In Barata v. Nudelman, Klemm & Golub, plaintiff alleged that defendant’s collection letter violated the FDCPA by falsely representing that there was meaningful attorney review of the debtor files prior to the letter being sent. Defendant move to dismiss, arguing that there was no false implication in the letter that an attorney had reviewed the letter and that the sheer volume of letters sent was insufficient to raise an inference that the letters were sent without meaningful attorney review. The letter was written on firm letterhead, included the name of the firm’s partners and was signed in the firm’s name. The court granted the motion, finding that plaintiff had failed to plausibly allege that there was no meaningful attorney involvement when there were no allegations regarding how many letters were sent, how many attorneys were involved in sending the letters and the length of time involved. The court concluded: “Discovery cannot serve as a fishing expedition through which plaintiff searches for evidence to support facts he has not yet pleaded.”
In Seak v. Antio, LLC, the court followed the recent trend of concluding that a plaintiff alleges a plausible claim for a violation of the FDCPA sufficient to survive a motion to dismiss by showing that defendant filed a proof of claim on a time-barred debt in the debtor’s bankruptcy case. The court rejected defendant’s argument that the FDCPA claim was preempted by the bankruptcy code.
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