Rosa v. Mandarich Law Group LLP

Background

William R. Rosa brought this proposed class action against Mandarich Law Group, LLP (MLG) and unidentified defendants. Rosa alleged that he was the victim of identity theft involving a debt originally associated with Citibank and later assigned to Cavalry SPV I, LLC. MLG, a debt-collection law firm, sent a January 25, 2022 letter to Rosa’s law firm. The letter stated that Rosa had indicated he might be a victim of identity theft and asked for an identity-theft affidavit, a police report if available, and certain identification and residency documents.

The affidavit requested personal information and asked Rosa to certify that the information was true and understood that it could be shared with federal, state, or local law enforcement. It also warned that knowingly making a false statement to the government could violate federal or other criminal laws. The affidavit requested a signature from a notary or non-relative witness.

Claims and Motion

Rosa’s first claim alleged that the letter and affidavit violated sections 1692e(1), 1692e(2)(A), 1692e(9), and 1692e(10) of the Fair Debt Collection Practices Act (FDCPA). He argued that the documents falsely suggested that MLG was affiliated with or authorized by the government, misrepresented the character or legal status of the debt, falsely suggested that MLG had final authority to decide whether he owed the debt, and imposed improper burdens in investigating his identity-theft claim.

Rosa also alleged that MLG violated section 1692f of the FDCPA through unfair or unconscionable collection methods. MLG’s motion challenged only portions of the section 1692e claim. The motion did not challenge Rosa’s allegation that he was not responsible for the debt, and the opinion did not address that allegation or the section 1692f claim.

Court’s Analysis

The court applied the standard for a Rule 12(b)(6) motion, which asks whether the complaint contains enough factual allegations to state a plausible claim for relief. For FDCPA communications, the court used the perspective of the “least sophisticated consumer,” while also requiring that an alleged falsehood be material—that is, capable of influencing the consumer’s response to the collection effort.

The court rejected the claims based on alleged government affiliation and source. Reading the letter and affidavit as a whole, the court concluded that they made clear MLG was a debt collector, not a government agency. The references to law enforcement and possible criminal liability described what could happen if information were shared with government authorities; they did not suggest that MLG itself was affiliated with those authorities. The court also found that the documents did not appear to be issued or approved by a government body. MLG’s license information and the letter’s case-caption-style subject line did not change that conclusion.

The court also rejected the claim that the documents misrepresented the character or legal status of the debt. The letter identified the claimed creditor and the date of the last payment and acknowledged that the debt might involve identity theft. The court reasoned that disputes about who owed the debt, who had to prove that fact, and what information MLG could request did not change the underlying character of the debt.

The court further held that requesting information about an identity-theft claim was not, by itself, a deceptive collection method. The FDCPA did not prohibit a debt collector from investigating such a claim or requesting an affidavit or police report. The court also reasoned that the Fair Credit Reporting Act could require certain entities to investigate disputed information, so the two statutes should not be interpreted in a way that penalized conduct required by the Fair Credit Reporting Act.

The court found that Rosa had not plausibly alleged that MLG falsely claimed to be the final decision-maker about his responsibility for the debt. It also held that the request for a notary or non-relative witness did not violate the FDCPA. The court noted that the request was phrased as a request rather than an express command and that New York law contemplated use of an identity-theft affidavit with such a signature. The court stated that the FDCPA did not prohibit sending a form that New York law permitted consumers to submit to obtain protections related to identity theft.

Disposition

The court concluded that Rosa failed to state a claim that the letter or affidavit violated FDCPA sections 1692e(2)(A) or 1692e(10), and it rejected the other challenged section 1692e theories. The court granted MLG’s partial motion to dismiss with prejudice. The portions of the amended complaint covered by the motion were dismissed with prejudice because Rosa did not request permission to amend and the court concluded that amendment would be futile. The Clerk of Court was directed to close the motion.