17‐702‐cv
Elizabeth K. Atwood v. Cohen & Slamowitz LLP, et al.
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 15th day of December, two thousand seventeen.
PRESENT: BARRINGTON D. PARKER,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges.
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ELIZABETH K. ATWOOD, AKA ELIZABETH KING,
Plaintiff‐Appellant,
v. 17‐702‐cv
COHEN & SLAMOWITZ LLP, MITCHELL SELIP,
MITCHELL G. SLAMOWITZ, DAVID A. COHEN,
Defendants‐Appellees.
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FOR PLAINTIFF‐APPELLANT: Mitchell L. Pashkin, Huntington, New York.
FOR DEFENDANTS‐APPELLEES: Mitchell Selip, Selip & Stylianou, LLP,
Woodbury, New York.
Appeal from the United States District Court for the Eastern District of
New York (Bianco, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Elizabeth K. Atwood appeals from a judgment entered
February 10, 2017 dismissing her claims in this action brought pursuant to the Fair Debt
Collection Practices Act (the ʺFDCPAʺ), 15 U.S.C. § 1692 et seq. By order entered March
27, 2015, for reasons stated on the record on March 26, 2015, the district court granted in
part defendants‐appelleesʹ motion to dismiss the amended complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). The district court dismissed all of Atwoodʹs
claims except the third and fourth causes of action. By memorandum and order entered
February 8, 2017, the district court denied Atwoodʹs motion for summary judgment and
granted defendants‐appelleesʹ motion for summary judgment on the remaining claims.
This appeal followed. We assume the partiesʹ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
After Atwood defaulted on a debt in 2003, her account was sold to
Portfolio Recovery Associates, LLC (ʺPRAʺ), which in turn retained defendant‐appellee
Cohen & Slamowitz LLP (ʺC&Sʺ) to collect the account balance. Defendants‐appellees
Mitchell Selip, Mitchell G. Slamowitz, and David A. Cohen are attorneys affiliated with
C&S during the relevant period. In 2005, C&S filed a consumer debt collection action
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against Atwood in state court and obtained a default judgment that was later vacated.
Atwood failed to appear for trial in the state court action, but C&S never moved for
another default judgment. The state court action thus remained open.
Between 2013 and 2014, PRA recalled Atwoodʹs file from C&S and
obtained new counsel, Foster & Garbus (ʺF&Gʺ), who attempted to collect on the
underlying debt. F&G served information subpoenas and restraining notices invoking
the vacated 2005 judgment upon two banks, which subsequently placed holds on
Atwoodʹs accounts. Atwood filed an order to show cause to vacate the liens and
restraints on the basis that the state court judgment against her had been vacated in
2007. Atwood served this order on C&S. C&S responded by informing the state court
that it had previously released any and all restraints. The parties appeared in state
court on February 18, 2014 and, after the mistake was identified, the court granted
Atwoodʹs motion on consent to discontinue the action.
In May 2014, Atwood brought this action in district court. On appeal,
Atwood argues that the district court erred by dismissing her second cause of action,
which alleged that C&Sʹs response to the order to show cause and its appearance in
state court in February 2014 violated § 1692e and § 1692f of the FDCPA. Atwood also
argues that the district court erred by denying her summary judgment and granting
summary judgment in favor of defendants, dismissing her third and fourth causes of
action.
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I. Motion to Dismiss
We review de novo the dismissal of a complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6), accepting all factual allegations as true and drawing all
reasonable inferences in the plaintiffʹs favor. Biro v. Condé‐Nast, 807 F.3d 541, 544 (2d
Cir. 2015). The complaint must plead ʺenough facts to state a claim to relief that is
plausible on its face.ʺ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). Although a court must accept as true all factual
allegations in the complaint, that requirement does not apply to legal conclusions. Iqbal,
556 U.S. at 678.
Section 1692e of the FDCPA prohibits a debt collector from ʺus[ing] any
false, deceptive, or misleading representation or means in connection with the collection
of any debt.ʺ 15 U.S.C. § 1692e. Section 1692f prohibits a debt collector from ʺus[ing]
unfair or unconscionable means to collect or attempt to collect any debt.ʺ Id. at § 1692f.
A communication is ʺin connection with the collection of a debtʺ and thus falls within
the FDCPA ʺif a consumer receiving a letter could reasonably understand it to be a
communication in connection with the collection of a debt.ʺ Hart v. FCI Lender Servs.,
Inc., 797 F.3d 219, 225 (2d Cir. 2015). The Court evaluates whether a communication
violates the FDCPA ʺfrom the perspective of the objective least sophisticated
consumer.ʺ Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 173 (2d Cir. 2015) (quoting
Easterling v. Collecto, Inc., 692 F.3d 229, 233 (2d Cir. 2012)).
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We conclude that Atwoodʹs second cause of action fails to state a plausible
claim. C&Sʹs response to Atwoodʹs motion to vacate liens and restraints was not an
attempt to collect a debt and thus there is no plausible FDCPA claim.1 C&Sʹs response
conceded the judgment had been vacated and stated that PRA had released prior
restraints on Atwoodʹs bank accounts. Moreover, the response stated that although
PRA believed all restraints had been released, if it was mistaken it would release any
accounts still being restrained. Even the least sophisticated consumer would not have
interpreted this response and an appearance agreeing with the consumerʹs position as
an attempt to collect a debt. Therefore, the second cause of action was properly
dismissed.
II. Summary Judgment
In her third and fourth causes of action, Atwood alleged that C&S took or
failed to take action in the state court proceedings that purportedly constitute violations
of the FDCPA, including failing to inform PRA and F&G about the failure to seek a
judgment from an inquest clerk. Atwood also argues that the 2005 state court action
was dismissed ʺby operation of law,ʺ App. at 34, and that therefore (1) C&Sʹs
appearance and continuing efforts in the state court proceedings, and (2) C&Sʹs failure
1 We assume without deciding that communications made within a lawsuit, such as, for example, a
response to an order to show cause, can be the basis for a violation of the FDCPA. Compare Carlin v.
Davidson Fink LLP, 852 F.3d 207, 213 (2d Cir. 2017) (ʺCongress amended the FDCPA in 2006 to clarify that
ʹ[a] communication in the form of a formal pleading in a civil action shall not be treated as an initial
communication for purposes of subsection (a) of this section.ʹ 15 U.S.C. § 1692g(d).ʺ) with Ellis v. Solomon
& Solomon, P.C., 591 F.3d 130, 136 (2d Cir. 2010) (explaining the possibility of a violation of § 1692g when
a debt collector initiates a lawsuit during the debt validation period).
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to inform PRA or F&G that the case would be deemed closed and that any new action
would be time‐barred, violated the FDCPA because the statute of limitations had
expired, citing cases holding that it is a violation of § 1692e to file a debt collection
lawsuit after the expiration of limitations. See, e.g., Phillips v. Asset Acceptance, LLC, 736
F.3d 1076, 1079 (7th Cir. 2013). The district court granted summary judgment
dismissing these claims.
ʺWe review the grant of . . . summary judgment de novo, accepting as true
the factual allegations of the . . . complaint[] and drawing inferences based upon these
allegations in the light most favorable to the . . . plaintiff[].ʺ In re Bank of N.Y. Derivative
Litig., 320 F.3d 291, 297 (2d Cir. 2003) (alteration in original) (citation omitted).
ʺSummary judgment is appropriate only if it can be established that ʹthere is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.ʹʺ Alibrandi v. Fin. Outsourcing Servs., Inc., 333 F.3d 82, 85 (2d Cir. 2003)
(quoting Fed. R. Civ. P. 56(c) (citation and internal quotation marks omitted)).
As the district court concluded, the uncontroverted evidence showed that
C&S informed PRA that the judgment had been vacated, and that there was thus no
false representation or failure to communicate the ʺcharacter, amount or legal status of
any debt.ʺ 15 U.S.C. § 1692e(2)(A). C&S informed PRA that the judgment was vacated
on November 10, 2006 and again on January 15, 2007. C&S also informed PRA on
November 13, 2006 that it had sent letters to 44 bank institutions to release restraints on
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Atwoodʹs bank accounts. Atwood stipulated to these facts. Atwood has not cited any
authority for the proposition that C&S had an obligation under the FDCPA to inform
PRA or F&G that it failed to seek an inquest or that the action would be deemed
abandoned under N.Y. C.P.L.R. § 3215(c), and we are not persuaded that C&S had any
such obligation.
Atwoodʹs argument that there was a dismissal ʺby operation of lawʺ also
fails. The case could have been dismissed on motion or the courtʹs own initiative
pursuant to N.Y. C.P.L.R. § 3215(c), but the case had not been dismissed when C&S
responded to the order to show cause. As the case remained pending, Atwoodʹs
argument that C&S acted outside of the statute of limitations period fails. Moreover, as
discussed above, C&Sʹs response merely advised that all restraints had been lifted ‐‐ this
was hardly an effort to collect on a debt. Finally, Atwoodʹs argument that C&S should
have informed either PRA or F&G that a new legal action would fall outside of the
statute of limitations period fails because F&G, as competent counsel, had all the
information it needed to understand that although the case had not been closed, the
failure to seek a second default judgment rendered it impossible to pursue the debt
collection action any further. Hence, Atwood was not entitled to summary judgment
and the district court did not err in awarding summary judgment to defendants.
. . .
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We have considered Atwoodʹs remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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Elizabeth K. Atwood v. Cohen & Slamowitz LLP
Combined Opinion