CRUZ v. FINANCIAL RECOVERIES et al
Filing
31
OPINION. Signed by Judge Renee Marie Bumb on 6/28/2016. (tf, )
[Dkt. No. 26]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
NORMARILY CRUZ, on behalf of
herself and all others
similarly situated,
Plaintiffs,
Civil No. 15-0753 (RMB/AMD)
v.
OPINION
FINANCIAL RECOVERIES, and JOHN
DOES 1-25,
Defendants.
BUMB, United States District Judge:
This matter comes before the Court upon the filing of a
motion for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c) by Defendant Financial Recoveries
(“Defendant”).
Defendant seeks the dismissal of the Amended
Complaint’s two claims, [Dkt. No. 10], both of which allege a
violation of the Fair Debt Collection Practices Act (“FDCPA”) by
Defendant in its efforts to collect a debt.
Having reviewed the
parties’ briefing and for the reasons set forth below,
Defendant’s motion is GRANTED.
I.
BACKGROUND
Plaintiff Normarily Cruz (the “Plaintiff”) seeks to
represent herself and all those similarly situated.
(Am. Compl.
at ¶ 11.)
The case centers on a debt collection letter sent by
Defendant in August 2014 to Plaintiff Normarily Cruz (the
“Plaintiff”). [Dkt. No. 10 (the “Amended Complaint”) at ¶ 24.]
Plaintiff allegedly incurred an obligation to University
Hospital, (Am. Compl. ¶ 14), and the challenged letter reads, in
pertinent part:
University Hospital has listed your past due account
with this office for collection.
To avoid further
contact from this office regarding your past due
account, return the top portion of this notice with your
payment in full.
Payments should be made payable to
University Hospital and sent to the following address.
University Hospital
P.O. Box 3009
Newark, NJ 07103-0009
If you wish to pay by credit card, complete and return
the appropriate information on the reverse side of this
letter. For prompt account resolution, credit and debit
card payments can be made by accessing our automated
interactive telephone system at 1-800-220-0260.
For
your convenience, this system is available 24 hours a
day, seven days a week.
If you have insurance that may pay all or a portion of
this debt, that information can be submitted by calling
1-800-220-0260 or by completing the information on the
reverse side of this letter and returning the entire
letter to this office at Financial Recoveries, PO Box
1388, Mt. Laurel, NJ 08054.
IMPORTANT CONSUMER NOTICE
Unless, within 30 days after receipt of this notice, you
dispute the validity of the debt or any portion thereof,
we will assume the debt to be valid. If, within 30 days
after your receipt of this notice, you notify us in
writing that the debt or any portion thereof is disputed,
we will obtain a verification of the debt, or if the
debt is founded upon a judgment, a copy of any such
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judgment, and we will mail to you a copy of such
verification or judgment. If the original creditor is
different from the creditor named above, then upon your
written request within 30 days after the receipt of this
notice we will provide you with the name and address of
the original creditor.
This Company is a debt collector. We are attempting to
collect a debt and any information obtained will be used
for that purpose.
(Am. Compl. Ex. A.)
II.
LEGAL STANDARD
The standard for review of a plaintiff's complaint under
Rule 12(c) is identical to that under Federal Rule of Civil
Procedure 12(b)(6).
See Fed. R. Civ. P. 12(h)(2); see also
Turbe v. Gov't of the Virgin Islands, 938 F.2d 427, 428 (3d Cir.
1991).
“Dismissal of a complaint pursuant to Rule 12(b)(6) is
proper ‘only if it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations.’”
Hackensack Riverkeeper, Inc. v. Del. Ostego
Corp., 450 F.Supp.2d 467, 484 (D.N.J. 2006) (quoting Hishon v.
King & Spalding, 467 U.S. 69, 73 (1984)).
The allegations
contained in the complaint will be accepted as true.
Beto, 405 U.S. 319, 322 (1972).
Cruz v.
Plaintiff will also be “given
the benefit of every favorable inference that can be drawn from
those allegations.”
(3d Cir. 1991).
Schrob v. Catterson, 948 F.2d 1402, 1405
However, the plaintiff must make factual
allegations and cannot rely on “conclusory recitations of law.”
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Pennsylvania ex rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173,
179 (3d Cir. 1988).
III. ANALYSIS
Plaintiff’s Amended Complaint asserts two causes of action,
both for alleged violations of the FDCPA.
First, Plaintiff
alleges that Defendant violated Section 1692g because its debt
collection letter contradicts or overshadows the Section 1692g
notice requirements.
(Pl.’s Br. at 5.)
Second, Plaintiff
alleges that the letter violated Section 1692e because it is
“false, deceptive and misleading.”
(Pl.’s Br. at 7.)
The Court
finds that judgment on the pleadings in favor of Defendant is
appropriate for each of these claims.
A. Section 1692g
Pursuant to Section 1692g, a notice of debt must contain
specific information.
Specifically, “[w]ithin 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[:]
(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;
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(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.A. § 1692g(a).
Thereafter, “[a]ny collection
activities and communication during the 30-day period may not
overshadow or be inconsistent with the disclosure of the
consumer's right to dispute the debt or request the name and
address of the original creditor.”
Id. at § 1692(b).
Whether a
communication overshadows or contradicts the Section 1692g
notice is evaluated from the perspective of the “least
sophisticated debtor.”
354 (3d Cir. 2000).
Wilson v. Quadramed Corp., 225 F.3d 350,
Further, “[w]hether language in a
collection letter violates the FDCPA is a question of law.”
Szczurek v. Professional Mgmt. Inc., 627 Fed. Appx. 57, 60 (3d
Cir. 2015) (quoting Wilson v. Quadramed Corp., 225 F.3d 350, 353
n.2 (3d Cir. 2000).
The least sophisticated debtor standard is designed to
protect the “gullible as well as the shrewd.”
Brown v. Card
Serv. Ctr., 464 F.3d 450, 455 (3d Cir. 2006).
Accordingly,
“[t]he least sophisticated debtor standard requires more than
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‘simply examining whether particular language would deceive or
mislead a reasonable debtor’ because a communication that would
not deceive or mislead a reasonable debtor might still deceive
or mislead the least sophisticated debtor.”
Brown v. Card
Service Center, 464 F.3d 450, 454 (3d Cir. 2006).
Nevertheless,
while the standard protects naïve 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.
“Even the least sophisticated debtor is
bound to read collection notices in their entirety.”
Campuzano-
Burgos v. Midland Credit Mgmt., Inc., 550 F.3d 294, 299 (3d Cir.
2008).
The Court is not convinced by Plaintiff’s argument that
Defendant’s letter’s language would confuse the least
sophisticated debtor as to their rights.
Plaintiff points to
the letter’s statement that: “If you have insurance that may pay
all or a portion of this debt, that information can be submitted
by calling 1-800-220-0260 or by completing the information on
the reverse side of this letter and returning the entire letter
to this office at Financial Recoveries, PO Box 1388, Mt. Laurel,
NJ 08054.”
(Compl. Ex. A.)
Plaintiff contends that this
language suggests to a debtor that if they seek to dispute the
debt because insurance will pay for the debt, she can do so by
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making a phone call to the included number.
This, if true,
would be inconsistent with the Third Circuit’s requirement that
debts be disputed in writing.
Caprio v. Healthcare Revenue
Recovery Grp., 709 F.3d 142, 146 (3d Cir. 2013).
In this context, courts have upheld requests for
information, even if that information is somewhat related to the
notion of disputing a debt, as not inconsistent with Section
1692g’s requirements.
For instance, in Panto v. Professional
Bureau of Collections, 2011 WL 843899 (D.N.J. 2011), the
challenged letter contained the language, “If you are
represented by an attorney in regards to this debt, print his or
her name, address and phone number on the stub of this letter
and return it to our office.”
Id. at *2.
The court in that
case refused to accept the plaintiff’s argument that, “the
disputed language could lead the least sophisticated consumer to
believe that sending the attorney’s contact information to
Defendant was all that was required to make a valid dispute of
the alleged debt.”
Id.
Instead, “the disputed language merely
requests that the Plaintiff alert the [defendant] to the fact
that he is represented by an attorney.”
Id. at *5.1
Here, the
The Court also finds that Smith v. Paramount Recovery, 2008 WL
4951227, at *2 (D.N.J. 2008) is distinguishable. In that case,
the court held that a letter which directed all insurance
related questions to the insurers was capable of more than one
interpretation because the language in that case suggested a
debtor could dispute a debt by contacting the insurance company.
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Court also agrees that the provision of insurer information,
much like attorney information, does not overshadow the dispute
language contained in the letter.
It should additionally be noted that, although the Third
Circuit did not explicitly analyze the exact language now
contested, the court in Szczurek was confronted with a nearidentical debt collection letter.2
627 Fed. Appx. 57, 59.
That
court took no issue, nor made any mention, of the now-contested
language.
Id.
While not dispositive, because the issue was not
before the court in that case, it is at least telling.
In
addition, the District Court in the case did explicitly note
Plaintiff’s cited language, and did so, again, without any
Id. at *2. As an initial matter, this ruling would seem to be
at odds with Watson v. Certified Credit & Collection Bureau,
2009 WL 3069397 (D.N.J. 2009) (holding that language instructing
plaintiff to contact insurance company if the plaintiffs felt
debt was assessed in error was not improper.) Regardless, the
disputed language in this case is even more benign than Smith’s,
as it merely requests the identifying information for the
potential insurer of Plaintiff if she believes the insurer is
obligated to pay the debt. This cannot be said to overshadow or
contradict the bold-faced instructions here regarding the
dispute of debts.
2 The pertinent portion of the letter in that case read: “If this
debt is for medical services and you have insurance that may pay
all or a portion of this debt, that information can be submitted
by calling 800[-]220–0260 or by completing the information on
the reverse side of this letter and returning the entire letter
to this office.” 627 F. App'x at 59.
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apparent pause.
Szczurek v. Professional Mgmt., Inc., 59 F.
Supp. 3d 721, 728 (E.D. Pa. Nov. 17, 2014).3
Finally, Plaintiff’s reliance on Caprio is misplaced.
In
that case, the Third Circuit found a violation of the FDCPA for
language which stated: “If we can answer any questions, or if
you feel you do not owe this amount, please call us toll free at
800-984-9115 or write us at the above address.”
F.3d at 150.
Caprio, 709
This language, as the Third Circuit indicated,
could reasonably have been read to mean that “Caprio could
dispute the debt by making a telephone call.”
Id. at 152.
Indeed, to this Court’s eye, it clearly suggested another means
of disputing the debt.
Here, however, the language Defendant’s
letter uses makes no reference to disputing the debt, only the
provision of insurance information related to the debt.
The
Court finds this to be a meaningful distinction, given the cases
which have held that the collection of information in a
communication with a debtor, even if arguably or tangentially
related to disputing the debt, does not violate the FDCPA.
Indeed, like this Court, the District Court in Szczurek did not
conflate the act of providing insurance information with the
formal disputing of a debt. 59 F. Supp. 3d at 728 (“The least
sophisticated debtor, reading the notice in its entirety, would
see that he had multiple options. He could, if he had medical
insurance that would pay the outstanding debt, call a telephone
number or complete the form on the reverse side of the letter
and mail the letter back to the defendant. He could, within
thirty days, notify the defendant in writing that he disputed
the debt.”).
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Defendant’s letter ultimately does not overshadow or
contradict, even when viewed from the perspective of the least
sophisticated debtor.
The challenged provision, requesting
insurance information if Plaintiff believed the insurer would
cover the debt, does nothing to impact the bold-faced language
outlining the debt dispute process.
Accordingly, Plaintiff has
not stated a claim that the letter Defendant sent to Plaintiff
violates Section 1692g.
B. Section 1692e
Because Plaintiff cannot prevail on her claim under Section
1692g, Plaintiff likewise cannot proceed under Section
1692e(10).
15 U.S.C. § 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.
Plaintiff alleges this violation based upon the
same language as her Section 1692e(10) claim.
However, when
language is upheld pursuant to Section 1692g, that analysis is
usually dispositive for Section 1692e.
See, e.g., Hernandez v.
Mercantile Adjustment Bureau, LLC, 2013 WL 6178594, at *3
(D.N.J. Nov. 22, 2013) (“When a § 1692e(10) claim is premised on
the same language or theories as a § 1692g(a)(4) claim, the
analysis of the § 1692g(a)(4) claim should be dispositive);
Ardino v. Lyons, Doughty & Veldhuis, 2011 WL 6257170, at *11
(D.N.J. Dec. 14, 2011) (dismissing Section 1692e claim which
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relied on the same grounds as faulty Section 1692g claim).
As
such, because Plaintiff has not argued any additional grounds
for a violation of Section 1692e(10) claim, the Court also finds
that Plaintiff has failed to state a claim under that section.
IV.
CONCLUSION
As set forth above, Plaintiff’s allegations do not set
forth claims for violations of the FDCPA.
As such, Defendant’s
motion for judgment on the pleadings is GRANTED. [Dkt. No. 26.]
DATED: June 28, 2016
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
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