NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

VICTOR REYES, 

 Plaintiff,

 v.

ASSOCIATED RECOVERY SYSTEMS,

 

 Defendants.

 Civil Action No. 11-cv-03075

 (SDW) 

 OPINION

 February 8, 2011

WIGENTON, District Judge.

Before the Court is Associated Recovery Systems’ (“ARS”) Motion to Dismiss pursuant 

to Federal Rule of Civil Procedure 12(b)(6). This Court has jurisdiction pursuant to 28 U.S.C. §§ 

1331, 1343(a)(3), and 1367. Venue is proper pursuant to 28 U.S.C. § 1391(b). This Court, 

having considered the parties’ submissions, decides this matter without oral argument pursuant 

to Federal Rule of Civil Procedure 78. For the reasons stated below, this Court GRANTS ARS’s 

Motion to Dismiss. 

BACKGROUND

This matter involves Plaintiff Victor Reyes (“Plaintiff”) and ARS Associated Recovery 

Systems (“Defendants” or “ARS”). In this action, Plaintiff seeks actual and statutory damages, 

attorney’s fees, and filing fees for ARS’s alleged violation of the Fair Debt Collection Practices 

Act (“FDCPA”) 15 U.S.C. § 1692, et seq. The issue before this Court is whether ARS’s 

collection letter to Plaintiff violated section § 1692j(a) of the FDCPA.

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FACTS

On September 9, 2010, ARS sent Plaintiff an initial contact letter1 in Spanish (“Letter”) 

regarding a debt Plaintiff owed to Bank of America, NA which had been placed with ARS. 

(Compl. ¶¶ 6, 8.) Plaintiff had not consented to or ratified any assignment of the debt owed to 

Bank of America, NA. (Id. ¶ 9.) The Letter identified ARS as the sender and refers to the 

account as a Bank of America, NA account. (Declaration of Cindy D. Salvo (“Salvo Decl.”), Ex. 

A (Spanish-language letter), at 1; Ex. B (English translation of letter), at 1.) The Letter also lists 

a Bank of America, NA account number, ARS account number, and the account balance. (Id.) 

The Letter states that the “referenced account has been placed with [ARS] for collection” and 

identifies ARS as a debt collector. (Id.) Specifically, the Letter states “[t]his communication is 

from a debt collector. This is an attempt to collect a debt. Any information obtained will be used 

for that purpose.” (Id.) Additionally, the Letter provides the recipient with a validation notice 

which states:

Unless you notify this office within 30 days after receiving this notice that you 

dispute the validity of this debt or any portion thereof, this office will assume this 

debt is valid. If you notify this office in writing within 30 days from receiving 

this notice, this office will: obtain verification of the debt or obtain a copy of a 

judgment and mail a copy of such judgment or verification. If you request of this 

office in writing within 30 days after receiving this notice, this office will provide 

you with the name and address of the original creditor, if different from the 

current creditor.

(Id.)

Plaintiff alleges that because the Letter did not state ARS’s legal right to collect the debt

the letter was misleading and deceptive to the least educated consumer in violation of the 

 1 Plaintiff actually received a dunning letter. A dunning letter is synonymous with a collection 

letter or a demand for payment. See Black's Law Dictionary 518 (7th ed.1999) (defining “dun” as 

“[t]o demand payment from (a delinquent debtor)).

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FDCPA. (Compl. ¶¶ 10-11.) Plaintiff further alleges that the Letter violates the FDCPA because 

it “was written to completely deceive [him] as to [the owner of the debt at the time of the Letter] 

and [as to his] to ability to dispute the debt.” (Compl. 4.) Plaintiff additionally alleges that the 

Letter violated the FDCPA because the account number listed on the Letter does not belong to 

the Plaintiff. (Compl. ¶ 12.) Finally, Plaintiff alleges that ARS violated the FDCPA because 

ARS reported the debt to credit reporting agencies which resulted in Plaintiff’s credit score being 

lowered. (Compl. ¶ 5.)

LEGAL STANDARD

The adequacy of pleadings is governed by Federal Rule of Civil Procedure 8(a)(2), which 

requires that a complaint allege “a short and plain statement of the claim showing that the 

pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The rule “requires more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . 

Factual allegations must be enough to raise a right to relief above the speculative level.” Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). See Phillips v. 

Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (Rule 8 “requires a ‘showing’ rather than a 

blanket assertion of an entitlement to relief.” (citation omitted)). When reviewing a motion to 

dismiss, a court must “accept all factual allegations as true, construe the complaint in the light 

most favorable to the plaintiff, and determine whether, under any reasonable reading of the 

complaint, the plaintiff may be entitled to relief.” Phillips, 515 F.3d at 233. 

As a general rule, a district court deciding a motion to dismiss may consider only the 

contents of the pleadings. Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 

2002) (internal citation omitted). However, there exists an exception to that general rule in that 

“‘[d]ocuments that the defendant attaches to the motion to dismiss are considered part of the 

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pleadings if they are referred to in the plaintiff’s complaint and are central to the claim.’” Cooper 

v. Samsung Elecs. America, Inc., 374 F. App’x 250, 253 n.3 (3d Cir. Mar. 30, 2010) (quoting 

Pryor, 288 F.3d at 560).

DISCUSSION

Congress enacted the FDCPA “to eliminate abusive debt collection practices.” 15 U.S.C. 

§ 1692(e). Section 1692k of the FDCPA creates a private cause of action for any person that is 

aggrieved by a debt collector’s violation the statute. See id. at § 1692k. The Third Circuit has 

held that “lender-debtor communications potentially giving rise to claims under the FDCPA . . . 

should be analyzed from the perspective of the least sophisticated debtor.” Rosenau v. Unifund 

Corp., 539 F.3d 218, 221 (3d Cir. 2008). The purpose of this standard is “to ensure that the 

FDCPA protects all consumers, the gullible as well as the shrewd. This standard is consistent 

with the norms that courts have traditionally applied in consumer-protection law. . . .” United 

States v. National Financial Serv., Inc., 98 F.3d 131, 136 (4th Cir.1996) (quoting Clomon v. 

Jackson, 988 F.2d 1314, 1318 (2d Cir.1993)). The standard 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.” Id.

The provision of the FDCPA upon which Plaintiff bases his claim states: 

[i]t is unlawful to design, compile, and furnish any form knowing that such form 

would be used to create the false belief in a consumer that a person other than the 

creditor of such consumer is participating in the collection or in an attempt to 

collect a debt such consumer allegedly owes such creditor, when in fact such 

person is not so participating. 

15 U.S.C. § 1692j(a). The provision is designed to combat the abusive practice known as “flatrating”, which is when a collection agency sells dunning letters to creditors with the agency’s 

letterhead on the letter, even though the agency is not involved in the collection of the debt. See 

Orenbuch v. North Shore Health Sys., Inc., 250 F.Supp.2d 145, 149-50 (E.D.N.Y. 2003). The 

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resulting effect is to give the debtor a misleading sense of urgency regarding repayment. See id; 

see also Anthes v. Transworld Sys. Inc., 765 F. Supp. 162, 167-68 (D.Del. 1991) (quoting 

FDCPA legislative history). 

Considering the legislative purpose behind § 1692j(a), Plaintiff’s allegations do not 

support the denial of this motion. While Plaintiff’s numerous allegations are bleak for multiple 

reasons, only one is particularly germane to this Court’s analysis. Since the purpose of the § 

1692j(a) is to combat flat-rating, in order to state a claim upon which relief would be granted, 

Plaintiff would have to state that ARS was not actually engaged by Bank of America to collect 

the debt. Since the complaint fails to allege the practice of “flat-rating”, it falls short of stating a 

claim under § 1692j. See Anthes, 765 F. Supp. at 168 (stating that, pursuant to the FDCPA and 

the legislative history, § 1692j only applies to situations involving flat raters).

CONCLUSION

For the reasons set forth above, Plaintiff’s complaint is dismissed. Since this Court 

cannot determine whether an amendment to the Complaint would cure the deficiency indicated 

above, this Court will not automatically grant Plaintiff leave to amend. See Phillips v. County of 

Allegheny, 515 F.3d 224, 236 (3d Cir. 2008); see also Foman v. Davis, 371 U.S. 178 (1962) 

(holding that leave to amend under Rule 15(a) should be freely given in the absence of any 

declared reason such as the futility of the proposed amendment). Instead, Plaintiff may file a 

motion for leave to amend the Complaint. ARS’s motion is GRANTED.

s/Susan D. Wigenton, U.S.D.J.

Orig: Clerk

Cc: Madeline Cox Arleo, U.S.M.J.

Parties 

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