Opinion
Civ. No: 99-1571, SECTION: "R" (5).
February 4, 2000.
ORDER AND REASONS
Before the Court is the motion of defendant, Statewide Recovery Service, Inc., for summary judgment, seeking to dismiss plaintiff's claims, and plaintiff's cross-motion for partial summary judgment. Because material issues of fact preclude summary judgment at this time, the motions are denied.
I. Background
Plaintiff alleges that in November of 1998, she opened a letter from Statewide, which was addressed to her deceased husband, Jesse McNab. The letter stated:
Jesse McNab's name was misspelled "Jessie" in the letter.
Nov 18, 1998 124614 Jessie Mcnab E Fanz Rd St Bernard LA 70085
CREDITOR ACCOUNT # BALANCE PAST DUE Chalmette Medical Center 8125045-8 177.76 CHAD
We bring to your attention the above account which has been handed to us for immediate collection, and hereby request your prompt remittance to pay this long standing account.
Failure to respond to this request for payment will leave us no alternative but to proceed against you within state and federal regulations to collect your past due account.
Please give this your immediate attention.
Do not simply ignore this notice!
YOURS VERY TRULY, STATEWIDE RECOVERY SERVICE, INC. K.M. MORRIS, COLLECTION MANAGER
Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office in writing within 30 days after receiving this notice, this office will provide the name and address of the original creditor, if different.
THIS IS AN ATTEMPT TO COLLECT A DEBT.
On May 20, 1999, plaintiff sued Statewide in this Court, alleging that Statewide misrepresented the imminence of legal action, failed to provide plaintiff with an adequate mandatory validation notice, and used misleading representations and collection methods to collect the debt, all in violation of the Fair Debt Practices Act, 15 U.S.C. § 1692, et seq., and Louisiana law. Plaintiff seeks actual and statutory damages, attorneys' fees and costs.
Defendant now moves for summary judgment, on the grounds plaintiff has no standing to bring the action since the letter was not addressed to her, that the letter did not threaten imminent legal action, and that it contained the required validation notice. Plaintiff filed an opposition/cross-motion for partial summary judgment, conceding that the letter contained a validation notice in violation of § 1692g(a), but claiming that the language of the letter "overshadowed" the notice; she also claimed that the letter improperly threatened legal action and used misleading claims in violation of §§ 1692e(5) and (10).
Plaintiff wishes to leave the issue of the amount of damages to the jury.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986) The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.
B. Analysis
1. Standing
The first inquiry in this case is whether plaintiff has standing to bring this claim, as the letter was addressed to her husband, at a different address from plaintiff. The FDCPA was enacted in order to:
eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.15 U.S.C. § 1692 (e), emphasis added. Section 1692a provides that: "the term 'consumer' means any natural person obligated or allegedly obligated to pay any debt." 15 U.S.C. § 1692a. Section 1692c(d) provides that, "[f]or the purposes of this section, the term 'consumer' includes the consumer's spouse, parent[,] . . . guardian, executor, or administrator." 15 U.S.C. § 1692c(d). Because plaintiff is Jesse McNab's spouse and the legal representative of his estate, she is a consumer within the meaning of the FDCPA and has standing to bring this action.
2. Failure to plead overshadowing
Plaintiff claims that, although Statewide's letter contained a validation notice, the notice was ineffective because it was overshadowed by other language in the letter, and therefore violated § 1692g. Defendant alleges that plaintiff failed to plead her overshadowing claim, and that this Court should therefore dismiss it without addressing the merits. Defendant fails to cite a single case in support of this argument. Although plaintiff did not specifically plead that the language in issue overshadowed the validation notice, federal courts follow "notice pleading." See Harris v. City off Houston, 151 F.3d 186, 191 (5th Cir. 1998), citing Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99 (1957). Under Federal Rule of Civil Procedure 8(a), a complaint is deficient only if it fails to (1) provide notice of the circumstances which give rise to the claim; or (2) set forth sufficient information to outline the elements of the claim or permit inferences to be drawn that these elements exist. See FED. R. Civ. PRO. 8(a). Contrary to defendant's assertion, plaintiff's complaint does not state that Statewide failed to provide a validation notice at all; rather, it states that Statewide failed to provide an adequate validation notice. ( See Complaint at ¶ V(b).) In determining whether a validation notice violates § 1692(g) of the FDCPA, courts must consider not only whether such notice exists, but also whether it is overshadowed by conflicting or confusing language. See, e.g., Garner v. Kansas, 1999 WL 262100 at *4 (E.D. La. Apr. 30, 1999), citing Savino v. Computer Credit, Inc., 164 F.3d 81, 85 (2d Cir. 1998). Moreover, plaintiff specifically mentioned the relevant section of the statute (§ 1692(g)) in her complaint. This Court finds that plaintiff was not required to plead the magic word "overshadow," and that her pleading should have alerted defendant to any overshadowing claim. Thus, it will address the merits of plaintiff's claims.
3. Least sophisticated consumer
In evaluating whether a debt collector's conduct violates §§ 1692(g) or (e), most courts apply the "least sophisticated consumer" standard. Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993); Swanson v. Southern Oregon Credit Serv., Inc., 869 F.2d 1222, 1225 (9th Cir. 1988); Goodman v. Southern Credit Recovery, Inc., 1998 WL 240403 (E.D. La May 12, 1998) (using least sophisticated consumer standard, but noting that Seventh Circuit employs "unsophisticated consumer standard," which protects the uninformed but admits an objective element of reasonableness), citing Avila v. Rubin, 84 F.3d 222, 226 (7th Cir. 1996). The least sophisticated consumer standard ensures that the FDCPA protects all consumers, both gullible and shrewd. See Clomon, 988 F.2d at 1318.
4. Whether language in letter overshadowed validation notice in violation of § 1692(g)
Section 1692g(a) requires that the collector, within five days of initial communication to the consumer regarding debt collection, send the consumer a written notice that contains (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that the consumer can dispute the debt within thirty days of the notice, and that if he fails to do so, the debt will be assumed to be valid; (4) a statement that if the consumer notifies the collector in writing that she disputes the debt within the thirty-day period, the collector will obtain verification of the debt and will mail it to the consumer; and (5) a statement that, on the consumer's written request within thirty days, the collector will furnish the consumer the name and address of the original creditor, if different from the original creditor. See 15 U.S.C. § 1692g(a) Neither party disputes that the letter at issue contained a validation notice that met these requirements. Nevertheless, this Court must determine whether the following language overshadowed or contradicted the notice. See Swanson, 869 F.2d at 1225. The language at issue states:
We bring to your attention the above account which has been handed to us for immediate collection, and hereby request your prompt remittance to pay this long standing account.
Failure to respond to this request for payment will leave us no alternative but to proceed against you within state and federal regulations to collect your past due account.
Please give this your immediate attention.
(Def.'s Mot. Summ. J. Letter to Jesse McNab, emphasis added.) Plaintiff analogizes this case to Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991), and Robinson v. Transworld Systems, Inc., 876 F. Supp. 385 (N.D.N.Y. 1995). In Graziano, the collection letter at issue threatened legal action within ten days unless the debt was paid within that time, and the validation notice was printed on the back of the letter. See id. at 109. The Third Circuit found that, given that the letter threatened legal action in ten days, and the obscure placement of the notice, there was a reasonable probability that the least sophisticated consumer would be induced to overlook his statutory right to dispute the debt within thirty days. See id. at 111. This case is easily distinguishable from Graziano. Here, the notice appeared on the front of the letter in the same size font as the other language in the letter. In addition, the letter in this case did not specify a period of time-less than thirty days-during which the debt had to be paid. Robinson is likewise distinguishable. In that case, plaintiffs received a letter, sent only twenty days after they had allegedly received the required validation notice, which stated that the debt was long overdue and thus assumed to be valid. Robinson found that this language flatly contradicted § 1692g(a), which allows consumers thirty days to contest a debt. See id. at 391.
Defendant argues that this case is more akin to Terran v. Kaplan, in which, as here, the initial letter contained a validation notice. The letter in Terran stated:
Unless an immediate telephone call is made to J SCOTT, a collection assistant of our office at (602) 258-8433, we may find it necessary to recommend to our client that they proceed with legal action.109 F.3d 1428, 1430 (9th Cir. 1997). The Ninth Circuit rejected plaintiff's overshadowing claim, reasoning that "the challenged language in this matter does not require payment 'immediately.' It merely requests a phone call . . . This language simply encourages the debtor to communicate with the debt collection agency." Id. at 1434. Defendant ignores a crucial difference between Terran and this case. Here, the letter stated that the debt was handed to Statewide for immediate collection. Thus, although the admonitions to give the matter "prompt remittance," and "immediate attention," without more, may have merely encouraged plaintiff to investigate the debt immediately, the words "for immediate collection" might have encouraged the consumer to pay immediately. Although this case is not as clear-cut as either Graziano or Robinson, this Court finds that a reasonable jury could determine that the language in the letter would lead the least sophisticated consumer to believe that she had to waive her statutory right to contest the debt within thirty days. See Robinson, 876 F. Supp. at 392 (reserving for jury question whether cumulative language would mislead consumer into disregarding validation rights). Thus, summary judgment is inappropriate at this time, and the parties' motions are denied.
III. Conclusion
For the foregoing reasons, the cross-motions for summary judgment are denied.
New Orleans, Louisiana, this 2nd day of February, 2000.