17‐792‐cv
Delfonce v. Eltman Law, P.C.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 4th day of October, two thousand seventeen.
PRESENT: DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges,
JANE A. RESTANI,
Judge.*
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ERIC DELFONCE, AKA ELIE DELFONCE,
Plaintiff‐Appellant,
v. 17‐792‐cv
ELTMAN LAW, P.C.,
Defendant‐Appellee.
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FOR PLAINTIFF‐APPELLANT Daniel Kohn, RC Law Group, PLLC,
Hackensack, New Jersey.
* Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.
FOR DEFENDANT‐APPELLEE Concepcion A. Montoya, Kyle M. Medley,
Hinshaw & Culbertson LLP, New York, New
York.
Appeal from the United States District Court for the Eastern District of
New York (Donnelly, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Eric Delfonce appeals from a judgment of the district
court, entered February 17, 2017, dismissing his complaint against defendant‐appellee
Eltman Law, P.C. (ʺEltmanʺ). The district court explained its reasoning in a
memorandum decision and order filed February 16, 2017. We assume the partiesʹ
familiarity with the facts, procedural history, and issues on appeal.
In his complaint, Delfonce alleges that a March 9, 2016 collection letter that
Eltman sent to him violated §§ 1692e, 1692f, and 1692g of the Fair Debt Collection
Practices Act (the ʺFDCPAʺ), 15 U.S.C. § 1692 et seq.1 The letter reads, in relevant part:
Judgment Date: 10/20/2008
Dear Mr./Ms. Delfonce:
Please be advised that Eltman Law, P.C. has been retained by LVNV
Funding LLC, purchaser of the above account, for collection of this Debt.
1 Although the letter was not attached to the complaint, the district court
concluded that the letter was ʺincorporated into [Delfonceʹs] complaint by referenceʺ
and ordered him to file it. App. 2.
2
Currently, no attorney with the firm has personally reviewed the
particular circumstances of your account, and this letter should not be
taken as a representation of any such review nor as a threat of legal action.
App. 9. An ʺAccount Summaryʺ graphic at the top‐right corner of the letter also
includes the account number, original creditor, creditor to whom the debt is owed, and
the amount due. The complaint acknowledges that the letter includes the notices
required by § 1692g of the FDCPA regarding Delfonceʹs right to dispute the debt within
thirty days. As Delfonce acknowledged below and again on appeal, a judgment was
entered against him in Civil Court, Kings County, on October 20, 2008, in favor of
LVNV Funding LLC.
On December 1, 2016, the day after the complaint was filed, the district
court ordered Delfonce to show cause why his claims should not be dismissed.
Delfonce responded by arguing that, from the viewpoint of the least sophisticated
consumer, the use of the word ʺjudgmentʺ in the collection letter was misleading and
constituted an unfair and unconscionable debt collection practice in violation of the
FDCPA. Eltman subsequently filed a letter requesting a pre‐motion conference in
anticipation of moving to dismiss the complaint, to which Delfonce responded,
reiterating his arguments against dismissal. The district court held a conference on
February 15, 2017 and, after hearing from the parties, stated that it was ʺgranting the
application to dismiss the complaint,ʺ Suppl. App. 8, although Eltman had not formally
moved to dismiss. In a memorandum decision filed February 16, 2017, the district court
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concluded that, even to the least sophisticated consumer, the language in the collection
letter was not misleading, confusing, unfair, or unconscionable as a matter of law, and
therefore Delfonce failed to state claims for violations of §§ 1692e, 1692f, or 1692g. This
timely appeal followed.
We review de novo the district courtʹs grant of a motion to dismiss
pursuant to Rule 12(b)(6). Carlin v. Davidson Fink LLP, 852 F.3d 207, 212 (2d Cir. 2017).
A complaint must contain factual allegations that, accepted as true, are sufficient ʺto
state a claim to relief that is plausible on its faceʺ; ʺ[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.ʺ Id.
(alterations in original)(internal citation marks omitted) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). In our review, we may also consider ʺdocuments attached to the
complaint as an exhibit or incorporated in it by reference.ʺ Id. (quoting Chambers v. Time
Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)). We also address Delfonceʹs argument on
appeal that he should be granted leave to amend his complaint.
1. The FDCPA
Delfonce argues that the collection letter would mislead or confuse the
least sophisticated consumer because it is susceptible to multiple meanings, some false,
and fails to include details about the judgmentʹs connection to the debt Eltman is
seeking to collect or Eltmanʹs connection to the judgment. We evaluate whether a
communication violates the FDCPA ʺfrom the perspective of the objective least
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sophisticated consumer.ʺ Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 173 (2d Cir.
2015) (citation omitted). The least sophisticated consumer analysis ʺseeks to protect the
naive from abusive practices, while simultaneously shielding debt collectors from
liability for bizarre or idiosyncratic interpretations of debt collection letters.ʺ Altman v.
J.C. Christensen & Assocs., Inc., 786 F.3d 191, 194 (2d Cir. 2015) (citation omitted).
Specifically, Delfonce alleges that Eltman violated §§ 1692e, 1692f, and
1692g of the FDCPA. Section 1692e prohibits a debt collector from using ʺany false,
deceptive, or misleading representation or means in connection with the collection of
any debtʺ and sets forth a non‐exhaustive list of prohibited conduct, including, inter alia,
false representations of the character, amount, or legal status of a debt, threats to take
action not permitted by law, and the use of other false representations or deceptive
means to collect a debt. 15 U.S.C. § 1692e. Section 1692f provides a general prohibition
against a debt collector ʺus[ing] unfair or unconscionable means to collect or attempt to
collect any debt.ʺ Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 83 (2d Cir.
2015)(alteration in original) (quoting 15 U.S.C. § 1692f). Section 1692g of the FDCPA
requires a debt collector, within five days of its initial communication with a consumer,
to send notice in writing of, inter alia, the amount of a debt, the creditor to whom the
debt is owed, and the deadline and process for disputing or validating the debt. 15
U.S.C. § 1692g.
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Delfonce fails to state a claim under any of the three provisions. Delfonce
argues, in essence, that the presence of ʺJudgment Date: 10/20/2008ʺ was misleading.
With respect to § 1692e, according to Delfonce, the term ʺjudgmentʺ implies that ʺa legal
action has occurred and the meritorious party is now seeking to enforce its right
pursuant thereunder,ʺ but the letter simultaneously states that it ʺshould not be
taken . . . as a threat of legal action.ʺ Appellantʹs Br. at 22. We cannot conclude that the
use of ʺjudgmentʺ could be reasonably considered deceptive in the circumstances here.
See Russell v. Equifax A.R.S., 74 F.3d 30, 35 (2d Cir. 1996) (ʺ[A] collection notice is
deceptive when it can be reasonably read to have two or more different meanings, one
of which is inaccurate.ʺ). The letter provided a judgment date from nearly eight years
prior and specified that Eltman would obtain a copy of the judgment if Delfonce
disputed the debt. Accordingly, Delfonceʹs assertion that the least sophisticated
consumer might consider the collection letter to be a judgment itself or the
commencement of legal action is unfounded.
Delfonce also appears to argue that the least sophisticated consumer could
be confused by the lack of detail regarding Eltmanʹs relationship to the underlying
judgment. This argument is belied by the letter itself. The letter specifies that Eltman
was retained by the creditor to collect the debt. It also provides the judgment date,
amount of the debt, and the names of the original and current creditors. The fact that
Eltman was not counsel in the legal proceeding that gave rise to the debt has no impact
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on its ability to collect the debt and is not inherently misleading. Furthermore, there is
nothing misleading about the letterʹs acknowledgment that no Eltman lawyer had
personally reviewed Delfonce’s account. See Greco v. Trauner, Cohen & Thomas, L.L.P.,
412 F.3d 360, 365 (2d Cir. 2005) (ʺIn light of the disclaimer, we agree with the district
court that the least sophisticated consumer, upon reading this letter, must be taken to
understand that no attorney had yet evaluated his or her case, or made
recommendations regarding the validity of the creditorʹs claims.ʺ).
With respect to § 1692g, nothing in the letter overshadows or contradicts
the required notices, which Delfonce concedes that the letter contains. See Jacobson v.
Healthcare Fin. Servs., Inc., 516 F.3d 85, 90 (2d Cir. 2008) (debt collector that has fulfilled
notice obligations under § 1692g nevertheless violates the section ʺif that notice is
overshadowed or contradicted by other language in communications to the debtorʺ).
The letter expressly states that Delfonce could dispute the validity of the debt ʺwithin
thirty (30) days after receiving this noticeʺ and that Eltman ʺwill obtain verification of
the debt or a copy of any judgmentʺ if the debt is disputed. App. 9. The inclusion of the
2008 judgment date, a judgment that Delfonce acknowledges exists, would not ʺmake
the least sophisticated consumer uncertain as to her rightsʺ to dispute the debt or
request the name and address of the original creditor. Jacobson, 516 F.3d at 90 (citation
omitted).
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Finally, none of the conduct or excerpts of the letter described above could
plausibly be considered ʺunfair or unconscionable.ʺ 15 U.S.C. § 1692f; see also Gallego v.
Northland Grp. Inc., 814 F.3d 123, 127‐28 (2d Cir. 2016) (ʺʹ[U]nconscionable,ʹ in this
context, means ʹ[s]hockingly unjust or unfair,ʹ or ʹaffronting the sense of justice,
decency, or reasonableness . . . .ʺ (citation omitted)(first alteration in original)).
Accordingly, we conclude that the district court properly dismissed
Delfonceʹs FDCPA claims.
2. Leave to amend
Delfonce requests leave to amend his complaint for the first time on
appeal. We find no abuse of discretion in the district courtʹs failure to grant leave to
amend sua sponte. See Williams v. Citigroup Inc., 659 F.3d 208, 212 (2d Cir. 2011).
Furthermore, on appeal, Delfonce has not identified any new facts to support his claims;
he argues only that, at some unspecified time, he will ʺamplify his existing contentions,
and/or allege additional facts to cure any perceived deficiencies in his Complaint.ʺ
Appellantʹs Br. at 27. ʺIn the absence of ʹsome indication as to what appellant[ ] might
add to [his] complaint in order to make it viable, we see no reason to grant appellant[ ]
relief in this Court which was not requested below.ʹʺ Wilson v. Merrill Lynch & Co., 671
F.3d 120, 140 (2d Cir. 2011)(alterations in original)(quoting Natʹl Union of Hosp. & Health
Care Emps. v. Carey, 557 F.2d 278, 282 (2d Cir. 1977)).
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We have considered all of Delfonceʹs remaining arguments and conclude
they are without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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