15-3681-cv
Llewellyn v. Asset Acceptance, LLC and Monarch Recovery Management, Inc.


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@).
A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

                At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on
the 13th day of October, two thousand sixteen.

PRESENT: GERARD E. LYNCH,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges,
                 CHRISTINA REISS,*
                                 Chief District Judge.
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NICOLE LLEWELLYN,
                         Plaintiff-Appellant,

                    v.                                                                     15-3681-cv

ASSET ACCEPTANCE, LLC, MONARCH
RECOVERY MANAGEMENT, INC.
                         Defendants-Appellees.
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 FOR PLAINTIFF-APPELLANT:                                              Nicole Llewellyn, pro se, Yorktown
                                                                       Heights, New York.

 FOR DEFENDANTS-APPELLEES:                                             Joseph A. Hess, Marshall Dennehey
                                                                       Warner Coleman & Goggin, New York,
                                                                       New York.

          Appeal from a judgment of the Southern District of New York (Roman, J.).


*Chief Judge Christina Reiss, United States District Court for the District of Vermont, sitting by designation.
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Nicole Llewellyn, proceeding pro se, appeals from the district court’s grant of

summary judgment dismissing her claims against a debt acquisition company, Asset Acceptance,

LLC (“Asset”), and a debt collection agency, Monarch Recovery Management (“Monarch”).

Llewellyn argued that the defendants violated the Fair Debt Collection Practices Act (“FDCPA”),

Fair Credit Reporting Act (“FCRA”), New York General Business Law (“NYGBL”) § 349, New

York usury laws, and committed various torts by attempting to collect her credit card debt and

reporting her failure to pay to credit reporting agencies. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

       We review de novo a district court’s grant of summary judgment. Garcia v. Hartford

Police Dep’t, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Summary judgment must be granted

if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). When determining whether a genuine dispute exists, we must

“resolve all ambiguities and draw all inferences against the moving party.” Garcia, 706 F.3d at

127. A party cannot overcome summary judgment by relying on “mere speculation or conjecture

as to the true nature of the facts” because “conclusory allegations or denials” cannot “create”

genuine disputes of material fact “where none would otherwise exist.” Hicks v. Baines, 593 F.3d

159, 166 (2d Cir. 2010) (internal quotation marks omitted). When considering a cross-motion for

summary judgment, we “must evaluate each party’s motion on its own merits, taking care in each

instance to draw all reasonable inferences against the party whose motion is under consideration.”

Hotel Emps. & Rest. Emps. Union, Local 100 of New York, N.Y. & Vicinity, AFL CIO v. City of

New York Dep’t of Parks & Recreation, 311 F.3d 534, 543 (2d Cir. 2002) (internal quotation

marks omitted).


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        The FDCPA, FCRA, and NYGBL § 349 all prohibit deceptive debt collection and

reporting practices. See generally Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52-53 (2007)

(discussing FCRA); Avila v. Riexinger & Assocs., LLC, 817 F.3d 72, 74 (2d Cir. 2016) (discussing

FDCPA); Ovitz v. Bloomberg L.P., 18 N.Y.3d 753, 759-60 (2012) (discussing NYGBL § 349).

Upon review, we conclude that the district court properly granted the defendants’ cross-motion for

summary judgment. Taken in the light most favorable to Llewellyn as the non-movant, the

evidence at summary judgment shows that the defendants sought to collect a valid debt that

Llewellyn owed to Asset. Consequently, Llewellyn’s FDCPA, FCRA, and state law claims that

relied exclusively on her arguments related to the ownership and validity of the debt were correctly

dismissed.

        The district court correctly concluded that Asset owns Llewellyn’s debt. Citibank N.A.

originally owned Llewellyn’s debt. Llewellyn’s account statement clearly identified Citibank N.A.

as the entity that issued her credit card, and a credit card issuer “owns” debt incurred on the credit

card that it issued. Defendants presented uncontroverted evidence that Citibank N.A. sold

Llewellyn’s debt to Asset. See Appellees’ Supp. App’x at 87-104, 106, 108-12.

        Contrary to Llewellyn’s contention, the evidence presented at summary judgment shows

that Citibank N.A. did not agree to transfer all of its defaulted credit card accounts to the Citibank

Trust. See Appellant’s App’x at 153-55. Llewellyn has not provided any evidence creating a

genuine dispute that her debt was sold to the Citibank Trust. The district court correctly

determined that there was no genuine issue of material fact as to Asset’s valid ownership of the

debt.

        Llewellyn’s challenges to the validity of the underlying debt are also unavailing. Under

New York law, an annual interest rate that exceeds 16 percent is usurious. See N.Y. Gen. Oblig.

Law § 5-501; N.Y. Comp. Codes R. & Regs. tit. 3, § 4.1 (setting maximum permissible interest


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rates under § 5-501). Citibank N.A. is a national bank subject to the National Banking Act, which

allows national banks to charge interest at the rate allowed by the state in which the bank is

located. See 12 U.S.C. § 85; Appellees’ Supp. App’x at 90, § 3.1. Citibank N.A. is located in South

Dakota, and so New York usury law does not apply. The New York usury statutes do apply to

defendants, see Madden v. Midland Funding, LLC, 786 F.3d 246, 251 (2d Cir. 2015), but the

district court properly determined that neither defendant charged her usurious interest on her

post-default debt. The 25.99 percent annual interest rate charged on her pre-default debt by a

national bank did not violate New York usury law and therefore does not undermine the validity of

the debt now being collected. The district court correctly concluded that there was no violation of

New York law that invalidated the debt.

       Likewise, Llewellyn’s claims under NYGBL § 349 fail. To state a prima facie case under

NYGBL § 349, a plaintiff must allege that the defendant(s) “engag[ed] in an act or practice that is

deceptive or misleading in a material way and that [she] has been injured by reason thereof.”

Ovitz, 18 N.Y.3d at 759 (emphasis omitted) (internal quotation marks omitted). For the reasons

discussed above, Llewellyn failed to show either of these requisite elements.

       The district court also properly dismissed Llewellyn’s FDCPA claim for failure to validate

her debt. Under the FDCPA, a request for validation of a debt must be made within 30 days of

receiving the debt collection notice; otherwise, the duty to validate is not triggered. 15 U.S.C.

§ 1692g(b); see Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 89 (2d Cir. 2008). Here,

Llewellyn received Monarch’s collection letter in January but did not request validation until

April. Consequently, the defendants were under no duty to validate her debt and could demand

immediate payment. See Jacobson, 516 F.3d at 89. Llewellyn’s other claims under the FDCPA

were also correctly dismissed by the district court for the reasons discussed above.




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       We have considered Llewellyn’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk




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