Ahmad Keshavarz's Legal Cases (4)

Debt collection

Samms v. Abrams, 112 F. Supp. 3d 160 - Dist. Court, SD New York 2015

Jul 06, 2015

OUTCOME: Denying defendant's motion for judgment on the pleadings.

Samms alleges that Abrams's demand for attorneys' fees in the "wherefore" clause of the State Court Complaint violated the FDCPA because Abrams had no entitlement to such fees. According to the SAC, Sa ... mms entered no contract authorizing the collection of such fees, nor is there any statute providing for an award of attorneys' fees in actions sounding in unjust enrichment or quantum meruit generally. See Abacus v. Datagence, Inc., 66 A.D.3d 552, 553, 887 N.Y.S.2d 94 (1st Dep't 2009) (reversing award of attorneys' fees where not authorized by contract); Banco Popular N. Am. v. Lieberman, 75 A.D.3d 460, 461, 905 N.Y.S.2d 82 (1st Dep't 2010) (dismissing cause of action for attorneys' fees where claim sounded solely in unjust enrichment). Accordingly, Samms contends that he has plausibly alleged that Abrams' demand for attorneys' fees was a "false, deceptive, or misleading representation" under Section 1692e and also an attempt to collect an amount not "expressly authorized by the agreement creating the debt or permitted by law" in violation of Section 1692f(1). The Court agrees. It appears that no court within this circuit has squarely addressed this issue. Nonetheless, the Court finds that, taking the allegations in the SAC as true, an unsophisticated consumer reading the State Court Complaint could be left with the false impression that Abrams was legally entitled to recover an award of attorneys' fees in addition to the amount of the debt allegedly owed. This false impression, in turn, could subtly coerce the consumer to pay the debt out of the fear of incurring even greater liability. Thus, the demand for attorneys' fees in the State Court Complaint falls squarely within Section 1692e's general prohibition against "false, deceptive, or misleading representation[s]," as well as its specific prohibition against "false representation[s] of ... compensation which may be lawfully received by any debt collector for the collection of a debt." 15 U.S.C. § 1692e(2)(A). In so holding, the Court joins the majority of courts that have considered this issue. See McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 949 (9th Cir.2011) (affirming grant of summary judgment in favor of debtor where debt collector requested attorney's fees in state collection complaint); Moxley v. Pfundstein, No. 1:10-CV-2912, 2012 WL 4848973, at *5 (N.D.Ohio Oct. 11, 2012); Foster v. D.B.S. Collection Agency, 463 F.Supp.2d 783, 802 (S.D.Ohio 2006); Strange v. Wexler, 796 F.Supp. 1117, 1120 (N.D.Ill.1992); cf. Lox v. CDA, Ltd., 689 F.3d 818, 826 (7th Cir.2012) (reversing grant of summary judgment in favor of debt collector who falsely stated in collection letter that a court "could allow ... attorney fees"); Fosen v. Weinstein & Riley, P.S., No. 4:12CV662, 2013 WL 4417526, at *5 (E.D.Tex. Aug. 14, 2013); but see Argentieri v. Fisher Landscapes, Inc., 15 F.Supp.2d 55, 62 (D.Mass.1998).[1]

Debt collection

Cameron v. LR CREDIT 22, LLC, 998 F. Supp. 2d 293 - Dist. Court, SD New York 2014

Feb 24, 2014

OUTCOME: Denying defendants' motion to dismiss.

Cameron alleges Defendants violated the FDCPA by filing a time-barred lawsuit against her in Civil Court, which misrepresented the legal status of the debt. Under New York's six-year statute of limitat ... ions for contract disputes, N.Y. C.P.L.R. § 213(2), the lawsuit would have been timely. Cameron contends, however, that Delaware's three-year statute, Del.Code 300*300 Ann. tit. 10 § 8106, barred Defendants' lawsuit in the Civil Court. As explained below, that depends on whether her original creditor, Chase, "resided" in Delaware when its cause of action arose. Under New York's "borrowing statute," N.Y. C.P.L.R. § 202, a nonresident who asserts a "cause of action accruing without the state" must do so within the "limitation periods of both New York and the jurisdiction where the cause of action accrued." Portfolio Recovery Associates, LLC v. King, 14 N.Y.3d 410, 901 N.Y.S.2d 575, 927 N.E.2d 1059, 1061 (2010). "If the claimed injury is an economic one, the cause of action typically accrues `where the plaintiff resides and sustains the economic impact of the loss.'" Id. For a business organization, "one looks to its State of incorporation or its principal place of business." Global Fin. Corp. v. Triarc Corp., 93 N.Y.2d 525, 693 N.Y.S.2d 479, 715 N.E.2d 482, 485 (1999). Where a plaintiff sues to collect a debt assigned to it from a bank, the debt collector "is not entitled to stand in a better position" than the bank. Portfolio, 901 N.Y.S.2d 575, 927 N.E.2d at 1060-61 (applying Delaware's three-year statute of limitations to debt collector where assignor bank was "incorporated in Delaware and [was] not a New York resident"). The Complaint plausibly alleges that Chase resides in Delaware, on the grounds that its articles of association state that its "main office" is there. (Compl. ¶ 29.) Chase has filed numerous public documents stating that its "main office," "headquarters," "residence," and "principal place of business" are in Delaware. (Pl.'s Br. 7-10 (citing Keshavarz Decl. Exs. 1-7).) If that is true,[6] Defendants' lawsuit in Civil Court would be time-barred because it was not brought until after the expiration of Delaware's three-year limitations period. Therefore, the only remaining question is whether the filing of such a time-barred complaint is a violation of the FDCPA.[7] This Court joins others in concluding that it is. See, e.g., Diaz v. Portfolio Recovery Associates, LLC, No. 10-CV-3920, 2012 WL 1882976, at *4 (E.D.N.Y. May 24, 2012); Baptist v. Global Holding & Inv. Co., LLC, No. 04-CV-2365, 2007 WL 1989450, at *5 (E.D.N.Y. July 9, 2007); Beattie v. D.M. Collections, Inc., 754 F.Supp. 383, 393 (D.Del.1991). Indeed, "the threatening of a lawsuit which the debt collector knows or should know is unavailable or unwinnable by reason of a legal bar such as the statute of limitations is the kind of abusive practice the FDCPA was intended to eliminate." Beattie, 754 F.Supp. at 393.

Debt collection

Okyere v. Palisades Collection, LLC, 961 F. Supp. 2d 522 - Dist. Court, SD New York 2013

Sep 16, 2013

OUTCOME: Denying defendants' motion for judgment on the pleadings.

Under the facts alleged here, the Court believes that a jury might reasonably conclude that (1) removing money from a bank account when a court has forbidden this to occur and (2) deliberately refusing ... for many months to return money seized from a bank account where a court has ordered it returned "forthwith" constitute acts that affront the sense of "justice, decency or reasonableness." Indeed, courts have applied 1692f to conduct similar to what defendants did here: for example, filing an application for a writ of garnishment when the plaintiff did not owe any money, Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507, 1517 (9th Cir.1994); garnishing a bank account with the knowledge that it contained exempt funds, Bray v. Cadle Co., 2010 WL 4053794, at *15 (S.D.Tex.2010); Hogue v. Palisades Collection, LLC, 494 F.Supp.2d 1043, 1051 (S.D.Iowa 2007); Todd v. Weltman, Weinberg & Reis, Co., L.P.A., 348 F.Supp.2d 903, 915 (S.D.Ohio 2004), aff'd, 434 F.3d 432 (6th Cir.), cert. denied, 549 U.S. 886, 127 S.Ct. 261, 166 L.Ed.2d 151 (2006); and drawing money from a consumer's bank account without authorization, Lovelace v. Stephens & Michaels Assocs., Inc., 2007 WL 3333019, at *4-5 (E.D.Mich.2007).

Debt collection

Fritz v. Resurgent Capital Servs, LP, 955 F. Supp.2d 163, (E.D.N.Y. 2013)

Jul 24, 2013

OUTCOME: Denying defendants' motion to dismiss.

The Court concludes that a false representation of the owner of a debt could easily mislead the least sophisticated consumer as to the nature and legal status of the debt. It could, moreover, impede th ... e consumer's ability to respond. In other words, one possible response to a collection action would be to voluntarily pay the debt. A consumer—even a sophisticated one—might reasonably believe that paying the entity bringing suit would extinguish the debt. Yet because of the misrepresentation as to the ownership of the debt, paying Resurgent LLC would have left the debtor vulnerable to a suit by the true owner, LVNV. The Court likewise concludes that the misrepresentations that Resurgent LLC was licensed debt collector were material. Defendants do not dispute that Resurgent LLC was required to be licensed before taking any action to collect debts in New York City. See N.Y.C. Admin. Code §§ 20-490 ("It shall be unlawful for any person to act as a debt collection agency without first having obtained a license in accordance with the provisions of this subchapter[.]"), 20-489 (defining "debt collection agency"). Lack of such a license precludes recovery on collection actions. See N.Y.C.P.L.R. § 3015(e) ("Where the plaintiff's cause of action against a consumer arises from the plaintiff's conduct of a business which is required by state or local law to be licensed by the department of consumer affairs of the city of New York... the complaint shall allege, as part of the cause of action, that plaintiff was duly licensed at the time of services rendered and shall contain the name and number, if any, of such license and the governmental agency which issued such license."). The false representation that Resurgent LLC held a debt-collection license could easily have led an unsophisticated consumer to forgo a valid defense.

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