Case 1:18-cv-06698-ARR-CLP Document 1 Filed 11/23/18 Page 1 of 9 PageID #: 1

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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ELSA GREENE,

Case No. 18-cv-06698

Plaintiff,
COMPLAINT
-against-

ARS NATIONAL SERVICES, INC.,
Defendant.
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Plaintiff, by and through her attorneys, FAGENSON & PUGLISI, PLLC,
upon knowledge as to herself and her own acts, and as to all other matters upon
information and belief, brings this complaint against above-named defendant and in
support thereof alleges the following:
INTRODUCTION
1.

This is an action for damages brought by an individual

consumer for defendant’s violations of the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. § 1692, et seq. which prohibits debt collectors from engaging in abusive,
deceptive and unfair acts and practices.
2.

Further, this is an action for damages and injunctive relief brought by

an individual consumer against defendant pursuant to New York General Business Law
(“NYGBL”) § 349 regarding defendant’s deceptive acts and practices.

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JURISDICTION AND VENUE
3.

This Court has federal question jurisdiction pursuant to the FDCPA,

15 U.S.C. § 1692k(d) and 28 U.S.C. § 1331 and supplemental jurisdiction exists over the
NYGBL § 349 claims pursuant to 28 U.S.C. § 1367.
4.

This Court has venue pursuant to 28 U.S.C. § 1391(b) in that plaintiff

resides in this District and a substantial portion of the events or omissions giving rise to
this action occurred in this District.
PARTIES
5.

Plaintiff is a natural person who resides in this District.

6.

Plaintiff is a consumer within the meaning of 15 U.S.C. §

1692a(3) as she is a natural person who is alleged by defendant to owe a financial
obligation.
7.

The financial obligation which defendant sought to collect from

plaintiff is a debt within the meaning of 15 U.S.C. § 1692a(5) in that the obligation which
defendant sought to collect from plaintiff is an allegedly defaulted credit card account
originally owned by Citibank, N.A. and whose balance was incurred for personal, family
or household purposes.
8.

Plaintiff is a reasonable consumer within the meaning of NYGBL §

349 who acted reasonably under the circumstances alleged herein.
9.

Defendant is a debt collector within the meaning of 15 U.S.C. §

10.

The principal purpose of defendant’s business is the collection of

1692a(6).

defaulted consumer debts.

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11.

Defendant uses the mails in its business the principal purpose

of which is the collection of defaulted consumer debts.
12.

Defendant regularly collects or attempts to collect defaulted

consumer debts owed or due or alleged to be owed or due to others.
13.

Upon information and belief, defendant is a foreign business

corporation incorporated in California.
FACTUAL ALLEGATIONS
14.

Plaintiff re-alleges paragraphs 1-13 as if fully re-stated herein.

15.

Defendant sent a collection letter dated November 20,

2017 to plaintiff.
16.

On information and belief, said letter was mailed to plaintiff within

the one-year period immediately preceding the commencement of this action.
17.

Said letter was received by plaintiff within the one-year period

immediately preceding the commencement of this action.
18.

In the letter, defendant stated: “New Balance: $2,323.99.”

19.

Defendant also stated in the letter, in pertinent part:

“Please be advised that your account balance stated above is subject to change,
including possible increases due to interest and other charges according to the
terms of your original credit agreement.”
20.

Defendant’s said statement concerning interest and other charges

was false, deceptive and misleading.
21.

Plaintiff’s account balance did not increase due to interest or other

charges subsequent to the date of defendant’s said letter.
22.

Plaintiff’s account balance did not increase at all subsequent to the

date of defendant’s said letter.

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23.

Defendant sent the letter in an effort to collect plaintiff’s said

defaulted Citibank debt.
24.

Defendant’s letter caused plaintiff to believe that the balance of her

alleged debt would increase in the future because of the addition of interest and other
charges by Citibank.
25.

Plaintiff’s belief was erroneous because her debt balance would not

in fact accrue interest in the future.
26.

Plaintiff’s belief was erroneous because her debt balance would not

in fact increase due to other charges in the future.
27.

Plaintiff’s account balance remained steadfastly at $2,323.99 every

month following November 2017.
28.

Defendant’s said statement in its letter that plaintiff’s account balance

may increase in the future due to interest and other charges caused plaintiff to suffer
confusion, surprise, anxiety, stress, agitation and irritation.

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AS AND FOR A FIRST CAUSE OF ACTION
False statement that account balance
may increase due to interest and other charges
15 U.S.C. §§ 1692e and 1692e(2)(A)
29.

Plaintiff re-alleges paragraphs 1-28 as if fully re-stated herein.

30.

Defendant’s statement in its aforesaid collection letter that plaintiff’s

account balance may increase in the future due to the addition of interest and other
charges was false, deceptive and misleading.
31.

Plaintiff’s account balance did not increase due to interest

subsequent to the date of defendant’s letter.
32.

Plaintiff’s account balance did not increase due to the addition of

other charges subsequent to the date of defendant’s letter.
33.

Plaintiff’s account balance did not increase at all subsequent to the

date of defendant’s said letter.
34.

Defendant included the statement about the account balance

increasing due to the accrual of interest and other charges to scare plaintiff into quickly
paying the debt.
35.

Defendant included the statement about the account balance

increasing due to the accrual of interest and other charges to scare the least sophisticated
consumer into quickly paying the debt.
36.

Defendant’s inclusion of the statement in the collection letter about

the account balance increasing due to the accrual of interest and other charges is
therefore a false representation of the character and amount of the debt, in violation of 15
U.S.C. § 1692e(2)(A).

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37.

Defendant’s inclusion of the statement in the collection letter about

the account balance increasing due to the accrual of interest and other charges
constitutes a false, deceptive and misleading representation or means used to collect or
attempt to collect a debt, in violation of 15 U.S.C. § 1692e.
AS AND FOR A SECOND CAUSE OF ACTION
NYGBL § 349
38.

Plaintiff re-alleges paragraphs 1-37 as if fully re-stated herein.

39.

Each of the deceptive and misleading acts and practices

above-mentioned was committed by defendant in the conduct of a business, trade or
commerce or the furnishing of a service in New York State and constitutes a violation of
NYGBL § 349.
40.

Defendant’s deceptive and misleading acts and practices were

consumer-oriented, in that defendant is a collector of consumer debts incurred
principally or wholly by natural persons.
41.

The aforesaid collection letter which defendant sent to plaintiff is a

mass-mailed form letter used by defendant.
42.

The aforesaid collection letter which defendant sent to plaintiff is

derived from a form of letter used by defendant.
43.

The aforesaid collection letter which defendant sent to plaintiff is

derived from a letter template used by defendant.

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44.

Each year defendant sends to thousands of consumers within New

York State its collection letters containing the statement about the account balance
increasing due to the accrual of interest and other charges, notwithstanding the fact that
no interest or other charge would accruing on the account balances, similar to the letter
defendant sent to plaintiff.
45.

Defendant’s said statement was consumer-oriented.

46.

At all material times, defendant sent the collection letter concerning

debts whose balances would not increase due to the accrual of interest or other charge.
47.

Plaintiff is a reasonable consumer within the meaning of the NYGBL

and acted reasonably under the circumstances of this case.
48.

Defendant’s letter caused plaintiff to believe that the balance of her

alleged debt would increase in the future because of the addition of interest and other
charges by Citibank.
49.

Defendant’s letter would cause the reasonable consumer to believe

that the balance of her alleged debt would increase in the future because of the addition
of interest and other charges by Citibank.
50.

Plaintiff’s belief was erroneous because her account balance would

not in fact increase due to interest in the future.
51.

The least sophisticated consumer’s belief would be erroneous

because her account balance would not in fact increase due to interest in the future.
52.

Defendant’s said statement in its letter that plaintiff’s account balance

may increase in the future due to interest and other charges caused plaintiff to suffer
confusion, surprise, anxiety, stress, agitation and irritation.

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53.

Defendant’s said statement was misleading and deceptive in a

material way.
54.

Defendant violated NYGBL § 349(a) and is liable to plaintiff under

NYGBL § 349(h).
WHEREFORE, plaintiff respectfully prays that judgment be entered
against defendant as follows:
(a)

awarding plaintiff the maximum statutory damages pursuant to 15
U.S.C. § 1692k;

(b)

awarding plaintiff actual damages pursuant to 15 U.S.C. § 1692k in
an amount to be determined at time of trial;

(c)

awarding reasonable attorneys’ fees, costs and disbursements
pursuant to 15 U.S.C. § 1692k;

(d)

enjoining defendant from

committing further

deceptive and

misleading acts and practices against plaintiff, pursuant to NYGBL
§ 349;
(e)

awarding actual damages pursuant to NYGBL § 349 in an amount
to be determined at time of trial;

(f)

awarding, in the alternative, statutory damages pursuant to NYGBL
§ 349 in an amount to be determined at time of trial;

(g)

awarding reasonable attorneys’ fees, costs and disbursements
pursuant to NYGBL § 349(h); and

(h)

for such other and further relief as may be just and proper.

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DEMAND FOR TRIAL BY JURY
Plaintiff requests trial by jury on all issues so triable.
Dated: New York, New York
November 23, 2018.

/s/ Novlette R. Kidd
NOVLETTE R. KIDD, ESQ. (NK 9339)
FAGENSON & PUGLISI, PLLC
Attorneys for Plaintiff
450 Seventh Avenue, Suite 704
New York, New York 10123
Telephone: (212) 268-2128
Nkidd@fagensonpuglisi.com