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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CLAUDIA DEVITO,

 Plaintiff,

 v.

ZUCKER, GOLDBERG & ACKERMAN, 

LLC, et al.,

 

 Defendants.

 Civil Action No. 11-3773

 (SDW) (MCA)

 OPINION

 February 29, 2011

WIGENTON, District Judge.

Before the Court is a motion to dismiss the complaint of plaintiff Claudia Devito 

(“Plaintiff”) against defendant Zucker, Goldberg & Ackerman, LLC (“Defendant”) pursuant to 

Federal Rules of Civil Procedure 12(b)(6) (“Motion to Dismiss”). Plaintiff filed a memorandum 

of law opposition to Defendant’s Motion to Dismiss and in support of Plaintiff’s cross-motion 

for leave to amend complaint pursuant to Federal Rule of Civil Procedure 15(a) (“Cross Motion 

to Amend”).

This Court has jurisdiction pursuant to 15 U.S.C. § 1692k(d) and 28 U.S.C. § 1331. 

Venue is proper pursuant to 28 U.S.C. § 1391(b).

This Court, having considered the parties’ submissions, decides the motion without oral 

argument pursuant to Federal Rule of Civil Procedure 78.

For the reasons stated below, this Court DENIES Defendant’s Motion to Dismiss.

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BACKGROUND AND PROCEDURAL HISTORY

Plaintiff allegedly incurred a debt that would fall under 15 U.S.C. § 1692(a)(5) for 

abusive and unfair debt collection practices in violation of Fair Debt Collection Practices Act 

(“FDCPA”), 15 U.S.C. § 1692e. (Compl. ¶¶ 5, 8).

On July 2, 2010, Defendant sent a Notice of Intention to Foreclose (“NOIF”) to Plaintiff 

in connection with a mortgage given to Plaintiff. (See Compl. Ex. A).

On or about July 23, 2010, Plaintiff sent a letter to Defendant disputing the debt and 

requesting validation (“July 23, 2010 Letter”). (See Compl. Ex. B).

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On June 30, 2011, Plaintiff filed a complaint with this Court alleging unfair debt 

collection practices by Defendant in violation of the FDCPA (“Complaint”). Plaintiff claims that 

almost a year went by and she was not mailed verification by Defendant regarding the alleged 

debt. (Compl. ¶ 16.)

On August 16, 2011, Defendant filed the instant Motion to Dismiss. On September 19, 

2011, Plaintiff filed the Cross Motion to Amend.

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.” This 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 Atl. Corp. v. Twombly, 550 

U.S. 544, 555 (2007) (citations omitted) (“Rule 8(a)(2) still requires a ‘showing’ rather than a 

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This letter is referred to as dated “July 26, 2010” in the Complaint and was allegedly sent via certified mail. 

(Compl. ¶ 13.)

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blanket assertion, of an entitlement to relief.” Bell Atl. Corp. at 1965 n. 3); see also Phillips v. 

Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).

In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the 

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 231 (quoting Pinker v. Roche 

Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). However, “the tenet that a court must 

accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. 

Threadbare recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 

550 U.S. at 555). As the Supreme Court has explained: 

To survive a motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to “state a claim to relief that is 

plausible on its face.” A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct 

alleged. The plausibility standard is not akin to a “probability 

requirement,” but it asks for more than a sheer possibility that a 

defendant has acted unlawfully. Where a complaint pleads facts 

that are “merely consistent with” a defendant’s liability, it “stops 

short of the line between possibility and plausibility of ‘entitlement 

to relief.’”

Id. at 1949 (citations omitted) (quoting Twombly, 550 U.S. at 556–57, 570). Determining 

whether allegations in a complaint are plausible is “a context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense.” Id. at 1950. If the “wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct,” the 

court must grant a motion to dismiss for failure to show that the pleader is entitled to relief as 

required by Rule 8(a)(2). Id.

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DISCUSSION

The FDCPA, 15 U.S.C. § 1692e, states generally that “[a] debt collector may not use any 

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

debt.” The statute also specifically states that “[t]he false representation or implication that any 

individual is an attorney or that any communication is from an attorney” or “[t]he threat to take 

any action that cannot legally be taken or that is not intended to be taken” constitute violations of 

the FDCPA. See Piper v. Portnoff Law Assocs., Ltd., 396 F.3d 227, 234-36 (3d Cir. 2005). 

Section 1692f(6) provides debt collector may not use “unfair or unconscionable means” to 

collect, and the following conduct violates the statute:

Taking or threatening to take any nonjudicial action to effect dispossession or 

disablement of property if -

(A) there is no present right to possession of the property claimed as collateral 

through an enforceable security interest;

(B) there is no present intention to take possession of the property; or

(C) the property is exempt by law from such dispossession or disablement.

15 U.S.C. § 1692f(6).

In Lesher v. Law Offices of Mitchell N. Kay, P.C., 650 F.3d 993 (3d Cir. 2011), the Third 

Circuit discussed precedential opinions regarding the general prohibition against false and 

misleading representations in the FDCPA. See 15 U.S.C. § 1692e. The Lesher court cited

Brown v. Card Serv. Ctr., 464 F.3d 450 (3d Cir. 2006), in which the Third Circuit stated that 

even a collection letter stating that a lawsuit “could” be filed can be considered deceptive and 

misleading if the lender were trying “to assert that it could take an action that it had no intention 

of taking and has never or very rarely taken before.” Id. at 454-555. The Lesher court also stated

that “we analyze communications from lenders to debtors from the perspective of the ‘least 

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sophisticated debtor.’” Id. at 454.2 The court in Rosenau v. Unifund Corp., 539 F.3d 218 (3d 

Cir. 2008) further held that “a debtor receiving [a] letter [from a debt collector using the heading 

‘Unifund Legal Department’] might reasonably infer that it was from an attorney even though it 

was not.” The Rosenau court held that the categories of debt collector and attorney are not 

mutually exclusive. Id. As the letter in Lesher had no disclaimer at all, the Third Circuit granted 

summary judgment to the borrower on his § 1692e claim. Lesher, 650 F.3d at 1003-04.

Courts in other circuits have also reviewed these types of matters, and although not 

binding, the decisions are instructive. The Second Circuit in Clomon v. Jackson, 988 F.2d 1314 

(2d Cir.1993), held that “the use of the attorney’s letterhead and his signature on the collection 

letters was sufficient to give the debtor the false impression that the letters were communications 

from an attorney” and thus violate § 1692e. Lesher, 650 F.3d at 999. Later, in Greco v. Trauner, 

Cohen & Thomas, LLP, before the Second Circuit, a disclaimer naming the lender and noting the 

extent of the law firm’s involvement is enough to prevent the letter from being false, deceptive, 

or misleading. Lesher, 650 F.3d at 1000-01 (citing Greco v. Trauner, Cohen & Thomas, LLP, 

412 F.3d 360 (2d Cir. 2005)). In a similar case, the Fifth Circuit reversed a grant of a motion to 

dismiss for failure to state a claim because unlike in Greco, the disclaimer was placed on the 

back of the letter sent to the borrower. Gonzalez v. Kay, 577 F.3d 600 (5th Cir. 2009). 

In the instant matter, Defendant argues that the NOIF was in compliance with the 

FDCPA and the New Jersey’s Fair Foreclosure Act (“FFA”).

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 Plaintiff argues that Defendant 

served as a “debt collector” as defined in 15 U.S.C. § l692a(6), and further, the NOIF does not 

 2 “Importantly, 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 & Veldhuius, P.C., 2008 WL 

2885887, at *3 (D.N.J. 2008). 

3 N.J.S.A. 2A:50-56(c)(11) of the FFA requires, among other items, that the NOIF indicate: “the name and address 

of the lender and the telephone number of a representative of the lender whom the debtor may contact if the debtor 

disagrees with the lender’s assertion that a default has occurred or the correctness of the mortgage lender’s 

calculations of the amount required to cure the default.”

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clearly indicate the identity of the creditor on its face as required by the FDCPA.4 (See Compl. 

Ex. A; see also 15 U.S.C. § 1692(g)). Thus, Plaintiff argues Defendant “failed to strictly comply 

with the requirements of said subsection and therefore, is clearly in violation of 15 U.S.C. 

§1692g(a)(2).” (Pl.’s Opp’n Br. 10.)

Defendant argues that in the July 23, 2010 Letter, Plaintiff refers to “Saxon”, clearly 

indicating that the identity was known to her, and merely disputes only the amount allegedly 

owed. (Def.’s Br. 11.) Defendant also asserts that “A close review of the [NOIF] shows that it 

speaks in terms of possible, but not absolute conduct.” (Id. at 8.) Plaintiff wrote specifically 

seeking the name of the creditor for the alleged debt in the July 23, 2010 Letter. Plaintiff does 

refer to “Saxon” in her July 23, 2010 Letter, but argues “Saxon” is merely the mortgage servicer

and Plaintiff still sought the identity of the creditor to whom the debt is owed pursuant to the 

FDCPA. Further, Plaintiff argues Defendant threatened conduct not intended to be taken. (See

Compl. ¶ 21.) 

Based on these circumstances and applicable case law, Plaintiff may be able to amend her 

claim so that it is not futile, and will be given the opportunity to do so. (See Fed. R. Civ. P.

15(a).) Plaintiff is granted thirty (30) days from the date of this opinion to amend the Complaint.

CONCLUSION

For the reasons set forth above, Defendant’s Motion to Dismiss is DENIED and 

Plaintiff’s Cross Motion to Amend is GRANTED.

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

Orig: Clerk

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

Parties

 4 The exhibit before the Court contains redactions and it is unclear if the sentence within the NOIF stating: “If your 

account is not brought current by August 2, 2010, then may start [sic] mortgage foreclosure proceedings, which will 

cause you to lose your property” contained additional information. (Compl. Ex. A.) 

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