UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LISA A. ARDINO, on behalf of

herself and all others

similarly situated,

 Plaintiff,

v.

LYONS, DOUGHTY & VELDHUIS,

P.C.,

 Defendant.

Civil No. 11-848 (NLH/KMW)

OPINION

APPEARANCES:

Joseph K. Jones, Esquire 

Law Offices of Joseph K. Jones, LLC 

375 Passaic Avenue 

Suite 100 

Fairfield, New Jersey 07004 

Attorney for Plaintiff

Gregg S. Kahn, Esquire 

Wilson Elser 

33 Washington Street 

Newark, New Jersey 07102

Attorney for Defendant

HILLMAN, District Judge

This matter comes before the Court by way of Defendant

Lyons, Doughty and Veldhuis, P.C.’s motion [Doc. No. 5] to

dismiss Plaintiff’s complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6). The Court has considered the parties’

submissions and decides this matter pursuant to Federal Rule of

Civil Procedure 78. 

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For the reasons expressed below, Defendant’s motion is

granted in part and denied in part. 

I. JURISDICTION

Plaintiff Lisa Ardino brings this putative state wide class

action alleging claims against Defendant for violations of the

Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et

seq. The Court has jurisdiction over Plaintiff’s federal claims

pursuant to 28 U.S.C. § 1331. 

II. BACKGROUND

Plaintiff filed the complaint in this action on February 15,

2011, alleging that Defendant Lyons, Doughty and Veldhuis, P.C.,

(“Defendant”), a law firm “in the business of acquiring and/or 1

collecting debts[,]” violated several provisions of the FDCPA by

virtue of a debt collection letter sent to Plaintiff and a

subsequent letter to Plaintiff which included a “Consent Judgment

with Terms” and “Certified Discovery.” (Class Action Compl. &

Demand for Jury Trial [Doc. No. 1] (hereinafter, “Pl.’s Compl.”),

¶¶ 1, 7-8, 13-14, 17.)

Plaintiff represents that on or about December 16, 2010, she

received and read a letter (hereinafter, “December 16th

1. Plaintiff’s complaint also named as Defendants John Does 1-25

as fictitious individuals and businesses for “the purpose of

substituting names of defendants whose identities” were unknown

at the time the complaint was filed. (Pl.’s Compl. ¶ 9.) To

date, no such defendants have been identified, and the Court will

refer only to the current Defendant Lyons, Doughty and Veldhuis,

P.C. 

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collection letter”) from Defendant which sought to collect a debt

Plaintiff allegedly owed to Target National Bank in the amount of

$2,806.53. (Pl.’s Compl. ¶¶ 13, 15; see also December 16th

collection letter, Ex. A to Pl.’s Compl.) As it relates to

Plaintiff’s claims in this case, the body of the December 16th

collection letter provided in pertinent part:

Dear LISA A Ardino:

Please be advised that this office represents

Target National Bank in connection with your

account. 

We have been advised that your account is in

default. Our client indicates that the amount due

as of the date of this letter is $2,806.53 plus

interest in the amount of $0.00 for a total of

$2,806.53. Your balance may increase because of

interest or other charges.

At this time, no attorney with this firm has

personally reviewed the particular circumstances

of your account. 

If you have any questions concerning this

matter or if you wish to arrange for payment,

please contact our claims adjuster at [telephone

number].

(See December 16th collection letter, Ex. A to Pl.’s

Compl.)

Approximately two inches below the body of the December 16th

collection letter, the following notice concerning Plaintiff’s

rights appeared:

 IMPORTANT NOTICE CONCERNING YOUR RIGHTS

THIS FIRM LYONS, DOUGHTY & VELDHUIS, P.C. IS A

DEBT COLLECTOR. UNLESS YOU NOTIFY US WITHIN 30

DAYS AFTER THE RECEIPT OF THIS LETTER THAT THE

VALIDITY OF THIS DEBT, OR ANY PORTION OF IT, IS

DISPUTED, THIS FIRM WILL ASSUME THAT THE DEBT IS

VALID. IF YOU DO NOTIFY US, IN WRITING WITHIN 30

DAYS AFTER THE RECEIPT OF THIS LETTER THAT THE

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VALIDITY OF THIS DEBT OR ANY PORTION OF IT IS

DISPUTED, THIS FIRM WILL OBTAIN VERIFICATION OF

THE DEBT OR A COPY OF A JUDGMENT AGAINST YOU AND

MAIL THE VERIFICATION OR JUDGMENT TO YOU. ALSO,

UPON YOUR WRITTEN REQUEST WITHIN 30 DAYS, THIS

FIRM WILL PROVIDE YOU WITH THE NAME AND ADDRESS OF

THE ORIGINAL CREDITOR IF DIFFERENT FROM THE

CURRENT CREDITOR. THIS LETTER IS AN ATTEMPT TO

COLLECT A DEBT, AND ANY INFORMATION OBTAINED WILL

BE USED FOR THAT PURPOSE.2

(See December 16th collection letter, Ex. A to Pl.’s Compl.)

Plaintiff also represents that on or before January 20,

2011, Defendant “filed a Summons and Complaint in the Superior

Court of New Jersey, Law Division - Special Civil Part, Union

County, New Jersey, Docket No.: DC-001179-11, commencing suit

against Plaintiff.” (Pl.’s Compl. ¶ 16; see also Summons and

Superior Court Compl., Ex. B. to Pl.’s Compl.) Subsequently,

Defendant sent Plaintiff a second letter dated January 28, 2011

(“January 28th letter”), designated “Payment Arrangement

Confirmation.” (Pl.’s Compl. ¶ 17; see also January 28th letter,

Ex. C. to Pl.’s Compl.) Enclosed with the January 28th letter

were two documents: (1) a “Consent Judgment with Terms” and (2)

“Certified Discovery.” (Pl.’s Compl. ¶ 17; see also January 28th

letter and enclosures, Ex. C. to Pl.’s Compl.) The January 28th

letter requested that Plaintiff review the Consent Judgment and

2. The Court has reproduced the language of the December 16th

collection letter exactly as it appears in the original, i.e. in

all capital letters. However, throughout the remainder of this

opinion, the Court will utilize lowercase letters when referring

to this language. 

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Certified Discovery, complete the questions on the Certified

Discovery, sign the documents, and return them to Defendant

within ten days. (Pl.’s Compl. ¶ 17; see also January 28th

letter, Ex. C. to Pl.’s Compl.) On February 14, 2011, Plaintiff

retained an attorney to file an answer to the complaint pending

in the New Jersey Superior Court - Special Civil Part. (Pl.’s

Compl. ¶ 18.) Plaintiff filed the complaint in this case the

following day, February 15, 2011. 

Plaintiff’s complaint alleges that Defendant violated

Section 1692g(a)(5) (Count I) and Section 1692e(10) (Count II) of

the FDCPA. (Id. ¶¶ 19-36.) Plaintiff contends that Defendant is

liable to Plaintiff for: (1) a declaratory judgment that this

conduct violated the FDCPA; (2) actual damages; and (3) statutory

damages, costs, and attorneys’ fees. (Id. ¶ 28, 36.) 

Additionally, Plaintiff seeks to bring this action as a state

wide class action “on behalf of herself and all New Jersey

consumers and their successors in interest (the ‘Class’), who

have received debt collection letters and/or notices from

Defendant[] which are in violation of the FDCPA, as described in

this Complaint.” (Id. ¶ 10.) Plaintiff further alleges that

this action is properly maintained as a class action and

satisfies all requirements for class actions pursuant to Federal

Rule of Civil Procedure 23. (Id. ¶ 11-12.) Plaintiff also seeks

the issuance of a preliminary or permanent injunction restraining

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Defendant from engaging in conduct or practices that violate the

FDCPA, as well as the issuance of a declaratory order requiring

Defendant to make corrective disclosures. (Id. at 8.) 

III. DISCUSSION

A. Standard for Motion to Dismiss

In the present motion, Defendant seeks dismissal of

Plaintiff’s complaint pursuant to Federal Rule of Civil Procedure

12(b)(6). When considering a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted

pursuant to Federal Rule of Civil Procedure 12(b)(6), a court

must accept all well-pleaded allegations in the complaint as true

and view them in the light most favorable to the plaintiff. 

Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005). It is well

settled that a pleading is sufficient if it contains “a short and

plain statement of the claim showing that the pleader is entitled

to relief.” FED. R. CIV. P. 8(a)(2).

A district court, in weighing a motion to dismiss, asks

“‘not whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claims[.]’” 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting

Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (“Our decision in Twombly

expounded the pleading standard for ‘all civil actions[.]’”)

(citation omitted). First, under the Twombly/Iqbal standard, a

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district court “must accept all of the complaint’s well-pleaded

facts as true, but may disregard any legal conclusions.” Fowler

v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing

Iqbal, 129 S. Ct. at 1949). 

Second, a district court “must then determine whether the

facts alleged in the complaint are sufficient to show that the

plaintiff has a ‘plausible claim for relief.’” Fowler, 578 F.3d

at 211 (citing Iqbal, 129 S. Ct. at 1950). “[A] complaint must

do more than allege the plaintiff’s entitlement to relief.” 

Fowler, 578 F.3d at 211; see also Phillips v. County of

Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (“The Supreme Court’s

Twombly formulation of the pleading standard can be summed up

thus: ‘stating ... a claim requires a complaint with enough

factual matter (taken as true) to suggest’ the required element. 

This ‘does not impose a probability requirement at the pleading

stage,’ but instead ‘simply calls for enough facts to raise a

reasonable expectation that discovery will reveal evidence of’

the necessary element.”) (citing Twombly, 550 U.S. at 556). “The

defendant bears the burden of showing that no claim has been

presented.” Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005).

However, “if a complaint is subject to a Rule 12(b)(6)

dismissal, a district court must permit a curative amendment

unless such an amendment would be inequitable or futile.” 

Phillips, 515 F.3d at 245; see also Burrell v. DFS Servs., LLC,

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753 F. Supp. 2d 438, 444 (D.N.J. 2010) (“When a claim is

dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6),

leave to amend and reassert that claim is ordinarily granted. ...

A claim may be dismissed with prejudice, however, if amending the

complaint would be futile.”) (citation omitted). 

B. Fair Debt Collection Practices Act

Congress enacted the FDCPA in 1977 “to eliminate abusive

debt collection practices which contribute to the number of

personal bankruptcies, to marital instability, to the loss of

jobs, and to invasions of individual privacy.” Wilson v.

Quadramed Corp., 225 F.3d 350, 354 (3d Cir. 2000) (citations and

internal quotations omitted). As Congress has explained, “the

purpose of the Act was not only to eliminate abusive debt

collection practices, but also to ‘insure that those debt

collectors who refrain from using abusive debt collection

practices are not competitively disadvantaged.’” Lesher v. Law

Offices Of Mitchell N. Kay, PC, 650 F.3d 993, 996 (3d Cir. 2011)

(citing 15 U.S.C. § 1692(e)). In light of the inadequacy of the

existing consumer protection laws at the time, Congress elected

to give consumers a private right of action against debt

collectors who fail to comply with the FDCPA’s requirements. 

Lesher, 650 F.3d at 996-97. 

Under the FDCPA a debt collector must include the following

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information in a debt collection letter to a consumer:3

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is

owed;

(3) a statement that unless the consumer, within

thirty days after receipt of the notice, disputes

the validity of the debt, or any portion thereof,

the debt will be assumed to be valid by the debt

collector;

(4) a statement that if the consumer notifies the

debt collector in writing within the thirty-day

period that the debt, or any portion thereof, is

disputed, the debt collector will obtain

verification of the debt or a copy of a judgment

against the consumer and a copy of such

verification or judgment will be mailed to the

consumer by the debt collector; and

(5) a statement that, upon the consumer's written

request within the thirty-day period, the debt

collector will provide the consumer with the name

and address of the original creditor, if different

from the current creditor.

See 15 U.S.C. § 1692g(a).

Paragraphs three, four, and five of Section 1692g(a)

comprise what is known as “the validation notice –- the

statements that inform the consumer how to obtain verification of

the debt and that [the consumer] has thirty days in which to do

3. The parties apparently do not dispute that Defendant is a

“debt collector” and Plaintiff is a “consumer” under the FDCPA. 

(See generally Br. in Supp. of Def.’s Mot. for Dismissal of Pl.’s

Compl. Pursuant to Rule 12(b)(6) [Doc. No. 5-1] (hereinafter,

“Def.’s Mot. to Dismiss”) 1-4); see also Pl.’s Compl. ¶¶ 4, 6,

8.) The FDCPA defines the term debt collector as “any person who

... [engages] in any business the principal purpose of which is

the collection of any debts, or who regularly collects or

attempts to collect, directly or indirectly, debts owed or due or

asserted to be owed or due another.” 15 U.S.C. § 1692a(6). A

consumer is defined as “any natural person obligated or allegedly

obligated to pay any debt.” 15 U.S.C. § 1692a(3). 

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so.” Wilson, 225 F.3d at 353-54. Importantly, “the debt

validation provisions of section 1692g were included by Congress

to guarantee that consumers would receive adequate notice of

their rights under the law.” Id. at 354. Therefore, compliance

with the requirements of Section 1692g necessitates more “than

mere inclusion of the statutory debt validation notice in the

debt collection letter –- the required notice must also be

conveyed effectively to the debtor.” Id.; see also Graziano v.

Harrison, 950 F.2d 107, 111 (3d Cir. 1991). 

“Because the FDCPA is a remedial statute, we construe its

language broadly so as to effect its purpose.” Lesher, 650 F.3d

at 997 (citing Brown v. Card Serv. Ctr., 464 F.3d 450, 453 (3d

Cir. 2006)). As a result, courts in this Circuit evaluate

communications from lenders to debtors from the perspective of

the “least sophisticated debtor.” Lesher, 650 F.3d at 997. 4

This standard, fashioned to protect all consumers –- the gullible

as well as the shrewd, is “lower than the standard of a

reasonable debtor.” Rosenau v. Unifund Corp., 539 F.3d 218, 221

(3d Cir. 2008). That is to say, “[a] communication that would

not deceive or mislead a reasonable debtor might still deceive or

mislead the least sophisticated debtor.” Id. (citing Brown, 464

F.3d at 454). Importantly, in the Third Circuit, the question of

4. Courts often use the terms consumer and debtor

interchangeably when referring to this standard. 

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“whether the least sophisticated debtor would be misled by a

particular communication is a question of law that may be

resolved in a Rule 12(b)(6) motion.” Smith v. Lyons, Doughty &

Veldhuis, No. 07-5139, 2008 WL 2885887, at *3 (D.N.J. July 23,

2008) (citing Wilson, 225 F.3d at 353 n.2) (“[W]hether language

in a collection letter contradicts or overshadows the validation

notice is a question of law.”); see also Bodine v. First Nat’l

Collection Bureau, Inc., No. 10-2472, 2010 WL 5149847, at *3

(D.N.J. Dec. 13, 2010) (“The question of whether a collection

letter or notice violates the provisions of the FDCPA is a

question of law to be determined by the Court.”) 

While the least sophisticated debtor “standard protects

naive consumers, it also ‘prevents liability for bizarre or

idiosyncratic interpretations of collection notices by preserving

a quotient of reasonableness and presuming a basic level of

understanding and willingness to read with care.’” Wilson, 225

F.3d at 354-55 (citation omitted); see also Campuzano-Burgos v.

Midland Credit Mgmt., Inc., 550 F.3d 294, 298-99 (3d Cir. 2008)

(same). “Although established to ease the lot of the naive,” the

least sophisticated debtor standard does not extend to “provide

solace to the willfully blind or non-observant.” 

Campuzano-Burgos, 550 F.3d at 299. Accordingly, “[e]ven the

least sophisticated debtor is bound to read collection notices in

their entirety.” Id. 

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IV. ANALYSIS

In the present motion, Defendant seeks to dismiss with

prejudice in its entirety Count I of Plaintiff’s complaint

alleging a violation of Section 1692g(a)(5). Defendant also

seeks to dismiss with prejudice in its entirety Count II which

alleges violations of Section 1692e(10). Alternatively,

Defendant seeks dismissal with prejudice of any class action

relief as it relates to the claims in Count II. Finally,

Defendant seeks to dismiss with prejudice any request by

Plaintiff for injunctive or declaratory relief. The Court will

address each of these issues in turn.

A. Count I: Violation of Section 1692g(a)(5)

As set forth more fully below, the Court finds that the

language in the December 16th collection letter does not

constitute a violation of Section 1692g(a)(5) of the FDCPA, and

thus the Court grants Defendant’s motion as to Count I and

dismisses Count I with prejudice in its entirety. 

Count I of Plaintiff’s complaint alleges that certain

language in the December 16th collection letter violates Section

1692g(a)(5) of the FDCPA. (See generally Pl.’s Compl. ¶¶ 19-28.)

Specifically, Plaintiff challenges the following language

(hereinafter, “the challenged language”): “Also, upon your

written request within 30 days, this firm will provide you with

the name and address of the original creditor if different from

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the current creditor.” (Pl.’s Compl. ¶ 24.) Plaintiff argues

that the least sophisticated consumer would be confused as to

whether the “within 30 days” time period expires thirty days from

the date of the letter or thirty days from the date the letter is

received by the consumer. (Id. ¶¶ 24-26.) Accordingly,

Plaintiff asserts that by “by failing to inform Plaintiff ...

that the thirty-day period to request in writing, the name and

address of the original creditor, expires thirty days from the

date o[f] receipt of the notice by the consumer[,]” Defendant

violated Section 1692g(a)(5). (Id. ¶ 27.) 

Defendant makes two arguments for the dismissal of Count I. 

First, Defendant argues it was not required to include the

language relevant to Section 1692g(a)(5) in the first instance

because there was no change in creditor in connection with

Plaintiff’s debt, since the original creditor and the current

creditor are the same. (Def.’s Mot. to Dismiss 11.) Thus,

Defendant argues that Plaintiff “cannot assert a cause of action

based upon a statutory provision that does not apply to her and

to language that she was not entitled to receive.” (Id.) 

Second, Defendant contends that even if it was required to

include the language relevant to Section 1692g(a)(5) in the

December 16th collection letter to Plaintiff despite the absence

of a change in creditor, the December 16th collection letter

complied with the FDCPA. (Id.) Defendant notes that on its

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face, Section 1692g(a)(5) “does not require the inclusion of the

particular phrase ... ‘within 30 days after the receipt of the

notice[,]’” as the paragraph five of that Section merely states

“within the thirty-day period[.]” (Id. at 12.) Therefore,

Defendant argues that the challenged language complies with the

FDCPA because the validation notice in the December 16th

collection letter includes two sentences immediately prior to the

challenged language which specifically set forth that the thirtyday period began to run “after the receipt of this letter.” (Id.

at 13.) Defendant asserts that even the least sophisticated

debtor would not be confused by “such a simple and clear

statement [which] could not possibly be deceptive or

misleading[.]” (Id.) 

Plaintiff disputes Defendant’s argument that the Section

1692g(a)(5) language was not required because there was no change

in creditor by arguing that Defendant has not pointed to any

evidence that the original creditor and the current creditor are

the same, and by noting that Defendant’s argument fails precisely

because Defendant did in fact include this language. (Pl.’s Mem.

of Law in Opp’n to Def.’s Mot. to Dismiss Pursuant to Rule

12(b)(6) [Doc. No. 7] (hereinafter, “Pl.’s Opp’n”), 6-7.) 

Plaintiff further contends that Section 1692g(a)(5)’s use of the

phrase “within the thirty-day period” refers to the thirty-day

period set forth in Section 1692g(a)(3) which specifies “within

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thirty days after receipt of the notice[.]” (Id. at 8.) 

With regard to Defendant’s first argument -- that there was

no change in creditor, thus Defendant did not have to include the

validation notice language outlined in Section 1692g(a)(5) -- the

Court notes that neither party has cited any authority binding on

this Court which resolves this precise issue. Moreover, an

extensive search by the Court revealed no cases in the Third

Circuit or this District wherein a court concluded that the

“original creditor” language of Section 1692g(a)(5) was not

required where there was no change in creditor. However, the

Court notes that other Circuit and District courts have addressed

this issue. For example, in McCabe v. Crawford & Co., the

district court dismissed the plaintiff’s claim under Section

1692g(a)(5). 210 F.R.D. 631, 639 (N.D. Ill. 2002). The

plaintiff in McCabe argued that the debt collector failed to

provide the name and address of the original creditor pursuant to

Section 1692g(a)(5). Id. After noting that this language is

required where the original creditor differs from the present

creditor, the district court went on to find that the plaintiff’s

claim “fail[ed] as a matter of law because ... the creditor ...

remained the same.” Id. The district court concluded that

“[b]ecause the FDCPA d[id] not require any notice in these

circumstances, [the plaintiff] fail[ed] to state a claim under §

1692g(a)(5).” Id. 

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Similarly, the district court in Shimek v. Weissman, Nowack,

Curry & Wilco, P.C., granted summary judgment for the defendant

on a count by the plaintiffs alleging a Section 1692g(a)(5)

violation where the defendant failed to offer to provide the name

and address of the plaintiffs’ original creditors, or only

provided the name and not the address. 323 F. Supp. 2d 1344,

1348-49 (N.D. Ga. 2003). The defendant in Shimek argued that it

did not need to “include the Section 1692g(a)(5) language in its

debt collection letter when the current creditor [was] the

original creditor[.]” Id. at 1348. The district court

emphasized that the language of Section 1692g(a)(5) says “if

different from the current creditor” and found that based on the

plain language of the statute the defendant complied with the

FDCPA by providing the name of the creditor to whom the debt was

owed. Id. at 1348-49; Cf. Volden v. Innovative Fin. Sys., Inc.,

440 F.3d 947, 955-56 (8th Cir. 2006) (finding that initial notice

did not violate Section 1692g(a)(5) even where notice failed to

contain the precise language of that Section because the notice

informed plaintiff of his right to seek validation of the debt

and identified the creditors and their locations such that the

defendant’s “technical and meaningless omission ... could not

have been seen by Congress as a purposeful violation of the

FDCPA”). 

However, the Court need not resolve this issue, because even

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assuming that the “original creditor” language of Section

1692g(a)(5) must be included in a validation notice even where

there is no change in creditor, such as here, the Court finds

that Defendant’s December 16th collection letter complied with

the requirements of Section 1692g(a)(5). The crux of Plaintiff’s

claim regarding Section 1692g(a)(5) rests upon six words, “after

the receipt of this letter”, and where those words appear and do

not appear in the December 16th collection letter. The parties

apparently agree that the phrase “within the thirty-day period”

set forth in Section 1692g(a)(5) refers to the same thirty-day

period defined in Section 1692g(a)(3), that is, “within thirty

days after receipt of the notice.” Thus the parties do not

dispute that Plaintiff had thirty days from her receipt of the

December 16th collection letter to make a written request for the

name of the original creditor. (Compare Def.’s Mot. to Dismiss

11-13, with Pl.’s Opp’n 8.) 

The disagreement between the parties is whether the FDCPA

requires that a validation notice specifically set forth that the

thirty-day time period under Section 1692g(a)(5) begins to run

from receipt of the letter. Thus, the question before the Court

is whether, as a matter of law, Defendant’s omission of the

phrase “after the receipt of this letter” in the sentence

regarding information for the “original creditor” so contradicts

the remainder of the validation notice such that it would confuse

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the least sophisticated debtor as to her rights.

On this issue, Defendant contends that the December 16th

collection letter complied with the statutory requirements

because the sentences proceeding the challenged language clearly

set forth on two separate occasions that the thirty-day period

runs from receipt of the letter. (Def.’s Mot. to Dismiss 13.) 

Defendant argues that even the least sophisticated debtor would

understand that the challenged language –- “within 30 days” --

refers to the same thirty-day period set out previously --

“within 30 days after the receipt of this letter” -- and that

this statement is not deceptive or misleading. (Id.) To the

contrary, Plaintiff contends that the December 16th collection

letter “could reasonably be read to mean that plaintiff had to

notify defendant within thirty days of her receipt of the

collection letter or thirty days from the date of the collection

letter[.]” (Pl.’s Opp’n 6) (emphasis added.) Therefore,

Plaintiff asserts that the validation notice in the December 16th

collection letter was not conveyed clearly and effectively to

Plaintiff. (Id.) Plaintiff further contends that the letter is

contradictory because it would make the least sophisticated 5

debtor uncertain as to her rights. (Id.) 

5. Plaintiff does not specifically allege in the complaint that

the challenged language is contradictory or misleading. (See

generally Pl.’s Compl.) The complaint simply alleges that the

least sophisticated debtor would be “confused” by the language of

the December 16th collection letter. (Id. at ¶¶ 25-26.)

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The Court agrees with Defendant. While the least

sophisticated debtor standard is a low standard designed to “ease

the lot of the naive” and to protect all consumers, the standard

nevertheless “safeguards bill collectors from liability for

‘bizarre or idiosyncratic interpretations of collection notices’

by preserving at least a modicum of reasonableness, as well as

‘presuming a basic level of understanding and willingness to read

with care [on the part of the recipient].’” Campuzano-Burgos,

550 F.3d at 299. Therefore, in the Third Circuit, “[e]ven the

least sophisticated debtor is bound to read collection notices in

their entirety.” Id. Accordingly, the least sophisticated

debtor reviewing a collection notice must be observant and must

read the notice carefully and completely. Id. 

Taking these considerations into account, the Court finds

that the December 16th collection letter and the validation

notice set forth in all capital letters at the bottom of the

letter, when read carefully and in their entirety, are not

contradictory or misleading such that the least sophisticated

debtor would be uncertain of her rights. The validation notice

provides: 

 Important Notice Concerning Your Rights

This Firm Lyons, Doughty & Veldhuis, P.C. is a

debt collector. Unless you notify us within 30

days after the receipt of this letter that the

validity of this debt, or any portion of it, is

disputed, this Firm will assume that the debt is

valid. If you do notify us, in writing within 30

days after the receipt of this letter that the

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validity of this debt or any portion of it is

disputed, this Firm will obtain verification of

the debt or a copy of a judgment against you and

mail the verification or judgment to you. Also,

upon your written request within 30 days, this

Firm will provide you with the name and address of

the original creditor if different from the

current creditor. This Letter is an attempt to

collect a debt, and any information obtained will

be used for that purpose.

(See December 16th collection letter, Ex. A to Pl.’s Compl)

(emphasis added.)

Here, the use of the phrase “within 30 days” in the sentence

regarding the “original creditor” information immediately follows

two clear statements that the Plaintiff has thirty days “after

the receipt of this letter” to exercise the rights set forth in

the validation notice and thus trigger Defendant’s obligations

under the FDCPA. Further, the phrase “within 30 days” in the

“original creditor” information sentence is directly proceeded by

the word “Also” which is plainly meant to refer the reader back

to the previously defined time period of thirty days after

receipt of the letter. Preserving a modicum of reasonableness as

the least sophisticated debtor standard requires, this is a fair

and sensible reading of the validation notice and the December

16th collection letter as a whole because the challenged language

does not contradict any other language used in the December 16th

collection letter. 

The particular linguistic challenge Plaintiff alleges here

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is distinct from the contradictory language found to violate the

FDCPA in Philip v. Sardo & Batista, P.C., No. 11-4773, 2011 WL

5513201, at *3 (D.N.J. Nov. 10, 2011). In Philip, the plaintiff

argued that the sentence below the signature line in the

defendant’s collection letter contradicted the language in the

body of the letter. Id. The sentence below the signature line

stated that the plaintiff had “thirty days from the date of the

letter to exercise or preserve certain rights under the FDCPA[.]” 

Id. However, the language in the body of the defendant’s

collection letter complied with the statutory requirement by

stating that the plaintiff had “thirty days after receipt of the

notice[.]” Id. 

The Philip plaintiff argued that the sentence below the

signature line was contradictory to the body of the letter and

thus left the least sophisticated debtor confused over which

thirty-day period applied. Id. Similarly to Defendant here, the

defendant in Philip countered this argument by pointing to three

places in the body of the collection letter which specifically

stated that the plaintiff had thirty days after receipt of the

letter to respond and argued “that the entirety of the letter

therefore ma[de] it clear that this is the applicable time

period.” Id. Despite this argument, the district court found

that the sentence below the signature line “affirmatively

misinform[ed] [the] debtor of her rights” and “unlawfully

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create[d] confusion as to what date would trigger the thirty day

period[.]” Id. Based on this directly contradictory language,

the district court concluded that “the omission of words ‘after

receipt of the notice’ set[] forth a valid legal claim to survive

th[e] motion to dismiss.” Id. at *4. 

Given the absence of any contradictory language in the

December 16th collection letter, the present case is

distinguishable from Philip. The contradictory language in

Philip affirmatively misinformed the plaintiff of her time to

respond based on the date of the letter while simultaneously

informing the plaintiff of her time to respond from the receipt

of the letter. Thus, the district court found a violation of the

FDCPA. In contrast to directly contradictory language which

could clearly mislead even a sophisticated debtor, the challenged

language in the December 16th collection letter here simply

states “within 30 days.” This language, which admittedly does

not contain the six specific words “after the receipt of this

letter,” cannot reasonably to said to contradict or overshadow

the two prior sentences which explicitly set forth that the

thirty-day time period is triggered after receipt of the letter. 

The Court concludes that in these circumstances the present case 

directly analogous to Stokes v. Consumer Credit, Inc., No. 10-cv03103, 2011 WL 1099000, at *1-2 (D.N.J. Mar. 22, 2011), and

McStay v. I.C. Sys., Inc., 174 F. Supp. 2d 42, 44-47 (S.D.N.Y.

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2001). 

The plaintiff in Stokes, who was represented by the same

attorney representing Plaintiff in the present case, similarly

brought a class action against the defendant based on a

collection letter the plaintiff contended violated the FDCPA. 

Stokes, 2011 WL 1099000, at *1. The collection notice in Stokes

set forth on the front of the notice: “‘[u]nless you notify our

office that you dispute the validity of this debt within 30 days

of receiving this letter, we will assume that the debt is valid

and expect it to be paid.’” Id. On the back of the letter, it

read: “‘CCI will assume this debt to be valid unless you dispute

the validity of the debt, or any portion thereof, within thirty

days after receipt of this notice. If you notify CCI, in

writing, within this thirty-day period that the debt, or any

portion thereof, is disputed, we will obtain verification of the

debt[.]’” Id. Plaintiff took issue with the fact that the

language on the front of the letter failed to inform consumers

that they could dispute “any portion” of the debt and argued the

front and back of the letter were inconsistent and would cause

the least sophisticated consumer to misunderstand his rights. 

Id. 

In ruling on the defendant’s motion to dismiss pursuant to

Rule 12(b)(6), the district court noted that the “gravam[e]n of

the complaint at issue [was] four little words, ‘or any part

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thereof[.]” Id. at *2. The court rejected the plaintiff’s

argument that the collection letter was confusing and conflicting

because these four words appeared in the validation notice on the

back of the letter but were omitted from the front, and found as

a matter of law that this omission did not create conflict or

confusion. Id. The court recognized that the validation notice

on the back did not contradict the language on the front of the

letter but “merely expanded, modified or clarified it[.]” Id. 

In granting the defendant’s motion to dismiss, the Stokes court

determined that the plaintiff’s argument was “an unreasonable

linguistic stretch” and found that the “fact that the phrases on

the front and back are not identical [did] not mean that they

[were] inconsistent or deceptive.” Id. at *2-3. 

Similarly, in McStay, the plaintiff conceded that the

defendant’s collection letter contained the required validation

notice on the reserve side of the letter, but argued that the

validation notice was overshadowed or contradicted by the

following language on the front of the letter: “Please be advised

that if after 30 days your account is not paid in full or

otherwise closed, the account information will be forwarded to

the National Credit Reporting Agencies. This may hinder your

ability to obtain credit in the future.” 174 F. Supp. 2d at 44-

45. The plaintiff specifically argued that this language on the

front of the letter contradicted or overshadowed the validation

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notice on the reserve side because it did “not specify whether

the thirty-day period that [the plaintiff] ha[d] to dispute the

debt [was] to be calculated from the date the ... letter was

written ... or the date the letter was actually received[.]” Id.

at 45. 

The district court found the plaintiff’s argument

unpersuasive and determined that when read in its entirety, the

letter “would not ... leave a consumer uncertain as to his

rights.” Id. at 46. After acknowledging that the statement on

the front was “admittedly ambiguous because it d[id] not specify

the date from which the thirty-day period [was] to be

calculated[,]” the court went on to explain that “[w]hile

ambiguous, the statement d[id] not, in and of itself, constitute

an affirmative misstatement or patent contradiction of the time

period to dispute a debt under § 1692g.” Id. at 46 n.1. The

district court further concluded that when read in conjunction

with the validation notice on the reserve side, the notice

resolved any ambiguity. Id. at 46. The court determined that

not even the least sophisticated consumer would construe the

language on the front and back of the letter to mean that he had

thirty days from the date of the letter as opposed to from

receipt in which to dispute the debt. Id. at 46. Thus the court

granted the defendant’s motion for summary judgment. Id. at 48. 

As the courts in Stokes and McStay found, this Court

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similarly finds that Defendant’s use of the phrase “within 30

days” in the “original creditor” information sentence of the

validation notice does not contradict the language in the

remainder of the December 16th collection letter. At worst, this

language is ambiguous, but it is clear upon the Court’s review

that this phrase does not affirmatively misinform the consumer of

her rights under the FDCPA. As the court noted in Stokes,

Plaintiff’s argument here is “an unreasonable linguistic stretch”

of the challenged language. See Stokes, 2011 WL 1099000, at *2. 

Similarly to the phrases at issue in Stokes, the fact that the

thirty-day language of the December 16th collection letter is not

identical in every instance “does not mean [the language is]

inconsistent or deceptive.” Id. In this case, even the least

sophisticated debtor reading the December 16th collection letter

in its entirety with care and observance, would recognize that

the final reference to “within 30 days” refers to the same

thirty-day period after receipt of the letter that was

specifically set forth in the prior sentences since there is no

language to contradict such an interpretation. The absence of a

statutory violation based on this language is clear given that

the challenged language does not constitute “an affirmative

misstatement or a patent contradiction of the time period” at

issue. See McStay, 174 F. Supp. 2d at 46 n.1. 

The Court’s finding that the language of the December 16th

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collection letter challenged by Plaintiff does not constitute a

violation of Section 1692g(a)(5) in this instance is consistent

with the least sophisticated debtor standard. Even under this

low standard, debt collectors are safeguarded from bizarre and

idiosyncratic interpretations of collection notices because the

standard preserves a modicum of reasonableness. 

Campuzano-Burgos, 550 F.3d at 299. Here, Plaintiff is attempting

to take Defendant’s reasonable use of the phrase “within 30 days”

out of context and examine it in a vacuum by failing to consider

the entirety of the December 16th collection letter and thus

allege a violation of Section 1692g(a)(5). Such an isolated and

idiosyncratic view of the challenged language is unreasonable and 6

6. The Court notes that counsel for Plaintiff in this action

previously filed suit on behalf of a different plaintiff against

the same law firm Defendant. See Smith v. Lyons, Doughty &

Veldhuis, No. 07-5139, 2008 WL 2885887, *1 (D.N.J. July 23,

2008). In Smith, the plaintiff brought seven counts against the

current Defendant for alleged violations of the FDCPA, including

several counts under Sections 1692g(a)(1), (3), and (5). Id. 

The plaintiff in Smith based his claims on a nearly identical

collection letter sent by Defendant to the plaintiff. Id. The

challenged letter in Smith set forth in pertinent part: 

IMPORTANT NOTICE CONCERNING YOUR RIGHTS

UNLESS YOU NOTIFY U.S. WITHIN 30 DAYS AFTER THE RECEIPT

OF THIS LETTER THAT THE VALIDITY OF THIS DEBT, OR ANY

PORTION OF IT, IS DISPUTED, WE WILL ASSUME THAT THE DEBT

IS VALID. IF YOU DO NOTIFY U.S. OF A DISPUTE WE WILL

OBTAIN VERIFICATION OF THE DEBT AND MAIL IT TO YOU.

ALSO, UPON YOUR WRITTEN REQUEST WITHIN 30 DAYS, WE WILL

PROVIDE YOU WITH THE NAME AND ADDRESS OF THE ORIGINAL

CREDITOR IF DIFFERENT FROM THE CURRENT CREDITOR. THIS

LETTER IS AN ATTEMPT TO COLLECT A DEBT, AND ANY

INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.

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cannot be maintained, even under the least sophisticated debtor

standard. Accordingly, the Court finds as a matter of law that

Plaintiff fails to state a claim for which relief may be granted

under Section 1692g(a)(5) and thus Count I of the complaint is

dismissed with prejudice in its entirety.

B. Count II: Violations of Section 1692e(10)

Count II of Plaintiff’s complaint alleges that Defendant

violated Section 1692e(10) of the FDCPA. (Pl.’s Compl. ¶¶ 29-

36.) Count II alleges two distinct violations of Section

1692e(10). The first of these allegations contends that

Defendant violated Section 1692e(10) by failing to inform

Plaintiff that the thirty-day period to request information for

Id. at *1 n.1 (emphasis added). This Court notes that the

validation notice in Smith includes the exact same language

which Plaintiff, represented by the same counsel, now

challenges in the present case. However, in Smith, the

plaintiff did not allege that the phrase “within 30 days” as

used in the sentence regarding information of the original

creditor was confusing or misleading and thus violated

Section 1692g(a)(5). Id. at *1. This is noteworthy since

the validation notice in Smith set forth only once that the

thirty-day period ran from the receipt of the letter. Id.

at *1 n.1. The plaintiff in Smith only challenged the

letter under Section 1692g(a)(5) based on Defendant’s

failure to provide the address of the original creditor, not

the thirty-day reference, and the plaintiff ultimately

consented to the dismissal of that count. Id. at *1-2 n.3. 

The absence of any challenge to the exact same language in

Smith that is now challenged in the present suit by the same

attorney, while not dispositive, strongly suggests that the

present claim under Section 1692g(a)(5) represents an

idiosyncratic view of the validation notice by Plaintiff’s

counsel. 

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the “original creditor” ran from the date the letter was received

by Plaintiff. (Id. ¶ 31.) While Section 1692e(10) prohibits the

use of any false representation or deceptive means to collect or

attempt to collect any debt or to obtain information concerning a

consumer, for the reasons set forth supra, the Court concludes

that the challenged language of the December 16th collection

letter was not false, misleading, or deceptive. Accordingly, to

the extent Count II alleges a claim under Section 1692e(10) based

on the December 16th collection letter, Count II is dismissed

with prejudice as Plaintiff has failed to state a claim for which

relief can be granted.

The second alleged violation of Section 1692e(10) in Count

II relates to the January 28th letter Defendant sent to Plaintiff

along with a “Consent Judgement with Terms” and “Certified

Discovery.” Plaintiff asserts that this letter used “deceptive

means and misrepresent[ed] the time frame in which Plaintiff was

entitled to in providing answers” to Defendant’s discovery

demands. (Id. ¶¶ 32, 34.) Plaintiff contends that the New Jersey

Court Rules pertinent to the action Defendant filed in the New

Jersey Superior Court -- Special Civil Part provide for thirty

days to serve and answer interrogatories, while Defendant’s

January 28th letter sought responses to the “Certified Discovery”

from Plaintiff in ten days. (Id. ¶¶ 33-34.) Accordingly,

Plaintiff alleges that Defendant’s misrepresentation of the time

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frame for responding to discovery violates Section 1692e(10) and

that Plaintiff suffered damages based on this misrepresentation. 

(Id. ¶¶ 32, 35.) 

In the present motion, Defendant argues that this portion of

Count II should be dismissed because “it is based on the mistaken

assumption that [Defendant] was sending [Plaintiff] formal

discovery requests pursuant to the Court Rules.” (Def.’s Mot. to

Dismiss 14.) According to Defendant, after filing the complaint

against Plaintiff in the New Jersey Superior Court –- Special

Civil Part, the parties agreed upon a payment schedule for

Plaintiff’s debt and the January 28th letter was a “payment

arrangement confirmation” letter sent in furtherance of

settlement discussions, not as formal discovery. (Id.) Thus,

Defendant argues that Plaintiff cannot possibly argue that

Defendant misrepresented the time frame for response under the

New Jersey Court Rules. (Id.) Plaintiff disagrees with

Defendant’s characterization of the January 28th letter and notes

that the letter included a document entitled “Certified

Discovery,” which sought “various discoverable information such

as personal information from plaintiff, including family and

financial matters.” (Pl.’s Opp’n 9-10.) Plaintiff argues that

at the time, she was unrepresented by counsel and Defendant

“improperly directed” her to complete the questions on the

“Certified Discovery” document and return them to Defendant

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within ten days. (Id. at 10.) Plaintiff notes that there is no

indication in the January 28th letter or the “Certified

Discovery” that responding to the discovery is related to

settlement discussions, and thus from the prospective of the

least sophisticated consumer, the receipt of legal documents and

a deadline to respond constitutes a false representation or a

deceptive means. (Id.) 

Noticeably absent from either party’s argument on this

alleged violation of Section 1692e(10) is the citation to even a

single case addressing this issue directly or by analogy. The

parties have not set forth any authority which either supports or

refutes the existence of a claim under Section 1692e(10) based on

the inclusion of a document entitled “Certified Discovery” with a

purported settlement offer to a debtor. Moreover, neither party

has even attempted to explain the nature of “Certified Discovery”

under the New Jersey Court Rules. 

On a motion to dismiss, the Court must accept the factual

allegations of Plaintiff’s complaint as true and view them in the

light most favorable to Plaintiff. Furthermore, as the moving

party Defendant bears the burden for establishing that no

plausible claim has been alleged. Taking these considerations

into account, the Court notes that Defendant filed a complaint

against Plaintiff in the New Jersey Superior Court -- Special

Civil Part. (Pl.’s Compl. ¶ 16; see also Summons and Superior

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Court Compl., Ex. B. to Pl.’s Compl.) As Plaintiff alleges in

the complaint in this action, New Jersey Court Rule 6:4-3, which

governs discovery in proceedings in the Special Civil Part, is

applicable to the action filed by Defendant and generally

provides that the time period for answering interrogatories shall

be thirty days. R. 6:4-3(a); (see also Pl.’s Compl. ¶ 33). 

Moreover, as Plaintiff alleges, Defendant’s January 28th letter

encloses a document entitled “Certified Discovery” and requests

that Plaintiff “[c]omplete the questions on the Certified

Discovery” and return the document to Defendant within ten days. 

(Pl.’s Compl. ¶¶ 17, 34; see also January 28th letter and

enclosures, Ex. C. to Pl.’s Compl.) Based on these facts,

Plaintiff contends that Defendant violated Section 1692e(10)

because Defendant used “deceptive means and misrepresent[ed]” the

thirty-day time frame for responding to discovery in the Special

Civil Part by seeking Plaintiff’s completed answers within ten

days. (Pl.’s Compl. ¶¶ 32-35.)

Taking these allegations as true and viewing them in the

light most favorable to Plaintiff, the Court finds that the least

sophisticated debtor could be mislead by Defendant’s

representation that “Certified Discovery” be completed and

returned within ten days and may not know that New Jersey Court

Rules provide additional time to answer discovery requests. 

Despite Defendant’s argument that the January 28th letter and the

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enclosed “Certified Discovery” were sent in furtherance of

settlement discussions and not in the context of formal

discovery, under New Jersey Court Rules interrogatories may be

“served upon or demanded from any other party with or after

service of the summons and complaint upon that party.” R. 4:17-

2. It appears from Plaintiff’s complaint and the Special Civil 7

Part summons and complaint attached thereto as Exhibit B, that

Defendant initiated the state court action on or around January

20, 2011 and Plaintiff was served on or about January 24, 2011. 

The fact that the January 28th letter was sent to Plaintiff after

the state court complaint was filed and served and included

“Certified Discovery,” significantly challenges Defendant’s

argument that these documents were not sent in the context of

formal discovery. The least sophisticated debtor may have been

confused based on Defendant’s legal documents and the

representations in the January 28th letter. Accordingly, the

Court finds that Defendant has not satisfied its burden at this

time to demonstrate that Plaintiff fails to state a claim under

7. While Rule 6:4-3 governs discovery in the Special Civil Part,

the Rule provides that interrogatories served under that Rule may

be served pursuant to the applicable provisions of Rule 4:17. R.

6:4-3(a). Rule 4:17-2 sets forth generally the time for serving

interrogatories and provides in pertinent part:

“[i]nterrogatories may, without leave of court, be served upon

the plaintiff or answers demanded ... after commencement of the

action and served upon or demanded from any other party with or

after service of the summons and complaint upon that party.” R.

4:17-2. 

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Section 1692e(10) relating to the January 28th letter and its

enclosures. Accordingly, the Court denies Defendant’s motion to

dismiss Count II to the extent Count II asserts a claim under

Section 1692e(10) based on the January 28th letter and its

enclosures. 

C. Count II Claims for Class Action Relief

To the extent Count II alleges a claim for a violation of

Section 1692e(10) based on Defendant’s January 28th letter,

Defendant also seeks dismissal of any class action relief based

on this portion of Count II. (Def.’s Mot. to Dismiss 15.)

“Normally, courts refrain from analyzing the propriety of a

proposed class with respect to a given claim until the plaintiff

moves for class certification under Federal Rule 23. There are,

however, ‘rare cases where the complaint itself demonstrates that

the requirements for maintaining a class action cannot be met.’” 

Smith, 2008 WL 2885887, at *4 (citing Clark v. McDonald's Corp.,

213 F.R.D. 198, 205 n.3 (D.N.J. 2003)). “In such situations,

courts will strike or dismiss class allegations even if discovery

has not yet taken place.” Smith, 2008 WL 2885887, at *4. In

this case, it appears from the face of the complaint that this

potential class cannot satisfy the predominance requirement as 8

8. Plaintiff does not specify in the complaint whether the

potential class is being brought pursuant to subsection one, two,

or three of Rule 23(b). However, in light of Plaintiff’s

allegation that there are “questions of law and fact which are

common to the [c]lass and which predominate over questions

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to the remaining portion of Count II. 

“Rule 23 of the Federal Rules of Civil Procedure allows a

class action if certain requirements are met. First, the class

must meet the ‘prerequisites’ of Rule 23(a): numerosity,

commonality, typicality, and adequacy. Second, the class must

fit one of the Rule 23(b) types of classes. ... Rule 23(b)(3),

... requires (1) ‘that the questions of law or fact common to

class members predominate over any questions affecting only

individual members,’ and (2) ‘that a class action is superior to

other available methods for fairly and efficiently adjudicating

the controversy.’ These requirements are known as predominance

and superiority.” Behrend v. Comcast Corp., 655 F.3d 182, 189-90

(3d Cir. 2011) (citing Rule 23(b)(3)). Moreover, “Plaintiffs

bear the burden of establishing each element of Rule 23 by a

preponderance of the evidence.” Behrend, 655 F.3d at 190. 

In the complaint, Plaintiff proposes a class consisting of

“[a]ll New Jersey consumers who received collection letters

and/or notices from the Defendant[] that contained at least one

of the alleged violations arising from the Defendants’ violation

affecting any individual class member[,]” (see Pl.’s Compl. ¶

12), the Court assumes that Plaintiff is attempting to bring this

action as a Rule 23(b)(3) class. Rule 23(b)(3) provides in part

that subject to satisfaction of the Rule 23(a) requirements, a

class action may be maintained if “the court finds that questions

of law or fact common to the class members predominate over any

questions affecting only individual members[.]” FED. R. CIV. P.

23(b)(3).

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of 15 U.S.C. § 1692[.]” (Pl.’s Compl. ¶ 11.) Plaintiff contends

that common questions of law and fact “predominate over questions

affecting any individual [c]lass member” including, but not

limited to, whether: (1) Defendant violated Section 1692e(10);

(2) class members were injured by Defendant’s conduct; (3) class

members sustained damages, are entitled to restitution, and the

proper measure for determining damages; and (4) whether class

members are entitled to declaratory and/or injunctive relief. 9

(Id. ¶ 12.) 

Defendant argues that class action relief on the remaining

claim in Count II “is dependent upon [Defendant’s] settlement

discussions with individual debtors, [which is] clearly a factsensitive and case-by-case inquiry.” (Def.’s Mot. to Dismiss

15.) According to Defendant, this portion of Count II,

concerning “payment arrangement confirmation” communications,

cannot set forth sufficient facts to warrant class certification

because “resolution of such disputes would by necessity require a

case-by-case assessment of: (i) whether [Defendant] communicated

with a debtor either verbally or in writing regarding possible

settlement; (ii) whether [Defendant] and the debtor reached an

agreement regarding payment of the underlying debt, and if so,

9. As set forth infra, Plaintiff’s claims for declaratory and

injunctive relief are prohibited under the FDCPA. Accordingly,

Plaintiff cannot contend that whether potential class members are

entitled to declaratory or injunctive relief is a common question

that predominates in this action. 

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the specifics of the settlement/payment arrangement; and (iii)

whether any confirming letters were thereafter sent out

memorializing the payment arrangement.” (Id. at 16-17.) 

Although Plaintiff’s complaint purports to set forth class

action allegations, the Court finds that Plaintiff’s allegations

are merely general recitals of the requirements of Rule 23. At

this time, Plaintiff’s allegations regarding a potential class

action lack sufficient factual support to demonstrate on the face

of the complaint that Plaintiff can satisfy the predominance and

superiority requirements of Rule 23(b)(3). Moreover, in

responding to Defendant’s motion to dismiss, Plaintiff offers no

arguments to rebut Defendant’s assertion that the portion of

Count II regarding “payment arrangement confirmations” cannot set

forth sufficient facts to warrant class certification. Plaintiff

similarly fails to offer any additional factual support for these

class action claims in opposition to dismissal. Accordingly, the

Court grants Defendant’s motion to dismiss Plaintiff’s class

action allegations relating to the remaining portion of Count II

at this time. The dismissal of Plaintiff’s class action claims

in this regard is without prejudice to Plaintiff’s right to seek

leave to amend the complaint should she subsequently discover

sufficient factual support for such claims. 

D. Request for Injunctive and Declaratory Relief

Finally, Defendant seeks to dismiss all requests in

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Plaintiff’s complaint for declaratory and injunctive relief. 

(Def.’s Mot. to Dismiss 18.) In the complaint, Plaintiff seeks:

(1) a declaratory judgment that Defendant’s conduct violated the

FDCPA, (see Pl.’s Compl. ¶¶ 28, 36); (2) the issuance of a

preliminary or permanent injunction restraining Defendant from

engaging in conduct or practices that violate the FDCPA (id. at

8); and (3) the issuance of a declaratory order requiring

Defendant to make corrective disclosures. (Id.) However, it is

well established in the Third Circuit that injunctive and

declaratory relief are not available under the FDCPA for private

causes of action against debt collectors. Weiss v. Regal

Collections, 385 F.3d 337, 342 (3d Cir. 2004) (“[W]e hold

injunctive and declaratory relief are not available to litigants

acting in an individual capacity under the FDCPA.”); see also

Beck v. Maximus, Inc., 457 F.3d 291, 301 (3d Cir. 2006)

(recognizing the holding in Weiss that “declaratory and

injunctive [relief are] unavailable under the Fair Debt

Collection Practices Act.”); Agostino v. Quest Diagnostics Inc.,

256 F.R.D. 437, 459 (D.N.J. 2009) (“Third Circuit precedent is

clear that injunctive or declaratory relief is not available to

private plaintiffs pursuing claims under the FDCPA.) (citing

Weiss, 385 F.3d at 342). Accordingly, Plaintiff’s demands for

declaratory and injunctive relief are dismissed with prejudice. 

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V. CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss

[Doc. No. 5] is granted in part and denied in part. An 10

appropriate Order will be entered. 

Dated: December 14, 2011 /s/ Noel L. Hillman 

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

10. To the extent Defendant’s motion is granted and Plaintiff’s

claims are dismissed with prejudice, the Court notes that leave

to amend will not be granted as any such amendment would be

futile. See Phillips, 515 F.3d at 245. 

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