Dickens v. GC Services Limited Partnership

MOTION for summary judgment as to liability

M.D. Fla.September 27, 2016

1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA x RONNIE E. DICKENS, on behalf of himself and others similarly situated, Plaintiff, v. GC SERVICES LIMITED PARTNERSHIP, Defendant. : : : : : : : : : : : : x Civil Action No.: 8:16-cv-00803-JSM-TGW Dispositive Motion PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO LIABILITY Statement of Issues The Eleventh Circuit has held that a debt collector’s failure to provide consumers a conforming validation notice under section 1692g(a)(4) of the Fair Debt Collection Practices Act (“FDCPA”)—one which apprises them of their right to obtain verification of their debt only if they dispute its validity in writing—constitutes a violation of the FDCPA. Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1277 (11th Cir. 2016). Similarly, district courts throughout the country have uniformly held that a debt collector’s failure to provide consumers a conforming validation notice under section 1692g(a)(5)—one which apprises them of their right to obtain the name and address of the original creditor, if different from the current creditor, upon their written request—constitutes a violation of the FDCPA. Here, GC Services Limited Partnership’s (“Defendant”) initial communication to Plaintiff undeniably failed to include the requisite “in writing” and “written request” disclosures, and thus failed to provide proper notices mandated by Case 8:16-cv-00803-JSM-TGW Document 32 Filed 09/27/16 Page 1 of 16 PageID 189 2 the FDCPA. Should this Court accordingly hold that Defendant violated 15 U.S.C. §§ 1692g(a)(4), 1692g(a)(5) and 1692e?1 Summary of Argument Defendant’s liability here hinges on two discrete, and critical, omissions in its initial debt collection communications to Florida consumers: its failure to notify consumers that it need only provide verification of their debts if they are disputed “in writing,” as required by section 1692g(a)(4) of the FDCPA, and its failure to notify consumers that it need only provide the name of the original creditor upon “written request,” as required by section 1692g(a)(5). Because oral disputes, and oral requests for creditor information, have different legal consequences than those made in writing—and ultimately provide consumers fewer protections under the statute—the FDCPA and related case law make clear that such omissions are actionable. This Court should accordingly enter judgment in Plaintiff’s favor given the undisputed deficiencies in Defendant’s collection letters. Statement of Relevant Facts Defendant sent Plaintiff a debt collection letter dated December 24, 2015 with a validation notice that read, in pertinent part: As of the date of this letter, our records show you owe a balance of $7,573.00 to Synchrony Bank. If you dispute this balance or the validity of this debt, please contact us. If you do not dispute this debt within 30 days after you receive this letter, we will assume the debt is valid. However, if you do dispute all or any portion of this debt within 30 days of receiving this letter, we will obtain verification of the debt from our client and send it to you. Or, if within 30 days of receiving this letter you request the name and address of the original creditor, we will provide it to you in the event it differs from our client, Synchrony Bank. 1 The FDCPA at 15 U.S.C. § 1692e provides, in pertinent part, that “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” Case 8:16-cv-00803-JSM-TGW Document 32 Filed 09/27/16 Page 2 of 16 PageID 190 3 Dkt. No. 6 at ¶ 9. Defendant’s December 24, 2015 letter was its initial communication to Plaintiff, and Plaintiff did not receive from Defendant any other written communication within five days following the December 24, 2015 letter. See Declaration of Ronnie E. Dickens, at ¶¶4-5, attached hereto as Exhibit A (“Dickens Dec.”). Plaintiff is a natural person. Dickens Dec. at ¶2. Defendant concedes that it is a “debt collector” within the meaning of the FDCPA. Dkt. No. 6 at ¶ 15. And the subject debt about which Defendant contacted Plaintiff was incurred primarily for personal, family, or household purposes. Dickens Dec. at ¶7. Finally, the subject debt was in default at the time Defendant acquired it for collection. Dickens Dec. at ¶ 8. Defendant also treated the debt as if it was in default from the time it acquired it for collection. See Dkt. No. 1-1 (purporting to advise Plaintiff of his rights under the FDCPA with regard to the debt). Legal Standards I. Rule 56 governs motions for summary judgment. The standard for deciding motions for summary judgment is well-settled. As explained by this Court in Shirley v. Safeco Ins. Co. of Illinois: Motions for summary judgment should only be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The existence of some factual disputes between the litigants will not defeat an otherwise properly supported summary judgment motion; “the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). The substantive law applicable to the claimed causes of action will identify which facts are material. Id. Throughout this analysis, the judge must examine the evidence in the light most favorable to the non-movant and draw all justifiable inferences in her favor. Id. at 255. Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 Case 8:16-cv-00803-JSM-TGW Document 32 Filed 09/27/16 Page 3 of 16 PageID 191 4 U.S. at 324. The evidence must be significantly probative to support the claims. Anderson, 477 U.S. at 248–49 (1986). This Court may not decide a genuine factual dispute at the summary judgment stage. Fernandez v. Bankers Nat’l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). “[I]f factual issues are present, the Court must deny the motion and proceed to trial.” Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir.1983). A dispute about a material fact is genuine and summary judgment is inappropriate if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248; Hoffman v. Allied Corp., 912 F.2d 1379 (11th Cir.1990). However, there must exist a conflict in substantial evidence to pose a jury question. Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir.1989). No. 8:07–cv–2163–T–30TBMN, 2009 WL 909419, at *1 (M.D. Fla. Apr. 1, 2009) (Moody, Jr., J.).2 II. The FDCPA imposes a strict liability standard. The FDCPA is a strict liability statute. Kaplan v. Assetcare, Inc., 88 F. Supp. 2d 1355, 1361–62 (S.D. Fla. 2000). As such, a single violation “is sufficient to subject a debt collector to liability under the Act.” Drossin v. National Action Fin. Servs., 641 F. Supp. 2d 1314, 1317 (S.D. Fla. 2009); see also Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1238 (5th Cir. 1997) (“A single violation of any provision of the Act is sufficient to establish civil liability under the FDCPA.”). Moreover, the FDCPA does not require a showing of intentional misconduct on the part of a debt collector. Rivera v. Amalgamated Debt Collection Servs., 462 F. Supp. 2d 1223, 1227 (S.D. Fla. 2006). III. The FDCPA must be construed liberally in favor of consumer debtors. Congress enacted the FDCPA in 1977 to “eliminate abusive debt collection practices by debt collectors,” 15 U.S.C. § 1692(e), and in response to “abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors….” 15 U.S.C. § 1692(a). 2 Internal citations and quotations are omitted, and emphasis is added, unless noted otherwise. Case 8:16-cv-00803-JSM-TGW Document 32 Filed 09/27/16 Page 4 of 16 PageID 192 5 Congress found such practices to have contributed “to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.” Id. As a result, “[t]he FDCPA … and its provisions are to be liberally construed in favor of the consumer.” Mammen v. Bronson & Migliaccio, LLP, 715 F. Supp. 2d 1210, 1213 (M.D. Fla. 2009). IV. The FDCPA is to be interpreted in accordance with the least sophisticated consumer standard. The FDCPA is to be interpreted in accordance with the least sophisticated consumer standard. Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1177 (11th Cir. 1985). As the Southern District of Florida stated in Battle v. Gladstone Law Group, P.A.: The standard for evaluating violations of the FDCPA is not whether the individual plaintiff was confused or deceived but whether the least sophisticated consumer would be confused or deceived by Defendants’ actions. Additionally, the Court need not determine whether the named plaintiff or other putative plaintiffs read or were confused by the notice, as the standard is whether the least sophisticated consumer would have been misled. 951 F. Supp. 2d 1310, 1313–14 (S.D. Fla. 2013). “The basic purpose of the ‘least-sophisticated consumer’ standard is to ensure that the FDCPA protects all consumers, the gullible as well as the shrewd.” Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993). As the Eleventh Circuit noted in Jeter: That law was not “made for the protection of experts, but for the public—that vast multitude which includes the ignorant, the unthinking, and the credulous ...” and [t]he fact that a false statement may be obviously false to those who are trained and experienced does not change its character, nor take away its power to deceive others less experienced. There is no duty resting upon a citizen to suspect the honesty of those with whom he transacts business. Laws are made to protect the trusting as well as the suspicious. 760 F.2d 1168 at 1194 (quoting in part Fed. Trade Comm’n v. Standard Educ. Society, 302 U.S. 112, 116, 58 S.Ct. 113, 82 L.Ed. 141 (1937)). As described by the Seventh Circuit, this standard Case 8:16-cv-00803-JSM-TGW Document 32 Filed 09/27/16 Page 5 of 16 PageID 193 6 presumes a level of sophistication that “is low, close to the bottom of the sophistication meter.” Avila v. Rubin, 84 F.3d 222, 226 (7th Cir. 1996). Argument For FDCPA liability to attach, a plaintiff must establish that: (1) he has been the object of collection activity arising from a consumer debt; (2) the defendant is a debt collector as defined by the FDCPA; and (3) the defendant has engaged in an act or omission prohibited by the FDCPA. Koch v. Atkinson, Diner, Stone, Mankuta, & Ploucha, P.A., No. 11–80894–CIV, 2011 WL 4499100, at *2 (S.D. Fla. Sept. 27, 2011). Here, there can be no dispute that Plaintiff is a “consumer” as that term is defined in the FDCPA; that Plaintiff’s debt arose out of transactions entered into for personal purposes; and that Defendant is a “debt collector” within the purview of the FDCPA. See supra, Statement of Relevant Facts. The only disagreement is whether Defendant’s deficient validation notice violated sections 1692g(a)(4), 1692g(a)(5) and 1692e of the FDCPA. As explained below, the Eleventh Circuit and district courts throughout the country have held that the omissions here violate the FDCPA as a matter of law. Accordingly, this Court should enter judgment in favor of Plaintiff. I. Defendant’s debt collection letter lacks material disclosures required by the FDCPA. In its initial communication, or within five days thereafter, a debt collector who solicits payment from a consumer must inform him of certain rights he has under the FDCPA. See 15 U.S.C § 1692g(a); see also Shimek v. Weissman, Nowack, Curry & Wilson, P.C., 323 F. Supp. 2d 1344, 1349 (N.D. Ga. 2003) (“The FDCPA requires debt collectors to include a validation notice in the debt collection letter which states that the debtor has 30 days to dispute the debt.”). Among other things, the validation notice must inform the consumer that unless he, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be Case 8:16-cv-00803-JSM-TGW Document 32 Filed 09/27/16 Page 6 of 16 PageID 194 7 assumed to be valid by the debt collector. 15 U.S.C. § 1692g(a)(3). The validation notice must also inform the consumer that the debt collector will obtain and mail to him verification of the debt if he disputes the debt in writing within 30 days of receiving the debt collection letter. 15 U.S.C. § 1692g(a)(4) (emphasis added). Moreover, the validation notice must inform the consumer that upon the consumer’s written request within the thirty-day period, the debt collector will provide him with the name and address of the original creditor, if different from the current creditor. 15 U.S.C. § 1692g(a)(5) (emphasis added). To avoid a violation of the FDCPA, a debt collector must effectively convey the contents of the validation notice to the debtor. Battle, 951 F. Supp. 2d at 1315.3 The plain language of section 1692g(a) allows for consumers to trigger the rights under subsection g(a)(3) by either an oral or written dispute, while a debt collector must inform the consumer that it can trigger the rights under subsections g(a)(4) and g(a)(5) only through a written dispute. 15 U.S.C. § 1692g(a)(4)-(a)(5); see also Camacho v. Bridgeport Fin. Inc., 430 F.3d 1078, 1081 (9th Cir. 2005) (emphasis added). It is well established that “when the statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.” Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6 (2000). Indeed, “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983). 3 As noted by the Consumer Financial Protection Bureau (“CFPB”)—the federal agency tasked with enforcing the FDCPA—and the Federal Trade Commission, “this validation requirement was a ‘significant feature’ of the law that aimed to ‘eliminate the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid.’” See Brief for the CFPB as Amicus Curiae, Dkt. No. 14, p. 10, Hernandez v. Williams, Zinman, & Parham, P.C., No. 14-15672 (9th Cir. Aug. 20, 2014). Case 8:16-cv-00803-JSM-TGW Document 32 Filed 09/27/16 Page 7 of 16 PageID 195 8 As a result of the express language in 15 U.S.C. § 1692g(a)(4), the Eleventh Circuit recently found that the failure to include the “in writing” language mandated by that section in a validation notice contravenes the express language of the statute, and thus constitutes a violation of the FDCPA. See Bishop, 817 F.3d at 1277. Moreover, district courts throughout the country have held that the failure to include in a validation notice the “in writing” language mandated by 15 U.S.C. § 1692g(a)(4) and the “written request” language mandated by 15 U.S.C. § 1692g(a)(4) constitute violations of the FDCPA. See, e.g., McCabe v. Crawford & Co., 272 F. Supp. 2d 736, 742–44 (N.D. Ill. 2003) (granting summary judgment in favor of plaintiff for violation of subsection 1692g(a)(4) for omitting “in writing” language from validation notice); Carroll v. United Compucred Collections, Inc., No. 1–99–0152, 2002 WL 31936511, at *8 (M.D. Tenn. Nov. 15, 2002) (recommending partial summary judgment in favor of plaintiff for violation of subsection 1692g(a)(4) for omitting “in writing” requirement); Bicking v. Law Offices of Rubenstein & Cogan, 783 F. Supp. 2d 841, 844-46 (E.D. Va. 2011) (“As far as this Court can tell, all of them have held that a debt collector’s failure to include the ‘in writing’ requirement violates subsections (a)(4) and (5) of Section 1692g.”). Thus, and as the Eleventh Circuit squarely held in Bishop, Defendant’s failure to include the mandatory “in writing” and “written request” language in its validation notices to Plaintiff and the proposed class constitutes a violation of the FDCPA, on which Plaintiff is entitled to summary judgment on each of his claims. II. An oral dispute of a debt has different legal consequences under the FDCPA— and affords a consumer fewer protections—than a written dispute. Relevant case law overwhelmingly supports Plaintiff’s claims because the need to include the writing requirements in Defendant’s debt collection letters is not merely an academic exercise. To be sure, “[a]n oral notice of dispute of a debt’s validity has different legal consequences than a Case 8:16-cv-00803-JSM-TGW Document 32 Filed 09/27/16 Page 8 of 16 PageID 196 9 written notice.” Osborn v. Ekpsz, LLC, 821 F.Supp.2d 859, 869 (S.D. Tex. 2001); see also Camacho, 430 F.3d at 1082 (noting that the FDCPA “assigns lesser rights to debtors who orally dispute a debt and greater rights to debtors who dispute it in writing.”). First, absent a written dispute, or a written request for the name and address of the original creditor, a debt collector is under no obligation under the FDCPA to provide the consumer verification of his debt, or the name and address of the original creditor. Nor does the consumer have any recourse under the statute should the debt collector fail to provide such information. Second, neither an oral dispute, nor an oral request for the name and address of the original creditor, triggers the additional protections provided by section 1692g(b)—namely, that the debt collector must cease collection of the debt until it obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and mails that information to the consumer. 15 U.S.C. § 1692g(b). As the Southern District of Texas stated: Section 1692g(b) provides that if the consumer notifies the collector of a dispute in writing within the 30–day period, the collector must cease collection activities until he obtains the verification or information required by subsections 1692g(a)(4) and (a)(5). But if the consumer disputes the debt orally rather than in writing, the consumer loses the protections afforded by § 1692g(b); the debt collector is under no obligation to cease all collection efforts and obtain verification of the debt. Osborn, 821 F. Supp. 2d at 869. Thus, at the end of the day, “if a consumer contests a debt by telephone rather than in writing, the consumer will inadvertently lose the protections for debtors set forth in the FDCPA; the debt collection agency would be under no obligation to verify the debt and cease all collection efforts as required by § 1692g(b).” Withers v. Eveland, 988 F. Supp. 942, 947 (E.D. Va. 1997). As the Bicking court noted, “[w]here the debt collector fails to advise that the debtor’s requests under subsections (a)(4) and (a)(5) must be in writing, the least sophisticated consumer is not simply Case 8:16-cv-00803-JSM-TGW Document 32 Filed 09/27/16 Page 9 of 16 PageID 197 10 uncertain of her rights under the statute, she is completely unaware of them.” 783 F. Supp. 2d at 845. Properly informing consumers of the “in writing” requirement, therefore, is of paramount importance.4 III. Defendant’s debt collection letter would confuse the least sophisticated consumer as to the consumer’s validation rights. By materially changing the statutory text of 15 U.S.C. §§ 1692g(a)(4) and 1692g(a)(5) in its debt collection letters to remove the writing requirements, Defendant’s letters would confuse the least sophisticated consumer. See, e.g., Smith v. Computer Credit, Inc., 167 F.3d 1052, 1054 (6th Cir. 1999) (“Under the Act, notice of the thirty-day validation period is necessary, but not sufficient to satisfy § 1692g(a). A debt collector must ‘effectively convey’ the notice to the debtor.”); Caceres v. McCalla Raymer, LLC, 755 F.3d 1299, 1303 (11th Cir. 2014) (“The absence of one or more of the statutory requirements for the validation notice is actionable as a violation of 15 U.S.C. § 1692e under our precedent if the variance is one that would tend to mislead the least sophisticated consumer.”). This is because the least sophisticated consumer could interpret Defendant’s letter to allow him to obtain verification of the debt or the name and address of the original creditor by calling Defendant at the telephone number provided on the letter, even though a debt collector is not obligated by law to respond to such an oral communication. See Fasten v. Zager, 49 F. Supp. 2d 144, 149 (E.D.N.Y. 1999) (“Under Section 1692g(a)(4), verification is triggered only by the consumer writing a letter to the debt collector.”).5 4 Plaintiff’s FDCPA claims are to be evaluated under an objective analysis, from the standpoint of the least-sophisticated consumer, so as to protect consumers from all walks of life, regardless of their education, intelligence, or experience. Jeter, 760 F.2d 1168 at 1194. Thus, whether Plaintiff actually chose to exercise his own section 1692g(a)(4) or 1692g(a)(5) rights, or was even misled or confused by Defendant’s letter in the first place, is irrelevant to the claims at hand. 5 Significantly, the FDCPA does not assume that the recipient of a collection letter is aware of his verification rights. “Instead, the Act requires the debt collector, as the party in the better position to know Case 8:16-cv-00803-JSM-TGW Document 32 Filed 09/27/16 Page 10 of 16 PageID 198 11 The Eastern District of New York’s opinion in Grief v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP is instructive. In Grief, the court was faced with a debt collection letter that contained the same omissions as the letters at issue here. 217 F.Supp.2d 336, 337 (E.D.N.Y. 2002). (“WEMED’s validation notice only requires the consumer to notify the firm that she disputes the debt or requests the name and address of the original creditor. The letter does not mention that the notice be in writing.”). The court found that these omissions were sufficient to form the basis for claims for violations of subsections 1692g(a)(4) and (a)(5): Any consumer, not simply the least sophisticated consumer, who read this letter would not know that to secure her right to obtain verification of the debt and the identity of the original creditor, her dispute of the debt and request for the identity of the original creditor must be in writing. A consumer could certainly interpret this letter to mean that she could obtain verification of the debt or the identity of the original creditor by calling Mr. DeGaetano at the telephone number provided on the letter. Of course, this is the not the case. See 15 U.S.C. §§ 1692g(a)(4), (a)(5). ***** Accordingly, the Court finds that the complaint states a claim for violations of Sections 1692g(a)(4), (a)(5), and (b), based on the defendant’s failure to include the writing requirement in the validation notice. Id. at 340–41; see also Bicking, 783 F. Supp. 2d at 843 (“Absent some mention of the ‘in writing’ requirement, the least sophisticated debtor may very well dispute the debt only orally, and therefore never trigger the collector’s duty to verify the debt. Plaintiffs have clearly stated a claim under Section 1692g(a)(4) and (5) of the FDCPA.”). the law, to inform the consumer of that right.” Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 89 (2d Cir. 2008). Case 8:16-cv-00803-JSM-TGW Document 32 Filed 09/27/16 Page 11 of 16 PageID 199 12 IV. Any argument that Defendant’s debt collection letter does not violate the FDCPA because it permits a less demanding means to obtain verification of the debt and the name and address of the original creditor is a red herring. Though it is undisputed that Defendant’s December 24, 2015 debt collection letter omitted the writing requirements mandated by sections g(a)(4) and g(a)(5), Defendant may argue that its failure to track the statutory text is not a violation of the FDCPA because Defendant was actually offering Plaintiff broader rights than the statute requires. Even assuming arguendo that Defendant does provide consumers with these benefits, the salient point, in any event, is that Defendant would not be required under the FDCPA to do so, and thus a consumer would have no recourse should Defendant fail to honor its word. Nor would most consumers even know that Defendant was failing to honor its representations here if it, in fact, did not accept oral disputes of debts and oral requests for creditor information. For these very reasons, the Eleventh Circuit recently rejected this exact argument in the context of an alleged violation of 15 U.S.C. § 1692g(a)(4). See Bishop, 817 F.3d 1268 at 1274 (“We reject the notion that § 1692g gives debt collectors discretion to omit the ‘in writing’ requirement or cure improper notice by claiming waiver. The statute is clear. The debt collector ‘shall’ notify the consumer of her right to dispute the debt in writing.”); see also Bicking, 783 F. Supp. 2d at 845 (“Nor does it matter whether Defendants would have honored an oral request. A debt collector’s statutory duty to verify the debt does not arise unless and until the debtor disputes the debt in writing.”); Osborn, 821 F. Supp. 2d at 869 (“The defendant’s argument that its collection letter afforded the plaintiffs additional rights assumes that the defendant would have been legally obligated to provide the plaintiffs the information required by subsections 1692g(a)(4) and (a)(5) in response to oral requests. This assumption is incorrect.”). Indeed, for purposes of FDCPA liability here, “[i]t makes no difference whether [Defendant] would have honored an oral Case 8:16-cv-00803-JSM-TGW Document 32 Filed 09/27/16 Page 12 of 16 PageID 200 13 request.” Nero v. Law Office of Sam Streeter, P.L.L.C., 655 F. Supp. 2d 200, 206 (E.D.N.Y. 2009). To be sure, the Northern District of Illinois observed in McCabe: Crawford correctly asserts that § 1692g(a)(4) does not expressly prevent the debt collector from providing verification of the debt upon oral notification of the dispute. However, Crawford misses the point of the protection found in § 1692g(a)(4). Although a debt collector may provide verification upon oral notification, the debt collector must provide verification upon written notification. If the debtor gives only oral notification of the dispute, the FDCPA imposes no requirement on the debt collector to obtain verification of the debt. Thus, by omitting the words “in writing,” Crawford did not effectively convey to the consumer his rights under the FDCPA and thus violated the Act. 272 F. Supp. 2d at 743–44. Moreover, as set forth above, the protections of subsection 1692g(b) are not triggered if the consumer does not dispute the debt, in writing, within the thirty-day time period. See supra, Argument, sec. II. Thus, rather than providing a permissive standard whereby 15 U.S.C. §§ 1692g(a)(4) and 1692g(a)(5) allow a debt collector to require that a dispute and requests for creditor information be in writing if a defendant so chooses, the writing requirements in those sections are expressly required by the statute. See, e.g., Carroll, 2002 WL 31936511, at *8 (“Moreover, subsection g(a)(4) clearly requires that the debtor be informed that, if he notifies the debt collector ‘in writing’ of a dispute, the debt collector will obtain and mail to the debtor verification of the debt or a copy of the judgment. The defendants, however, did not inform the debtor that, in order to obtain verification, the notice must be in writing.”); Yrok Gee Au Chan v. North American Collectors, Inc., No. C–10–02789 EDL, 2006 WL 778642, at *6 (N.D. Cal. Mar. 24, 2006) (“Section 1692g(a) dictates that the debt collector shall send the consumer a written notice stating that upon written notification of a dispute, verification must be provided by the debt collector.”). As a result, Defendant’s letters here did not expand Plaintiff’s statutory rights; absent a written dispute under 15 U.S.C. § 1692g(a)(4), Defendant would not be required by law to provide verification of the Case 8:16-cv-00803-JSM-TGW Document 32 Filed 09/27/16 Page 13 of 16 PageID 201 14 debt and Defendant “would not be required to cease its collection efforts, which is one of the rights a consumer who submits a written request acquires.” Osborn, 821 F. Supp. 2d at 871; see also Grief, 217 F. Supp. 2d 340–41 (“Although the defendant’s notice may have been well-intended, the FDCPA is a strict liability statute, and the debt collector violates the Act by failing to provide the information it requires. In addition, WEMED’s intent is not relevant to the analysis of whether a notice violates the statute.”). Similarly, absent a written request under subsection 15 U.S.C. § 1692g(a)(5), Defendant would not be required by law to provide the name of the original creditor, if different from the current creditor.6 Simply put, the FDCPA does not guarantee a consumer who disputes his debt orally the right to obtain verification of that debt, and it does not guarantee a consumer who requests the name and address of the original creditor orally the right to obtain that information. Nor does the FDCPA guarantee him the protections of section 1692g(b) if he disputes the debt, or requests the creditor information, orally. That Defendant purportedly would have gratuitously provided Plaintiff with such rights and protections had he disputed his debt, or requested the creditor information, orally, does not alter the fact that, absent a writing, Defendant would have no legal obligation to do so—and Plaintiff would have no legal recourse were Defendant not to do so. See Carroll, 2002 WL 31936511, at *8 (“Although it is theoretically possible for the debtor to dispute the validity of the debt in some other format, it is only a written dispute or request that impels the debt collector to respond in the statutorily required manner. Clearly, if a debt collector’s action is only invoked by the written submission from the debtor, the debtor must necessarily be informed 6 Plaintiff does not contend that Defendant must limit itself to honoring only written requests to verify a debt and written requests to identify the original creditor. Rather, Defendant is free to honor oral requests if it chooses to do so. But what Defendant cannot do is omit required language from the validation notice and thereby give Plaintiff and other consumers the misimpression that certain actions by them will trigger rights under federal law where such rights do not exist. Case 8:16-cv-00803-JSM-TGW Document 32 Filed 09/27/16 Page 14 of 16 PageID 202 15 of that requirement.”). As a result, Plaintiff’s claims “cannot be described as a ‘bizarre or idiosyncratic’ interpretation of what is required under the FDCPA; rather, the validation notice clearly omitted an important term—that the consumer must inform the debt collector in writing to be entitled to verification of the debt.” Nero, 655 F. Supp. 2d at 206. Conclusion Plaintiff, a “consumer” under the FDCPA, received a debt collection letter from Defendant, a “debt collector,” in connection with a debt that had been incurred primarily for personal, family, or household purposes. The letter failed to include the “in writing” requirement found at 15 U.S.C. § 1692g(a)(4) and the “written request” requirement found in 15 U.S.C. § 1692g(a)(5). Defendant’s omission of the writing requirements in its validation notice contravened the express requirements of the statute, restricted the rights afforded to consumers, and thus violated the FDCPA at 15 U.S.C. §§ 1692g(a)(4), 1692g(a)(5) and 1692e. Plaintiff accordingly requests that this Court grant him summary judgment on his claims, while reserving judgment on an award of damages until the Court has ruled upon Plaintiff’s motion for class certification and appointment of class counsel. Dkt. No. 27. Dated: September 27, 2016 /s/ James L. Davidson James L. Davidson Jesse S. Johnson Greenwald Davidson Radbil PLLC 5550 Glades Road, Suite 500 Boca Raton, FL 33486 Telephone: (561) 826-5477 Facsimile: (561) 961-5684 jdavidson@gdrlawfirm.com jjohnson@gdrlawfirm.com Counsel for Plaintiff and the proposed class Case 8:16-cv-00803-JSM-TGW Document 32 Filed 09/27/16 Page 15 of 16 PageID 203 16 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been electronically filed on September 27, 2016, via the Court Clerk’s CM/ECF system, which will provide notice to the following counsel of record: Michael Sperounes LEWIS BRISBOIS BISGAARD & SMITH LLP 3812 Coconut Palm Drive, Suite 200 Tampa, FL 33619 Telephone: (813) 739-1971 Facsimile: (813) 739-1919 michael.sperounes@lewisbrisbois.com William S. Helfand LEWIS BRISBOIS BISGAARD & SMITH LLP 24 Greenway Plaza, Suite 1400 Houston, Texas 77046 Telephone: (713) 659-6767 Facsimile: (713) 759-6830 bill.hefland@lewisbrisbois.com /s/ James L. Davidson James L. Davidson Case 8:16-cv-00803-JSM-TGW Document 32 Filed 09/27/16 Page 16 of 16 PageID 204 Case 8:16-cv-00803-JSM-TGW Document 32-1 Filed 09/27/16 Page 1 of 4 PageID 205 Case 8:16-cv-00803-JSM-TGW Document 32-1 Filed 09/27/16 Page 2 of 4 PageID 206 Exhibit 1 Case 8:16-cv-00803-JSM-TGW Document 32-1 Filed 09/27/16 Page 3 of 4 PageID 207 Case 8:16-cv-00803-JSM-TGW Document 32-1 Filed 09/27/16 Page 4 of 4 PageID 208