Barbara Dibattista v. Buckalew Frizell & Crevina, 3rd Cir. (2014)

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
________
No. 13-4486
_________
BARBARA DIBATTISTA,
Appellant
v.
BUCKALEW, FRIZELL & CREVINA, LLP;
JOHN DOES 1-25
________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2:13-cv-01639)
District Judge: Honorable Dennis M. Cavanaugh
_______
Submitted Under Third Circuit LAR 34.1(a)
July 11, 2014
Before: SMITH, VANASKIE and SLOVITER Circuit Judges
(Opinion Filed: July 21, 2014)
_______________
OPINION
_______________
SLOVITER, Circuit Judge.

This case involves a purported violation of the Fair Debt Collection Practices Act
(FDCPA), 15 U.S.C. 1692 et seq., by Defendant-Appellee Buckalew, Frizzel &
Crevina, LLP, (Buckalew), a law firm acting on behalf of the owners of the alleged
debt in question, The Kensington Gate Homeowners Association, Inc. (Kensington or
the Association). Plaintiff-Appellant Barbara DiBattista (DiBattista) filed a putative
class action complaint against Buckalew for violating various sections of the FDCPA
after Buckalew sent a letter to DiBattista attempting to collect a debt purportedly owed by
DiBattista to Kensington, as well as a fee for preparing the letter. The District Court
granted Buckalews motion to dismiss the case under Fed. R. Civ. P. 12(b)(6) for failure
to state a claim. For the reasons set out below, we will affirm the District Courts ruling.1
I.
DiBattista owns real property in Marlboro, New Jersey, located in the Kensington
Gate community. Property owners in the community must be members of the
homeowners association and pay an assessment to the Association as set out in the
governing document of the Association (the Agreement). The Buckalew law firm
represented Kensington (and other similar entities) on various matters, including
enforcing claims against property owners for failure to comply with their obligations
under the Agreement.
As this dispute arose under federal lawthe FDCPA, 15 U.S.C. 1692 et seq., the
District Court had jurisdiction under 28 U.S.C. 1331. We have jurisdiction over an
appeal from a final decision of the District Court under 28 U.S.C. 1291.
2
Purportedly, DiBattista repeatedly failed to make her scheduled assessment

payments.2 (App. II 17) On March 12, 2013, Buckalew sent a letter (the Letter) to
DiBattista, informing her that Buckalew represented Kensington, stating that DiBattista
was behind on her payments, and explaining various remedial steps that could or would
be taken if DiBattista did not take appropriate steps to remedy the situation. Those steps
included Kensington filing a lien against the property, a foreclosure action, or a collection
lawsuit. The Letter also explained what DiBattista could do to contest the debt, and set
forth expressly the amount owed. (App. II 17-18)
Four days after receiving the Letter, DiBattista sent a reply, via counsel, contesting
the validity of the debt, and filed a lawsuit against Buckalew alleging violations of the
FDCPA and seeking statutory and other damages. Specifically, DiBattista alleged that
Buckalew violated 15 U.S.C. 1692e (prohibiting false, deceptive, or misleading
representations); 1692e(5) (prohibiting threats to take any action that cannot be legally
taken or that is not intended to be taken); 1692e(10) (prohibiting the use of any false
representation or deceptive means to collect a debt); 1692g(a)(1) (requiring notice as to
the amount of the debt owed); 1692g(a)(3) (requiring notice of time limits on disputing a
debt); and 1692f (prohibiting using unfair or unconscionable means to collect a debt).
Buckalew filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a
claim. The District Court considered each allegation in turn and determined that,
The actual validity of the debt, and the amount owed, if any, are not before us at this
time. We therefore do not address these issue.
3
[DiBattista] has failed to state any plausible claim under the FDCPA, and granted
Buckalews motion to dismiss. (App. 10) DiBattista appealed.
II.
We exercise plenary review over a district courts order granting a motion to
dismiss under Fed. R. Civ. P. 12(b)(6), and accept as true the well-pled factual allegations
in the complaint, viewing them in the light most favorable to the plaintiff. Santomenno v.
John Hancock Life Ins. Co., 677 F.3d 178, 182 (3d Cir. 2012). We apply the same
standard that the District Court should have applied, determining whether the complaint
contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face. Aschroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. This requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do. Twombly, 550 U.S. at 555 (citation omitted). We need not accept
as true a legal conclusion couched as a factual allegation. Papasan v. Allain, 478 U.S.
265, 286 (1986) (citation omitted). The mere possibility of misconduct does not
suffice to grant relief. Iqbal, 556 U.S. at 679.
III.
Because the FDCPA is a remedial statute, . . . we construe its language broadly,
so as to effect its purpose. Brown v. Card Serv. Ctr., 464 F.3d 450, 453 (3d Cir. 2006)
(citations omitted). In doing so, we evaluate communications between lenders and
4
debtors from the perspective of the least sophisticated debtor, so as to protect the
gullible as well as the shrewd. Id. at 454 (citations omitted). However, even though the
least sophisticated debtor standard is a low one, it still should serve to prevent[]
liability for bizarre or idiosyncratic interpretations of collection notices by preserving a
quotient of reasonableness and presuming a basic level of understanding and willingness
to read with care. Wilson v. Quadramed Corp., 225 F.3d 350, 354-55 (3d Cir. 2000)
(citation omitted). Furthermore, Even the least sophisticated debtor is bound to read
collection notices in their entirety. Campuzano-Burgos v. Midland Credit Mgmt. Inc.,
550 F.3d 294, 299 (3d Cir. 2008) (citation omitted).
DiBattista breaks her claim into several points, and we shall address those in
turn.
A. Written Notice of the Amount of the Debt
The FDCA requires that a debt collector provide the consumer with written notice
concerning, (1) the amount of the debt. 15 U.S.C. 1692g(a)(1). DiBattista contends
that the Letter from Buckalew failed to meet this standard. The Letter stated, in its first
paragraph, that DiBattista was in arrears on payment of [her] monthly common expenses
and/or other charges due to the Association in the amount of $3,216.84 as of March 12,
2013. (App. II 17) On the second page, the Letter stated, Please be advised that if you
do not make payment in full to the Association of the above-stated amount (plus $75.00
for the attorneys fees incurred in preparing this letter) by April 15, 2013, the
Association may file a lien claim against your unit. (App. II 18 emphasis added).
DiBattista contends that this would leave the least sophisticated consumer unsure as to
how much she owed, and is therefore a violation of 1692g(a)(1).
DiBattista suggests that it is a clear violation of 1692g(a)(1) not to state the
amount owed in a single sum, but rather to require calculations. This claim is not
supported by citation to any case law, nor does DiBattista provide any evidence that she
was in fact significantly confused by the necessity to add two sums together in order to
determine the exact amount owed. Most of DiBattistas brief in this court is directed to
the inclusion in the Letter of the $75.00 lawyers fee for preparing the notice letter.
The District Court ably disposed of DiBattistas argument in this respect:
With respect to 1692g(a)(1), Plaintiff asserts that Defendant
violated this section by [f]ailing to properly disclose the
amount due [Comp. 43]. Plaintiff further states that Defendants
collection letter . . . caused Plaintiff uncertainty and forced
her to guess how much money she allegedly owed and how much
money she would need to pay by April 15, 2013 to prevent
[the Association] from filing a lien claim against her unit (Id. 32).
This Court finds no support in the Complaint for this allegation.
The Letter, as submitted by Plaintiff, states that Plaintiff owes
$3,216.84 . . . plus $75.00 for the attorneys fees incurred in
preparing this letter (Id. Ex. A). This language clearly informs
even the least sophisticated debtor of the amount that is owed.
DiBattista v. Buckalew, No. 2:13-cv-01639 (D.N.J. Nov. 15, 2013) at 10. The Courts
opinion continued:
Finally, with respect to 1692e, [DiBattista] states . . . that
Defendant violated this section by [u]sing false,
deceptive and misleading representations or means in
connection with the collection of any debt (Id. 43) Plaintiff
asserts that the Letter is false, deceptive, and misleading
because Defendant did not effectively state the amount
of the alleged debt and falsely stated that the Association
will assume the debt to be valid unless it is disputed (Id. 31) . . .
[t]his Court rejects these arguments. Accordingly, Plaintiff
6
has failed to state any plausible claim under the FDCPA

and Defendants Motion to Dismiss is granted.
DiBattista presents no reason not to affirm the District Courts conclusion
that the Letter clearly informs even the least sophisticated debtor of the amount that is
owed. (App. 10) We agree it is not unreasonable to expect even the least sophisticated
debtor to be able to perform the simple addition of two sums in a case such as this, and
DiBattistas argument consists of nothing more than repeating the language of
1692g(a)(1) while asserting, without support, that the Letter violates the section.
B. Misleading and Deceptive
DiBattista contends that the Letter sent to her by Buckalew was misleading and
deceptive to the least sophisticated consumer like [DiBattista] because it could be read to
have two or more different meanings, one of which was inaccurate. (Appellants Br. at
14). 15 U.S.C. 1692e states that, A debt collector may not use any false, deceptive, or
misleading representations or means in connection with the collection of any debt, while
the various sub-sections of 1692e provide a non-exhaustive list of actions that would
violate the requirements of this section of the FDCPA. DiBattista contends, in particular,
that the Letter violates 1692e(5), which prohibits a threat to take any action that cannot
legally be taken or that is not intended to be taken, and 1692e(10), which prohibits the
use of any false representation or deceptive means to collect or attempt to collect any
debt or to obtain information concerning a consumer.
According to DiBattista, two sections of the Letter in particular were problematic.

After first notifying DiBattista that she owed $3,216.84 in over-due assessments and
other charges, the Letter, on the subsequent page, stated:
Please be advised that if you do not make payment in full to the Association of
the above-stated amount (plus $75.00 for the attorneys fees incurred in
preparing this letter) by April 15, 2013, the Association may file a lien claim
against your unit and/or institute a foreclosure action or collection lawsuit
seeking payment of all amounts dueincluding acceleration of your annual
common expense assessment through the end of the Associations current fiscal
year, which is December 31, 2013plus interest, late charges, costs of suit and
attorneys fees. . . .
Please be advised that unless you, within thirty (30) days after receipt of this
notice, dispute the validity of the debt or any portion thereof, the debt will be
assumed to be valid by this law firm and the Association; moreover if you notify
this law firm in writing within the 30-day period that the debt or any portion
thereof is disputed, the firm will obtain a verification of the debt and mail it to
you.
(App. II 18, emphases added).
DiBattista claims that these sections are misleading and deceptive insofar as
they might lead a least sophisticated debtor to be unsure what amount of money was due
to the Association, whether a lien could be filed if she paid only some lesser amount, and
whom she must contact to exercise her rights, as set out in 15 U.S.C. 1692g(a)(4), to
contest a debt and receive verification of the amount owed. As we have already
addressed the question of the amount owed, we shall focus on the other two issues.
DiBattista claims that the above language is misleading and deceptive and
therefore violates 1692e(5) because Upon information and belief, Defendant has never
filed a lien claim on behalf of Kensington for $75.00 when such amount represented the
only amount due, and was the result of attorneys fees incurred in preparing a letter.
8
(Appellants Br. at 16) There are two flaws with this argument. First, DiBattista has
made insufficient assertions to support this claim. The claim therefore fails to meet the
standard set out in Twombly. See Twombly, 550 U.S. at 555 (requiring plaintiffs to assert
factual allegations sufficient to raise a right of relief above a speculative level and
advance a showing of entitlement to a right of relief).
Additionally, the Agreement between DiBattista and Kensington specifically
allows for the collection of attorneys fees and the filing of a lien, in the case of past-due
assessments, as are alleged here. (App. II 65, 68) Somewhat confusingly, DiBattista
here claims that the $75.00 fee for preparing the Letter is a contingency fee. A recent
decision from the District Court of New Jersey, decided after the District Court in this
case issued its opinion, did consider whether a contingency fee for collection can be
included in the amount reported to a consumer. See Ardino v. Solomon and Solomon,
P.C., 2014 WL 268680 (D.N.J., Jan. 23, 2014). Although Ardino held that a demand for
an as-yet indeterminate amount for legal costs that had not yet accrued stated a
cognizable claim under the FDCPA, Ardino is distinguishable. This case deals with a
determinate amount, authorized by the Agreement, which, as stated in the Letter, had
already been incurred. DiBattistas repeated unsupported claim that the $75.00 fee is a
contingency fee cannot change this fact. The Letter, therefore, does not violate
1692e(5) or (10) in this regard.3
DiBattista also argues that the collection notice was misleading because it suggested
that the Association could file a lien against her unit even if the only amount owed was
the $75.00 in attorneys fees, when in fact such a lien is prohibited by New Jersey Law.
This argument is based on a misreading of N.J.S.A. 46:8B-21.a, which prohibits an
9
Finally, DiBattista claims that the second quoted paragraph from the Letter above
is misleading or deceptive because it would make her unsure whom she should contact
to assert her rights under 1692g(a)(4). DiBattista claims that the Letter left her unsure
whether she should contact Buckalew, the Association, or both. The District Court
correctly rejected this argument. As the District Court noted, the language of this section
of the Letter very closely tracks that of 1692g(a)(4). (App. 6-7) The only significant
difference is the inclusion, in the Letter, of the clause and the association after
assumed to be valid by this firm. (App. 7) The Court of Appeals for the Second
Circuit, when faced with an essentially similar claim, has held that similar language did
not violate 1692g(a)(4). See Greco v. Trauner, Cohen & Thomas, L.L.P., 412 F.3d 360,
365-66 (2d Cir. 2005). DiBattista cites no contrary authority in this (or any other) circuit,
and it is unclear how the inclusion of the cited language could lead even an
unsophisticated debtor not to protect her rights. The language in the Letter clearly states
that it is this law firm which should be contacted. Even if the additional language did
lead to mild confusion, at worst this would lead to the harmless error of Kensington being
contacted as well as Buckalew. Although DiBattista argues that the Second Circuits
decision is not precedential on this issue, we agree with it. We will affirm the District
Courts order on this claim.
association from filing a lien when the unpaid assessment consists only of late fees.
Because N.J.S.A. 46:8B-21a does not prohibit an association from filing a lien when the
unpaid assessment consists only of attorneys fees, we reject this argument as well.
10
C. Unfair or Unconscionable Means

Under 15 U.S.C. 1692f(1), it is a presumptively prohibited unfair or
unconscionable means to collect or attempt to collect any amount (including any
interest, fee, charge, or expense incidental to the principal obligation) unless such amount
is expressly authorized by the agreement creating the debt or permitted by law.
DiBattista claims that, by including a $75.00 fee for preparing the Letter, Buckalew
violated this clause of the FDCPA. However, as the District Court noted, language in the
Agreement explicitly allows Kensington to include attorneys fees in the amount sought
in collection. (App. 6) DiBattista attempts to make an issue out of the fact that in one of
the two places in the Agreement where attorneys fees are discussed, the Agreement
allows for a charge of 20% of the amount sought, an amount that is significantly different
from, and certainly higher than, the $75.00 actually sought. (App. II 68) Why this
should matter is not, however, clear, especially as the Agreement also allows for
reasonable attorneys fees. (App. II 65) What is clear is that DiBattista has not alleged
any facts that would, if accepted as true, constitute a violation of 1692f(1).
D. Alternative of Dismissal Without Prejudice
DiBattista suggests, at several points, that the fundamental flaw the District Court
found in the complaint was that it failed to specifically claim that the $75.00 fee charged
by Buckalew for preparing the Letter was a contingency fee. DiBattista argues that
rather than dismissal of the complaint for failure to state a claim, the complaint should be
dismissed without prejudice so that she could amend the complaint to include the term
contingency fee. This argument is without merit. Although the District Court did
11
comment on the lack of the phrase contingency fee in the relevant section of the
complaint, the most relevant finding of the District Court was that, [DiBattista] has
alleged no facts in the Complaint that support the notion that the attorneys fees were not
yet due at the time that [Buckalew] sent the letter. (App. at 8) This conclusion stands,
for reasons noted above, on appeal. The problem with the complaint is not the lack of
some magic words, but the lack of any assertions to support the claim.
IV. Conclusion
For the reasons set out above, the District Court did not err in holding that
DiBattista had failed to state a claim, and did not err in dismissing the complaint under
Fed. R. Civ. P. 12(b)(6). We will affirm.
12

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

SLOVITER, Circuit Judge.

Purportedly, DiBattista repeatedly failed to make her scheduled assessment

has failed to state any plausible claim under the FDCPA

According to DiBattista, two sections of the Letter in particular were problematic.

C. Unfair or Unconscionable Means

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