16-1461
Wendel v. Mullooly, Jeffrey, Rooney & Flynn, LLP

                    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 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
27th day of April, two thousand seventeen.

PRESENT: DENNIS JACOBS,
         BARRINGTON D. PARKER,
         DEBRA ANN LIVINGSTON,
              Circuit Judges,

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ELAINE S. WENDEL,
         Plaintiff-Appellant,

             -v.-                                                  16-1461

MULLOOLY, JEFFREY, ROONEY & FLYNN, LLP,
         Defendant-Appellee.

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FOR APPELLANT:                                 BRIAN L. BROMBERG (Jonathan
                                               Robert Miller, on the brief),
                                               Bromberg Law Office, P.C.,
                                               New York, NY.




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                                  Kenneth R. Hiller, Seth J.
                                  Andrews, and Timothy Hiller,
                                  Law Offices of Kenneth
                                  Hiller, PLLC, Amherst, NY.

FOR APPELLEE:                     MICHAEL L. KOHL, Michael L.
                                  Kohl, P.C., Bohemia, NY.

                                  Robert L. Arleo, Robert L.
                                  Arleo, Esq., P.C., New York,
                                  NY.

     Appeal from a judgment of the United States District Court
for the Western District of New York (Curtin, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that the judgment of the district court be AFFIRMED.

     Elaine Wendel appeals from the judgment of the United
States District Court for the Western District of New York
(Curtin, J.), inter alia, dismissing her claims under the Fair
Debt Collections Practices Act, 15 U.S.C. § 1692 et seq.1 “We
review de novo the grant of a Rule 12(b)(6) motion to dismiss
for failure to state a claim, accepting all factual allegations
as true and drawing all reasonable inferences in favor of the
plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy
Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). We assume the
parties’ familiarity with the underlying facts, the procedural
history, and the issues presented for review.

1
  The district court also denied Wendel’s motion to file an
amended complaint that sought to add a plaintiff and assert
identical claims on behalf of a class of individuals who had
received the same debt collection letter. Wendel does not
challenge that ruling in her opening brief, and, therefore, we
need not consider it. See JP Morgan Chase Bank v. Altos Hornos
de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005)
(“[A]rguments not made in an appellant’s opening brief are
waived even if the appellant . . . raised them in a reply
brief.”). In any event, our affirmance with respect to the
dismissal of the original complaint necessarily renders the
proposed amendment futile.
                              2
     Wendel allegedly defaulted on her debt to Bank of America,
N.A. (the “Bank”). On January 13, 2015, defendant-appellee
Mullooly, Jeffrey, Rooney & Flynn, LLP (“Mullooly”) sent Wendel
a one-page letter on firm letterhead. Wendel argues that the
letter violates 15 U.S.C. §§ 1692e, 1692e(3), and 1692e(10) by
falsely implying that an attorney is meaningfully involved in
the debt-collection process.2 The relevant text is as follows:

         Our law firm has been retained by Bank of America,
         N.A., successor-in-interest to FIA Card Services (the
         “Bank”), in connection with the above referenced
         account. Please be advised the Bank may invoke its
         right to file a lawsuit against you.

         Unless you notify us within thirty days after receipt
         of this notice that the validity of this debt, or any
         portion of it, is disputed, we will assume that the
         debt is valid. If within thirty days of your receipt
         of this notice you notify us in writing that the debt
         or any portion thereof is disputed we will obtain a
         verification of the debt or if the debt is founded upon
         a judgment, we will obtain a copy of the judgment and
         we will mail to you a copy of such verification or such
         judgment. Also, upon your written request within
         thirty days of the receipt of this notice, we will
         provide you with the name and address of the original
         creditor if different from the current creditor.

         This communication is from a debt collector. We are
         attempting to collect a debt and any information
         obtained will be used for that purpose.

2
  Section 1692e prohibits a debt collector from using “any
false, deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C. § 1692e.
Section 1692e(3) specifically prohibits a debt collector from
“false[ly] represent[ing] or impl[ying] that any individual is
an attorney or that any communication is from an attorney.” Id.
§ 1692e(3). Section 1692e(10) prohibits a debt collector from
“us[ing] any false representation or deceptive means to collect
or attempt to collect any debt or to obtain information
concerning a consumer.” Id. § 1692e(10).
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         At this time, no attorney with this firm has personally
         reviewed the particular circumstances of your
         account.

App’x at 36.3 At the bottom of the page is an illegible
signature above the firm’s name.

     “[A]n attorney can . . . send a debt collection letter
without being meaningfully involved as an attorney within the
collection process” if the letter “includes disclaimers that
should make clear even to the ‘least sophisticated consumer’
that the law firm or attorney sending the letter is not, at the
time of the letter’s transmission, acting as an attorney.”
Greco v. Trauner, Cohen & Thomas, L.L.P., 412 F.3d 360, 364 (2d
Cir. 2005) (emphasis omitted). Mullooly’s letter contains the
same disclaimer that we approved in Greco, namely that “at this
time, no attorney with this firm has personally reviewed the
particular circumstances of your account.” Id. at 361. The
Mullooly letter goes further by explaining that “[t]his
communication is from a debt collector.” App’x at 36.

     Wendel principally contends that these disclaimers are
rendered ineffective by three features that were not present
in Greco: (1) the use of the word “retained” in the letter’s
opening sentence; (2) the warning that “the Bank may invoke its
right to file a lawsuit against you”; and (3) the location of
the Greco disclaimer at the end of the letter, below the required
30-day notices. We disagree.

     1. The word “retained” is no more suggestive of attorney
involvement than “represents,” the word used in Greco.

     2. The reference to the Bank’s right to file suit is
arguably stronger than the euphemisms in Greco, referring to
“such action as necessary to protect our client” and warning
that “our client may consider additional remedies to recover
the balance due.” Greco, 412 F.3d at 361. But the wording in
the Mullooly letter does not “confuse[] or contravene[]” the
3
  The district court was free to rely on the contents of this
letter, which was incorporated by reference and integral to
Wendel’s complaint. See Nicosia v. Amazon.com, Inc., 834 F.3d
220, 230-31 (2d Cir. 2016).
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explicit disclaimers of attorney involvement that appear later
in the letter. Id. at 365.

     3. Insertion of the Greco disclaimer in the fourth
paragraph, rather than the first, does not bury it. The body
of the letter contains eight sentences that fit on approximately
half of a page. Even an unsophisticated individual can be
expected to read the entire letter and comprehend the full text.
See id. at 363 (noting courts’ conclusion that “even the least
sophisticated consumer can be presumed to possess a rudimentary
amount of information about the world and a willingness to read
a collection notice with some care” (internal quotation marks
omitted)).

     Accordingly, we hereby AFFIRM the judgment of the district
court.

                             FOR THE COURT:
                             CATHERINE O’HAGAN WOLFE, CLERK




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