Zengerle v. Dynia & Associates, LLC

Filing 18

ORDER denying 10 Motion to Dismiss. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL J. ZENGERLE,
Plaintiff,
Case No. 13-11592
v.
Hon. John Corbett O’Meara
DYNIA & ASSOCIATES, LLC,
Defendant.
_____________________________/

ORDER DENYING DEFENDANT’S
MOTION TO DISMISS
Before the court is Defendant’s motion to dismiss, which has been fully
briefed. The court heard oral argument on September 12, 2013, and took the
matter under advisement. For the reasons explained below, Defendant’s motion is
denied.
BACKGROUND FACTS
On January 22, 2013, Defendant Dynia & Associates, LLC, sent Plaintiff
Michael Zengerle a letter attempting to collect a $15,778.48 credit card debt. The
letter reads, in part:
Federal law provides that if you do not provide us with a
statement that you dispute the validity of this debt, or any
portion thereof, within thirty days of the receipt of this
letter, we may assume that such debt is valid. If you do

dispute it by notifying us in writing to that effect, we
will, as required by law, obtain verification of the debt or
any related judgment against you, and mail such
documentation to you. And, if within the same period,
you request in writing the name and address of your
original creditor, if the original creditor is different from
the current creditor, we will furnish you with that
information too.
Plaintiff contends that this language violates the Fair Debt Collection Practices Act
and the Michigan Collection Practices Act by suggesting that (1) the consumer
must dispute the debt in writing and (2) the written dispute must be received by
Defendant within thirty days. Defendant has filed a motion to dismiss, arguing that
the collection letter is not deceptive or misleading as a matter of law.
LAW AND ANALYSIS
The FDCPA provides that, in attempting to collect a debt, a debt collector
must send the consumer a written notice containing certain statements, including:
(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; [and]
(4) a statement that if the consumer notifies the debt
collector in writing within the thirty-day period that the
debt, or any portion thereof, is disputed, the debt
collector will obtain verification of the debt or a copy of
the judgment against the consumer and a copy of such
verification or judgment will be mailed to the consumer
by the debt collector. . . .
15 U.S.C. § 1692g(a). In order to determine whether this notice was “effectively
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conveyed,” the court uses the “least sophisticated debtor standard.” Federal Home
Loan Mortgage Corp. v. Lamar, 503 F.3d 504, 509-510 (6th Cir. 2007). “The least
sophisticated debtor standard is lower than simply examining whether particular
language would deceive or mislead a reasonable debtor.” Id. (citation omitted).
“Although this standard protects naive consumers, it also ‘prevents liability for
bizarre or idiosyncratic interpretations of collection notices by preserving a
quotient of reasonableness and presuming a basic level of understanding and
willingness to read with care.’” Id. (citation omitted).
If a collection notice reduces the thirty-day time frame in which the
consumer has to dispute the debt, it violates the FDCPA. See Lamar, 503 F.3d at
510; Jacobson v. Healthcare Financial Serv., 516 F.3d 85, 95 (2d Cir. 2008).
Further, the majority of courts have held that requiring a consumer to dispute a
debt in writing violates the FDCPA. See, e.g., Hooks v. Forman, Holt, Eliades &
Ravin LLC, 717 F.3d 282, 285-86 (2d Cir. 2013); Camacho v. Bridgeport
Financial, Inc., 430 F.3d 1078 (9th Cir. 2005); but see Graziano v. Harrison, 950
F.2d 107 (3d Cir. 1991).
Here, the collection notice reads as follows: “Federal law provides that if
you do not provide us with a statement that you dispute the validity of this debt, or
any portion thereof, within thirty days of the receipt of this letter, we may assume
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that such debt is valid. If you do dispute it by notifying us in writing to that effect,
we will, as required by law, obtain verification of the debt. . . .” See Compl. at Ex.
1 (emphasis added). Plaintiff contends that this language suggests that the
consumer must provide a written statement to dispute the validity of the debt,
which is contrary to the FDCPA. See Hooks, 717 F.3d at 285-86; Camacho, 430
F.3d at 1081-82. Further, according to Plaintiff, this language suggests that
Defendant must receive the written dispute within thirty days, when the law allows
a consumer thirty days to mail the written dispute. See Lamar, 503 F.3d at 510;
Jacobson, 516 F.3d at 95 (“By requiring the notice to be received by the debt
collector within thirty days, the letter shortens the period during which the
recipient may seek verification of the debt.”).
In its motion, Defendant seizes upon Plaintiff’s claim that the letter should
read “within thirty days after the receipt of this letter,” as opposed to “within thirty
days of the receipt of this letter.” At this stage, it is not clear to the court whether
the use “of” instead of “after” makes a difference. With respect to Plaintiff’s other
arguments, Defendant points out that the letter does not expressly state that the
consumer must provide a written statement to dispute the debt, but only that the
consumer must “provide us with a statement.” Viewing the language from the
perspective of the least sophisticated consumer, however, “provide us with a
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statement” suggests that a writing is necessary and that the consumer may not
orally dispute the debt.1 In light of this, Defendant has not met its burden of
demonstrating that Plaintiff has failed to state a claim or that it is entitled to
judgment as a matter of law.
Accordingly, IT IS HEREBY ORDERED that Defendant’s motion to
dismiss is DENIED.
s/John Corbett O’Meara
United States District Judge
Date: September 13, 2013

I hereby certify that a copy of the foregoing document was served upon
counsel of record on this date, September 13, 2013, using the ECF system.

s/William Barkholz
Case Manager

1

Defendant contends that this issue was not raised in the complaint. Under
the circumstances, the court would permit Plaintiff to amend his complaint. See
Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave [to amend] when
justice so requires.”).
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