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MON-L-000676-23 07/31/2023 Pg 1 of 19 Trans ID: LCV20232218923
GORDON REES SCULLY MANSUKHANI, LLP
Matthew B. Johnson
One Battery Park Plaza, 28th Fl.
New York, New York 10004
Phone: 212.402.2298
Facsimile: 212.269.5505
Attorneys for Defendant Credit Control Services,
Inc., d/b/a Credit Collection Services
SUPERIOR COURT OF NEW JERSEY
JESSICA HERNANDEZ, on behalf of LAW DIVISION
herself and all others similarly situated, MONMOUTH COUNTY
Plaintiff, Docket No. MON-L-000676-23
-against- CIVIL ACTION
CELENTANO, STADTMAUER & ORDER
WALENTOWICZ, LLP; and JOHN DOES
1-25,
Defendants.
THIS MATTER, having been opened to the Court by GORDON REES SCULLY
MANSUKHANI, LLP, attorneys for Defendant CELENTANO, STADTMAUER &
WALENTOWICZ, LLP, by way of a MOTION TO DISMISS; on notice to JONES, WOLF
& KAPASI, LLC, attorneys for PLAINTIFF JESSICA HERNANDEZ; and the Court
having considered all papers submitted and for good cause having been shown:
31st
IT IS on this ________ July
day of _______________, 2023, ORDERED as follows:
1. Defendant’s motion is GRANTED, in part.
a. Any claims based on 15 U.S.C. §1692e(5) are DISMISSED, with
prejudice.
b. Any claims based on 15 U.S.C. §1692f are DISMISSED, without
prejudice.
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c. Any claims based on the Truth-In-Consumer Contract, Warranty and
Notice Act, N.J.S.A. §§ 56:12-14 et seq. are DISMISSED, with
prejudice.
d. Any Claims based on the Declaratory Judgment Act, N.J.S.A. § 2A:16-52
(DJA) are DISMISSED, with prejudice.
e. As to all other claims, motion to dismiss is DENIED.
2. Service of this Order shall be deemed effectuated once electronically filed by the
Court through eCourts Civil.
/s/______________________________
Honorable Gregory L. Acquaviva, J.S.C.
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Statement of Reasons
Plaintiff Jessica Hernandez filed this putative class action against Defendant Celentano,
Stuadtmauer & Walentowicz, LLP (CSW) alleging that CSW violated state and federal
consumer protection laws attempting to collect a debt.
Specifically, Hernandez incurred a debt to Riverview Medical Center (Riverview) for
medical goods and services rendered. Riverview referred the debt to CSW for collection.
CSW’s initial January 2023 letter to Hernandez requested payment and set forth the debt as
follows:
As of 08/12/2021, you owed: $16,733.90
Between 08/12/2021 and
today you paid or were credited
this amount toward the debt: $13,906.30
Total amount of the debt now: $2,827.50
CSW’s letter continued: “Call or write us within 35 days from the date of this letter, to
dispute all or part of the debt. If you do not, we will assume that our information is correct.”
Hernandez alleges the letter omitted information required under federal regulations,
namely, amounts attributable to interest charged and fees incurred, and a specific date by which
the recipient can contact the sender to dispute the debt. Accordingly, Hernandez asserts
violations of the Fair Debt Collection Practice Act, 15 U.S.C. §§ 1692-1692p (FDCPA), the
Truth-In-Consumer Contract, Warranty and Notice Act, N.J.S.A. §§ 56:12-14 et seq.
(TCCWNA), and the Declaratory Judgment Act, N.J.S.A. § 2A:16-52 (DJA).
CSW moves to dismiss the complaint, arguing Hernandez fails to state a claim under the
FDCPA or TCCWNA, and lacks standing to bring such claims.
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Motion to Dismiss Generally
The issue on a motion to dismiss is “whether a cause of action is suggested by the facts.”
Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988). In deciding a motion pursuant to
Rule 4:6-2(e), the court “must accept as true all factual assertions in the complaint . . . [and]
accord to the non-moving party every reasonable inference from those facts.” Malik v.
Ruttenberg, 398 N.J. Super. 489, 494 (App. Div. 2008). The court must examine the complaint
“in depth and with liberality to ascertain whether the fundament of a cause of action may be
gleaned even from an obscure statement of claim, opportunity being given to amend if
necessary.” Green v. Morgan Properties, 215 N.J. 431, 452 (quoting Printing Mart-Morristown
v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989)); Lederman v. Prudential Life Ins. Co. of
Am., Inc., 385 N.J. Super. 324, 349 (App. Div. 2006).
The court must only consider “the legal sufficiency of the alleged facts apparent on the
face of the challenged claim.” Rieder v. Dep’t of Transp., 221 N.J. Super. 547, 552 (App. Div.
1987). The examination of the complaint should be one “that is at once painstaking and
undertaken with a generous and hospitable approach.” Ibid.
Though the court must take “a generous and hospitable approach” in making that
determination whether to dismiss a complaint, “[a] pleading should be dismissed if it states no
basis for relief and discovery would not provide one.” Flinn v. Amboy Nat’l Bank, 436 N.J.
Super. 274, 286 (App. Div. 2014).
An order granting a motion to dismiss under Rule 4:6-2(e) should usually be without
prejudice, so that the plaintiff may have an opportunity to re-plead, if he can do so, to state a
viable cause of action. Nostrame v. Santiago 213 N.J. 109, 128 (2013). However, such a motion
“may not be denied based on the possibility that discovery may establish the requisite claim;
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rather, the legal requisites for plaintiffs’ claim must be apparent from the complaint itself.”
Edwards v. Prudential Prop. & Cas. Co., 357 N.J. Super. 196, 202 (App. Div. 2003).
Standing
Though relegated to the last page of CSW’s brief, the court first addresses the threshold
inquiry of standing. Standing requires a “sufficient stake and real adverseness with respect to
the subject matter of the litigation.” Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 81
(App. Div. 2001) (citation omitted). New Jersey courts take a broad and liberal approach to
standing. N.J. Citizen Action v Riviera Motel Corp., 296 N.J. Super. 402, 415 (App. Div. 1997).
A party who has suffered harm because of the defendant’s conduct has standing. See, e.g., Stella
v. Dean Witter Reynolds, Inc., 241 N.J. Super. 55 (App. Div. 1990).
CSW contends Hernandez lacks standing because Hernandez “merely alleges that the
letter confused her but makes no claim that any harm would fall upon her in the event of an
unfavorable decision.” CSW further contends that confusion is insufficiently “concrete” to
confer standing, relying on Deutsch v. D&A Services LLC, 2023 U.S. App. Lexis 9161 (3d Cir.
Apr. 18, 2023). Putting aside the non-precedential nature of this case,1 that reliance is misplaced.
Deutsch involved federal standing requirements which, for Article III standing “require a
showing that the plaintiff has (1) suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial
decision.” Id. at *6. (Citations omitted.) The plaintiff in Deutsch alleged that the defendant-
debt collector’s letter omitted statutorily required information regarding the debt thereby
“depriv[ing] plaintiff of [the] right to enjoy the benefits provided by the FDCPA.” Id. at *7.
1
Rule 1:36-3; see also United States Court of Appeals for the Third Circuit, Internal Operating
Procedures, 5.3 (observing that non-precedential opinions do “not constitute binding precedent”).
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Even under the more stringent Article III requirements, the panel found the alleged injury –
essentially, confusion – sufficient to confer standing.
New Jersey law is even more charitable with respect to standing, traditionally taking a
“generous view” of this threshold issue. In re New Jersey State Contract, 422 N.J. Super. 275,
289 (App. Div. 2011). Put simply, a potential for real harm flowing from the litigation’s
outcome is sufficient to confer standing. In re New Jersey Bd. of Public Utilities, 200 N.J.
Super. 544, 556 (App. Div. 1985). Here, Hernandez suffered confusion and informational injury,
as discussed supra. Such would, if proven, entitle Hernandez to damages for actual harm set at a
statutory floor. Such demonstrates a harm sufficient to confer standing under New Jersey’s
generous view of the concept. No more is required to confirm Hernandez’s standing.
FDCPA
The FDCPA was enacted to “eliminate abusive, deceptive, and unfair debt collection
practices.” 15 U.S.C. § 1692a. “As remedial legislation, the FDCPA must be broadly construed
in order to give full effect to these purposes.” Caprio v. Healthcare Revenue Recovery Grp.,
LLC, 709 F.3d 142, 148 (3d Cir. 2013). To that end, “[l]ender-debtor communications
potentially giving rise to claims under the FDCPA should be analyzed from the perspective of
the least sophisticated debtor.” Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008).
An FDCPA claim has four elements. Douglass v. Convergent Outsourcing, 765 F.3d
299, 303 (3d Cir. 2014). The first three involve statutorily defined terms: the plaintiff must be a
“consumer,” 15 U.S.C. § 1692a(3); the defendant must be a “debt collector,” id. § 1692a(6); and
the challenged practice must relate to collection of a “debt,” id. § 1692a(5). See Douglass, 765
F.3d at 302. The fourth element – the one contested here – requires a defendant to have violated
“the FDCPA in attempting to collect the debt.” Id. at 303.
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Relevant here, the FDCPA: (1) prohibits debt collectors from making false or misleading
representations, 15 U.S.C. § 1692e; (2) prohibits debt collectors from using unfair or
unconscionable means to collect or attempt collect a debt, 15 U.S.C. § 1692f; and (3) requires
debt collectors to provide consumers with disclosures concerning debts owed or allegedly owed,
15 U.S.C. § 1692g.
The Consumer Financial Protection Bureau (CFPB) is “authorized to exercise . . .
authorities under [f]ederal consumer financial law to administer, enforce, and otherwise
implement the provisions of [f]ederal consumer financial law.” 12 U.S.C. § 5512(a). The CFPB
issued regulations implementing the FDCPA’s statutory requirements, namely Regulation F
which governs debt collector activities. 12 C.F.R. § 1006 (2021).
Hernandez alleges CSW failed to comply with Regulation F’s requirements regarding the
initial letter’s contents. Hernandez also alleges violations of FDCPA §§ 1692e-g, premised on
CSW’s Regulation F violation. CSW counters that its letter complied with the FDCPA’s
requirements.2
The court considers each alleged violation in turn. Because a violation of 15 U.S.C. §
1692g can itself serve as a predicate for violations of §§ 1692e and 1692f, the court’s analysis
begins with § 1692g and Regulation F.
2
CSW, in reply, argues that Regulation F requires additional disclosures beyond those mandated
by the FDCPA. CSW asserts that, in the absence of ambiguity in the FDCPA’s requirements,
those additional requirements of Regulation F are not entitled to Chevron deference. See
Chevron v. Natural Res. Def. Council, 467 U.S. 837 (1984). CSW improperly raised this
argument for the first time in reply, thus preventing Hernandez from disputing same.
See Pannucci v. Edgewood Park Senior Hous. - Phase 1, LLC, 465 N.J. Super. 403, 409-10
(App. Div. 2020) (citing State v. Smith, 55 N.J. 476, 488 (1970) (noting impropriety of first
raising argument in reply brief)).
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FDCPA § 1692g and Regulation F
When a debt collector solicits payment from a debtor, the debt collector must provide the
debtor a “validation notice” within five days of the initial communication. See 15 U.S.C. §
1692g(a). That notice must include, among other information, “the amount of the debt,” 15
U.S.C. § 1692g(a)(1), and must advise the debtor as to time limitations for responding to the
notice, 15 U.S.C. § 1692g(a)(3-5).
Hernandez alleges CSW’s validation notice was deficient in two respects. First,
Hernandez asserts the validation notice failed to accurately disclose the “amount of the debt” due
to its omission of amounts attributable to “interest charged” and “fees incurred.” Second,
Hernandez asserts the validation notice failed to provide a specific date by which Hernandez
could respond to dispute the debt.
CSW, conversely, contends that the FDCPA does not require a validation notice to
include a full itemization of the debt to effectively convey the amount of the debt under §
1692g(a)(1) – especially here, where no interest nor fees accrued. CSW further contends that the
FDCPA requires a validation notice to alert the debtor that the debtor has thirty days to dispute
the debt or request validation, rather than provide a specific date.
Regulation F addresses, among other things, communications in connection with debt
collection. 12 C.F.R. § 1006 (2021). Recent amendments to Regulation F clarify the
information that a debt collector must provide in its validation notice, namely information about
the debt and how the debtor may dispute same. Ibid.
With respect to information about the debt, § 1006.34(c)(2)(viii) provides that validation
notices “must provide . . . [a]n itemization of the current amount of the debt reflecting interest,
fees, payments, and credits since the itemization date.” (Emphases added.) Importantly, the
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CFPB’s official comment to § 1006.34(c)(2)(viii) emphasizes the mandatory nature of
itemization, providing:
[A] debt collector must include fields in the notice for all of these
items even if none of the items have been assessed or applied to the
debt since the itemization date. A debt collector may indicate that
the value of a required field is ‘0,’ ‘none,’ or may state that no
interest, fees, payments, or credits have been assessed or applied to
the debt; a debt collector may not leave a required field blank.
[Emphases added.]
Despite the facial appeal of CSW’s contention that interest and fees need not be itemized
where none has accrued, the official commentary in clear, plain, express, and unambiguous terms
rejects that otherwise common-sensical contention.
Again relying on unpublished and non-precedential authority – this time, Rodriguez-
Ocasio v. Midland Credit Management., Inc., 2023 U.S. Dist. LEXIS 108360 (D.N.J. Apr. 13,
2023), – CSW asserts that a prima facie FDCPA violation requires the alleged violation to be
“material.” To such ends, because any number plus zero equals that number, CSW asserts that
no debtor – no matter how unsophisticated – could be confused and that any failing here was de
minimis at best and immaterial at worst.
Despite the surface level appeal of that argument, such requires the court to turn a blind
eye to Regulation F’s mandatory language and the CFPB’s official commentary in adopting the
foregoing regulations which, in no uncertain terms, as discussed supra, require itemization of
interest even where the line item equals zero. Put another way, as Hernandez’s counsel pithily
stated at oral argument – itemization of zero interest and fees is material because the CFPB says
so.
With respect to how a debtor may respond to a validation notice, § 1006.34(c)(3)(i-iii)
provides that a validation notice must include “the date that the debt collector will consider the
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end date of the validation period” for the purposes of disputing the debt or requesting
information about the original creditor. The CFPB’s official comment further explains: “[A]
generic statement that a consumer may request verification within 30 days after receiving the
validation notice is not an adequate substitute for disclosing the validation period end date,” thus
requiring inclusion of “a specific end date.” (Emphases added.) This comment, too, rejects
CSW’s otherwise sensical interpretation. Importantly, at oral argument, CSW acknowledged
that the communication here set forth a “time period” – not a date. Such a distinction is more
than mere semantics. It is a distinction with a difference.
Regulation F is clear, as is its commentary. CSW was required to include itemized
amounts attributable to “interest” and “fees” in the validation notice, as well as a specific “date”
by which Hernandez could respond to the notice. The alleged omissions are sufficient to sustain
a claim under §§ 1692g(a)(1) and (a)(3-5). The motion to dismiss on this front must be denied.
FDCPA § 1692e
Section 1692e forbids a debt collector from using any false, deceptive, or misleading
representation or means in connection with collection of debt. Section 1692e provides a non-
exhaustive list of prohibited conduct, including, as alleged here, the false representation of a
debt’s character, amount, or legal status, 15 U.S.C. § 1692e(2)(A); the threat to take any action
that cannot legally be taken, 15 U.S.C. § 1692e(5); and the use of any false representation or
deceptive means to collect or attempt to collect a debt, 15 U.S.C. § 1692e(10).
CSW contends that Hernandez’ claims under 15 U.S.C. §§ 1692e, 1692e(2)(A), and
1692e(10) should be dismissed because Hernandez “has not identified any false, deceptive[,] or
misleading content in the [validation notice],” and “asserts no facts to support . . . that the
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[validation notice] falsely represented the character, amount, [or] legal status of the debt.” The
court disagrees.
Hernandez alleges that the validation notice was deficient with respect to interest and fee
itemization and its failure to provide a date to request debt verification by. Though sparse, and
redundant with other deficiencies, those allegations are sufficient to state an FDCPA claim. See
supra.
CSW further contends that Hernandez’ claim under § 1962e(5) must be dismissed as
Hernandez failed to identify “anything in the [validation notice] that could be read as a threat,
[or] any action that [CSW] stated it planned to take.”
Section 1962e(5) prohibits a debt collector from making a “threat to take any action that
cannot legally be taken or that is not intended to be taken.” Notably, this provision is only
implicated if there is indeed a threat. See, e.g., Kaymark v. Bank of Am., N.A., 783 F.3d 168,
176 (3d Cir. 2015) (plaintiff failed to state claim under 1692e(5) because there was no threat,
“such as falsely threating to file suit”); Brown v. Card Serv. Ctr., 646 F.3d 450 (3d Cir. 2006)
(complaint survived dismissal where debt collection letter suggested debt collector could take
action in five days that it had no intention of taking).
Here, the validation notice stated: “Call or write to us within 35 days from the date of this
letter, to dispute all or part of the debt. If you do not, we will assume that our information is
correct.” Hernandez argues this statement amounts to a threat that CSW could view the debt as
valid. There is, however, no threat of action by CSW. Indeed, the above-quoted language
regarding assuming that the information is correct tracks verbatim language promulgated by
CFPB in Model Form B. 12 C.F.R. § 1006 Appendix B (2021). Accordingly, without a
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plausible allegation of a threat – or even some sort of responsive action – Hernandez has not, as a
matter of law, stated a claim under section 1692e(5).
FDCPA § 1692f
Section 1692f prohibits the use of “unfair or unconscionable means to collect or attempt
to collect any debt.” This “catchall provision” prohibits conduct that is “not specifically barred
by the FDCPA’s other provisions.” Strouse v. Enhanced Recovery Co., LLC, 956 F. Supp. 2d
627, 637 (E.D. Pa. 2013). “A complaint will be deemed deficient under § 1692f if it does not
identify any misconduct beyond which plaintiffs assert violate other provisions of the FDCPA.”
Ibid.
Here, Hernandez concedes in opposition that the § 1692f claim is premised on CSW’s
failure to comply with Regulation F, as with every FDCPA claim alleged. Accordingly,
dismissal of Hernandez’s § 1692f claim is proper.
TCCWNA
Applicability of the TCCWNA requires careful scrutiny of the statutory text – a scrutiny
governed by well-settled principles of statutory construction.
The legislature instructs that when reading statutes “words and phrases shall be read and
construed with their context,” and that words and phrases “shall, unless inconsistent with the
manifest intent of the legislature or unless another or different meaning is expressly indicated, be
given their generally accepted meaning, according to the approved usage of the language.”
N.J.S.A. 1:1-1.
“The starting point of all statutory interpretation must be the language used in the
enactment.” DCPP v. Y.N., 220 N.J. 165, 178 (2014). Such language, according to Chief
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Justice Zazzali, for the unanimous Court in L.W. v. Toms River Regional Schools Board of
Education, is a court’s “polestar.” 189 N.J. 381, 400 (2007).
Thus, “[i]f the plain language leads to a clear and unambiguous result, then [a court’s]
interpretive process is over.” Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 386 (2016)
(quotation omitted); accord Frugis v. Bracigliano, 177 N.J. 250, 280 (2003) (“If the language is
plain and clearly reveals the statute’s meaning, the Court’s sole function is to enforce the statute
according to its terms.”).
Section 15 of the TCCWNA: (1) sets forth categories of potential violators of the
TCCWNA; and (2) defines violations. Specifically, Section 15 provides: “No seller, lessor,
creditor, lender or bailee shall” engage in certain conduct that violates clearly established legal
rights of a consumer. Section 15 is clear, express, plain, and unambiguous. Simply put, Section
15 enumerates five categories of potential violators: (1) sellers; (2) lessors; (3); creditors; (4)
lenders; and (5) bailees. Important here, Section 15 does not mention “assignees.”
Section 17, conversely, sets for the consequences of a violation – namely a civil penalty
of not less than $100 and/or actual damages, plus reasonable counsel fees. Section 17 then states
that such damages or penalties:
may be recoverable by the consumer in a civil action in a court of
competent jurisdiction or as part of a counterclaim by the consumer
against the seller, lessor, creditor, lender or bailee or assignee of any
of the aforesaid, who aggrieved [the consumer].
[Emphasis added.]
Thus, like Section 15, again the same five categories of actors are subject to civil liability
as violators of the TCCWNA: (1) sellers; (2) lessors; (3) creditors; (4) lenders; and (5) bailees.
But here, in Section 17 only, “assignees” are added.
“Assignee” is not defined in the TCCWNA. Nor is it defined in N.J.S.A. 1:1-2.
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Black’s Law Dictionary defines “assignee” as “[o]ne to whom property rights or powers
are transferred by another.” Pg. 114 (7th ed. 1999); accord
https://www.dictionary.com/browse/assignee (last visited July 21, 2023) (defining “assignee” as
“a person to whom some right or interest is transferred . . . .”). Here, the complaint does not
allege that CSW is an assignee of the debt nor are the words “assign” “assignee,” or assignment”
used in the complaint. There is no contention in the complaint that Riverview transferred the
debt to CSW. Rather, Hernandez merely alleges that Riverview “referred the . . . obligation to
[CSW] for the purpose of collection.” (Emphasis added.)
Accordingly, the complaint is clear that CSW was not a seller, lessor, creditor, lender, or
bailee – and thus, Section 15 is not implicated. Indeed, Hernandez does not argue as much.
And, accordingly, CSW cannot, therefore, be a violator of the TCCWNA.
What is also clear is that the complaint does not allege that CSW is an assignee.
Nowhere dose the complaint contend that the debt was transferred from Riverview to CSW nor
that CSW stood in Riverview’s proverbial shoes. Rather, the complaint merely assert that the
debt was vaguely “referred” to CSW for “the purpose of collection.” Such does not create an
assignment and does not make CSW an “assignee.”
This is so despite Plaintiff’s best endeavor at oral argument to equate the terms. To be
sure, no reading of the complaint – no matter how generous, charitable, or hospitable – can
equate a referral3 of a debt to a law firm for collection to assignment of a debt. Referral connotes
directing another to act on one’s behalf as an agent. Assignment connotes a transfer of
ownership and rights. They are not doppelgangers nor synonyms.
3
Referral is defined as: “[t]he act or an instance of sending or directing to another for
information, service, consideration or decision.” Black’s Law Dictionary, pg. 1285 (7th ed.
1999).
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Although Hernandez’s failure to allege an assignment of the debt typically would
countenance in favor of a dismissal without prejudice, here dismissal with prejudice is
appropriate based on the TCCWNA’s express language.
Assuming arguendo that the foregoing is insufficiently generous, charitable, and
hospitable in gleaning the fundaments of a cause of action at the motion to dismiss stage, liability
under the TCCWNA still does not exist here under the facts asserted in the complaint as a matter
of law. Specific focus must be given to Section 17. Again, Section 17 provides that recovery
may be had against “the seller, lessor, creditor, lender or bailee or assignee of any of the
aforesaid, who aggrieved [the consumer.]” The five enumerated categories of Section 15 are
repeated, followed by “or assignee of any of the aforesaid, who aggrieved [the consumer.]”
Presuming CSW is an assignee, Section 17 provides that the assignee not only assumes
the benefits of the assigned debt, but also the detriments of the debt. Put another way, the
assignee, obviously, assumes entitlement to recover on the debt – the upside of the debt. But the
assignee also assumes the adverse consequences associated with a prior unlawful act in
collecting on the debt by the seller, lessor, creditor, lender, or bailee – the downside. As the old
saw goes, the assignee gets the good with the bad.
Hernandez contends that use of “assignee” in Section 17 permits an assignee to, in the
first instance, be liable for a TCCWNA violation premised on, as here, the assignee’s own
conduct – as opposed to assuming liability for the prior wrongful conduct of the seller, lessor,
creditor, lender, or bailee (here, Riverview). Were that interpretation to be adopted such would
beg the question: why was assignee omitted from Section 15? Hernandez’s argument on this
point is unavailing.
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In essence, Hernandez invites this court to read “assignee” into the categories of
TCCWNA violators specifically enumerated in Section 15. This court must decline that
invitation. As none other than Felix Frankfurter stated: “whatever temptation the statesmanship
of policymaking might wisely suggest, construction must eschew interpolation and eviscerations.
[The court] must not read in by way of creation.” Some Reflections on the Reading of Statutes,
47 COLUM. L. REV. 527, 533 (1947).
The legislature could have enumerated “assignees” as potential violators of the
TCCWNA in Section 15. It did not. This court presumes, as it must, that such was a conscious
decision of the people’s elected representatives. This court will not, as Hernandez requests,
insert a carrot and, with a figurative red pen, edit Section 15 – an otherwise clear, express, plain,
and unambiguous statute – to add a new category of TCCWNA violators. The statute’s clear
language is the “polestar,” and must be followed. L.W., 189 N.J. at 400. To be sure, when “the
Legislature has carefully employed a term in one place and excluded it in another, it should not
be implied where excluded.” Higgins v. Pascack Valley Hospital, 158 N.J. 404, 419 (1999)
(quoting GE Solid State, Inc. v. Director, Div. of Taxation, 132 N.J. 298, 307-08 (1993); State v.
Hoffman, 149 N.J. 564, 579 (1997)).
This court is not unmindful of the TCCWNA’s legislative aims to “prevent deceptive
practices in consumer contracts.” Dugan v. TGI Fridays, Inc., 231 N.J. 24 (2017). Nor is the
court insensitive to the premise that as remedial legislation, the TCCWNA is to be construed
broadly. Pisack v. B & C Towing, Inc., 240 N.J. 360, 382 (2020). Such pronouncements,
however, do not empower an unelected jurist to edit otherwise clear statutory language chosen
by the legislature to insert an additional class of potential statutory violators. Rather, and again,
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where “the language is plain and clearly reveals the statute’s meaning, the [c]ourt’s sole function
is to enforce the statute according to its terms.” Frugis, 177 N.J. at 280.
Accordingly, because Hernandez does not allege that CSW is an assignee and because an
assignee cannot violate the TCCWNA – as opposed to assume liability for a violator’s wrongful
conduct – the court is constrained to dismiss Hernandez’s TCCWNA cause of action with
prejudice.
Declaratory Judgment Act
The DJA provides:
A person . . . whose rights, status or other legal relations are affected
by a statute, municipal ordinance, contract or franchise, may have
determined any question of construction or validity arising under the
instrument, statute, ordinance, contract or franchise and obtain a
declaration of rights, status or other legal relations thereunder.
[N.J.S.A. § 2A:16-53.]
“The Legislature intended the [DJA] to provide ‘relief from uncertainty and insecurity
with respect to rights, status and other legal relations.’” Matter of N.J. Firemen’s Ass’n
Obligation to Prove Relief Applications Under Open Pub. Records Act, 230 N.J. 258, 275 (2017)
(quoting N.J.S.A. 2A:16-51). Accordingly, the DJA authorizes courts to determine legal issues
in a proceeding for declaratory relief, in which a judgment will terminate the controversy or
remove an uncertainty. N.J.S.A. § 2A:16-51 et seq. “[T]he right to relief under the DJA is
procedural in nature; it does not create substantive rights to relief.” Stop & Shop Supermarket
Co., LLC v. Cty. of Bergen, 450 N.J. Super. 286, 294 (App. Div. 2017).
Although the DJA is to be “liberally construed and administered, and shall be so
interpreted and construed as to effectuate its general purpose to make uniform the law of those
states which enact it, and to harmonize, as far as possible, with federal laws, rules and
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regulations on the subject of declaratory judgments.” Matter of N.J. Firemen’s Ass’n, 230 N.J.
at 275 (quoting N.J.S.A. 2A:16-51.) However, and critically important here, “there is ordinarily
no reason to invoke the provisions of the [DJA] where another adequate remedy is available.”
Ibid. (citations omitted.)
Here, CSW contends Hernandez’s request for declaratory judgment must be denied on
two grounds. First, CSW argues that declaratory judgment cannot be granted absent a violation
of the law. In view of the court’s conclusion vis-à-vis the FDCPA claims, this argument fails
because an actual dispute remains between the parties, each of whom has a stake in the outcome.
Matter of N.J. Firemen’s Ass’n, 230 N.J. at 275.
Second, CSW argues that declaratory relief is not available under the FDCPA and,
accordingly, Hernandez’s request for declaratory judgment on FDCPA claims must be denied.
The court agrees.
On this point, the United States Court of Appeals for the Third Circuit held that
“injunctive and declaratory relief are not available to litigants acting in an individual capacity
under the FDCPA.” Weiss v. Regal Collections, 385 F.3d 337, 342 (3d Cir. 2004). In Weiss, the
Court acknowledged “[t]he remedies under the FDCPA differ depending on who brings the
action.” Id. at 341. The FDCPA “authorizes damages for civil liability, but permits only the
Federal Trade Commission to pursue injunctive or declaratory relief,” thus “demonstrating
Congress’s intent to preclude equitable relief in private actions.” Ibid.
Notably, the DJA “does not create substantive rights to relief.” Stop & Shop, 450 N.J.
Super. at 294. The FDCPA plainly does not permit declaratory relief to a plaintiff in an
individual capacity. Moreover, Hernandez has another avenue to relief – compensatory and
statutory damages, therefore making declaratory relief an improper vehicle here. Matter of N.J.
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Firemen’s Ass’n, 230 N.J. at 275. Accordingly, CSW’s motion to dismiss the declaratory relief
cause of action is granted, as a matter of law.
19
Preview
MON-L-000676-23 07/31/2023 Pg 1 of 19 Trans ID: LCV20232218923 GORDON REES SCULLY MANSUKHANI, LLP Matthew B. Johnson One Battery Park Plaza, 28th Fl. New York, New York 10004 Phone: 212.402.2298 Facsimile: 212.269.5505 Attorneys for Defendant Credit Control Services, Inc., d/b/a Credit Collection Services SUPERIOR COURT OF NEW JERSEY JESSICA HERNANDEZ, on behalf of LAW DIVISION herself and all others similarly situated, MONMOUTH COUNTY Plaintiff, Docket No. MON-L-000676-23 -against- CIVIL ACTION CELENTANO, STADTMAUER & ORDER WALENTOWICZ, LLP; and JOHN DOES 1-25, Defendants. THIS MATTER, having been opened to the Court by GORDON REES SCULLY MANSUKHANI, LLP, attorneys for Defendant CELENTANO, STADTMAUER & WALENTOWICZ, LLP, by way of a MOTION TO DISMISS; on notice to JONES, WOLF & KAPASI, LLC, attorneys for PLAINTIFF JESSICA HERNANDEZ; and the Court having considered all papers submitted and for good cause having been shown: 31st IT IS on this ________ July day of _______________, 2023, ORDERED as follows: 1. Defendant’s motion is GRANTED, in part. a. Any claims based on 15 U.S.C. §1692e(5) are DISMISSED, with prejudice. b. Any claims based on 15 U.S.C. §1692f are DISMISSED, without prejudice. 1 MON-L-000676-23 07/31/2023 Pg 2 of 19 Trans ID: LCV20232218923 c. Any claims based on the Truth-In-Consumer Contract, Warranty and Notice Act, N.J.S.A. §§ 56:12-14 et seq. are DISMISSED, with prejudice. d. Any Claims based on the Declaratory Judgment Act, N.J.S.A. § 2A:16-52 (DJA) are DISMISSED, with prejudice. e. As to all other claims, motion to dismiss is DENIED. 2. Service of this Order shall be deemed effectuated once electronically filed by the Court through eCourts Civil. /s/______________________________ Honorable Gregory L. Acquaviva, J.S.C. 2 MON-L-000676-23 07/31/2023 Pg 3 of 19 Trans ID: LCV20232218923 Statement of Reasons Plaintiff Jessica Hernandez filed this putative class action against Defendant Celentano, Stuadtmauer & Walentowicz, LLP (CSW) alleging that CSW violated state and federal consumer protection laws attempting to collect a debt. Specifically, Hernandez incurred a debt to Riverview Medical Center (Riverview) for medical goods and services rendered. Riverview referred the debt to CSW for collection. CSW’s initial January 2023 letter to Hernandez requested payment and set forth the debt as follows: As of 08/12/2021, you owed: $16,733.90 Between 08/12/2021 and today you paid or were credited this amount toward the debt: $13,906.30 Total amount of the debt now: $2,827.50 CSW’s letter continued: “Call or write us within 35 days from the date of this letter, to dispute all or part of the debt. If you do not, we will assume that our information is correct.” Hernandez alleges the letter omitted information required under federal regulations, namely, amounts attributable to interest charged and fees incurred, and a specific date by which the recipient can contact the sender to dispute the debt. Accordingly, Hernandez asserts violations of the Fair Debt Collection Practice Act, 15 U.S.C. §§ 1692-1692p (FDCPA), the Truth-In-Consumer Contract, Warranty and Notice Act, N.J.S.A. §§ 56:12-14 et seq. (TCCWNA), and the Declaratory Judgment Act, N.J.S.A. § 2A:16-52 (DJA). CSW moves to dismiss the complaint, arguing Hernandez fails to state a claim under the FDCPA or TCCWNA, and lacks standing to bring such claims. 3 MON-L-000676-23 07/31/2023 Pg 4 of 19 Trans ID: LCV20232218923 Motion to Dismiss Generally The issue on a motion to dismiss is “whether a cause of action is suggested by the facts.” Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988). In deciding a motion pursuant to Rule 4:6-2(e), the court “must accept as true all factual assertions in the complaint . . . [and] accord to the non-moving party every reasonable inference from those facts.” Malik v. Ruttenberg, 398 N.J. Super. 489, 494 (App. Div. 2008). The court must examine the complaint “in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.” Green v. Morgan Properties, 215 N.J. 431, 452 (quoting Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989)); Lederman v. Prudential Life Ins. Co. of Am., Inc., 385 N.J. Super. 324, 349 (App. Div. 2006). The court must only consider “the legal sufficiency of the alleged facts apparent on the face of the challenged claim.” Rieder v. Dep’t of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987). The examination of the complaint should be one “that is at once painstaking and undertaken with a generous and hospitable approach.” Ibid. Though the court must take “a generous and hospitable approach” in making that determination whether to dismiss a complaint, “[a] pleading should be dismissed if it states no basis for relief and discovery would not provide one.” Flinn v. Amboy Nat’l Bank, 436 N.J. Super. 274, 286 (App. Div. 2014). An order granting a motion to dismiss under Rule 4:6-2(e) should usually be without prejudice, so that the plaintiff may have an opportunity to re-plead, if he can do so, to state a viable cause of action. Nostrame v. Santiago 213 N.J. 109, 128 (2013). However, such a motion “may not be denied based on the possibility that discovery may establish the requisite claim; 4 MON-L-000676-23 07/31/2023 Pg 5 of 19 Trans ID: LCV20232218923 rather, the legal requisites for plaintiffs’ claim must be apparent from the complaint itself.” Edwards v. Prudential Prop. & Cas. Co., 357 N.J. Super. 196, 202 (App. Div. 2003). Standing Though relegated to the last page of CSW’s brief, the court first addresses the threshold inquiry of standing. Standing requires a “sufficient stake and real adverseness with respect to the subject matter of the litigation.” Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 81 (App. Div. 2001) (citation omitted). New Jersey courts take a broad and liberal approach to standing. N.J. Citizen Action v Riviera Motel Corp., 296 N.J. Super. 402, 415 (App. Div. 1997). A party who has suffered harm because of the defendant’s conduct has standing. See, e.g., Stella v. Dean Witter Reynolds, Inc., 241 N.J. Super. 55 (App. Div. 1990). CSW contends Hernandez lacks standing because Hernandez “merely alleges that the letter confused her but makes no claim that any harm would fall upon her in the event of an unfavorable decision.” CSW further contends that confusion is insufficiently “concrete” to confer standing, relying on Deutsch v. D&A Services LLC, 2023 U.S. App. Lexis 9161 (3d Cir. Apr. 18, 2023). Putting aside the non-precedential nature of this case,1 that reliance is misplaced. Deutsch involved federal standing requirements which, for Article III standing “require a showing that the plaintiff has (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. at *6. (Citations omitted.) The plaintiff in Deutsch alleged that the defendant- debt collector’s letter omitted statutorily required information regarding the debt thereby “depriv[ing] plaintiff of [the] right to enjoy the benefits provided by the FDCPA.” Id. at *7. 1 Rule 1:36-3; see also United States Court of Appeals for the Third Circuit, Internal Operating Procedures, 5.3 (observing that non-precedential opinions do “not constitute binding precedent”). 5 MON-L-000676-23 07/31/2023 Pg 6 of 19 Trans ID: LCV20232218923 Even under the more stringent Article III requirements, the panel found the alleged injury – essentially, confusion – sufficient to confer standing. New Jersey law is even more charitable with respect to standing, traditionally taking a “generous view” of this threshold issue. In re New Jersey State Contract, 422 N.J. Super. 275, 289 (App. Div. 2011). Put simply, a potential for real harm flowing from the litigation’s outcome is sufficient to confer standing. In re New Jersey Bd. of Public Utilities, 200 N.J. Super. 544, 556 (App. Div. 1985). Here, Hernandez suffered confusion and informational injury, as discussed supra. Such would, if proven, entitle Hernandez to damages for actual harm set at a statutory floor. Such demonstrates a harm sufficient to confer standing under New Jersey’s generous view of the concept. No more is required to confirm Hernandez’s standing. FDCPA The FDCPA was enacted to “eliminate abusive, deceptive, and unfair debt collection practices.” 15 U.S.C. § 1692a. “As remedial legislation, the FDCPA must be broadly construed in order to give full effect to these purposes.” Caprio v. Healthcare Revenue Recovery Grp., LLC, 709 F.3d 142, 148 (3d Cir. 2013). To that end, “[l]ender-debtor communications potentially giving rise to claims under the FDCPA should be analyzed from the perspective of the least sophisticated debtor.” Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008). An FDCPA claim has four elements. Douglass v. Convergent Outsourcing, 765 F.3d 299, 303 (3d Cir. 2014). The first three involve statutorily defined terms: the plaintiff must be a “consumer,” 15 U.S.C. § 1692a(3); the defendant must be a “debt collector,” id. § 1692a(6); and the challenged practice must relate to collection of a “debt,” id. § 1692a(5). See Douglass, 765 F.3d at 302. The fourth element – the one contested here – requires a defendant to have violated “the FDCPA in attempting to collect the debt.” Id. at 303. 6 MON-L-000676-23 07/31/2023 Pg 7 of 19 Trans ID: LCV20232218923 Relevant here, the FDCPA: (1) prohibits debt collectors from making false or misleading representations, 15 U.S.C. § 1692e; (2) prohibits debt collectors from using unfair or unconscionable means to collect or attempt collect a debt, 15 U.S.C. § 1692f; and (3) requires debt collectors to provide consumers with disclosures concerning debts owed or allegedly owed, 15 U.S.C. § 1692g. The Consumer Financial Protection Bureau (CFPB) is “authorized to exercise . . . authorities under [f]ederal consumer financial law to administer, enforce, and otherwise implement the provisions of [f]ederal consumer financial law.” 12 U.S.C. § 5512(a). The CFPB issued regulations implementing the FDCPA’s statutory requirements, namely Regulation F which governs debt collector activities. 12 C.F.R. § 1006 (2021). Hernandez alleges CSW failed to comply with Regulation F’s requirements regarding the initial letter’s contents. Hernandez also alleges violations of FDCPA §§ 1692e-g, premised on CSW’s Regulation F violation. CSW counters that its letter complied with the FDCPA’s requirements.2 The court considers each alleged violation in turn. Because a violation of 15 U.S.C. § 1692g can itself serve as a predicate for violations of §§ 1692e and 1692f, the court’s analysis begins with § 1692g and Regulation F. 2 CSW, in reply, argues that Regulation F requires additional disclosures beyond those mandated by the FDCPA. CSW asserts that, in the absence of ambiguity in the FDCPA’s requirements, those additional requirements of Regulation F are not entitled to Chevron deference. See Chevron v. Natural Res. Def. Council, 467 U.S. 837 (1984). CSW improperly raised this argument for the first time in reply, thus preventing Hernandez from disputing same. See Pannucci v. Edgewood Park Senior Hous. - Phase 1, LLC, 465 N.J. Super. 403, 409-10 (App. Div. 2020) (citing State v. Smith, 55 N.J. 476, 488 (1970) (noting impropriety of first raising argument in reply brief)). 7 MON-L-000676-23 07/31/2023 Pg 8 of 19 Trans ID: LCV20232218923 FDCPA § 1692g and Regulation F When a debt collector solicits payment from a debtor, the debt collector must provide the debtor a “validation notice” within five days of the initial communication. See 15 U.S.C. § 1692g(a). That notice must include, among other information, “the amount of the debt,” 15 U.S.C. § 1692g(a)(1), and must advise the debtor as to time limitations for responding to the notice, 15 U.S.C. § 1692g(a)(3-5). Hernandez alleges CSW’s validation notice was deficient in two respects. First, Hernandez asserts the validation notice failed to accurately disclose the “amount of the debt” due to its omission of amounts attributable to “interest charged” and “fees incurred.” Second, Hernandez asserts the validation notice failed to provide a specific date by which Hernandez could respond to dispute the debt. CSW, conversely, contends that the FDCPA does not require a validation notice to include a full itemization of the debt to effectively convey the amount of the debt under § 1692g(a)(1) – especially here, where no interest nor fees accrued. CSW further contends that the FDCPA requires a validation notice to alert the debtor that the debtor has thirty days to dispute the debt or request validation, rather than provide a specific date. Regulation F addresses, among other things, communications in connection with debt collection. 12 C.F.R. § 1006 (2021). Recent amendments to Regulation F clarify the information that a debt collector must provide in its validation notice, namely information about the debt and how the debtor may dispute same. Ibid. With respect to information about the debt, § 1006.34(c)(2)(viii) provides that validation notices “must provide . . . [a]n itemization of the current amount of the debt reflecting interest, fees, payments, and credits since the itemization date.” (Emphases added.) Importantly, the 8 MON-L-000676-23 07/31/2023 Pg 9 of 19 Trans ID: LCV20232218923 CFPB’s official comment to § 1006.34(c)(2)(viii) emphasizes the mandatory nature of itemization, providing: [A] debt collector must include fields in the notice for all of these items even if none of the items have been assessed or applied to the debt since the itemization date. A debt collector may indicate that the value of a required field is ‘0,’ ‘none,’ or may state that no interest, fees, payments, or credits have been assessed or applied to the debt; a debt collector may not leave a required field blank. [Emphases added.] Despite the facial appeal of CSW’s contention that interest and fees need not be itemized where none has accrued, the official commentary in clear, plain, express, and unambiguous terms rejects that otherwise common-sensical contention. Again relying on unpublished and non-precedential authority – this time, Rodriguez- Ocasio v. Midland Credit Management., Inc., 2023 U.S. Dist. LEXIS 108360 (D.N.J. Apr. 13, 2023), – CSW asserts that a prima facie FDCPA violation requires the alleged violation to be “material.” To such ends, because any number plus zero equals that number, CSW asserts that no debtor – no matter how unsophisticated – could be confused and that any failing here was de minimis at best and immaterial at worst. Despite the surface level appeal of that argument, such requires the court to turn a blind eye to Regulation F’s mandatory language and the CFPB’s official commentary in adopting the foregoing regulations which, in no uncertain terms, as discussed supra, require itemization of interest even where the line item equals zero. Put another way, as Hernandez’s counsel pithily stated at oral argument – itemization of zero interest and fees is material because the CFPB says so. With respect to how a debtor may respond to a validation notice, § 1006.34(c)(3)(i-iii) provides that a validation notice must include “the date that the debt collector will consider the 9 MON-L-000676-23 07/31/2023 Pg 10 of 19 Trans ID: LCV20232218923 end date of the validation period” for the purposes of disputing the debt or requesting information about the original creditor. The CFPB’s official comment further explains: “[A] generic statement that a consumer may request verification within 30 days after receiving the validation notice is not an adequate substitute for disclosing the validation period end date,” thus requiring inclusion of “a specific end date.” (Emphases added.) This comment, too, rejects CSW’s otherwise sensical interpretation. Importantly, at oral argument, CSW acknowledged that the communication here set forth a “time period” – not a date. Such a distinction is more than mere semantics. It is a distinction with a difference. Regulation F is clear, as is its commentary. CSW was required to include itemized amounts attributable to “interest” and “fees” in the validation notice, as well as a specific “date” by which Hernandez could respond to the notice. The alleged omissions are sufficient to sustain a claim under §§ 1692g(a)(1) and (a)(3-5). The motion to dismiss on this front must be denied. FDCPA § 1692e Section 1692e forbids a debt collector from using any false, deceptive, or misleading representation or means in connection with collection of debt. Section 1692e provides a non- exhaustive list of prohibited conduct, including, as alleged here, the false representation of a debt’s character, amount, or legal status, 15 U.S.C. § 1692e(2)(A); the threat to take any action that cannot legally be taken, 15 U.S.C. § 1692e(5); and the use of any false representation or deceptive means to collect or attempt to collect a debt, 15 U.S.C. § 1692e(10). CSW contends that Hernandez’ claims under 15 U.S.C. §§ 1692e, 1692e(2)(A), and 1692e(10) should be dismissed because Hernandez “has not identified any false, deceptive[,] or misleading content in the [validation notice],” and “asserts no facts to support . . . that the 10 MON-L-000676-23 07/31/2023 Pg 11 of 19 Trans ID: LCV20232218923 [validation notice] falsely represented the character, amount, [or] legal status of the debt.” The court disagrees. Hernandez alleges that the validation notice was deficient with respect to interest and fee itemization and its failure to provide a date to request debt verification by. Though sparse, and redundant with other deficiencies, those allegations are sufficient to state an FDCPA claim. See supra. CSW further contends that Hernandez’ claim under § 1962e(5) must be dismissed as Hernandez failed to identify “anything in the [validation notice] that could be read as a threat, [or] any action that [CSW] stated it planned to take.” Section 1962e(5) prohibits a debt collector from making a “threat to take any action that cannot legally be taken or that is not intended to be taken.” Notably, this provision is only implicated if there is indeed a threat. See, e.g., Kaymark v. Bank of Am., N.A., 783 F.3d 168, 176 (3d Cir. 2015) (plaintiff failed to state claim under 1692e(5) because there was no threat, “such as falsely threating to file suit”); Brown v. Card Serv. Ctr., 646 F.3d 450 (3d Cir. 2006) (complaint survived dismissal where debt collection letter suggested debt collector could take action in five days that it had no intention of taking). Here, the validation notice stated: “Call or write to us within 35 days from the date of this letter, to dispute all or part of the debt. If you do not, we will assume that our information is correct.” Hernandez argues this statement amounts to a threat that CSW could view the debt as valid. There is, however, no threat of action by CSW. Indeed, the above-quoted language regarding assuming that the information is correct tracks verbatim language promulgated by CFPB in Model Form B. 12 C.F.R. § 1006 Appendix B (2021). Accordingly, without a 11 MON-L-000676-23 07/31/2023 Pg 12 of 19 Trans ID: LCV20232218923 plausible allegation of a threat – or even some sort of responsive action – Hernandez has not, as a matter of law, stated a claim under section 1692e(5). FDCPA § 1692f Section 1692f prohibits the use of “unfair or unconscionable means to collect or attempt to collect any debt.” This “catchall provision” prohibits conduct that is “not specifically barred by the FDCPA’s other provisions.” Strouse v. Enhanced Recovery Co., LLC, 956 F. Supp. 2d 627, 637 (E.D. Pa. 2013). “A complaint will be deemed deficient under § 1692f if it does not identify any misconduct beyond which plaintiffs assert violate other provisions of the FDCPA.” Ibid. Here, Hernandez concedes in opposition that the § 1692f claim is premised on CSW’s failure to comply with Regulation F, as with every FDCPA claim alleged. Accordingly, dismissal of Hernandez’s § 1692f claim is proper. TCCWNA Applicability of the TCCWNA requires careful scrutiny of the statutory text – a scrutiny governed by well-settled principles of statutory construction. The legislature instructs that when reading statutes “words and phrases shall be read and construed with their context,” and that words and phrases “shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language.” N.J.S.A. 1:1-1. “The starting point of all statutory interpretation must be the language used in the enactment.” DCPP v. Y.N., 220 N.J. 165, 178 (2014). Such language, according to Chief 12 MON-L-000676-23 07/31/2023 Pg 13 of 19 Trans ID: LCV20232218923 Justice Zazzali, for the unanimous Court in L.W. v. Toms River Regional Schools Board of Education, is a court’s “polestar.” 189 N.J. 381, 400 (2007). Thus, “[i]f the plain language leads to a clear and unambiguous result, then [a court’s] interpretive process is over.” Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 386 (2016) (quotation omitted); accord Frugis v. Bracigliano, 177 N.J. 250, 280 (2003) (“If the language is plain and clearly reveals the statute’s meaning, the Court’s sole function is to enforce the statute according to its terms.”). Section 15 of the TCCWNA: (1) sets forth categories of potential violators of the TCCWNA; and (2) defines violations. Specifically, Section 15 provides: “No seller, lessor, creditor, lender or bailee shall” engage in certain conduct that violates clearly established legal rights of a consumer. Section 15 is clear, express, plain, and unambiguous. Simply put, Section 15 enumerates five categories of potential violators: (1) sellers; (2) lessors; (3); creditors; (4) lenders; and (5) bailees. Important here, Section 15 does not mention “assignees.” Section 17, conversely, sets for the consequences of a violation – namely a civil penalty of not less than $100 and/or actual damages, plus reasonable counsel fees. Section 17 then states that such damages or penalties: may be recoverable by the consumer in a civil action in a court of competent jurisdiction or as part of a counterclaim by the consumer against the seller, lessor, creditor, lender or bailee or assignee of any of the aforesaid, who aggrieved [the consumer]. [Emphasis added.] Thus, like Section 15, again the same five categories of actors are subject to civil liability as violators of the TCCWNA: (1) sellers; (2) lessors; (3) creditors; (4) lenders; and (5) bailees. But here, in Section 17 only, “assignees” are added. “Assignee” is not defined in the TCCWNA. Nor is it defined in N.J.S.A. 1:1-2. 13 MON-L-000676-23 07/31/2023 Pg 14 of 19 Trans ID: LCV20232218923 Black’s Law Dictionary defines “assignee” as “[o]ne to whom property rights or powers are transferred by another.” Pg. 114 (7th ed. 1999); accord https://www.dictionary.com/browse/assignee (last visited July 21, 2023) (defining “assignee” as “a person to whom some right or interest is transferred . . . .”). Here, the complaint does not allege that CSW is an assignee of the debt nor are the words “assign” “assignee,” or assignment” used in the complaint. There is no contention in the complaint that Riverview transferred the debt to CSW. Rather, Hernandez merely alleges that Riverview “referred the . . . obligation to [CSW] for the purpose of collection.” (Emphasis added.) Accordingly, the complaint is clear that CSW was not a seller, lessor, creditor, lender, or bailee – and thus, Section 15 is not implicated. Indeed, Hernandez does not argue as much. And, accordingly, CSW cannot, therefore, be a violator of the TCCWNA. What is also clear is that the complaint does not allege that CSW is an assignee. Nowhere dose the complaint contend that the debt was transferred from Riverview to CSW nor that CSW stood in Riverview’s proverbial shoes. Rather, the complaint merely assert that the debt was vaguely “referred” to CSW for “the purpose of collection.” Such does not create an assignment and does not make CSW an “assignee.” This is so despite Plaintiff’s best endeavor at oral argument to equate the terms. To be sure, no reading of the complaint – no matter how generous, charitable, or hospitable – can equate a referral3 of a debt to a law firm for collection to assignment of a debt. Referral connotes directing another to act on one’s behalf as an agent. Assignment connotes a transfer of ownership and rights. They are not doppelgangers nor synonyms. 3 Referral is defined as: “[t]he act or an instance of sending or directing to another for information, service, consideration or decision.” Black’s Law Dictionary, pg. 1285 (7th ed. 1999). 14 MON-L-000676-23 07/31/2023 Pg 15 of 19 Trans ID: LCV20232218923 Although Hernandez’s failure to allege an assignment of the debt typically would countenance in favor of a dismissal without prejudice, here dismissal with prejudice is appropriate based on the TCCWNA’s express language. Assuming arguendo that the foregoing is insufficiently generous, charitable, and hospitable in gleaning the fundaments of a cause of action at the motion to dismiss stage, liability under the TCCWNA still does not exist here under the facts asserted in the complaint as a matter of law. Specific focus must be given to Section 17. Again, Section 17 provides that recovery may be had against “the seller, lessor, creditor, lender or bailee or assignee of any of the aforesaid, who aggrieved [the consumer.]” The five enumerated categories of Section 15 are repeated, followed by “or assignee of any of the aforesaid, who aggrieved [the consumer.]” Presuming CSW is an assignee, Section 17 provides that the assignee not only assumes the benefits of the assigned debt, but also the detriments of the debt. Put another way, the assignee, obviously, assumes entitlement to recover on the debt – the upside of the debt. But the assignee also assumes the adverse consequences associated with a prior unlawful act in collecting on the debt by the seller, lessor, creditor, lender, or bailee – the downside. As the old saw goes, the assignee gets the good with the bad. Hernandez contends that use of “assignee” in Section 17 permits an assignee to, in the first instance, be liable for a TCCWNA violation premised on, as here, the assignee’s own conduct – as opposed to assuming liability for the prior wrongful conduct of the seller, lessor, creditor, lender, or bailee (here, Riverview). Were that interpretation to be adopted such would beg the question: why was assignee omitted from Section 15? Hernandez’s argument on this point is unavailing. 15 MON-L-000676-23 07/31/2023 Pg 16 of 19 Trans ID: LCV20232218923 In essence, Hernandez invites this court to read “assignee” into the categories of TCCWNA violators specifically enumerated in Section 15. This court must decline that invitation. As none other than Felix Frankfurter stated: “whatever temptation the statesmanship of policymaking might wisely suggest, construction must eschew interpolation and eviscerations. [The court] must not read in by way of creation.” Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 533 (1947). The legislature could have enumerated “assignees” as potential violators of the TCCWNA in Section 15. It did not. This court presumes, as it must, that such was a conscious decision of the people’s elected representatives. This court will not, as Hernandez requests, insert a carrot and, with a figurative red pen, edit Section 15 – an otherwise clear, express, plain, and unambiguous statute – to add a new category of TCCWNA violators. The statute’s clear language is the “polestar,” and must be followed. L.W., 189 N.J. at 400. To be sure, when “the Legislature has carefully employed a term in one place and excluded it in another, it should not be implied where excluded.” Higgins v. Pascack Valley Hospital, 158 N.J. 404, 419 (1999) (quoting GE Solid State, Inc. v. Director, Div. of Taxation, 132 N.J. 298, 307-08 (1993); State v. Hoffman, 149 N.J. 564, 579 (1997)). This court is not unmindful of the TCCWNA’s legislative aims to “prevent deceptive practices in consumer contracts.” Dugan v. TGI Fridays, Inc., 231 N.J. 24 (2017). Nor is the court insensitive to the premise that as remedial legislation, the TCCWNA is to be construed broadly. Pisack v. B & C Towing, Inc., 240 N.J. 360, 382 (2020). Such pronouncements, however, do not empower an unelected jurist to edit otherwise clear statutory language chosen by the legislature to insert an additional class of potential statutory violators. Rather, and again, 16 MON-L-000676-23 07/31/2023 Pg 17 of 19 Trans ID: LCV20232218923 where “the language is plain and clearly reveals the statute’s meaning, the [c]ourt’s sole function is to enforce the statute according to its terms.” Frugis, 177 N.J. at 280. Accordingly, because Hernandez does not allege that CSW is an assignee and because an assignee cannot violate the TCCWNA – as opposed to assume liability for a violator’s wrongful conduct – the court is constrained to dismiss Hernandez’s TCCWNA cause of action with prejudice. Declaratory Judgment Act The DJA provides: A person . . . whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder. [N.J.S.A. § 2A:16-53.] “The Legislature intended the [DJA] to provide ‘relief from uncertainty and insecurity with respect to rights, status and other legal relations.’” Matter of N.J. Firemen’s Ass’n Obligation to Prove Relief Applications Under Open Pub. Records Act, 230 N.J. 258, 275 (2017) (quoting N.J.S.A. 2A:16-51). Accordingly, the DJA authorizes courts to determine legal issues in a proceeding for declaratory relief, in which a judgment will terminate the controversy or remove an uncertainty. N.J.S.A. § 2A:16-51 et seq. “[T]he right to relief under the DJA is procedural in nature; it does not create substantive rights to relief.” Stop & Shop Supermarket Co., LLC v. Cty. of Bergen, 450 N.J. Super. 286, 294 (App. Div. 2017). Although the DJA is to be “liberally construed and administered, and shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it, and to harmonize, as far as possible, with federal laws, rules and 17 MON-L-000676-23 07/31/2023 Pg 18 of 19 Trans ID: LCV20232218923 regulations on the subject of declaratory judgments.” Matter of N.J. Firemen’s Ass’n, 230 N.J. at 275 (quoting N.J.S.A. 2A:16-51.) However, and critically important here, “there is ordinarily no reason to invoke the provisions of the [DJA] where another adequate remedy is available.” Ibid. (citations omitted.) Here, CSW contends Hernandez’s request for declaratory judgment must be denied on two grounds. First, CSW argues that declaratory judgment cannot be granted absent a violation of the law. In view of the court’s conclusion vis-à-vis the FDCPA claims, this argument fails because an actual dispute remains between the parties, each of whom has a stake in the outcome. Matter of N.J. Firemen’s Ass’n, 230 N.J. at 275. Second, CSW argues that declaratory relief is not available under the FDCPA and, accordingly, Hernandez’s request for declaratory judgment on FDCPA claims must be denied. The court agrees. On this point, the United States Court of Appeals for the Third Circuit held that “injunctive and declaratory relief are not available to litigants acting in an individual capacity under the FDCPA.” Weiss v. Regal Collections, 385 F.3d 337, 342 (3d Cir. 2004). In Weiss, the Court acknowledged “[t]he remedies under the FDCPA differ depending on who brings the action.” Id. at 341. The FDCPA “authorizes damages for civil liability, but permits only the Federal Trade Commission to pursue injunctive or declaratory relief,” thus “demonstrating Congress’s intent to preclude equitable relief in private actions.” Ibid. Notably, the DJA “does not create substantive rights to relief.” Stop & Shop, 450 N.J. Super. at 294. The FDCPA plainly does not permit declaratory relief to a plaintiff in an individual capacity. Moreover, Hernandez has another avenue to relief – compensatory and statutory damages, therefore making declaratory relief an improper vehicle here. Matter of N.J. 18 MON-L-000676-23 07/31/2023 Pg 19 of 19 Trans ID: LCV20232218923 Firemen’s Ass’n, 230 N.J. at 275. Accordingly, CSW’s motion to dismiss the declaratory relief cause of action is granted, as a matter of law. 19