- posted: Jan. 26, 2017
In White v. Fein, Such & Crane, LLP, No. 15-CV-438V(Sr) (Nov. 1, 2016), plaintiffs filed a class action complaint under the Fair Debt Collection Practices Act (FDCPA) and New York General Business Law §349 concerning the attorneys’ fees that defendant charged in mortgage foreclosure actions which it had previously commenced against plaintiffs. Prior to any discovery or class certification proceedings, plaintiffs moved to amend their complaint in order to “sharpen the class definitions” and “narrow the scope of the existing claims”. Defendant opposed the motion on the ground that the proposed amended complaint was futile because the factual allegations in it were “false”, and supported that opposition with an affidavit from a partner of defendant, which detailed the firm’s business records, attorneys’ notes, and files related to the underlying foreclosure actions. Plaintiffs objected to defendant’s attempt to introduce “evidence” in opposition to their motion to amend, especially because no discovery had been conducted. After noting that it must confine its consideration to the facts stated on the face of the proposed amended complaint, the court held that defendant’s submission was beyond the scope of plaintiffs’ proposed amended complaint and inappropriate for resolution within the procedural confines of the motion. As a result, the court exercised its discretion and granted plaintiffs’ motion to amend their complaint.