Opinion
16-cv-04982 (JMA)(AKT)
09-30-2018
ALEX BALTAZAR, on behalf of himself and all others similarly situated, Plaintiff, v. HOUSLANGER & ASSOCIATES, PLLC, TODD E. HOUSLANGER AND VIRGO CAPITAL, LLC, Defendants.
For Online Publication Only
ORDER AZRACK, United States District Judge :
Plaintiff Alex Baltazar brings this putative class action, on behalf of himself and all others similarly situated, against Defendants Houslanger & Associates, PLLC, Todd E. Houslanger, Esq., and Virgo Capital (collectively, "Defendants") alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. (See Second Amended Complaint, ECF No. 31.) On October 6, 2017, Defendants filed a motion to dismiss plaintiff's Second Amended Complaint. On May 16, 2018, I referred the motion to dismiss to Magistrate Judge Tomlinson for a Report and Recommendation ("R&R").
On August 16, 2018, Judge Tomlinson issued an R&R recommending that Defendants' motion to dismiss be granted in part and denied in part as follows: (1) Defendants' motion to dismiss plaintiff's Fourth cause of action be granted; (2) Defendants' motion to dismiss plaintiff's First, Second, Fifth, Sixth and Seventh causes of action be denied; and (3) Defendants' motion to dismiss all claims against defendant Todd E. Houslanger in his individual capacity be denied. The R&R further notes that plaintiff's Third and Eighth causes of action have been withdrawn.
Now, before the Court are Defendants' objections to the R&R. In their objections, Defendants argue that Judge Tomlinson erred in denying Defendants' Motion to Dismiss the First, Second, Fifth, Sixth and Seventh causes of action in concluding that: (1) in order for an assignee to have the legal right to enforce a judgment, the judgment debtor must have actual notice of the assignment; (2) the separate entity rule is applicable to plaintiff's claims and, as such, service of the restraining notice on Bank of America's Utica branch could constitute a violation of the FDCPA; (3) plaintiff can maintain an FDCPA claim based on Defendants' communication with third-party Bank of America; (4) plaintiff alleged sufficient facts to maintain his claims based on Defendants' alleged failure to conduct a "meaningful review" of the file; and (5) plaintiff alleged sufficient facts to maintain his claims against Mr. Houslanger in his individual capacity.
In reviewing a magistrate judge's report and recommendation, the court must "make a de novo determination of those portions of the report or . . . recommendations to which objection[s][are] made." 28 U.S.C. § 636(b)(1)(C); see also Brown v. Ebert, No. 05-CV-5579, 2006 WL 3851152, at *2 (S.D.N.Y. Dec. 29, 2006). The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Those portions of a report and recommendation to which there is no specific reasoned objection are reviewed for clear error. See Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008).
I have undertaken a de novo review of the record, the R&R, the instant objections and opposition to those objections and agree with Judge Tomlinson's R&R and adopt it as the opinion of the Court.
Accordingly, Defendants' motion to dismiss is GRANTED in part and DENIED in part as follows: (1) Defendants' motion to dismiss plaintiff's Fourth cause of action is GRANTED; (2) Defendants' motion to dismiss the First Second, Fifth, Sixth and Seventh causes of action is DENIED; (3) Defendants' motion to dismiss all claims against defendant Todd E. Houslanger in his individual capacity is DENIED. Plaintiff's Third and Eighth causes of action have been withdrawn.
SO ORDERED.
Date: September 30, 2018
Central Islip, New York
/s/ (JMA)
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE