WILSON v. MATTLEMANN, WEINROTH & MILLER, P.C. et al
Filing
8
OPINION. Signed by Judge Joseph E. Irenas on 6/12/2013. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MONIQUE WILSON, et al.,
Plaintiffs,
HONORABLE JOSEPH E. IRENAS
v.
CIVIL ACTION NO. 13-0237
(JEI/KMW)
MATTLEMAN, WEINROTH & MILLER,
et al.,
OPINION
Defendants.
APPEARANCES:
LAW OFFICES OF JOSEPH K. JONES, LLC
Joseph K. Jones, Esq.
375 Passaic Avenue, Suite 100
Fairfield, NJ 07004
and
LAW OFFICES OF LAURA S. MANN, LLC
Laura S. Mann, Esq.
179 Cahill Cross Road, Suite 205
West Milford, NJ 07480
Counsel for Plaintiff
MATTLEMAN, WEINROTH & MILLER, P.C.
Alison B. Weinroth-Shaw, Esq.
401 Route 70 East, Suite 100
Cherry Hill, NJ 08034
Counsel for Defendant
1
Irenas, Senior District Judge:
This is a debt collection case arising under the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692–1692p.
Plaintiff Monique Wilson (“Wilson”) 1 alleges that Defendants
Mattleman, Weinroth & Miller, P.C. (“Mattleman”) and Executive
Management, Inc. (“Executive”) failed to fully satisfy the
notice requirements set forth in 15 U.S.C. § 1692g(a)(3) of the
FDCPA and thereby engaged in deceptive debt collection practices
in violation of 15 U.S.C. § 1692e(10).
Presently before the
Court is Defendants’ Motion to Dismiss Plaintiff’s Complaint for
Failure to State a Claim pursuant to Fed. R. Civ. P. 12(b)(6). 2
For the following reasons, the Motion will be granted in part
and denied in part.
I.
For the purposes of this Motion, the Court accepts as true
the facts as alleged in the Complaint.
Prior to October 12,
2012, Wilson incurred a debt obligation to Sunrise Village, LLC
(“Sunrise”).
(Compl. ¶ 15)
Wilson’s debt was subsequently
assigned, placed, transferred, or sold to Executive, a debt
1
Plaintiff brings this lawsuit as a putative class action pursuant to Fed.
R. Civ. P. 23 on behalf of herself and all consumers and their successors in
interest who have received debt collection letters and/or notices from the
Defendant which are in violation of the FDCPA.
2
This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
2
collection agency. 3
(Id. ¶ 19)
On or about October 12, 2012,
Mattleman delivered a one-page collection letter to Wilson. 4
(Id. ¶ 25)
The letter, in its entirety, reads as follows:
Our office is in receipt of a claim owed to our
client, EXECUTIVE CREDIT MANAGEMENT INC., in the above
amount. If you owe this amount, please remit this sum
to our office.
If this amount is incorrect, or
disputed, please refer to the final paragraphs of this
letter for further instructions.
To receive proper
credit, send this letter back with your payment.
As of the date of this letter, you owe $4,241.98.
Because of interest, late charges and other charges
that may vary from day to day, the amount due on the
day you pay may be different.
Hence, if you pay the
amount shown above, an adjustment may be necessary
after we receive your payment, in which event we will
inform
you
before
depositing
your
payment
for
collection. For further information, write our office
or call 888-229-2289.
In the event you notify us in writing within
thirty (30) days of your receipt of this letter that
the debt, or any portion of the debt, is disputed, we
will mail you verification of the debt, or, if
applicable, obtain a copy of the judgment, and upon
your written request we will provide you with the
original creditor’s name and address should it be
different from the current creditor.
Should you fail to respond within thirty (30)
days, we will recommend that our client commence an
action against you to protect its rights.
Please
understand that this communication is from a debt
3
The FDCPA defines a debt collector as “any person who uses any
instrumentality of interstate commerce or the mails in any business the
principal purpose of which is the collection of any debts, or who regularly
collects or attempts to collect, directly or indirectly, debts owed or due or
asserted to be owed or due another.” 15 U.S.C. § 1692a(6).
4
Although Wilson’s Complaint alleges that Executive sold the note to
Mattleman, the October 12, 2012 letter makes clear that Mattleman is acting
on Executive’s behalf. As such, Mattleman is a debt collector for the
purposes of 15 U.S.C. § 1692a(6). See Staub v. Harris, 626 F.2d 275, 277 (3d
Cir. 1980) (“The [FDCPA] does not apply to persons or businesses collecting
debts on their own behalf. It is directed to those persons who are engaged
in business for the principal purpose of collecting debts.” (citations
omitted)); see also 15 U.S.C. § 1692a(4), (6).
3
collector and any information we obtain will be used
for the purpose of collecting this debt.
(Compl. Ex. A)
On January 13, 2013, Wilson initiated this action.
No. 1)
(Dkt.
Wilson alleges that Mattleman and Executive violated the
FDCPA in two ways.
First, she claims that Defendants failed to
provide an adequate debt validation statement 5 because Mattleman
omitted the “assumption of debt” statement required by
§ 1692g(a)(3).
(Compl. ¶ 35(a))
Second, she alleges that
Defendants engaged in deceptive and illegal debt collection
practices in violation of 15 U.S.C. § 1692e(10).
(Id. ¶ 35(b))
Defendants now move to dismiss Wilson’s Complaint for failure to
state a claim upon which relief may be granted pursuant to Fed.
R. Civ. P. 12(b)(6).
(Dkt. No. 6)
II.
Federal Rule of Civil Procedure 12(b)(6) provides that a
court may dismiss a complaint “for failure to state a claim upon
which relief can be granted.”
In order to survive a motion to
dismiss, a complaint must allege facts that raise a right to
relief above the speculative level.
5
Bell Atlantic Corp. v.
“Paragraphs 3 through 5 of section 1692g(a) contain the validation
notice--the statements that inform the consumer how to obtain verification of
the debt and that he has thirty days in which to do so.” Wilson v. Quadramed
Corp., 225 F.3d 350, 354 (3d Cir. 2000).
4
Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P.
8(a)(2).
When considering a Rule 12(b)(6) motion, the reviewing
court must accept as true all allegations in the complaint and
view them in the light most favorable to the plaintiff.
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir.
2008).
In reviewing the allegations, a court is not required to
accept sweeping legal conclusions cast in the form of factual
allegations, unwarranted inferences, or unsupported conclusions.
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.
1997).
The complaint must state sufficient facts to show that
the legal allegations are not simply possible, but plausible.
Phillips, 515 F.3d at 234.
“A claim has facial plausibility
when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009).
When evaluating a Rule 12(b)(6) motion to dismiss, the
Court considers “only the allegations in the complaint, exhibits
attached to the complaint, matters of public record, and
documents that form the basis of a claim.”
361 F.3d 217, 221 n.3 (3d Cir. 2004).
Lum v. Bank of Am.,
A document that forms the
basis of a claim is one that is “integral to or explicitly
5
relied upon in the complaint.”
Id. (quoting In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)).
III.
A.
Under the FDCPA, a debt collector is required to include
the following information in a debt collection letter to a
consumer:
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is
owed;
(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;
(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 a judgment against the consumer and
a copy of such verification or judgment will be mailed
to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written
request
within
the
thirty-day
period,
the
debt
collector will provide the consumer with the name and
address of the original creditor, if different from
the current creditor.
15 U.S.C. § 1692g(a); see also Wilson, 225 F.3d at 353.
In this case, Wilson alleges that Defendants violated the
FDCPA’s debt validation notice requirements.
Specifically,
Wilson claims that Mattleman did not include “a statement that
unless the consumer, within thirty days after receipt of the
notice, disputes the validity of the debt, or any portion
6
thereof, the debt will be assumed to be valid by the debt
collector.”
15 U.S.C. § 1692g(a)(3).
To comply with § 1692g, “more is required than the mere
inclusion of the statutory debt validation notice in the debt
collection letter – the required notice must also be conveyed
effectively to the debtor.”
Wilson, 225 F.3d at 353 (citing
Miller v. Payco-General Am. Credits, Inc., 943 F.2d 482, 483-84
(4th Cir. 1991)); see also Graziano v. Harrison, 950 F.2d 107,
111 (3d Cir. 1991) (“To comply with the terms of the [FDCPA],
statutory notice must not only explicate a debtor’s rights; it
must do so effectively.”
(emphasis added)).
Moreover, the FDCPA’s statutory notice requirement is “to
be interpreted from the perspective of the ‘least sophisticated
debtor.’”
Wilson, 225 F.3d at 354 (quoting Graziano, 950 F.2d
at 111); see also Caprio v. Healthcare Revenue Recovery, LLC,
709 F.3d 142, 149 (3d Cir. 2013).
This standard is “lower than
simply examining whether particular language would deceive or
mislead a reasonable debtor.”
Wilson, 225 F.3d at 354 (quoting
Smith v. Computer Credit, Inc., 167 F.3d 1052, 1054 (6th Cir.
1999)) (internal quotation marks omitted); see also CampuzanoBurgos v. Midland Credit Mgmt., Inc., 550 F.3d 294, 298 (3d Cir.
2008) (“[The least-sophisticated-debtor standard] is less
demanding than one that inquires whether a particular
communication would mislead or deceive a reasonable debtor.”).
7
This standard, however, “does not go so far as to provide solace
to the willfully blind or non-observant.”
F.3d at 299.
Campuzano-Burgos, 550
Therefore, under the FDCPA, a debtor is “held to a
quotient of reasonableness, where a basic level of understanding
and a willingness to read with care will be assumed.”
Caprio,
709 F.3d at 149; Wilson, 225 F.3d at 354-55 (noting that debt
collectors may not be held liable for “bizarre or idiosyncratic
interpretations”).
“When reviewing a debt validation notice, [a court] must
review the document as a whole in order to evaluate whether the
notice would inform sufficiently a least sophisticated debtor of
his debt validation rights.”
Smith v. Hecker, No. 04-5820, 2005
U.S. Dist. LEXIS 6598, at *17 (E.D. Pa. Apr. 18, 2005).
Though
not required to quote directly from the language of the statute,
“[debt collectors] are required to provide the least
sophisticated debtor with a non-deceptive statement that unless
the consumer disputes the validity of the debt within the
statutory period, the debt will be assumed to be valid for
collection purposes.”
Id. at *14; see also Emanuel v. Am.
Credit Exch., 870 F.2d 805, 808 (2d Cir. 1989) (“[T]here simply
is no requirement that [a collection letter] quote verbatim the
language of the statute.”).
Based on the Complaint and the October 12, 2012 letter,
Wilson has sufficiently alleged that Mattleman did not comply
8
with § 1692g(a)(3)’s requirements.
Although Mattleman contends
that its October 12, 2012 letter contains all the information
that § 1692g(a) requires (Defs.’ Mem. in Supp. of Def.’s Mot. To
Dismiss 2), a reading of the letter as a whole from the
perspective of the least-sophisticated debtor shows that this is
not the case.
Section 1692g(a)(3) requires only that Mattleman convey the
gist of the provision in a nondeceptive statement, not that
Mattleman specifically use the term “assume,” yet at no point
does the letter purport to notify Wilson that her debt would be
assumed valid (or for that matter by whom it would be assumed)
if she did not respond within thirty days.
The only sentence
that could possibly be interpreted to provide such notice
states, “Should you fail to respond within thirty (30) days, we
will recommend that our client [Executive] commence an action
against you to protect its rights.”
(Compl. Ex. A, 4)
This
statement, however, does not convey effective notice to a leastsophisticated debtor that her debt would be assumed valid.
As
such, Wilson has stated a plausible claim for relief, and
Defendants’ motion to dismiss the § 1692g(a)(3) claim will be
denied.
B.
Wilson also alleges that Defendants engaged in deceptive
9
debt collection practices in violation of 15 U.S.C. § 1692e(10).
(Compl. ¶ 35(b))
Section 1692e states that “[a] debt collector
may not use any false, deceptive, or misleading representation
or means in connection with the collection of any debt.”
U.S.C. § 1692e.
15
Specifically, § 1692e(10) 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.”
Id. § 1692e(10).
“Whether a communication is
deceptive . . . is [also] evaluated ‘from the perspective of the
least sophisticated debtor.’”
D’Addario v. Enhanced Recovery
Co., LLC, 798 F. Supp. 2d 570, 573 (D.N.J. 2011) (quoting
Campuzano-Burgos, 550 F.3d at 298).
Under this standard, a
collection letter is deceptive when “it can be reasonably read
to have two or more different meanings, one of which is
inaccurate.”
Caprio, 709 F.3d at 149 (citing Russell v. Equifax
A.R.S., 74 F.3d 30, 35 (2d Cir. 1996)).
Even reading the Complaint in a light most favorable to
her, Wilson has not presented any facts to suggest that
Mattleman’s letter would be deceiving to a least-sophisticated
debtor.
Wilson contends that the October 12, 2012 letter is
deceptive and misleading because it violates § 1692g(a)(3) and
“fails to inform [Wilson] of her right . . . to dispute the
alleged debt and prevent the debt collector form [sic] assuming
10
the debt is valid.”
(Pl.’s Mem. of Law in Opp’n to Defs.’ Mot.
to Dismiss 9; see also Compl. ¶ 35(b))
“While legal conclusions can provide the complaint's
framework, they must be supported by factual allegations.”
Iqbal, 556 U.S. at 664.
In this case, Wilson has failed to
support her § 1692e(10) claim with any allegations suggesting
that a least-sophisticated debtor could have a competing
interpretation of Mattleman’s October 12, 2012 letter.
Without
such allegations, Wilson’s § 1692e(10) claim amounts to nothing
more than “threadbare recitals of a cause of action’s elements,
supported [only] by mere conclusory statements.” 6
U.S. at 555.
Twombly, 550
Accordingly, Defendants’ motion to dismiss the
§ 1692e(10) claim will be granted.
IV.
For the reasons listed above, Mattleman’s Motion to Dismiss
will be granted with respect to the § 1692e(10) claim and denied
6
No court in this Circuit has held that the omission of a statement
required by § 1692g(a) constitutes a deceptive practice per se. Typically,
an omission is held to violate § 1692e only when proffered with evidence that
causes a least-sophisticated debtor to read a provision with competing
interpretations. See Hecker, 2005 U.S. Dist. LEXIS 6598, at *17 (holding
that the use of the term “assessed” and “the subsequent omission of any
reference to the entity that w[ould] be ‘assessing’ the debt [wa]s likely to
confuse or mislead the least-sophisticated debtor”); see also Philip v. Sardo
& Batista, P.C., No. 11-4773, 2011 U.S. Dist. LEXIS 130267, at *12-13 (D.N.J.
Nov. 10, 2011) (finding that a creditor’s use of terms such as “this office”
or “we” and the omission of the specific term “by the debt collector” were
sufficiently misleading to survive a motion to dismiss); Harlan v. NRA Grp.,
LLC, No. 10-0324, 2011 WL 500024, at *3-4 (E.D. Pa. Feb. 9, 2011) (holding
that a debt collector’s use of “presumed” instead of “assumed” coupled with
the omission of “by the debt collector” violated 15 U.S.C. § 1692e(10)).
11
with respect to the § 1692g(a)(3) claim.
An appropriate Order
accompanies this Opinion.
Date: June 12, 2013
/s/ Joseph E. Irenas
___
Joseph E. Irenas, S.U.S.D.J.
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