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Diana Kieffer and Robert Kieffer v. New Century Financial Services

May 16, 2011

DIANA KIEFFER AND ROBERT KIEFFER, PLAINTIFFS,
v.
NEW CENTURY FINANCIAL SERVICES, INC. AND PRESSLER & PRESSLER, LLP, DEFENDANTS.



The opinion of the court was delivered by: Chesler, District Judge

NOT FOR PUBLICATION

OPINION

This matter comes before the Court upon Defendants New Century Financial Services, Inc.'s ("NCFS") and Pressler & Pressler, LLP's (collectively "Defendants") motion to dismiss Plaintiffs Diana and Robert Kieffer's (collectively "Plaintiffs") Amended Complaint [docket entry 17] pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiffs have opposed the motion. The Court has considered the papers filed by the parties and rules on the written submissions and without oral argument, pursuant to Federal Rule of Civil Procedure 78. For the reasons that follow, Defendants' motion to dismiss will be granted in part and denied in part.

I. BACKGROUND

Plaintiffs are married individuals that share two joint bank accounts at Ocean First Bank (the "Bank) in Ocean County, New Jersey. Prior to marrying Robert Kieffer, Diana Kieffer ("Plaintiff-Debtor") incurred credit card debts which Defendant NCFS purchased, and later retained Defendant Pressler & Pressler, LLP to collect. As part of their collection efforts, Defendants located and levied bank accounts in Plaintiff-Debtor's name at the Bank, including the entirety of two bank accounts Plaintiff-Debtor held jointly with Mr. Kieffer.

In the instant matter, Plaintiffs claim that Defendants violated the Fair Debt Collection Practices Act ("FDCPA") when they caused levies to be placed on the entirety of Plaintiffs' joint bank accounts when only one of the account holders was a judgment debtor. Furthermore, Plaintiffs assert that the levies placed on Mr. Kieffer's money, the money of an innocent third party, amounted to trespass to chattels or conversion and caused them either negligent or intentional emotional distress.

II. LEGAL ANALYSIS

A. Standard of Review

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff's claims have facial plausibility. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). This means that the Complaint must contain sufficient factual allegations to raise a right to relief above the speculative level, assuming the factual allegations are true. Id. at 1965; Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). The Supreme Court has made clear that "a formulaic recitation of the elements of a cause of action will not do." Twombly, 127 S.Ct. at 1964-65; see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009) ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.").

In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court may consider only the complaint, exhibits attached to the complaint, matters of public record, and undisputedly authentic documents if the complainant's claims are based upon those documents. See Pension Benefit Guar. Corp., 998 F.2d at 1196. The issue before the Court "is not whether plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence in support of the claims." Burlington Coat Factory Sec. Litig., 114 F.3d at 1420 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

B. Discussion

1. Violation of the Fair Debt Collection Practices Act Plaintiffs allege that Defendants violated 15 U.S.C.S. §§ 1692d, 1692e, and 1692f of the Fair Debt Collection Practices Act by "blindly levying upon a jointly owned bank account that contained money owned by an innocent third party." (Pls.' Opp'n Br. 4.) Under New Jersey law,

Unless a contrary intent is manifested by the terms of the contract, or the deposit agreement, or there is other clear and convincing evidence of a different intent at the time the account is created:

a. A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions ...


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