Ruffin v. Kirschenbaum & Phillips P.C.

MEMORANDUM OPINION AND ORDER Ronald Ruffin (“Plaintiff”) brings this putative class action against Kirschenbaum & Phillips P.C. (“K&P”), LVNV Funding LLC (“LVNV”), Resurgent Capital Services, Limited Partnership (“Resurgent”) and Sherman Financial Group, LLC (“Sherman” and together with LVNV, Resurgent, and Sherman, the “LVNV Defendants”) for violating the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §1692 et seq., N.Y. General Business Law (“GBL”) §349, and N.Y. Judiciary Law (“Jud. Law”) §487. (See Doc. 33, “FAC”). K&P and the LVNV Defendants (collectively, “Defendants”) move to dismiss the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or, alternatively, for summary judgment under Rule 56. Defendants’ joint motion is supported by attorney declarations, together with exhibits, and a memorandum of law. (Doc. 58; Doc. 59, “Marshall Decl.”; Doc. 60, “Scully Decl.”; Doc. 61, “Def. Br.”). Plaintiff’s opposition consists of a brief (Doc. 61, “Pl. Opp.”) and declaration in opposition (Doc. 65, “Pl. Decl.”). The motion was fully briefed with the service of Defendants’ attorney reply declaration (Doc. 63) and reply memorandum of law (Doc. 64, “Reply Br.”). All motion papers were filed on June 8, 2021. For the reasons set forth below, Defendants’ motion to dismiss is GRANTED IN PART and their motion for summary judgment is DENIED. BACKGROUND An Income Execution dated July 24, 2019, which was prepared and signed by K&P, was served on Plaintiff in September 2019 with a notice dated September 5, 2019, by the Westchester County Sheriff’s Civil Unit. (FAC

39, 41, 44). Plaintiff alleges that the Income Execution stated that a judgment had been “duly entered” against him, and that it directed him to “satisfy the judgment with interest together with…fees and expenses.” (Id. 42). The Income Execution sought to enforce a $2,858.32 default judgment entered against Plaintiff on December 12, 2007, concerning a 2005 state court action in the Supreme Court of New York, County of Westchester. (Id. 33). Plaintiff, however, contends that he was not served with the 2005 state court action that had been commenced by LVNV in 2005. (Id.