnon, Vielka Vargas, Rose Villaneuva, and others similarly situated v. MIDLAND CREDIT MANAGEMENT, a/k/a Midland Funding LLC, Calvary SPV LLC, Cach, LLC, LVNV Funding, LLC, FIA Card Services, N.A., Portfolio Recovery Associates LLC, Associated Recovery Systems, Equable Assent Financial, LLC, Chase Bank, N.A., and Bank of America, N.A.
- Cited By
- 3 cases
- Status
- Published