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Barata v. Nudelman, Klemm & Golub, P.C.

United States District Court, D. New Jersey

February 19, 2015

BARATA, et al., Plaintiffs,
v.
NUDELMAN, KLEMM & GOLUB, P.C., Defendant.

OPINION

KEVIN McNULTY, District Judge.

This matter comes before the court on the motion (ECF No. 20) of Defendants to dismiss the First Amended Complaint ("Complaint") (ECF No. 18). Plaintiffs Isilda Barata and Rosinete Trabach bring this action individually and on behalf of a putative class of similarly situated individuals against Defendant Nudelman, Klemm & Golub, P.C. ("NKG"), for a violation of §1692e(3) of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §1692, et seq. [1] Plaintiffs allege that Defendant's debt collection letters to them falsely represented that there was meaningful attorney involvement in reviewing debtor files prior to the letters being sent.

For the reasons set forth below, the motion to dismiss is GRANTED.

I. BACKGROUND

Plaintiffs Isilda Barata and Rosinete Trabach are New Jersey residents who are each obligated, or allegedly obligated, to pay a debt to a creditor. (Compl. ¶¶ 1-4, ECF No. 18). As such, Barata and Trabach are consumers as defined by 15 U.S.C. §1692a(3). (Id. ¶5). Barata and Trabach sue on behalf of themselves and all those similarly situated (collectively, "Consumers").

Defendant Nudelman, Klemm & Golub, P.C. is a New Jersey corporation that collects debts on behalf of creditors. (Id. ¶6). NKG is a law firm and a debt collector within the meaning of 15 U.S.C. §1692a(6). (Id. ¶¶ 8, 32).

Barata and Trabach have defaulted on personal debts owed to Capital One Bank (USA), N.A. ("Capital One"). (Id. ¶¶ 22-25). Capital One sent both Barata and Trabach letters on July 11, 2012 in an attempt to collect their debts. (Id. ¶¶ 8-29). The letters are printed on NKG letterhead. The law firm's name, "Nudelman, Klemm & Golub, P.C." is printed in bold capitalized text at the top of the page, along with the names of seven of the firm's attorneys. The letter is signed in the firm's name. (Id. ¶¶ 32-35).

The letter contains no disclaimer of attorney involvement. The Complaint alleges, however, that "no licensed attorney was directly or personally involved in reviewing materials sufficient to make a professional judgment with regards to the validity of the [debts]." (Id. ¶36). That being the case, NKG necessarily "was acting solely as a debt collector and not in any legal capacity." (Id. ¶37). The complaint also states that these "factual contention[s are] made on the belief that after inquiry that [sic] will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." (Id. ¶¶ 36-37).

The Consumers allege that the letters are misleading because they imply attorney review but NKG in fact was acting solely as a debt collector and not in any legal capacity. (Id. ¶¶ 38-39). The Consumers allege that the letters misleadingly imply that an attorney has reviewed each debtor's file and determined that the debtor is a candidate for legal action. (Id. ¶¶ 40-42).

The Consumers allege that, because of the sheer number of collection letters sent by NKG to the Consumers, "it is virtually impossible for NKG to undertake the attorney involvement required under the FDCPA." It follows, they say, that NKG must be sending the letters without sufficient attorney involvement, a fraudulent practice under 15 U.S.C. §1692e(3). (Id. ¶¶ 43-44). The letters, they say, would be read by the consumer as falsely representing "that there was meaningful attorney involvement by a licensed attorney prior to the letters being sent." (Id. ¶ 50).

NKG now moves to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§1331, 1337, and 1367.

II. APPLICABLE STANDARDS

a. Standard

Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if it fails to state a claim upon which relief can be granted. The defendant, as the moving party, bears the burden of showing that no claim has been stated. Animal Science Products, Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011). For the purposes of a motion to dismiss, the facts alleged in the complaint are accepted as true and all reasonable inferences are drawn in favor of ...


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