17

‐ 702

‐ cv

Elizabeth K. Atwood v. 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 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE

OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ 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 ʺ SUMMARY ORDER ʺ ). A

PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED

BY COUNSEL

.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in

the City of New York, on the 15 th day of December, two thousand seventeen.

PRESENT: BARRINGTON D. PARKER,

GERARD E. LYNCH,

DENNY CHIN,

Circuit Judges

.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

ELIZABETH K. ATWOOD, AKA ELIZABETH KING,

Plaintiff

‐ Appellant

,

v. 17

‐ 702

‐ cv

COHEN & SLAMOWITZ LLP, MITCHELL SELIP,

MITCHELL G. SLAMOWITZ, DAVID A. COHEN,

Defendants

‐ Appellees

.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

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 of

New York (Bianco, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

.

Plaintiff

‐ appellant Elizabeth K. Atwood appeals from a judgment entered

February 10, 2017 dismissing her claims in this action brought pursuant to the Fair Debt

Collection Practices Act (the ʺ FDCPA ʺ ), 15 U.S.C. § 1692 et seq

. By order entered March

27, 2015, for reasons stated on the record on March 26, 2015, the district court granted in

part defendants

‐ appellees ʹ motion to dismiss the amended complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6). The district court dismissed all of Atwood ʹ s

claims except the third and fourth causes of action. By memorandum and order entered

February 8, 2017, the district court denied Atwood ʹ s motion for summary judgment and

granted defendants

‐ appellees ʹ motion for summary judgment on the remaining claims.

This appeal followed. We assume the parties ʹ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

After Atwood defaulted on a debt in 2003, her account was sold to

Portfolio Recovery Associates, LLC ( ʺ PRA ʺ ), which in turn retained defendant

‐ appellee

Cohen & Slamowitz LLP ( ʺ C&S ʺ ) to collect the account balance. Defendants

‐ appellees

Mitchell Selip, Mitchell G. Slamowitz, and David A. Cohen are attorneys affiliated with

C&S during the relevant period. In 2005, C&S filed a consumer debt collection action3 against Atwood in state court and obtained a default judgment that was later vacated.

Atwood failed to appear for trial in the state court action, but C&S never moved for

another default judgment. The state court action thus remained open.

Between 2013 and 2014, PRA recalled Atwood ʹ s file from C&S and

obtained new counsel, Foster & Garbus ( ʺ F&G ʺ ), who attempted to collect on the

underlying debt. F&G served information subpoenas and restraining notices invoking

the vacated 2005 judgment upon two banks, which subsequently placed holds on

Atwood ʹ s accounts. Atwood filed an order to show cause to vacate the liens and

restraints on the basis that the state court judgment against her had been vacated in

2007. Atwood served this order on C&S. C&S responded by informing the state court

that it had previously released any and all restraints. The parties appeared in state

court on February 18, 2014 and, after the mistake was identified, the court granted

Atwood ʹ s motion on consent to discontinue the action.

In May 2014, Atwood brought this action in district court. On appeal,

Atwood argues that the district court erred by dismissing her second cause of action,

which alleged that C&S ʹ s response to the order to show cause and its appearance in

state court in February 2014 violated § 1692e and § 1692f of the FDCPA. Atwood also

argues that the district court erred by denying her summary judgment and granting

summary judgment in favor of defendants, dismissing her third and fourth causes of

action.4 I. Motion to Dismiss

We review de novo the dismissal of a complaint pursuant to Federal Rule

of Civil Procedure 12(b)(6), accepting all factual allegations as true and drawing all

reasonable inferences in the plaintiff ʹ s favor. Biro v. Condé

‐ Nast

, 807 F.3d 541, 544 (2d

Cir. 2015). The complaint must plead ʺ enough facts to state a claim to relief that is

plausible on its face. ʺ Bell Atl. Corp. v. Twombly

, 550 U.S. 544, 570 (2007); see also Ashcroft

v. Iqbal

, 556 U.S. 662, 678 (2009). Although a court must accept as true all factual

allegations in the complaint, that requirement does not apply to legal conclusions. Iqbal

,

556 U.S. at 678.

Section 1692e of the FDCPA prohibits a debt collector from ʺ us[ing] any

false, deceptive, or misleading representation or means in connection with the collection

of any debt. ʺ 15 U.S.C. § 1692e. Section 1692f prohibits a debt collector from ʺ us[ing]

unfair or unconscionable means to collect or attempt to collect any debt. ʺ Id. at § 1692f.

A communication is ʺ in connection with the collection of a debt ʺ and thus falls within

the FDCPA ʺ if a consumer receiving a letter could reasonably understand it to be a

communication in connection with the collection of a debt. ʺ Hart v. FCI Lender Servs.,

Inc.

, 797 F.3d 219, 225 (2d Cir. 2015)

. The Court evaluates whether a communication

violates the FDCPA ʺ from the perspective of the objective least sophisticated

consumer. ʺ Eades v. Kennedy, PC Law Offices

, 799 F.3d 161, 173 (2d Cir. 2015) (quoting

Easterling v. Collecto, Inc.

, 692 F.3d 229, 233 (2d Cir. 2012)).5 We conclude that Atwood ʹ s second cause of action fails to state a plausible

claim. C&S ʹ s response to Atwood ʹ s motion to vacate liens and restraints was not an

attempt to collect a debt and thus there is no plausible FDCPA claim. 1 C&S ʹ s response

conceded the judgment had been vacated and stated that PRA had released prior

restraints on Atwood ʹ s bank accounts. Moreover, the response stated that although

PRA believed all restraints had been released, if it was mistaken it would release any

accounts still being restrained. Even the least sophisticated consumer would not have

interpreted this response and an appearance agreeing with the consumer ʹ s position as

an attempt to collect a debt. Therefore, the second cause of action was properly

dismissed.

II. Summary Judgment

In her third and fourth causes of action, Atwood alleged that C&S took or

failed to take action in the state court proceedings that purportedly constitute violations

of the FDCPA, including failing to inform PRA and F&G about the failure to seek a

judgment from an inquest clerk. Atwood also argues that the 2005 state court action

was dismissed ʺ by operation of law, ʺ App. at 34, and that therefore (1) C&S ʹ s

appearance and continuing efforts in the state court proceedings, and (2) C&S ʹ s failure

1 We assume without deciding that communications made within a lawsuit, such as, for example, a

response to an order to show cause, can be the basis for a violation of the FDCPA. Compare Carlin v.

Davidson Fink LLP

, 852 F.3d 207, 213 (2d Cir. 2017) ( ʺ Congress amended the FDCPA in 2006 to clarify that

ʹ [a] communication in the form of a formal pleading in a civil action shall not be treated as an initial

communication for purposes of subsection (a) of this section. ʹ 15 U.S.C. § 1692g(d). ʺ ) with Ellis v. Solomon

& Solomon, P.C.

, 591 F.3d 130, 136 (2d Cir. 2010) (explaining the possibility of a violation of § 1692g when

a debt collector initiates a lawsuit during the debt validation period).6 to inform PRA or F&G that the case would be deemed closed and that any new action

would be time

‐ barred, violated the FDCPA because the statute of limitations had

expired, citing cases holding that it is a violation of § 1692e to file a debt collection

lawsuit after the expiration of limitations. See, e.g., Phillips v. Asset Acceptance, LLC

, 736

F.3d 1076, 1079 (7th Cir. 2013). The district court granted summary judgment

dismissing these claims.

ʺ We review the grant of

. . . summary judgment de novo

, accepting as true

the factual allegations of the

. . . complaint[] and drawing inferences based upon these

allegations in the light most favorable to the

. . . plaintiff[]. ʺ In re Bank of N.Y. Derivative

Litig.

, 320 F.3d 291, 297 (2d Cir. 2003) (alteration in original) (citation omitted).

ʺ Summary judgment is appropriate only if it can be established that ʹ there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law. ʹʺ Alibrandi v. Fin. Outsourcing Servs., Inc.

, 333 F.3d 82, 85 (2d Cir. 2003)

(quoting Fed. R. Civ. P. 56(c) (citation and internal quotation marks omitted)).

As the district court concluded, the uncontroverted evidence showed that

C&S informed PRA that the judgment had been vacated, and that there was thus no

false representation or failure to communicate the ʺ character, amount or legal status of

any debt. ʺ 15 U.S.C. § 1692e(2)(A). C&S informed PRA that the judgment was vacated

on November 10, 2006 and again on January 15, 2007. C&S also informed PRA on

November 13, 2006 that it had sent letters to 44 bank institutions to release restraints on7 Atwood ʹ s bank accounts. Atwood stipulated to these facts. Atwood has not cited any

authority for the proposition that C&S had an obligation under the FDCPA to inform

PRA or F&G that it failed to seek an inquest or that the action would be deemed

abandoned under N.Y. C.P.L.R. § 3215(c), and we are not persuaded that C&S had any

such obligation.

Atwood ʹ s argument that there was a dismissal ʺ by operation of law ʺ also

fails. The case could have been dismissed on motion or the court ʹ s own initiative

pursuant to N.Y. C.P.L.R. § 3215(c), but the case had not been dismissed when C&S

responded to the order to show cause. As the case remained pending, Atwood ʹ s

argument that C&S acted outside of the statute of limitations period fails. Moreover, as

discussed above, C&S ʹ s response merely advised that all restraints had been lifted

‐‐ this

was hardly an effort to collect on a debt. Finally, Atwood ʹ s argument that C&S should

have informed either PRA or F&G that a new legal action would fall outside of the

statute of limitations period fails because F&G, as competent counsel, had all the

information it needed to understand that although the case had not been closed, the

failure to seek a second default judgment rendered it impossible to pursue the debt

collection action any further. Hence, Atwood was not entitled to summary judgment

and the district court did not err in awarding summary judgment to defendants.

. . .8 We have considered Atwood ʹ s remaining arguments and fi nd them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk