No.

IN THE

Supreme Court of the United States

ALEXANDER A. BENZEMANN,

Petitioner

v.

HOUSLANGER & ASSOCIATES PLLC,

TODD E. HOUSLANGER, and NEW CENTURY

FINANCIAL SERVICES,

Respondents

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

PETITION FOR WRIT OF CERTIORARI

ANDREW L. TIAJOLOFF

Counsel of Record

Tiajoloff & Kelly LLP

Chrysler Building, 37th Floor

405 Lexington Avenue

New York, New York 10174

atiajoloff@tkiplaw.com

(212) 490-3285

i

QUESTIONS PRESENTED

I. Whether the "discovery rule" applies to toll the

one (1) year statute of limitations under the Fair

Debt Collection Practices Act, 15 U.S.C. §§ 1692, et

seq., as the Fourth and Ninth Circuits have held but

the Third Circuit has held contrarily.

II. Does the discovery rule under the Fair Debt

Collection Practices Act, 15 U.S.C. §§ 1692, et seq.,

toll the one-year statute of limitations to run from

the date of discovery of the facts of the cause of

action, as the Fourth and Ninth Circuits have held,

or from the date of discovery of merely the injury, as

the Second Circuit has held contrarily.

ii

PARTIES TO THE PROCEEDING

ALEXANDER A. BENZEMANN, Petitioner

HOUSLANGER & ASSOCIATES PLLC, TODD E.

HOUSLANGER, and NEW CENTURY FINANCIAL

SERVICES, Respondents

RULE 29.6 STATEMENT

Petitioner, Alexander A. Benzemann is a natural

person, not a business organization.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED …………………………… i

PARTIES TO THE PROCEEDING ……..……………… ii

RULE 29.6 STATEMENT ……………………………. ii

TABLE OF CONTENTS ………………………………. iii

TABLE OF AUTHORITIES …………………………… vi

OPINIONS BELOW …….….…..……………………... 1

JURISDICTION ……….….…..………………………. 1

STATUTORY PROVISION INVOLVED .………………. 1

INTRODUCTION ……………………………………… 2

STATEMENT OF THE FACTS ………………………… 3

I. THE UNDERLYING EVENTS ……………….. 3

II. DISTRICT COURT PROCEEDINGS ………….. 4

III. THE APPELLATE DECISION HERE AT ISSUE 4

REASONS FOR GRANTING THE PETITION …………. 5

I. This Honorable Court recently granted

certiorari in Rotkiske to address the

question of availability of the discovery

rule in FDCPA actions……………………...

5

II. The Courts of Appeals remain divided on

the issue of whether the discovery rule is

applicable to the FDCPA..………………….

7

A. The Courts of Appeals for the Fourth

Circuit and the Ninth Circuit have

repeatedly held that the discovery

rule is available under the FDCPA…

7

iv

B. The Third Circuit has broken with

the Fourth and Ninth Circuits and

held that no discovery rule applies to

the FDCPA……………………………...

8

C. The Second Circuit has also broken

with the Fourth and Ninth Circuits

by holding that, if the discovery rule

applies to the FDCPA, it only tolls

the start of the FDCPA statutory

period until discovery of an injury,

not until discovery of the violation of

the FDCPA……………………………...

9

III. In addition to conflict between the

Circuits, the holdings of the Second and

Third Circuits are contrary to U.S.

Supreme Court precedent…………………

10

A. TRW v. Andrews, 534 U.S. 19 (2001)

requires finding that the discovery

rule applies to the FDCPA……………

11

B. Merck & Co. v. Reynolds, 559 U.S.

633 (2010) requires a holding that

the discovery rule tolls the one-year

FDCPA limitation period until a

plaintiff discovers the cause of

action…………………………………….

12

IV. The question presented here is of

fundamental importance as it is in

Rotkiske, and, in resolving Rotkiske, this

Honorable Court will need to determine

a uniform definition of the discovery rule

for all the Circuit Courts of Appeals…….

13

v

V. The facts of the present case are ideal for

properly defining the FDCPA discovery

rule……………………………………………

13

CONCLUSION ………………………………………… 15

APPENDIX

Circuit Court Summary Order………………. 1a

Circuit Court Mandate……………………….. 22a

District Court Memorandum and Order…… 24a

vi

TABLE OF AUTHORITIES

Cases

Benzemann v. Citibank N.A., No. 12 CIV.

9145 NRB, 2014 WL 2933140 (S.D.N.Y.

June 27, 2014) …………………………………

4

Benzemann v. Citibank N.A., 806 F.3d 98

(2d Cir. 2015) …………………………………..

4

Bondi v. Nationstar Mortg. LLC, 752 F.

App'x 431 (9th Cir. 2018) …………………….

8, 9

Lembach v. Bierman, 528 F. App'x 297 (4th

Cir. 2013) (unpublished) ……………………..

8, 10

Lyons v. Michael & Assocs., 824 F.3d 1169

(9th Cir. 2016)………………………………….

8

Mangum v. Action Collection Serv., Inc.,

575 F.3d 935 (9th Cir. 2009) ………………...

8

Merck & Co. v. Reynolds, 559 U.S. 633,

646, 130 S. Ct. 1784, 1794, 176 L. Ed. 2d

582 (2010) ….…………………………………..

12

Rotkiske v. Klemm, 890 F.3d 422 (3d Cir.

2018), cert. granted 139 S. Ct. 1259, 203 L.

Ed. 2d 271 (February 25, 2019)(U.S.

Supreme Court docket no. 18-328) …………

passim

TRW, Inc. v. Andrews, 534 U.S. 19 (2001)… 11, 13

Statutes

15 U.S.C. §§ 1692 .………………………………. passim

15 U.S.C. §§ 1692k(d) .…………………………………. 1

28 U.S.C. §1254(1)……….……………………………… 1

NYCPLR §5222(a) ……………………………………… 2

1

OPINIONS BELOW

The Opinion of the United States Court of

Appeals for the Second Circuit is reported at 2019

WL 2079006. The opinion of the District Court for

the Southern District of New York is reported at

2018 WL 1665253.

JURISDICTION

The Opinion of the Court of Appeals was

issued on May 13, 2019, and the actual mandate

issued on June 3, 2019. Jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1).

STATUTORY PROVISION INVOLVED

15 U.S.C.A. § 1692k of the Fair Debt

Collection Practices Act (“FDCPA”) provides in

relevant part that “[a]n action to enforce any liability

created by this subchapter may be brought … within

one year from the date on which the violation

occurs.” 15 U.S.C.A. § 1692k(d).

2

INTRODUCTION

The Court of Appeals for the Second Circuit

here held that the FDCPA discovery rule, if applied,

tolls the one-year statute of limitations of the

FDCPA only until the date of discovery of merely an

injury caused to the plaintiff, and not until the date

of discovery of the existence of the violation of the

FDCPA.

That holding is inconsistent with the position

of the Fourth and Ninth Circuit Courts of Appeals,

which have expressly held that the FDCPA discovery

rule tolls the limitation period until a party can

discover the facts that constitute the FDCPA cause of

action, and with earlier precedent of this Honorable

Court.

The issue of the existence and scope of the

FDCPA discovery rule is presently being considered

by this Honorable Court in Rotkiske v. Klemm, 890

F.3d 422 (3d Cir. 2018), cert. granted 139 S. Ct. 1259,

203 L. Ed. 2d 271 (February 25, 2019)(U.S. Supreme

Court docket no. 18-328), in which the Third Circuit

held that there is no discovery rule whatsoever under

the FDCPA.

It is respectfully submitted that the present

case is a logical and helpful companion case linked to

Rotkiske, as well as being of substantial importance

on its own due to the discord that it creates among

the Circuits, and that a writ of certiorari should

therefore properly be granted here.

3

STATEMENT OF THE FACTS

I. THE UNDERLYING EVENTS

Respondents are a debt-collector and its

attorney, who created and issued at least two

Restraining Notices under NYCPLR §5222(a) to

enforce a judgment against a judgment debtor that

had the same last name as Petitioner.

Respondents, however, altered the caption of

the judgment being enforced in the Restraining

Notices so as to identify the judgment debtor using

Petitioner’s social security number, effectively falsely

identifying Petitioner as the judgment debtor in

violation of the FDCPA.

On December 13, 2011 in the evening

Petitioner became aware that he could not access his

Citibank accounts. He called Citibank immediately,

but could not get any information as to why his

accounts were unavailable, and was directed to call

the bank again the next day when it would re-open.

On the next day, December 14, 2011,

Petitioner called Citibank first thing in the morning

and learned that his accounts had been frozen

pursuant to the Restraining Notice issued in

violation of the FDCPA.

On December 14, 2012, Petitioner filed this

action in U.S. District Court for the Southern

District of New York.

4

II. DISTRICT COURT PROCEEDINGS

The District Court initially in 2014 dismissed

Petitioner’s FDCPA claim as time barred based on

the date of transmission of the Restraining Notice

without applying the discovery rule. Benzemann v.

Citibank N.A., No. 12 CIV. 9145 NRB, 2014 WL

2933140, at *7 (S.D.N.Y. June 27, 2014), vacated in

part, 806 F.3d 98 (2d Cir. 2015), and aff'd in part,

622 F. App'x 16 (2d Cir. 2015). The Second Circuit

reversed that first ruling for a determination of

which day Petitioner’s accounts were frozen.

Benzemann v. Citibank N.A., 806 F.3d 98, 103 (2d

Cir. 2015).

On remand, the District Court again dismissed

the FDCPA claim as time-barred for being filed more

than a year after the evening on which Petitioner

had learned that his bank account had been frozen,

rather than the next day, which was the first day on

which Petitioner was able to discover that the

seizure of his accounts was in violation of the

FDCPA.

III. THE APPELLATE DECISION HERE AT

ISSUE

The Second Circuit Court of Appeals affirmed

the District Court dismissal on statute of limitation

grounds, holding that the one year statute of

limitations under the FDCPA began to run from the

date of the occurrence of the violation, i.e., the

evening when Petitioner’s accounts were blocked by

Citibank.

The Court also held that, if a discovery rule

applied to FDCPA actions, then the discovery rule

5

only tolled start of the limitations period until the

plaintiff learned of an injury, and not until plaintiff

was able to learn of the facts of the FDCPA cause of

action.

Based on that articulation of the discovery

rule, the Second Circuit calculated the FDCPA one-

year period as running from December 13, 2011, the

day on which Petitioner learned that his bank

account had been frozen without any possibility of

learning of the cause or the underlying FDCPA

violation. The Court of Appeals held that this action,

filed on December 14, 2012 was untimely as filed a

day after expiration of the FDCPA one-year statute

of limitations.

REASONS FOR GRANTING THE PETITION

I. This Honorable Court recently granted

certiorari in Rotkiske to address the

question of availability of the discovery

rule in FDCPA actions.

This Honorable Court recently granted

certiorari in another case, the Third Circuit ruling in

Rotkiske v. Klemm, 890 F.3d 422 (3d Cir. 2018), cert.

granted 139 S. Ct. 1259, 203 L. Ed. 2d 271 (February

25, 2019)(U.S. Supreme Court docket no. 18-328), to

address the conflict in the Circuit Courts of Appeals

as to whether the discovery rule applies to the

FDCPA in that case.

In Rotkiske, the Third Circuit held that no

discovery rule is available under the FDCPA, despite

rulings of the Fourth and Ninth Circuit Courts of

6

Appeals expressing the existence of an FDCPA

discovery rule, and contrary to the precedent of this

Honorable Court.

In the present case, the Second Circuit did not

expressly reject the FDCPA discovery rule

altogether, but nonetheless, as did the Third Circuit

in Rotkiske, rejected application of the discovery rule

defined by the Fourth and Ninth Circuits, under

which the filing of the present FDCPA action would

be considered timely.

Specifically, the Second Circuit articulated the

discovery rule under the FDCPA as starting the

statutory one-year limitation period when the

plaintiff learns of merely the injury, contrary to the

discovery rule of the Fourth and Ninth Circuits,

which does not start the statutory one-year

limitation period of the FDCPA until the plaintiff

knows or reasonably could have become aware of’ the

FDCPA violation.

The Second Circuit essentially has taken an

intermediate position on the FDCPA discovery rule

that is between that of the Third Circuit and that of

the Fourth and Ninth Circuits.

Resolution of the issue raised in Rotkiske of

whether the discovery rule is available for FDCPA

claims by this Honorable Court’s review will not

resolve the split in the Circuit Courts of Appeals

unless this Court addresses the critical substituent

inquiry – if the discovery rule applies to the FDCPA,

does it toll start of the limitations period of the

FDCPA until discovery of the cause of action, as the

Fourth and Niointh Circuits have held, or only until

7

an injury is discovered, as the Second Circuit has

here held?

The grant of the petition for certiorari in

Rotkiske establishes that the issue of the FDCPA

discovery rule is a question of fundamental

importance, as was expressed by the petitioner in

that case. The present case is similar to that case,

and factually better for the resolution of issue of

applicability of the discovery rule to FDCPA actions.

It is therefore respectfully submitted that the

present request for a writ of certiorari should here be

granted to address the split of precedent in the

Circuits.

II. The Courts of Appeals remain divided on

the issue of whether the discovery rule is

applicable to the FDCPA.

The Courts of Appeals have diverged on the

issue of the existence of a discovery rule under the

FDCPA.

A. The Courts of Appeals for the

Fourth Circuit and the Ninth

Circuit have repeatedly held that

the discovery rule is available

under the FDCPA.

In the Fourth Circuit, the Court held that the

discovery rule rendered a filing timely because it was

filed within one year of the time that plaintiffs

discovered, or could have discovered, the fraud that

8

was a violation of the FDCPA. Lembach v. Bierman,

528 F. App'x 297, 302 (4th Cir. 2013) (unpublished)

The Ninth Circuit has numerous holdings

establishing the discovery rule of the FDCPA. See,

e.g., Bondi v. Nationstar Mortg. LLC, 752 F. App'x

431, 433 (9th Cir. 2018)(“the FDCPA’s limitations

period is subject to the ‘discovery rule’”); see also,

Lyons v. Michael & Assocs., 824 F.3d 1169, 1172 (9th

Cir. 2016) (holding that the discovery rule applies to

all FDCPA causes of action); Mangum v. Action

Collection Serv., Inc., 575 F.3d 935, 941 (9th Cir.

2009)(holding that the discovery rule applies in

FDCPA actions).

B. The Third Circuit has broken with

the Fourth and Ninth Circuits and

held that no discovery rule applies

to the FDCPA.

The Third Circuit, in contrast to the Fourth

and Ninth Circuits, has completely rejected the

discovery rule for the FDCPA in Rotkiske v. Klemm,

supra, 890 F.3d at 425, for which this Honorable

Court has granted certiorari and which case is to be

considered in the present term of this Court. See,

Rotkiske v. Klemm, 139 S. Ct. 1259, 203 L. Ed. 2d

271 (2019). In Rotkiske, the Third Circuit expressly

repudiated the analyses of the Fourth and Ninth

Circuits.

9

C. The Second Circuit has also broken

with the Fourth and Ninth Circuits

by holding that, if the discovery

rule applies to the FDCPA, it only

tolls the start of the FDCPA

statutory period until discovery of

an injury, not until discovery of the

violation of the FDCPA..

The Second Circuit in the present case refused

to apply the discovery rule to find that Petitioner’s

claim was timely. Benzemann v. Houslanger &

Assocs., PLLC, No. 18-1162-CV, 2019 WL 2079006,

at *6 (2d Cir. May 13, 2019)(Appx. pages 17a-18a).

Specifically, the Second Circuit stated that,

under the Second Circuit’s discovery rule, a

plaintiff’s cause of action accrues when he discovers,

or with due diligence should have discovered, the

injury that is the basis of the litigation, and the

Second Circuit expressly held that “discovery of the

injury, not discovery of the other elements of a claim,

is what starts the clock.” Benzemann v. Houslanger

& Assocs., PLLC, supra, 2019 WL 2079006, at *6,

Appx. pages 17a-18a.

The FDCPA discovery rule expressed by the

Second Circuit was an “injury-discovery” rule that is

in direct conflict with the holdings of the Fourth and

Ninth Circuits, which have unequivocally defined the

discovery rule for FDCPA claims as tolling the one-

year FDCPA statutory year period until plaintiff

knew or could have known of the FDCPA violation.

See, Bondi v. Nationstar Mortg. LLC, supra, 752 F.

App'x at 433 (“the FDCPA’s limitations period is

subject to the ‘discovery rule’ and thus does not begin

10

to run until the plaintiff knows or ‘reasonably could

have become aware of’ the ‘alleged violation’”); see

also, Lembach v. Bierman, supra, 528 F. App'x at 302

(holding filing timely because they filed within one

year of the time that plaintiffs discovered or could

have discovered the violation).

In taking this intermediate, but wholly

unjustified, position on the FDCPA discovery rule,

the Second Circuit has here added to the split in

authority among the Circuit Courts of Appeals

regarding the FDCPA discovery rule.

That split in authority is further reflected in a

confused expression in various U.S. District Courts of

when the FDCPA one-year limitation period begins.

Petitioner respectfully submits that the

discord between the Circuit Courts of Appeals

requires resolution by this Honorable Court, and

requests a writ of certiorari for this case, to be

addressed in concert with Rotkiske v. Klemm, U.S.

Supreme Court docket no. 18-328, which raises

essentially the same issues.

III. In addition to conflict between the

Circuits, the holdings of the Second and

Third Circuits are contrary to U.S.

Supreme Court precedent.

The holdings of the Fourth and Ninth Circuits

are in harmony with prior holdings of this Honorable

Court, while the holdings of the Third Circuit in

Rotkiske and of the Second Circuit in the present

case are inconsistent with prior holdings of this

Court.

11

Specifically, it is clear from rulings of this

Court that a discovery rule properly applies in

FDCPA actions, and that FDCPA discovery rule

starts the statutory one-year limitation period only

when the plaintiff learns of the facts of the violation

of the FDCPA.

A. TRW v. Andrews, 534 U.S. 19 (2001)

requires finding that the discovery

rule applies to the FDCPA.

In TRW, Inc. v. Andrews, 534 U.S. 19 (2001),

this Honorable Court set out the analytical

framework to determine the applicability of a

discovery rule to federal statutes.

In TRW, this Honorable Court held that the

discovery rule does not apply to the Fair Credit

Reporting Act (“FCRA”), because the FCRA had

embedded in it a statute of limitations that set

limitations based on discovery of specified facts by a

potential plaintiff. By inserting that textually-

created rule of discovery, Congress was understood to

have intended to preclude application of the

discovery rule from federal common law or other

sources.

In contrast with the FCRA, the FDCPA does

not contain an embedded textually-defined discovery

rule, but merely directs filing within “one year from

the date on which the violation occurs.” 15 U.S.C.A.

§ 1692k(d). The FDCPA has no mention of timing

based on discovery, and therefore, comparing the

FCRA with the FDCPA, the FDCPA language

indicates that the discovery rule should apply to the

FDCPA.

12

B. Merck & Co. v. Reynolds, 559 U.S.

633 (2010) requires a holding that

the discovery rule tolls the one-year

FDCPA limitation period until a

plaintiff discovers the cause of

action.

This Honorable Court has addressed the

definition of the discovery rule when applicable to

federal causes of action in Merck & Co. v. Reynolds,

559 U.S. 633 (2010). In Merck, this Court held that,

under the discovery rule, a claim accrues only “when

the litigant first knows or with due diligence should

know facts that will form the basis for an action.”

Merck & Co. v. Reynolds, 559 U.S. 633, 646, 130 S.

Ct. 1784, 1794, 176 L. Ed. 2d 582 (2010).

Here, the Second Circuit applied an injury-

discovery rule that started the FDCPA one-year

period on mere discovery of the injury, without

discovery of any of the other facts that made up the

FDCPA cause of action. See, Benzemann v.

Houslanger & Assocs., PLLC, supra, 2019 WL

2079006, at *6 (“discovery of the injury, not discovery

of the other elements of a claim, is what starts the

clock.”) Appx. page18a.

The Second Circuit’s expression of the FDCPA

discovery rule is clearly in direct conflict with this

Court’s ruling in Merck.

It is respectfully submitted that a writ of

certiorari to clarify the discovery rule that applies to

FDCPA claims is therefore needed here to correct the

erroneous rulings of the Second and Third Circuits.

13

IV. The question presented here is of

fundamental importance as it is in

Rotkiske, and, in resolving Rotkiske, this

Honorable Court will need to determine a

uniform definition of the discovery rule

for all the Circuit Courts of Appeals .

This Honorable Court, by granting certiorari

in Rotkiske, has recognized that the issue of the

availability of the discovery rule under the FDCPA

presents an issue of fundamental importance.

If this Honorable Court follows its precedent

in TRW and finds that the discovery rule applies, the

split in the Circuit Courts of Appeals as to the

parameters of that discovery rule will necessarily

also be addressed.

As a corollary, it is therefore also a question of

fundamental importance whether, if a discovery rule

is held to apply under the FDCPA, the FDCPA

discovery rule tolls the statutory period until

discovery of the FDCPA violation or merely discovery

of an injury that was caused by an undiscovered

FDCPA violation.

V. The facts of the present case are ideal for

properly defining the FDCPA discovery

rule.

The facts of the present case offer a

particularly helpful foundation for the determination

of the parameters of the discovery rule for the

FDCPA.

14

Petitioner was injured on December 13, 2011

by the freeze of his accounts, but was unable until

December 14, 2011 to discover, with diligent inquiry,

whether the injury was wrongfully caused or

actionable under the FDCPA.

This action was filed on December 14, 2012,

one year and a day after discovery of the injury, and

exactly one year after diligent discovery of the

FDCPA violation and cause of action.

The difference between the discovery rule as

articulated by the Second Circuit and that of the

Fourth and Ninth Circuits is therefore perfectly

framed in this case.

The facts in the Rotkiske case are not so sharply

defined or helpful.

In Rotkiske, the violation of the FDCPA was a

default judgment arising from service at a known

incorrect address of an underlying debt collection

action. The plaintiff in Rotkiske ostensibly could not

have learned of the existence of the FDCPA cause of

action until he discovered it.

It is, however, at the same time possible that

plaintiff in Rotkiske experienced some injury due to

the mere existence of the undiscovered lawsuit

against him, which, applying the Second Circuit’s

articulation of the discovery rule, would have

triggered start of the FDCPA statutory period at

some time prior to the start of the statutory period

pursuant to the discovery rule of the Fourth and

Ninth Circuits.

15

That factual complexity does not exist in the

present case, which makes it an ideal case in which

to address the discovery rule issue also raised in

Rotkiske.

CONCLUSION

This case is a logical and helpful companion

case to the presently-pending certiorari review in the

Rotkiske case, the facts of which will focus and clarify

the issues that are raised in that case.

As a matter of judicial efficiency and for a

clear directive to the conflicting Circuit Courts of

Appeals and other courts, this petition for writ of

certiorari should be granted.

Respectfully submitted,

Andrew L. Tiajoloff

TIAJOLOFF & KELLY LLP

Chrysler Building, 37th Floor

405 Lexington Avenue

New York, New York 10174

atiajoloff@tkiplaw.com

(212) 490-3285

Attorneys for Petitioner

Alexander A. Benzemann