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Hooks v. Forman, Holt, Eliades & Ravin, LLC

United States Court of Appeals, Second Circuit

May 29, 2013

Karen Hooks and Geraldine Moore, on behalf of themselves individually and all others similarly situated, Plaintiffs-Appellants,
v.
Forman, Holt, Eliades & Ravin, LLC, Defendant-Appellee. [*]

Argued: February 13, 2013

Suit against debt collector alleging, inter alia, that a collection notice requiring dispute of validity of debt to be in writing violated the Fair Debt Collection Practices Act. The United States District Court for the Southern District of New York (Preska, C.J.) granted defendants' motion to dismiss all claims. We VACATE the district court's order as it relates to 15 U.S.C. § 1692g(a)(3) and REMAND for further proceedings.

Joanne S. Faulkner, New Haven, Connecticut (Novlette R. Kidd, Fagenson & Puglisi, New York, New York, Richard J. Rubin, Santa Fe, New Mexico, on the brief), for Plaintiffs-Appellants.

David H. Weinstein, Leila E. Ely, Weinstein Kitchenoff & Asher LLC, Philadelphia, Pennsylvania, for Defendant-Appellee.

Before: Hall, Livingston, and Droney, Circuit Judges.

Droney, Circuit Judge.

Karen Hooks and Geraldine Moore ("Plaintiffs"), brought suit against Forman, Holt, Eliades & Ravin, LLC ("Forman Holt"), a debt collector within the meaning of 15 U.S.C. § 1692a(6), [1] alleging a violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692g.[2] Plaintiffs allege that Forman Holt's collection notice violated the FDCPA by stating that the Plaintiffs could only dispute the validity of a debt in writing. The district court granted Forman Holt's motion to dismiss, concluding that the Plaintiffs had failed to state a claim. We VACATE and REMAND.

BACKGROUND

Plaintiffs are New York residents. During a visit to Atlantic City, New Jersey, in December 2009, they attended a presentation on vacation timeshares sponsored by Wyndham Vacation Resorts, Inc. ("Wyndham"). Plaintiffs then signed an agreement with Wyndham to purchase a timeshare. Hooks has stated that the Plaintiffs did not realize that the document they signed was a mortgage, and neither made any subsequent payments.

Wyndham then engaged Forman Holt to begin the timeshare debt collection process. Forman Holt sent a collection notice ("Notice") to Plaintiffs at their New York addresses on April 5, 2011. The Notice read, in relevant part:

UNLESS YOU NOTIFY U.S. IN WRITING WITHIN THIRTY (30) DAYS AFTER RECEIPT OF THIS LETTER THAT THE DEBT, OR ANY PART OF IT, IS DISPUTED, WE WILL ASSUME THAT THE DEBT IS VALID. IF YOU DO NOTIFY U.S. OF A DISPUTE, WE WILL OBTAIN VERIFICATION OF THE DEBT AND MAIL IT TO YOU. ALSO UPON YOUR WRITTEN REQUEST WITHIN THIRTY (30) DAYS, WE WILL PROVIDE YOU WITH THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR IF DIFFERENT FROM WYNDHAM.

The Plaintiffs brought suit in the United States District Court for the Southern District of New York, alleging that the Notice failed to comply with 15 U.S.C. § 1692g. Section 1692g requires a debt collector to send a written notice to any consumer debtor with whom it communicates in connection with the collection of a debt. Section 1692g(a)(3) further requires that this notice must contain "a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector." The Plaintiffs asserted that the Notice violated § 1692g(a)(3) because the Notice indicates that a challenge to the validity of the debt must be made in writing and cannot be made orally.

Forman Holt moved to dismiss the complaint for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court granted the motion, concluding that a notice requiring that disputes must be presented in writing does not violate 15 U.S.C. § 1692g(a)(3).[3]See Hooks v. Forman Holt ...


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