Opinion
04 CV 2762 (CLP).
March 3, 2006
MEMORANDUM AND ORDER
On July 1, 2004, plaintiff Zev Wyler commenced this action against the defendant, Computer Credit, Inc. ("CCI"), a debt collection agency, seeking damages and attorney's fees pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"). On November 12, 2004, plaintiff filed an amended complaint, clarifying his allegations that the second and third of three collection notices he received from CCI violated Section 1692e of the FDCPA, which prohibits misleading representations in connection with the collection of a debt.
Presently before the court is CCI's motion for summary judgment, filed April 20, 2005. For the reasons set forth below, the Court grants defendant's motion.
On December 29, 2004, the parties consented to have the case referred to the undersigned for all purposes.
FACTUAL BACKGROUND
A. The Genesis of the DebtThe material facts underlying this action appear to be largely undisputed. On December 11, 2003, plaintiff's son received an examination at Maimonides Medical Center ("Maimonides" or the "Hospital"). (Wyler Dep. at 13;see also Def.'s 56.1 Stmnt ¶ 6). Prior to the examination, plaintiff failed to obtain a referral letter from his primary care physician, so Maimonides marked the file as "self paid" instead of "insurance." (Def.'s 56.1 Stmnt ¶ 6; Tr. at 4). The Hospital then mailed plaintiff an invoice for the bill. (Def.'s 56.1 Stmnt ¶ 6; Tr. at 4; Wyler Dep. at 15). Defendant concedes that when the plaintiff received the Hospital bill, he contacted the Hospital on February 25, 2004, and informed the customer services representative that the bill should be paid by his insurer, Aetna. (Def.'s Reply Mem. at 2). Maimonides claims that it advised Mr. Wyler to resolve this matter with Aetna. (Id.)
Defendant is correct that plaintiff's response to defendant's 56.1 Statement does not technically conform to the format prescribed by Local Rule 56.1 (see Defendant's Reply Memorandum of Law, dated June 1, 2005 ("Def.'s Reply Mem.") at 1), which requires the non-movant's counter statement of material fact to be formatted in correspondingly numbered paragraphs. See Local Civil Rule 56.1. Since plaintiff appears to dispute only two of defendant's statements of material fact, one concerning the events of a status conference before the Court in the course of this litigation, and the other constituting a legal argument and not a material fact (see plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment, dated May 24, 2005 ("Pl.'s Mem.") at 1; Def.'s 56.1 Stmnt ¶¶ 8, 23), the Court has considered plaintiff's response even though not technically in compliance with the Local Civil Rule.
Citations to "Wyler Deposition" refer to the deposition of the plaintiff, Zev Wyler, held on December 20, 2004.
Citations to "Tr." refer to the transcript of the oral argument before the Court held on June 16, 2005.
Plaintiff stated in his deposition that his wife had a referral with her at the Hospital at the time of the examination. (Wyler Dep. at 15). Plaintiff stated that Aetna, his insurer, informed him that the Hospital had not attached the referral to the bill it submitted to Aetna, and so Aetna denied payment for the out-of-network charge. (Id. at 17-18). However, plaintiff ultimately did not dispute the defendant's statement to the contrary in its Rule 56.1 Statement. (See Def.'s 56.1 Stmnt ¶ 6; Pl.'s Mem. at 1 (disputing only Def.'s 56.1 Stmnt ¶¶ 8, 23)).
Plaintiff thereafter obtained a referral form from his physician and forwarded the form to Aetna, his insurance carrier, in late February or early March 2004. (Tr. at 3). Aetna paid Maimonides' bill on March 25, 2004. (Id.; Def.'s Reply Mem. at 2). However, the check was not posted to plaintiff's account until April 28, 2004 because Maimonides had indicated in its own records that the account was to be paid by the individual patient and not by the insurance company. (Id.; see also CCI's Answers to Interrogs. at 2).
Plaintiff stated in his deposition that he obtained a second copy of the referral form from his son's physician and submitted it to Aetna on March 1, 2004. (Wyler Dep. at 18-19). However, as noted above, plaintiff ultimately did not dispute defendant's contrary Rule 56.1 statement. (See note 5,supra).
Citations to "CCI's Answers to Interrogs." refer to the Defendant's Answers to Plaintiff's First Set of Requests for Admissions and Interrogatories, dated January 26, 2005.
Prior to receiving Aetna's payment, the Hospital referred the plaintiff's account to CCI for collection. On or about March 22, 2004, CCI mailed a collection letter to plaintiff concerning his debt to Maimonides in the amount of $311.44. (Def.'s 56.1 Stmnt ¶ 1; Compl. ¶ 1.4). Two additional letters seeking to collect the amount allegedly due to the Hospital were sent by CCI, dated April 7, 2004 and April 19, 2004. (Id. ¶¶ 2, 3).
Plaintiff claims that after he received the first collection letter from CCI, he contacted Maimonides to inform the Hospital that the debt had been paid by Aetna. (Am. Compl. ¶¶ 1.7-1.9; Wyler Dep. at 25, 34). Plaintiff claims to have made additional calls as well. (Wyler Dep. at 38, 44-45). CCI disputes these claims, contending that Maimonides creates an internal memorandum memorializing all client phone calls. (Def.'s Reply Mem. at 2 n. 1). Here, the Hospital records reflect only one call from plaintiff on February 25, 2004. (Id.)
Maimonides did not discover that the account had been paid until April 28, 2004. (CCI's Answers to Interrogs. at 2). Since CCI received updates from Maimonides approximately once a week during this period, CCI learned about the error and updated account information on May 2, 2004. (Id. at 2-3). At that time, it ceased its efforts to collect the debt from the plaintiff. (Id. at 3).
B. The Collection Letters
Plaintiff alleges that the second and third debt collection letters, dated April 7, 2004, and April 19, 2004, violate Section 1692e of the FDCPA. The main text of the first letter, dated March 22, 2004 (Wyler Dep., Ex. F), states that plaintiff's debt was overdue, that defendant knew of no reason for nonpayment, and that unless the plaintiff informed CCI to the contrary, defendant would assume the amount due was correct. (Id.) The lower portion of the letter consists of a tear-off stub payment slip. (Id.)
Plaintiff does not complain that the initial March 22, 2004 letter violates the Act. (See Am. Compl. ¶¶ 1.19-1.20; Tr. at 20).
In the middle of the letter, above the payment stub, but below the main text, appears the following language typed in a smaller font: "Partial payments will not stop the collection process. Call the number above to discuss your specific situation." (Id.) The direction to call "the number above" refers to a telephone number contained in a shaded box that appears at the top right-hand corner, above the main text of the letter. This shaded box contains information relating to the creditor, Maimonides. (Id.) The text inside the shaded box states, "Call Patient Accounts Customer Service," with Maimonides' phone number and hours of operation, the account number, and the amount due. (Id.)
Below the shaded box, there is a reference number listed, and below that, the letter states: " PLEASE SEE IMPORTANT NOTICE ON BACK," in italicized capital letters. (Id.) On the reverse side of the letter appears the validation notice as required under Section 1692g of FDCPA, which states:
CCI will assume this debt to be valid unless you dispute the validity of the debt, or any portion thereof, within thirty days after the receipt of this notice. If you notify CCI, in writing, within this thirty-day period that the debt, or any portion thereof, is disputed, we will obtain verification of the debt or a copy of a judgment, as applicable, and a copy of such verification or judgment will be mailed to you. Upon written request within the thirty-day period, CCI will provide you with the name and address of the original creditor if different from the named creditor.
(Id.) (emphasis added).
After receiving the March 22, 2004 letter, plaintiff claims that he contacted Maimonides on March 28, 2004, using the telephone number included in the letter. (Wyler Dep. at 33). He alleges that he informed the Hospital's representative that Aetna had sent a check to pay for the bill on March 17, 2004 and that Maimonides had cashed it on March 26, 2004. (Id. at 34). Although defendant disputes that this call was made (Def's. Reply at 2 n. 1), Mr. Wyler testified at his deposition that he made a notation on the back of the letter to this effect at the time of the phone conversation. (Wyler Dep., Ex. F).
Defendant sent plaintiff a second letter (Wyler Dep., Ex. G), dated April 7, 2004, which states in part:
Your delinquent account balance due Maimonides Medical Center still remains unpaid. Fourteen days have passed since Computer Credit, Inc.'s last letter to you, and we have not received your payment nor are we aware of any reason for your nonpayment. If there is no reason for your failure to make payment, then pay the balance due and resolve the obligation stated above.(Id.) The third and final letter, dated April 19, 2004, states:
After repeated attempts to encourage you to pay your long overdue account with Maimonides Medical Center, there is still an outstanding balance. This final letter is sent as Computer Credit, Inc.'s last attempt to collect this debt, and any information obtained will be used for that purpose. . . . While we suggest that you take steps to settle this long overdue account, this is our FINAL NOTICE.
(Wyler Dep., Ex. H). The second and third letters also include the Hospital's phone number in a shaded box with the phrase, "Call Patient Accounts Customer Service." They do not, however, include the federal validation notice on the reverse.
C. Plaintiff's Claims
In his original Complaint, filed on July 1, 2004, plaintiff alleged that CCI's second and third collection letters violated Section 1692e(10) of the FDCPA in that the letters were sent after the debt had been paid. (Compl. ¶¶ 1.12, 1.13, 1.14). Thus, plaintiff alleged that the language in the second and third letters indicating that there was still an outstanding balance owed was false and deceptive.
In his Amended Complaint, filed on November 12, 2004, plaintiff clarifies the allegations in his original Complaint by alleging that the initial letter from CCI, prompting him to contact the Patient Accounts Customer Service number at the Hospital rather than providing the number for CCI, was confusing in that once he made that call and informed the Hospital that the account had been paid, he believed that he had fulfilled his obligation under the letter. (Am. Compl. ¶¶ 1.7, 1.9, 1.10). Thereafter, even though the Hospital's Customer Service department was aware of the payment, CCI continued to send two additional letters to plaintiff, stating that the balance remained unpaid and that the defendant was unaware of any reason for nonpayment. (Id. ¶¶ 1.11, 1.13, 1.14, 1.16-1.18). Plaintiff alleges that provision of the Hospital's phone number and the failure of the two later letters to acknowledge payment constitute deceptive practices in violation of Section 1692e(10). (Id. ¶ 1.20). He seeks statutory damages, attorney's fees, and costs pursuant to 15 U.S.C. § 1692k. (Id. ¶ 1.21).
Despite the allegations in the Amended Complaint, there appears to be confusion as to the basis for plaintiff's complaint here. Specifically, defendant in its moving papers addresses two questions: (1) whether CCI's failure to include its own telephone number constitutes a misleading practice under the FDCPA (Def.'s Reply Mem. at 3-4); and (2) whether "because CCI provided Maimonides Medical Center's phone number in the collection letters, CCI was required to check with Maimonides to determine if Wyler had disputed the debt with Maimonides or if the debt had been paid." (Id. at 4). In response, plaintiff denies that his claim relies solely on the failure to include the telephone number in the collection letter, stating instead that "the communications that plaintiff had with Maimonides Medical Center, and the failure [of] Computer Credit to acknowledge those communications, renders Computer Credit's sending of the second and third letters in violation of the FDCPA." (Pl.'s Mem. at 1).
The parties also dispute the substance of statements made by plaintiff's counsel during a conference held before this Court on October 12, 2004 at which the proposed amended complaint was discussed. (Pl.'s Mem. at 1 (referring to Def.'s 56.1 Stmnt ¶¶ 7-8)). According to Defendant's 56.1 Statement, plaintiff's counsel "withdrew his original claim" at the conference, and stated that "he would amend the Complaint to instead allege that CCI violated the FDCPA because it failed to include CCI's telephone number in its collection letters. . . ." (Def.'s 56.1 Stmnt ¶¶ 7-8).
Accordingly, this Court will address all of the arguments raised by the parties.
DISCUSSION
A. Summary Judgment StandardsIt is well-settled that a party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (quoting Fed.R.Civ.P. 56(c)). Since summary judgment is an extreme remedy, cutting off the rights of the non-moving party to present a case to the jury, see Egelston v. State Univ. College at Geneseo, 535 F.2d 752, 754 (2d Cir. 1976); Gibralter v. City of New York, 612 F. Supp. 125, 133-34 (E.D.N.Y. 1985), the court should not grant summary judgment unless it is clear that all of the elements have been satisfied. See Auletta v. Tully, 576 F. Supp. 191, 195 (N.D.N.Y. 1983), aff'd, 732 F.2d 142 (2d Cir. 1984). In addition, "`the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
Once the moving party discharges its burden of proof under Rule 56(c), the party opposing summary judgment "has the burden of coming forward with `specific facts showing that there is a genuine issue for trial.'" Phillips v. Kidder, Peabody Co., 782 F. Supp. 854, 858 (S.D.N.Y. 1991) (quoting Fed.R.Civ.P. 56(e)). Rule 56(e) "provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. at 256. Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48 (emphasis in original).
In reversing a grant of summary judgment, the Second Circuit noted that the "[t]rial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material facts to be tried, not to deciding them." Quaratino v. Tiffany Co., 71 F.3d 58, 65 (2d Cir. 1995) (quoting Gallo v. Prudential Residential Services., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994)).
A movant satisfies its burden to show prima facie entitlement to summary judgment by showing that a claimant has produced no evidence or insufficient evidence concerning a necessary element of the claim. "Because the civil litigation burden of persuasion rests with the claimant, the claimant must have at least some sufficiently probative evidence supporting each element of a claim in order to prevail on the claim. If proof is absent or insufficient regarding any necessary element of a claim, the claimant cannot win at trial and trial is therefore unnecessary." James Wm. Moore, 11 Moore's Fed. Practice, § 56.11[1][B]; see also Zuckerbraun v. General Dynamics Corp., 935 F.2d 544, 547 (2d Cir. 1991). To prevail in its motion for summary judgment, CCI must establish that Mr. Wyler is unable to provide evidence in support of the required elements of his claim pursuant to the FDCPA.
Since discovery in the case has been completed and there are no material issues of fact in dispute, this case is ripe for summary judgment. Indeed, the Second Circuit has indicated that the determination of how the least sophisticated consumer would view language in a defendant's collection letter is a question of law because the standard is an objective one. See Schweizer v. Trans Union Corp., 136 F.3d 233, 237-38 (2d Cir. 1998); Bentley v. Great Lakes Collection Bureau, 6 F.3d 60, 62-63 (2d Cir. 1993).
B. The Fair Debt Collection Practices Act
The FDCPA was enacted in order to "eliminate abusive debt collection practices by debt collectors. . . ." 15 U.S.C. § 1692.See Vega v. Credit Bureau Enters., No. 02 CV 1550, 2005 WL 711657, at *6 (E.D.N.Y. Mar. 29, 2005). Among other things, the FDCPA prohibits debt collectors from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. See Clomon v. Jackson, 988 F.2d 1314, 1318-19 (2d Cir. 1993). Subsection e of the Act contains a non-exhaustive list of prohibited activities which constitute false, misleading or deceptive practices, including Subsection e(10), which prohibits "[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer." 15 U.S.C. § 1692e(10). "Deceptiveness," within the meaning of Section 1692e, includes ambiguity. Russell v. Equifax A.R.S., 74 F.3d 30, 35 (2d Cir. 1996).
Since information is often presented in a misleading way in the course of communicating statutorily required information under Subsection g of the Act, see, e.g., McStay v. I.C. System, Inc., 308 F.3d 188, 189-90 (2d Cir. 2002); Russell v. Equifax A.R.S., 74 F.3d at 33, violations of Subsection e are often alleged in tandem with violations of Subsection g. Subsection g requires a debt collector to provide the consumer with a detailed "validation notice" within five days of the initial communication. 15 U.S.C. § 1692g(a). A validation notice informs the consumer of the means by which the consumer may challenge the validity of the debt. Id. Specifically, Subsection g provides in relevant part:
(a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing . . .
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector. . . .15 U.S.C. § 1692g(a)(3). "Failure to include any of these items in the validation notice will constitute a violation of the act."Vega v. Credit Bureau Enters., 2005 WL 711657, at *6 (citingDeSantis v. Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir. 2001)).
In assessing the language of debt collection letters to determine if they violate the FDCPA, courts in the Second Circuit apply an objective standard derived from the perspective of the "least sophisticated consumer." McStay v. I.C. System, Inc., 308 F.3d at 190; see also Russell v. Equifax A.R.S., 74 F.3d at 34; Clomon v. Jackson, 988 F.2d at 1318-19; Lerner v. Forster, 240 F. Supp. 2d 233, 237 (E.D.N.Y. 2003). A person without the astuteness of a "Philadelphia lawyer" or "even the sophistication of the average, everyday, common consumer" should be able to understand the language of the notice he or she receives. Russell v. Equifax A.R.S., 74 F.3d at 34.
Simply including statutorily required language in the validation notice may not satisfy the "least sophisticated consumer" standard. Id. If additional language beyond that which is required by the statute is included in the validation notice, the letter may be in violation of Section 1692e if it exposes the letter to more than one reasonable interpretation.See Savino v. Computer Credit, Inc., 164 F.3d 81, 85 (2d Cir. 1998) (noting, "[w]hen a notice contains language that overshadows or contradicts other language informing a consumer of her rights, it violates the Act") (citation omitted); see also Russell v. Equifax A.R.S., 74 F.2d at 34 (holding that if the "least sophisticated consumer reads [a communication with conflicting statements on front and back] she could readily believe — despite the inclusion of the validation notice — that were she to take any course other than payment to [the debt collection agency] within 10 days, it would permanently affect her credit record [as written on the front of the letter]"). "[T]he Court must establish whether the challenged language fails to convey the required information `clearly and effectively and thereby makes the least sophisticated consumer uncertain' as to its meaning." Shapiro v. Dun Bradstreet Receivable Mgmt. Servs., Inc., 209 F. Supp. 2d 330, 331 (S.D.N.Y. 2002) (quotingSavino v. Computer Credit, Inc., 164 F.3d at 85), aff'd, 59 Fed. Appx. 406 (2003). A letter is deceptive for the purposes of this statute if it is "reasonably susceptible to an inaccurate reading. . . ." Russell v. Equifax A.R.S., 74 F.3d at 35; see also Clomon v. Jackson, 988 F.2d at 1319.
On the other hand, though the least sophisticated consumer standard is intended to protect "the naive and the credulous" from abuse, courts applying the standard have "carefully preserved the concept of reasonableness." Id. "[E]ven the `least sophisticated consumer' can be presumed to possess a rudimentary amount of information about the world and a willingness to read a collection notice with some care." Id.;see also McStay v. I.C. System, Inc., 308 F.3d at 191 (noting that "when a prominent instruction in the body of the letter warns that there is important information on the reverse side, a reasonable reader, even if unsophisticated, would turn the paper over and read the back").
C. The Absence of CCI's Telephone Number
Defendant first seeks dismissal of Mr. Wyler's claim on the grounds that the absence of CCI's telephone number in its collection letters does not violate the FDCPA. (Def.'s Mem. at 4-6 (citing 15 U.S.C. §§ 1692e, 1692g(b))). Defendant also argues that the absence of CCI's telephone number in the letters did not confuse the plaintiff into contacting the Hospital instead of CCI. (Id. at 6-7).
Citations to "Def.'s Mem." refer to Defendant's Memorandum of Law in support of its motion for summary judgment, filed April 20, 2005.
Turning to the first argument, defendant contends that the FDCPA contemplates that a debtor will contact the debt collector in writing to obtain information about a debt, so the plaintiff's allegation that the collection agency's phone number is required in a collection letter is insufficient as a matter of law. (Id.) The statutory provision upon which the defendant relies is Section 1692g(a)(3), which requires debt collectors to include in their collection letters "a statement that unless the consumer, within thirty days after the receipt of the notice, disputes the validity of the debt . . ., the debt will be assumed to be valid by the debt collector." 15 U.S.C. § 1692g(a)(3). The statute, however, omits any mention of a requirement that the debt be disputed in writing. See id. By contrast, several other subsections of Section 1692g explicitly require the consumer to dispute the debt in writing in order to trigger protection under the statute. See 15 U.S.C. §§ 1692g(a)(4), (a)(5), (b).
While the Second Circuit has not addressed the question of whether debt collectors must provide their phone numbers in collection letters or even whether consumers have a right to dispute their debts other than in writing, district courts in this Circuit have found that the FDCPA permits debtors to dispute their debts orally. See Vega v. Credit Bureau Enters., 2005 WL 711657, at *8 (noting that "all district courts within the Second Circuit that have considered the issue [have] concluded that subsection (a)(3) does not require a consumer to write to the collection agency in order to dispute the validity of the debt"); In re Risk Mgmt. Alternatives, Inc., 208 F.R.D. 493, 501-03 (S.D.N.Y. 2002) (finding that the statute permits a debtor to dispute a debt orally, and that a notice must unambiguously indicate how a debtor may dispute the debt); Ong v. American Collections Enter., Inc., No. 98 CV 5117, 1999 WL 51816, at *4 (E.D.N.Y. Jan. 15, 1999) (finding misleading a notice that suggested that a debt may be disputed only in a written communication).
In Ong, the court relied on the plain language of Section 1692g(a)(3) to find the omission of the writing requirement to be intentional:
The language and structure of [subsections g(a)(3) through g(b)] indicate that the omission of the "in writing" requirement in subsection (a)(3) was intentional. Congress demonstrated (in the subsections immediately following subsection (a)(3)) its ability to impose a writing requirement on debtors; its failure to do so in subsection (a)(3) is thus less likely to be the result of inadvertence.Id. at *2; see also Vega v. Credit Bureau Enters., 2005 WL 711657, at *8. Even though a phone call orally disputing the debt would not stop a collection agency from sending further letters, it would remove the presumptive validity of the debt, and "in turn, trigger the protections of Section 1692e(8), which prohibits [a] debt collector from communicating a consumer's credit information when it knows or should know that a debt is disputed." Vega v. Credit Bureau Enters., 2005 WL 711657, at *8-9; see also 15 U.S.C. § 1692e(8); Ong v. American Collection Enter., Inc., 1999 WL 51816, at *3. Thus, the court in Vega held that because informing the debtor that he must dispute the debt in writing misleads the debtor as to his rights and protections, doing so is prohibited by Section 1692e.
Although defendant CCI takes the contrary position that Section 1692g(b) "contemplates that a debtor will contact the debt collector in writing" (Def.'s Mem. at 5), the main thrust of defendant's argument relies on the decision in Nasca v. GC Services Limited Partnership, No. 01 CV 10127, 2002 WL 31040647 (S.D.N.Y. Sept. 12, 2002), which held that the failure to include the debt collector's phone number in the collection letter does not violate the FDCPA.
In Nasca, the debt collection letter at issue contained a validation notice on the reverse side, informing the debtor that the debt could be disputed in writing by contacting the agency.Id. at *2-3. The front side of the letter included both a sentence instructing the debtor to contact the creditor by telephone at the phone number provided, and a sentence in bold capital letters instructing the recipient of the letter to see the validation notice on the reverse side of the letter. Id. at *1-2. In arguing that the letter was in violation of Sections 1692e and g of the Act, the plaintiff in Nasca claimed that the letter included language that "overshadowed or contradicted" other language in the validation notice by suggesting that the consumer could dispute the debt with the creditor rather than with the collection agency, thus encouraging a course of action by the "least sophisticated consumer" which would not invoke the protections of Section 1692g. Id. at *14-16.
The district court in Nasca rejected plaintiff's arguments and granted defendant's motion for judgment on the pleadings, finding the letter to be "in compliance with the Act" and holding that even the least sophisticated consumer would understand from the letter's language that he must dispute the debt in writing.Id. at *15, 20. The court further noted that even if debtors had the right to dispute their debts orally under the FDCPA, the statute did not require the defendant to include its telephone number, nor did it require that the letter explicitly state that the consumer had the right to dispute the debt orally. Id. at *20-21.
Plaintiff argues that defendant misconstrues his claim in this case. (Pl.'s Mem. at 1). He contends that he is not relying simply on the absence of CCI's phone number in the collection letters, but rather, he contends that CCI's practice of providing the creditor's phone number and then failing to adjust subsequent collection letters to take into account the consumer's conversations with the creditor is a deceptive practice that violates Section 1692e. (Id. at 4-5). Specifically, here the language of the collection letters seemingly contains a directive to the consumer to call the Hospital, whose number appears in a highlighted portion of the letter. (Wyler Dep., Exs. F, G, H). Plaintiff claims that he complied with that directive and contacted the Hospital, advising a customer service representative that a check had been sent by Aetna and cashed by the Hospital. (Am. Compl. ¶¶ 1.7-1.9; Wyler Dep. at 25, 34). Despite the fact that the debt had been paid, plaintiff received second and third letters from CCI, which failed to recognize that the debt had been paid, instead incorrectly stating that the payment still had not been received and that CCI was not "aware of any reason for your nonpayment." (Wyler Dep., Exs. G, H).
Defendant disputes that plaintiff placed this call. See discussion supra p. 3.
Plaintiff argues that where the debt collector chooses to involve the creditor in the process by directing the consumer to call the creditor, the debt collection agency has a responsibility to maintain contact with the creditor as to consumer contacts and to refrain from sending standard form collection letters without determining whether there has been such direct contact with the creditor. (Pl.'s Mem. at 5-6).
A number of courts have considered claims of confusion in the context of a collection letter containing the creditor's phone number and the address, but not the phone number of the debt collector. See, e.g., Lerner v. Forster, 240 F. Supp. 2d at 238-39; Shapiro v. Dun Bradstreet Receivable Mgmt. Servs., Inc., 209 F. Supp. 2d at 332-34; Nasca v. G.C. Servs. Ltd. P'ship, 2002 WL 31040647, at *2, 16-21.
In Shapiro, the language of the collection letter made it clear that questions should be directed to the creditor by telephone, but that disputes should be made in writing to the collection agency. Shapiro v. Dun Bradstreet Receivable Mgmt. Servs., Inc., 209 F. Supp. 2d at 331, 333. In concluding that the defendant's collection letter in that case was not "confusing or contradictory," the court noted that: (1) the collection letter's instruction to contact the creditor with questions regarding the account did not leave the consumer uncertain, because there was no contradiction between that statement and its validation notice; (2) the collection letter never demanded payment within a certain time; and (3) the language of the letter did not encourage the debtor to contact the creditor. (Id. at 333). Thus, the court concluded that the language of the letter was not in violation of Section 1692e. (Id.)
In Lerner v. Forster, 240 F. Supp. 2d at 236, the recipient of a debt collection notice alleged that the notice misled her by directing her to contact the creditor to resolve the debt, instead of the collection agency. The letter in question contained the following language in the second paragraph:
If you want to resolve this matter you may take one of the following actions: You may either pay the balance in full or contact my client at 1-800-280-0559 and work out an arrangement for payment that is acceptable to my client.Id. at 235. The third paragraph, also on the front of the letter, provided the required notice under Section 1692g, very similar to the language in the case at hand. The plaintiff alleged that the letter's language directing the plaintiff to contact the creditor overshadowed the statutorily required language in the letter's next paragraph which directed the consumer to dispute the debt in writing. Id. at 237. The court found no violation of the FDCPA, holding that the language was not confusing because the letter's directions to contact the creditor directly to "resolve" the debt did not contradict the direction to "dispute" the debt by contact the credit agency. Id.
The letter stated: "Federal law gives you 30 days after you receive this letter to dispute the validity of this debt or any part of it. If you do not dispute the validity of the debt, or any part of it, within that period, we will assume that the debt is valid." Id.
In the instant case, the language of the initial letter is not confusing in itself, and indeed, plaintiff does not appear to be raising a challenge to the first letter. Like the letter in theLerner case, the March 22, 2004 letter contains a reference to contact the Hospital by phone to "discuss your specific situation." (Wyler Dep., Ex. F (emphasis added)). This language does not contradict the language of the validation notice which advised the debtor to "dispute" the debt in writing to CCI. Thus, for the reasons stated in Lerner, there is no violation of the FDCPA based on the language of the first letter.
However, plaintiff's argument goes beyond the specific language advising the debtor to contact the Hospital. He argues that including this directive in the letter placed an additional burden on CCI to be aware of any subsequent contacts between the debtor and creditor and to correct the subsequent collection letters accordingly. Although plaintiff cites to several cases in which language in collection letters was found to be deceptive in violation of Section 1692e (Pl.'s Mem. at 2-3), these cases do not address the specific argument raised here. See, e.g., Clomon v. Jackson, 988 F.2d at 1318-19 (holding that a mass-mailed form letter that gave the impression that an attorney was sending out a debt collection letter upon review of a particular debtor's file was deceptive); Teng v. Metropolitan Retail Recovery Inc., 851 F. Supp. 61 (E.D.N.Y. 1994) (holding that a credit agency and its employees violated the FDCPA by calling the debtor at work and falsely telling him a relative was sick in order to obtain his home telephone number, and then phoning plaintiff at home falsely claiming that there was a judgment against him); Barrientos v. Law Offices of Mark L. Nichter, 76 F. Supp. 2d 510 (S.D.N.Y 1999) (holding that a second collection letter that arrived less than thirty days after the first, which demanded immediate payment upon threat of legal action, overshadowed and contradicted the first notice which gave the plaintiff thirty days to dispute the debt); Unger v. National Revenue Group, Ltd., No. 99 CV 3087, 2000 WL 1897346, at *3-4 (E.D.N.Y. Dec. 8, 2000) (holding that statement that "[p]ayment in full is due now" contradicts and overshadows a collection letter's validation notice giving a consumer thirty days to dispute the debt). Indeed, this Court could find no case directly dealing with the issue raised here.
However, CCI argues that the holding in Bleich v. The Revenue Maximization Group, Inc., 233 F. Supp. 2d 496 (E.D.N.Y. 2002), undercuts plaintiff's argument. In Bleich, the plaintiff received a letter incorrectly stating that plaintiff's debt was "in arrears," and providing the required notice pursuant to Section 1692g that advised plaintiff of her rights and the method of disputing the debt. Id. at 498. In granting summary judgment in favor of the defendant, the Bleich court noted that the defendant's letter included the proper validation notice, and that plaintiff had chosen to ignore the statutorily required directions contained in the letter. Id. at 501. The court found that even though the letter was inaccurate because the plaintiff was not in arrears, this did not constitute a violation of the FDCPA because the defendant "was entitled to rely, in the first instance, on the Hospital's representation that the debt was valid." Bleich v. The Revenue Maximization Group, Inc., 233 F. Supp. 2d at 500. The court stated: "In sum, the court holds that where a debt collector has included appropriate language regarding the FDCPA debt validation procedure, the allegation that the debt is invalid, standing alone, cannot form the basis of a lawsuit alleging fraudulent or deceptive practices in connection with the collection of a debt." Id. at 501.
The language used in the collection letter in Bleich and the language used in CCI's collection letter are substantially the same. In Bleich, though the defendant's letter included the standard validation information, the plaintiff did not follow the prescribed procedure, assuming incorrectly that because the information about the debt was inaccurate, the defendant was in violation of the FDCPA. See id. at 501. The only difference in this case is that Mr. Wyler attempted to follow the procedure outlined in the letter by telephoning Maimonides directly and disputing the debt to the creditor directly. (Wyler Dep. at 33, 38, 45). Plaintiff argues that because he took steps to contact the creditor in reliance on the language in the letter, he is protected by the FDCPA from receiving unwanted letters.
However, the plaintiff's actions in response to the collection letter are not determinative of the question of whether there has been a violation of the FDCPA. Rather, the issue is an objective one: namely, whether the language of the letter would mislead the least sophisticated consumer. See McStay v. I.C. System, Inc., 308 F.3d at 190; see also Russell v. Equifax A.R.S., 74 F.3d at 34; Clomon v. Jackson, 988 F.2d at 1318-19; Lerner v. Forster, 240 F. Supp. 2d at 237.
Defendant argues that like the collection agency in Bleich, CCI relied on the information provided to them by the creditor. Thus, they proceeded with the collection process in this case by sending out the second and third letters, not learning that plaintiff's debt had been paid until May 2, 2004 when Maimonides provided CCI with its regular weekly update containing that information. Indeed, to the extent that plaintiff alleges that CCI was at fault for not obtaining this information from Maimonides earlier, the undisputed facts demonstrate that regardless of when or if plaintiff contacted the Hospital, the fact of payment was not reflected by Maimonides in Wyler's account records until April 28, 2004, after the second and third collection letters had been sent by CCI on April 7 and April 19, 2004. Thus, even if CCI had inquired of Maimonides as to the status of Mr. Wyler's account at any time prior to the mailing of the second or third letter, the account would have shown that the debt was still owed.
Thus, the Court concludes that CCI's letters did not violate the FDCPA either by notifying plaintiff that he could phone the Hospital to discuss the debt or by failing to include CCI's phone number in the letter. Moreover, the Court finds, consistent with the holdings in Ong and Vega, that the letter was not in violation of the Act because it permitted an oral communication by the debtor. Like the letters in Vega and Ong, CCI's initial letter contained the statutorily prescribed language advising the plaintiff of his ability to "dispute" the debt in a written communication with CCI. Consistent with the holdings ofOng and Vega, the letter also did not limit the plaintiff to written communications with the collection agency but provided information whereby plaintiff could discuss the debt directly with the creditor. The court in Ong explicitly recognized that while some debtors may choose to dispute their debts orally, "Congress chose to accord these oral debt-disputers some, but not all, of the protections accorded those who dispute their debts in writing." 1999 WL 51816, at *3. The court noted that while they were "entitled to relief from the presumptive validity of the debt," one of the protections not afforded to oral debt-disputers is the right to "halt . . . debt collection activities in the meantime. . . ." Id.
The information regarding the potential to communicate orally with the Hospital did not in any way "overshadow" or cause confusion when viewed in light of the clear statutory language of the validation notice contained on the reverse side of the letter. Moreover, while the debt had in fact been paid at the time the second and third letters had been sent, the Court finds consistent with Bleich that there was no violation here, as CCI had the right to rely on information provided by the Hospital.
Accordingly, the Court hereby grants defendant's motion for summary judgment.