Argued: May 19, 2009
Before STRAUB, HALL, and LIVINGSTON, Circuit Judges.
On appeal from a judgment of the United States District Court for the Southern District of New York (Harold Baer, Jr., Judge), granting summary judgment in favor of defendants and dismissing plaintiff’s complaint in its entirety. Plaintiff Paul Kuhne alleges that defendant Midland Funding NCC-2 Corporation is a “debt collection agency” under New York City Administrative Code § 20-489(a) and is thus required under § 20-490 to be licensed by the New York City Department of Consumer Affairs in order to engage in debt collection activities in the City of New York. He alleges that because NCC-2 did not have such a license, defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., and New York General Business Law § 349 when defendant Cohen & Slamowitz, LLP filed a lawsuit against him on behalf of NCC-2 seeking to collect from him defaulted consumer debt that NCC-2 had purchased from his original creditor. The parties do not dispute that NCC-2 engages in the business of purchasing defaulted consumer debt and authorizes third party debt collection agencies to engage in debt collection activities to collect that debt, including the filing of lawsuits in NCC-2′s name in the event that their initial efforts are unsuccessful. The issue is whether, under these circumstances, NCC-2 is a debt collection agency under N.Y.C. Admin. Code § 20-489(a). Because (1) the Appellate Divisions of New York State Supreme Court and the New York Court of Appeals have not addressed this question, (2) the lower courts are not in agreement on the issue, (3) the text of the statute fails to provide an unmistakable answer, and (4) a recent amendment of N.Y.C. Admin. Code § 20-489(a) complicates our determination of the legislative intent, we respectfully believe that the New York Court of Appeals should have the first opportunity to determine the issue. If the New York Court of Appeals answers this question in the affirmative, then we respectfully request that it also address whether defendants violated New York General Business Law § 349 by virtue of NCC-2′s status as the named plaintiff in the debt collection suit against Kuhne.
