In Scarola Malone & Zubatov LLP v. McCarthy, Burgess & Wolff, 2016 WL 536864, at *1-2 (C.A.2 (N.Y.),2016), the Court of Appeals for the Second Circuit affirmed dismissal of a law firm’s FDCPA complaint because the debt was commercial in nature.
The FDCPA does not cover “actions arising out of commercial debts.” Goldman v. Cohen, 445 F.3d 152, 154 n. 1 (2d Cir.2006). Here, as alleged in the second amended complaint (designated by plaintiffs as the “Further Amended Complaint”) (hereinafter, the “Complaint”), the alleged debt arose from purported transactions related to a business telephone account of the law firm Scarola Malone & Zubatov LLP (“SMZ”). Clearly, this was not an account used “primarily for personal, family, or household purposes.” Accordingly, to the extent that the alleged debt, whether actually owed or mistakenly assessed, stems from telecommunications services provided by Verizon to SMZ, the claim arises out of a commercial transaction and is not covered by the FDCPA. Goldman, 445 F.3d at 154 n. 1 see also Goldsmith v. HSW Financial Recovery, Inc., 757 F.Supp.2d 95, 98–99 (D.N.H.2010) (attempt to collect from individual on a non-existent debt obligation alleged to have arisen from a commercial lease was not for personal, family, or household purposes, and therefore not covered under the FDCPA). In an effort to bring these claims under the FDCPA, Scarola alleges in the Complaint that MBW attempted to collect alleged debts for payment of bills “of no conceivable origin or basis” that must have arisen from a transaction that was “primarily for personal, family or household purposes.” Complaint ¶¶ 1, 16, 49–50. These allegations, however, are mere conclusory statements not supported by facts from which the inference could be reasonably drawn that collection efforts arose from a consumer transaction. Accordingly, they are not entitled to a presumption of truth. Iqbal, 556 U.S. at 678. On appeal, Scarola argues that the Complaint could not be dismissed at the pleadings stage because the origin of the false debt “presents a question as to the true ‘character’ of the underlying events.” Appellant’s Br. at 25–27. This argument is without merit. Scarola did not include any factual allegations in his Complaint to support the inference that the amount in dispute arose from a consumer transaction, and, accordingly, he failed to state a claim upon which relief could be granted. Cf. Davis v. Hollins Law, 968 F.Supp.2d 1072, 1080 (E.D.Cal.2013) (material issue of fact existed where plaintiff alleged debt arising from personal charges on a business credit card). Again, he does not allege any transaction that was “primarily for personal, family, or household purposes.” 15 U.S.C. § 1692a(5). Scarola also argues that in the circumstance where a disputed debt never actually existed and collection efforts were targeted at an individual, the alleged nonexistent debt should be deemed to arise from a personal transaction. We reject this argument because it contradicts the plain language of the statute by attempting to define “consumer debt in accordance with the actions of the debt collector, rather than the true nature of the debt.” Slenk v. Transworld Sys., Inc., 236 F.3d 1072, 1076 (9th Cir.2001) (citing 15 U.S.C. § 1692a(5)); see also Holman v. W. Valley Collection Servs., Inc., 60 F.Supp.2d 935, 937 (D.Minn.1999) (“[I]f a communication to the debtor’s home converted any commercial debt into an obligation under the FDCPA, it would be tantamount to an amendment of the clear intent of Congress.”).