ESTATE OF DOMENIC CARUSO v. FINANCIAL RECOVERIES

Filing 23

OPINION FILED. Signed by Magistrate Judge Joel Schneider on 6/22/17. (js)

[Doc. Nos. 19, 20]
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
ESTATE OF DOMENIC CARUSO,
Plaintiff,
v.

Civil No. 15-7936 (JS)

FINANCIAL RECOVERIES,
Defendant.
OPINION
This matter is before the Court on the “Motion for Summary
Judgment” [Doc. No. 19] filed by defendant Financial Recoveries.
Also before the Court is the “Motion for Summary Judgment as to
Count I” [Doc. No. 20] filed by plaintiff Estate of Domenic Caruso.
The Court has received plaintiff’s opposition [Doc. No. 21] and
defendant’s opposition [Doc. No. 22] to the respective motions.
Defendant and plaintiff seek summary judgment on all claims in
this putative class action.1 The Court exercises its discretion to
decide the parties’ motions without oral argument. See Fed. R.
Civ. P. 78; L. Civ. R. 78.1. Pursuant 28 U.S.C. § 636(c), the

While the parties filed separate motions for summary
judgment, due to “the shared subject-matter of the motions and the
adverseness of the arguments advanced” by the parties, the Court
will consider the parties motions as cross-motions. Formosa
Plastics Corp., U.S.A. v. Ace Am. Ins. Co., C.A. No. 06-5055, 2010
WL 4687835, at *1 n.2 (D.N.J. Nov. 9, 2010).
1

1

parties consented to the jurisdiction of this Court to hear the
case. [Doc. No. 14]. For the reasons to be discussed, defendant’s
motion will be GRANTED in part and DENIED in part; plaintiff’s
motion will be DENIED.
BACKGROUND
Plaintiff

brings

this

putative

class

action

for

alleged

violations of the Fair Debt Collection Practices Act, 15 U.S.C. §
1682 et seq. (“FDCPA”), which prohibits debt collectors from
engaging in abusive, deceptive and unfair practices. Compl. ¶ 1
[Doc. No. 1]. The original debt in this action arose from the
decedent Domenic Caruso’s death at Kennedy University Hospital
(“Kennedy”) on June 25, 2013 after suffering a cardiac arrest. See
Certificate of Death, Pl.’s Opp’n Ex. A [Doc. No. 21-1]. The
decedent’s June 23 death at Kennedy resulted in a medical bill
totaling $254.24 which Kennedy forwarded to plaintiff. The record
does not specifically indicate to whom the bill was addressed. In
response to the bill, plaintiff’s counsel wrote Kennedy on October
2, 2013 disputing the alleged debt, demanding validation of the
alleged debt, and advising that plaintiff was represented by
counsel. Pl.’s Opp’n Ex. B; Pl.’s Statement of Material Facts
(“SMF”) ¶ 2 [Doc. No. 20-2].
On

February

21,

2014,

defendant

received

the

decedent’s

account for collection from Kennedy. Defendant placed a validation
letter for the account on file to be mailed by a third-party mail
2

vendor, RevSpring, Inc. (“RevSpring”). On the same day, defendant
received confirmation from RevSpring that the February 21, 2014
validation letter was mailed to “Mr. Caurso.” Def.’s SMF ¶¶ 34-36
[Doc. No. 19-1]. Unfortunately, it is not known to what address
the letter was mailed. The record does not include the February
21,

2014

letter

because

it

no

longer

exists.

According

to

defendant, RevSpring only retains letters sent to debtors for one
year and, thus, RevSpring retained the letter until February 2015
or about nine (9) months prior to plaintiff commencing this suit.
Id. ¶¶ 26-28.
Plaintiff argues it never received the February 21, 2014
validation letter and that defendant’s October 6, 2015 letter sent
to plaintiff’s counsel was the first communication from defendant
regarding the alleged debt. Compl. ¶ 10; Pl.’s SMF ¶ 7. The October
6, 2015 letter mailed to plaintiff’s counsel was in an envelope
with a glassine window that showed counsel’s mailing address. Also
visible through the glassine window was a barcode and 9-digit
number above the address. According to plaintiff, the barcode and
number contained information unique to the decedent and his alleged
debt owed to Kennedy. Compl. ¶¶ 11-12. The substance of the October
6, 2015 letter states:

3

Re:
DOMENIC CARUSO
Fin Rec Acct#: 864760262
Balance Due:
$254.24
Dear Sir or Madam:
As you know, we are representing Kennedy Health and are
attempting to collect an amount of $254.24 from your
client.
Please provide us with an updated status of the account.
If suit has been filed, please indicate against whom.
If you have any questions, please call 800-705-9068 and
speak with one of our representatives.
This Company is a debt collector. We are attempting to
collect a debt and any information obtained will be used
for that purpose.
Def.’s Ex. A [Doc. No. 19-3]. Plaintiff alleges the October 6,
2015 letter was the first communication from defendant regarding
the alleged debt and did not contain the requisite statements in
violation of the FDCPA. Compl. ¶ 21.
Because defendant had not posted the requisite bond pursuant
to N.J.S.A. 45:18-1, plaintiff also alleges defendant was not
lawfully permitted to collect consumer debts in New Jersey in
violation of the FDCPA. Id. ¶ 24. On January 24, 2016, defendant
filed

the

requisite

bond

with

the

New

Jersey

Department

of

Treasury. Def.’s Attach. 1 [Doc. No. 19-1].

The Court notes that the October 6, 2015 letter is filed on
the public docket with the decedent’s account information
disclosed.
2

4

On November 6, 2015, plaintiff commenced this putative class
action

alleging

defendant

violated

the

FDCPA

by:

(1)

using

prohibited language or symbol on the envelope of the October 6,
2015 letter in violation of 15 U.S.C. § 1692f(8); (2) failing to
include the requisite statements in the October 6, 2015 letter in
violation of §§ 1692g(a)(3)-(5); and (3) failing to post the
requisite bond with the New Jersey Department of Treasury pursuant
to N.J.S.A. 45:18-1. See generally Compl.
The Rule 16 conference was held on July 11, 2016. The Court
deferred discovery as to class certification until defendant’s
motion for summary judgment is decided and Ordered the parties to
conduct discovery only as to the merits of plaintiff’s complaint.
July 11, 2016 Scheduling Order [Doc. No. 16]. Thereafter the
parties filed their motions. [Doc. Nos. 19, 20].
DISCUSSION
A.

Summary Judgment Standard

Pursuant

to

Fed.

R.

Civ.

P.

56,

summary

judgment

is

appropriate where the Court is satisfied that “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any . . . demonstrate the absence
of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986) (internal citations omitted). Summary
judgment is not appropriate if the dispute about a material fact
is “genuine,” that is, if the evidence is such that a reasonable
5

jury could return a verdict in favor of the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
materiality

of

a

fact

turns

on

whether

under

the

governing

substantive law a dispute over the fact might have an effect on
the outcome of the suit. Id. The Court must view all evidence and
draw all reasonable inferences in the light most favorable to the
non-moving party. See Startzell v. City of Phila., 533 F.3d 183,
192 (3d Cir. 2008) (citation omitted).
The moving party bears the initial burden of informing the
Court of the basis for its motion and demonstrating the absence of
a genuine issue of material fact. Celotex, 477 U.S. at 322-23.
Once the burden is met, the burden shifts to the non-moving party
to “set forth specific facts showing that there [are] . . . genuine
factual issues that properly can be resolved only by a finder of
fact because they may reasonably be resolved in favor of either
party.” Anderson, 477 U.S. at 250. The party opposing summary
judgment may not “rest upon mere allegation[s] or denials of his
pleading,”

but

must

set

forth

specific

facts

and

present

affirmative evidence demonstrating that there is a genuine issue
for

trial.

Additionally,

Id.
“if

at
the

256-57;

Fed.

non-moving

R.

Civ.

party’s

P.

evidence

56(c)(1)(A).
‘is

merely

colorable, . . . or is not significantly probative, . . . summary
judgment may be granted.’” Trap Rock Indus., Inc. v. Local 825,
Int’l Union of Operating Engineers, AFL-CIO, 982 F.2d 884, 890-91
6

(3d Cir. 1992) (quoting Gray v. York Newspapers, Inc., 957 F.2d
1070, 1078 (3d Cir. 1992)).
B.

Spokeo and Article III Standing

The

parties

do

not

discuss

plaintiff’s

constitutional

standing to sue under the FDCPA.3 The Court however, has an
independent obligation to determine whether it has subject matter
jurisdiction to decide plaintiff’s claim in light of the recent
decisions in the Third Circuit and this District applying Spokeo,
Inc. v. Robins, 136 S. Ct. 1540 (2016), as revised, (May 24, 2016).
See Bock v. Pressler & Presler, LLP, 658 Fed. Appx. 63, 65 (3d
Cir. 2016) (remanding the case on the defendant’s appeal of summary
judgement decision in favor of the plaintiff to determine in the
first instance whether the plaintiff has Article III standing to
maintain his FDCPA claims); see also Fuentes v. AR Res., Inc.,
C.A. No. 15-7988 (FLW/LHG), 2017 WL 1197814, at *2 (D.N.J. Mar.
31, 2017) (raising sua sponte Article III standing issue on the
parties’ cross-motions for summary judgment in a FDCPA action)
(citing Ballentine v. United States, 486 F.3d 806, 810 (3d Cir.
2007)).

The Court notes that defendant’s standing argument is
limited to plaintiff’s claim for defendant’s failure to post bond
in violation of state law and, thus, is not of material assistance
to the Court’s analysis below discussing plaintiff’s standing to
sue under specific sections of the FDCPA in light of the Supreme
Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016),
as revised, (May 24, 2016).
3

7

Under
plaintiff

Article

III

invoking

demonstrate:

“(1)

the
an

of

the

United

jurisdiction

injury-in-fact,

States
of

Constitution,

federal

(2)

a

courts

sufficient

a

must
causal

connection between the injury and the conduct complained of, and
(3) a likelihood that the injury will be redressed by a favorable
decision.” In re Nickelodeon Consumer Privacy Litig., 827 F.3d
262, 272 (3d Cir. 2016), cert. denied sub nom., C.A.F. v. Viacom
Inc., 137 S. Ct. 624 (2017). At the pleading stage, general factual
allegations may be sufficient to survive a facial challenge to a
plaintiff’s Article III standing; however, at the summary judgment
stage, the plaintiff can no longer rely on his pleadings but must
set forth affirmative evidence to establish his right to invoke
federal jurisdiction. See Bock v. Pressler & Pressler, LLP, C.A.
No. 11-7593 (KM/SCM), 2017 WL 2304643, at *3 n.3 (D.N.J. May 25,
2017)

(applying

the

summary

judgment

standard

in

determining

whether there is a factual issue as to the question of plaintiff’s
Article III standing on remand in a FDCPA action).
The
plaintiff

precise
has

standing

issue

demonstrated

an

before

the

“invasion

of

Court
a

is

whether

concrete

and

particularized legally protected interest resulting in harm that
is actual or imminent, not conjectural or hypothetical.” Bock,
2017 WL 2304643, at *5. For a harm to be “particularized,” it must
“affect

the

plaintiff

in

a

personal

and

individual

way.”

Nickelodeon, 827 F.3d at 272 (quoting Lujan v. Defs. Of Wildlife,
8

504 U.S. 555, 561 (1992)). While a “concrete” harm need not be
tangible, it must be “‘de facto; that is, it must actually exist’;
it cannot be merely ‘abstract.’” Bock, 2017 WL 2304643, at *5
(quoting Nickelodeon, 827 F.3d at 272; Spokeo, 136 S. Ct. at 1548).
In discussing the lessons of Spokeo with regard to “concrete harm,”
the Honorable Kevin McNulty, U.S.D.J., provided the following
summary, which this Court adopts:
Spokeo teaches, however, that a mere wave of the
Congressional hand—i.e., the creation of a cause of
action—is not enough to render an abstract injury
concrete. Allegations of a “bare procedural violation,
divorced from any concrete harm” cannot satisfy the
Article III injury-in-fact requirement. Spokeo 136 S.
Ct. at 1549 (citing Summers v. Earth Island Inst., 555
U.S. 488, 496 (2009) (“[D]eprivation of a procedural
right without some concrete interest that is affected by
the deprivation . . . is insufficient to create Article
III standing.”)); Nickelodeon, 827 F.3d at 274 (citing
id. at 1550). In other words, a bare violation of a
procedural right granted by statute is not inherently
injurious; to constitute an injury-in-fact, such a
violation must result in a concrete harm. That
requirement persists even where a statute “purports to
authorize [a] person to sue to vindicate [a statutory
procedural] right.” Id.; Raines v. Byrd, 521 U.S. 811,
820 n.3 (1997) (“It is settled that Congress cannot erase
Article III’s standing requirements by statutorily
granting the right to sue to a plaintiff who would not
otherwise have standing.”). “Thus, standing based [only]
on a violation of a statutorily created right turns on
whether such a right is substantive or merely
procedural.” Fuentes v. AR Res., Inc., C.A. No. 15-7988
(FLW/LHG), 2017 WL 1197814, at *3 (D.N.J. Mar. 31, 2017).
Bock, 2017 WL 2304643, at *5.
The

Court

begins

its

analysis

by

determining

whether

plaintiff has demonstrated an injury-in-fact to establish its

9

standing to sue for defendant’s alleged violation of 15 U.S.C. §
1692f(8).
C.

15 U.S.C. § 1692f(8) – Barcode and Number

The

Court

finds

that

plaintiff

has

failed

to

introduce

sufficient evidence to establish its Article III standing to sue
under § 1692f(8). In particular, the Court finds that plaintiff
failed to demonstrate any “particularized harm” with “personal and
individual” effect to confer standing when defendant mailed a
collection letter with a barcode and number visible through the
glassine envelope. See Nickelodeon, 827 F.3d at 272 (citation
omitted). This is so because the barcode and number reveal no
private information regarding the deceased debtor or his alleged
debt to Kennedy on their face or when scanned by a barcode reader.
Because the parties’ arguments regarding plaintiff’s § 1692f(8)
claim is relevant to the Court’s analysis of plaintiff’s Article
III standing, the Court will provide brief summaries.
Defendant argues summary judgment should be granted in its
favor because the barcode and number visible through the glassine
envelope of the October 6, 2015 letter are subject to the “benign
language exception” to § 1692f(8). Def.’s Br. at 13 [Doc. No. 191]. The subsection prohibits the use of “any language or symbol,
other than the debt collector’s address, on any envelope when
communicating with a consumer by use of the mails . . . except
that a debt collector may use his business name if such name does
10

not indicate that he is in the debt collection business.” 15 U.S.C.
§ 1692f(8). Defendant requests the Court to apply the “benign
language exception” because the barcode and number did not contain
any information related to the deceased debtor or his alleged debt
to Kennedy. Def.’s Br. at 12-17. In particular, defendant argues
the barcode and number simply contained a serial number created by
RevSpring for tracking purposes as required by the U.S. Postal
Service. When scanned by a barcode reader, the barcode reveals a
65-digit sequence of numbers, and the 9-digit number above the
barcode also appears in the scanned barcode. Stated differently,
the barcode, the 9-digit number, and the 65-digit sequence of
numbers do not reveal any information about the deceased debtor or
his

alleged

debt

owed

to

Kennedy.

Id.

at

11-13;

see

also

Declaration of Melissa Burns (“Burns Decl.”) ¶¶ 3-6 [Doc. No. 193].
Plaintiff alleges defendant violated § 1692f(8) because the
barcode and number on the October 6, 2015 letter was visible
through the glassine envelope and, thus, constitute

prohibited

language or symbol under § 1692f(8). Compl. ¶¶ 21(a)-(b). In its
complaint, plaintiff alleges the barcode and number contained
information that is unique to the deceased debtor, Domenic Caruso,
and the alleged debt owed to Kennedy. Compl. ¶ 12. In response to
defendant’s motion and in support of its own motion on this issue,
plaintiff now argues § 1692f(8) must be read literally and, thus,
11

no “benign language exception” exists to the subsection. Plaintiff
does not present any facts to demonstrate the barcode and number
contained information regarding the deceased debtor or his alleged
debt. Stated differently, the crux of plaintiff’s argument on this
issue is there is no “benign language exception” under § 1692f(8)
and the Third Circuit has refused to expressly adopt the exception.
Pl.’s Br. at 5-8 [Doc. No. 20-1]; see also Pl.’s Opp’n at 5-7 [Doc.
No. 21]. In support, plaintiff relies on Douglass v. Convergent
Outsourcing, 765 F.3d 299 (3d Cir. 2014), and its progeny. Pl.’s
Opp’n. at 7.
While plaintiff is correct that the Third Circuit declined to
decide whether it would adopt the “benign language exception,”
plaintiff fails to recognize the reasoning behind the decision,
which is also pertinent to the Court’s constitutional standing
analysis. In Douglass, the lower court held that the debtor’s
account number and a quick response (“QR”) code visible through a
glassine

envelope

met

the

“benign

language

exception”

to

§

1692f(8). Douglass, 765 F.3d at 300. On the debtor’s appeal, the
Third Circuit vacated and reversed the lower court’s ruling in
favor of the debt collector. The Third Circuit explained it need
not decide whether there is a “benign language exception” because
even if it exists, the language or symbol at issue—the debtor’s
account number and the QR code—revealed the debtor’s account
information including the balance of the debt when scanned by a
12

smartphone app. Id. at 303. What mattered to the Third Circuit was
that the information at issue—the debtor’s account number with the
debt collector and the QR code which revealed the debtor’s private
information when scanned by a publicly available software—cannot
be “benign” when one considers “the very reason Congress enacted
the FDCPA.” Id.
Here, [the debt collector’s] disclosure implicates a
core concern animating the FDCPA—the invasion of
privacy. Section 1692(a) of the FDCPA explains that
Congress enacted the law in response to “abundant
evidence” of abusive debt collection practices that
cause manifest harms to individuals, among them
“invasions of individual privacy.” 15 U.S.C. § 1692(a).
The disclosure of [the debtor’s] account number raises
these privacy concerns. The account number is a core
piece of information pertaining to [the debtor’s] status
as a debtor and [the debt collector’s] debt collection
effort. Disclosed to the public, it could be used to
expose her financial predicament. Because [the debt
collector’s]
disclosure
implicates
core
privacy
concerns, it cannot be deemed benign.
Id. at 303-04. The Third Circuit’s analysis of § 1692f(8) is
consistent with the FDCPA’s stated purpose “to eliminate abusive
debt collection practices by debt collectors, to insure that those
debt collectors who refrain from using abusive debt collection
practices are not competitively disadvantaged, and to promote
consistent

State

action

to

protect

consumers

against

debt

collection abuses.” 15 U.S.C. 1692(e).
To establish Article III standing post-Spokeo, a plaintiff
must allege an “invasion of a concrete and particularized legally
protected interest resulting in harm that is actual or imminent,
13

not conjectural or hypothetical.” Bock, 2017 WL 2304643, at *5. To
be particularized, the alleged harm must “affect the plaintiff in
a personal and individual way.” Nickelodeon, 827 F.3d at 272.
“Particularization is necessary to establish injury in fact, but
it is not sufficient. An injury in fact must also be ‘concrete.’”
Spokeo, 136 S. Ct. at 1548. One court in this District recently
addressed the issue of standing to sue under § 1692f(8), postSpokeo. St. Pierre v. Retrieval-Masters Creditors Bureau, Inc.,
C.A. No. 15-2596 (FLW/DEA), 2017 WL 1102635, at *1 (D.N.J. Mar.
24, 2017).
In St. Pierre, the plaintiff alleged that the defendant
violated the FDCPA by mailing a collection letter to plaintiff
that disclosed his account number through a glassine envelope. On
the defendant’s motion to dismiss, the Honorable Freda L. Wolfson,
U.S.D.J.,

held

that

the

plaintiff

sufficiently

alleged

the

concreteness of his injury due to the defendant’s alleged violation
of § 1692f(8) and denied the motion. In so holding, Judge Wolfson
relied on Douglass to note that § 1692f(8) protects a consumer’s
“right to be free from [a debt collector] disclosing his private
information, including his account number, on any debt collection
envelope.” Id. at *6 (citing Douglass, 765 F.3d at 303). Therefore,
to establish Article III standing to sue for a violation of 15
U.S.C. § 1692f(8), a plaintiff must allege that the subject
language or symbol must implicate the “core concern animating the
14

FDCPA—the invasion of privacy.” Douglass, 765 F.3d at 303. Stated
differently, the subject language or symbol must contain some
information related to the consumer or his alleged debt. Judge
Wolfson

concluded,

“because

the

FDCPA

unambiguously

grants

plaintiff a statutory right to be free from the disclosure of
private information that could expose his status as an alleged
debtor, and that the right to privacy is an interest that has long
been

recognized

concreteness

of

at
his

law,”

the

alleged

plaintiff

injury

for

had

demonstrated

Article

III

the

standing

purposes. St. Pierre, 2017 WL 1102635, at *6. Therefore, it follows
that under 15 U.S.C. § 1692f(8), post-Spokeo, a plaintiff cannot
demonstrate

“injury-in-fact”

affecting

him

in

a

personal

or

individual way without showing that the subject language or symbol
contained private information concerning plaintiff or his alleged
debt.
Here, plaintiff’s complaint alleges

defendant violated §

1692f(8) by using prohibited language and symbol visible through
a glassine envelope that contained the deceased debtor’s private
information. Compl. ¶¶ 12, 21. At the pleading stage, plaintiff’s
factual allegations may be sufficient to survive a facial challenge
to its standing to sue under § 1692f(8). See Bock, 2017 WL 2304643,
at *3 n.3. However, discovery is complete and the present matter
is before the Court on the parties’ cross-motions for summary
judgment. Therefore, plaintiff can no longer merely rely on the
15

averments in its complaint. Lujan, 504 U.S. at 561 (holding that
a plaintiff “can no longer rest on such ‘mere allegations,’ but
must ‘set forth’ by affidavit or other evidence ‘specific facts,’”
to survive a challenge to his constitutional standing at the
summary judgment stage); see also Bock, 2017 WL 2304643, at *3 n.3
(applying the summary judgment standard to decide a “factual
challenge” to the court’s jurisdiction, i.e., challenge to the
plaintiff’s standing after the completion of discovery and on the
parties’ cross-motions for summary judgment).
In

support

of

its

motion,

defendant

produced

evidence

demonstrating that the subject barcode and number do not disclose
any private information about the deceased debtor or his alleged
debt.

In

response,

however,

plaintiff

fails

to

present

any

competent evidence to raise a genuine issue of material fact as to
whether the barcode and number revealed any private information
that Congress intended to protect in enacting the FDCPA. Plaintiff
merely concludes the Third Circuit declined to expressly adopt the
“benign
evidence.

language
Given

exception”
plaintiff’s

without
failure

addressing
to

dispute

defendant’s
defendant’s

contentions, plaintiff appears to have abandoned the argument that
the barcode and number contained private information the FDCPA
intended

to

protect.

By

failing

to

introduce

evidence

to

demonstrate that defendant’s barcode and number contained some
private information regarding the deceased debtor or his alleged
16

debt on their face or when scanned by a barcode scanner, plaintiff
has failed to establish it has standing to maintain its FDCPA claim
under § 1692f(8). Lujan, 505 U.S. at 561.
In sum, without any evidence to demonstrate that the subject
barcode and number implicate the privacy concerns of the deceased
debtor that Congress intended to protect with the FDCPA, the Court
finds that plaintiff fails to show a “particularized” harm and,
thus, plaintiff lacks Article III standing to maintain an action
under

15

U.S.C.

§

1692f(8).

Stated

differently,

without

the

possibility of any private information regarding the deceased
debtor or his alleged debt to Kennedy being publicly disclosed
through a glassine envelope, the alleged risk of injury is entirely
hypothetical and conjectural and, therefore, there is no standing
to sue. See Benali v. AFNI, Inc., C.A. No. 15-3605 (BRM/DEA), 2017
WL 39558, at *7 (D.N.J. Jan. 4, 2017) (dismissing, on a motion for
summary judgment, plaintiff’s FDCPA claim for lack of standing
based on plaintiff’s testimony that he was aware the alleged debt
was not his and, thus, was at no risk of paying a convenience fee
in violation of the FDCPA).
Because plaintiff (or the deceased debtor) did not suffer an
injury-in-fact, plaintiff lacks Article III standing and its claim
under § 1692f(8) is not viable. Accordingly, defendant’s motion

17

will be GRANTED and plaintiff’s motion will be DENIED as to
plaintiff’s claim under 15 U.S.C. § 1692f(8).4

Having found that plaintiff lacks standing to maintain its
§ 1692f(8) claim, the Court need not address plaintiff’s argument
regarding the “benign language exception.” However, even without
Spokeo the Court would still grant summary judgment as to the §
1692f(8) claim.
4

Plaintiff’s reliance on Pirrone v. NCO Fin. Sys., Inc., C.A.
No. 15-4000, 2015 WL 7766393 (E.D. Pa. Nov. 30, 2015), is misplaced
because it was decided on defendant’s motion for judgment on the
pleadings. There, the amended complaint alleged the QR code at
issue revealed the account number of the alleged debt when scanned
and, thus, the court found that the amended complaint set forth
sufficient facts to state a claim for relief that is facially
plausible. Id. at *1 n.1. In the present context of summary
judgment, plaintiff failed to present any affirmative evidence to
dispute defendant’s evidence that the barcode and number did not
reveal any private information about the deceased debtor or his
alleged debt.
Plaintiff’s reliance on Park v. ARS Nat’l Servs., Inc., C.A.
No. 15-2867 (SDW/SCM), 2015 WL 6579686 (D.N.J. Oct. 30, 2015), is
also misplaced because the decision was also made in the context
of defendant’s motion for judgment on the pleadings. The Honorable
Susan D. Wigenton, U.S.D.J., followed the Third Circuit’s analysis
of § 1692f(8) and held that the plaintiff’s amended complaint
stated sufficient facts—that the barcode allegedly revealed the
plaintiff’s account number with the debt collector—to survive the
motion. In particular, the court found that because the barcode
containing account information cannot be considered benign and
implicates the “core concern animating the FDCPA—invasion of
privacy,” it need not decide whether a “benign language exception”
exists. Id. (quoting Douglass, 765 F.3d at 303). Therefore,
plaintiff’s reliance on Pirrone and Park is inapposite.
Further, plaintiff attempts to distinguish Anenkova v. Van Ru
Credit Corp., 201 F. Supp. 3d 631 (E.D. Pa. 2016), appeal
dismissed, (3d Cir. Jan. 30, 2017). In Anenkova, the court granted
the defendant’s motion for summary judgment after recognizing that
the barcode at issue did not contain any information regarding the
debtor or the alleged debt. Id. at 638-39. Plaintiff argues the
case is distinguishable because it involved only a barcode and not
a number and barcode that exists here. Plaintiff further speculates
the district court’s decision is likely to be overturned on appeal.
Pl.’s Br. at 7. However, plaintiff fails to recognize the opinion
18

D.

15 U.S.C. § 1692g(a) – Notice Statements

The Court finds there is a genuine issue of material fact
regarding whether defendant’s initial letter to plaintiff included
the

requisite

statements,

precluding

summary

judgment

on

plaintiff’s claims under 15 U.S.C. §§ 1692g(a)(3)-(5).5
Defendant argues summary judgment should be granted in its
favor because the October 6, 2015 letter was not its initial
communication with plaintiff in its attempt to collect the debt

decided defendant’s summary judgment motion and the movant set
forth evidence that the barcode did not contain or resemble the
debtors’ account number when scanned. Anenkova, 201 F. Supp. 3d at
633. Stated differently, the court held that the barcode or the
information revealed when scanned “served a legitimate purpose and
did not implicate the FDCPA’s purpose to prohibit abusive debt
collection practices and to protect the debtor’s privacy.” Id. at
639.
Here, the Court finds there is no fact question that the
barcode and number on plaintiff’s envelope do not implicate any
information that runs counter to the “core concern animating the
FDCPA—invasion of privacy.” Accordingly, the barcode and number
are benign. This is so because the number and barcode served a
legitimate purpose of tracking the letter by RevSpring. The Court
is required to “construe statutes sensibly and avoid constructions
which yield absurd or unjust result.” Dorman v. Computer Credit,
Inc., 154 F. Supp. 3d 126, 130 (D.N.J. 2015), appeal dismissed,
(3d Cir. Mar. 21, 2016) (quoting United States v. Fontaine, 697
F.3d 221, 227 (3d Cir. 2012)). Plaintiff may not merely rest upon
the allegations of its complaint, but it must present affirmative
evidence that the barcode and number at issue revealed private
information regarding the deceased debtor or his alleged debt that
Congress intended to protect with the FDCPA. Anderson, 477 U.S. at
256-57; Fed. R. Civ. P. 56(c)(1)(A). Plaintiff failed to do this.
In contrast to the Court’s discussion of plaintiff’s
constitutional standing to sue under 15 U.S.C. § 1692f(8), there
are fact questions as to whether plaintiff has standing to assert
claims under §§ 1692g(a)(3)-(5).
5

19

and, thus, the requisite statements pursuant to §§ 1692g(a)(3)(5) were not required in the October 6 letter. The subsections
require debt collectors to include a statement in their initial
communication with the debtor that the debtor may dispute the
validity of a debt, request verification of the debt, and request
the name and address of the original creditor. 15 U.S.C. §§
1692g(a)(3)-(5).

Defendant contends the requisite statements were

included in the February 21, 2014 letter mailed to “Mr. Caruso.”
In particular, defendant argues “the only way that the October 6,
2015 letter seeking a status [of the account] makes any sense” is
that a prior letter had been sent. Def.’s Br. at 19-20. In support,
defendant submitted its internal records that purport to reveal
defendant received the decedent’s account from Kennedy and a
validation letter was placed on file to be mailed to “Mr. Caruso”
on February 21, 2014. Defendant’s internal records further reveal
it received a confirmation from RevSpring on February 25, 2014
that the February 21 letter was mailed to “Mr. Caruso” and the
letter was not returned as undeliverable. Id. at 20-21; see also
Declaration of Sue Hanzel (“Hanzel Decl.”) ¶¶ 23-24 [Doc. No. 192]. Defendant also submitted a form validation letter with the
requisite

statements

it

uses

as

a

template

for

initial

communications with debtors. Def.’s Br. at 20; see also Def.’s Ex.
B [Doc. No. 19-2]. Defendant, however, cannot produce a copy of
the actual letter mailed to “Mr. Caruso” on February 21, 2014
20

because it allegedly no longer exists. Defendant explains that
RevSpring’s policy is to retain letters sent to debtors for one
(1) year and, thus, RevSpring only retained the February 21, 2014
letter until on or about February 21, 2015, approximately nine (9)
months prior to plaintiff commencing this action. Def.’s Br. at
20; see also Hanzel Decl. ¶¶ 15-26. Based on the February 21, 2014
letter,

defendant

also

argues

plaintiff’s

claims

under

§§

1692g(a)(3)-(5) are barred by the one-year statute of limitations
for FDCPA claims. Def.’s Br. at 23-24.
Plaintiff argues it never received the February 21, 2014
letter and that the October 6, 2015 letter to plaintiff’s counsel
was the initial communication received from defendant. Plaintiff
questions

the

veracity

of

defendant’s

representation

that

a

validation letter with the requisite statements was mailed to
plaintiff or its counsel. Pl.’s Br. at 8. In support, plaintiff
submitted a Declaration executed by its counsel, certifying that
the October 6, 2015 letter was the first communication counsel
received from defendant. Declaration of Thomas P. Kelly III, Esq.
(“Kelly Decl.”) ¶ 5 [Doc. No. 20-3].
The Court finds a fact dispute exists that precludes summary
judgment for either party. Defendant cannot produce a copy of the
February 21, 2014 letter mailed to “Mr. Caruso.” It is not even
entirely clear from the record whether defendant mailed the letter
to the deceased debtor, William Caruso (the Executor of the Estate)
21

or plaintiff’s counsel. Defendant simply states it mailed the
February 2014 letter to “Mr. Caruso.” Defendant relies on its
internal records which indicate a letter was sent on February 21,
2014, and a form letter showing what the letter would have stated,
i.e., the requisite statements pursuant to §§ 1692g(a)(3)-(5). The
Court finds this evidence falls short of establishing that the
February 21, 2014 letter was, in fact, mailed to the right party.6
See Turner v. Prof’l Recovery Servs., Inc., 956 F. Supp. 2d 573,
577 (D.N.J. 2013) (denying the defendant’s motion for summary
judgment due to “quintessential fact question that must be resolved
by a jury” based on the defendant’s internal records that show it
never called the plaintiff after 9:00 p.m. in an attempt to collect
debt in violation of 15 U.S.C. § 1692c(a)(1) and the plaintiff’s
affidavit stating she received phone calls after 9:00 p.m.); see
also Jarzyna v. Home Props., L.P., 114 F. Supp. 3d 243, 256-60
(E.D. Pa. 2015), on reconsideration in part, C.A. No. 10-4191,
2015 WL 12834385 (E.D. Pa. Aug. 13, 2015), and recon. den., 185 F.
Supp. 3d 612 (E.D. Pa. 2016) (denying cross-motions for summary
judgment because even assuming that the initial letter contained
the required disclosures, it remains a question of fact as to
whether the letter was ever sent or received); Lee v. Credit Mgmt.,

15 U.S.C. § 1692c(a)(2) prohibits debt collectors from
communicating with the debtor if the debt collector knows the
debtor is represented by an attorney. To be sure, the Court is not
deciding there was a violation of § 1692c(a)(2).
6

22

LP, 846 F. Supp. 2d 716, 726 (S.D. Tex. 2012) (denying crossmotions for summary judgment because without the actual letter
sent to the debtor, material fact issues exist as to whether the
statutory notice was included in the letter despite the defendant’s
evidence that relied on internal records/logs indicating that the
initial letter should have been sent, along with a form letter
showing what the letter would have stated). Accordingly, the
parties’ cross-motions for summary judgment will be DENIED as to
plaintiff’s claims under §§ 1692g(a)(3)-(5).7
E.

N.J.S.A. 45:18-1 – Bond Requirement under State Law

Plaintiff

alleges

that

defendant’s

failure

to

post

the

requisite bond pursuant to N.J.S.A. 45:18-1 violates the FDCPA.
Compl. ¶ 24. Defendant seeks summary judgment on plaintiff’s claim
for failure to post bond under state law because plaintiff lacks
standing and the issue is moot. Def.’s Br. at 25. The Court agrees
with defendant on the standing issue.

The Court need not discuss defendant’s statute of
limitations argument in detail. Plaintiff’s FDCPA claims arise
from the October 6, 2015 letter. The complaint was filed on
November 6, 2015, well within the one-year statute of limitations
for claims under the FDCPA. 15 U.S.C. § 1692k(d). Defendant argues
since the initial letter was mailed on February 21, 2014, the
statute of limitations for plaintiff’s claims expired on or about
February 21, 2015. There is a fact dispute as to whether the
February 21, 2014 letter was mailed and, if it was, to whom.
Accordingly, defendant’s summary judgment motion directed to the
statute of limitations is denied.
7

23

The Courts agree with defendant that plaintiff lacks standing
to bring a FDCPA claim for failure to post the requisite bond under
state law. The state bonding statute provides:
No person shall conduct a collection agency . . . in
this state, or engage therein in the business of
collecting or receiving payment for others of any
account, bill or other indebtedness, or engage therein
in the business of soliciting the right to collect or
receive payment for another of any account, bill or other
indebtedness, or advertise for or solicit in print the
right to collect or receive payment for another of any
account, bill or other indebtedness, unless such person,
or the person for whom he may be acting as agent has on
file with the secretary of state sufficient bond as
hereinafter specified.
N.J.S.A. 45:18-1.
In opposing defendant’s motion,8 plaintiff merely argues that
defendant fails to cite to “any authority other than the law
itself.” Pl.’s Opp’n at 10. The Court rejects plaintiff’s argument.
The penalty for failure to post bond under the chapter (N.J.S.A.
45:18) is provided as a “fine of not more than five hundred dollars
or to imprisonment for not more than three months, or both.”
N.J.S.A. 45:18-5. This evidences there is no private cause of
action for defendant’s failure to post the requisite bond with the
New Jersey Secretary of State. See Skinner v. Asset Acceptance,
LLC, 876 F. Supp. 2d 473, 479 (D.N.J. 2012) (“Though defendant’s

In support of its motion for summary judgment, plaintiff
did not discuss its FDCPA claim for defendant’s alleged violation
of the bonding requirement under N.J.S.A. 45:18-1. See generally
Pl.’s Br. [Doc. No. 20-1].
8

24

attempt to collect a debt in New Jersey without filing the required
bond

may

have

been

contrary

to

New

Jersey

law,

defendant’s

challenged conduct must also stand as a violation of the FDCPA in
order for plaintiff to maintain her claim. The state law violation
itself is not a per se violation of the FDCPA.”) (citing LeBlanc
v. Unifund CCR Partners, 601 F.3d 1185, 1192 (11th Cir. 2010);
Wade v. Regional Credit Ass’n, 87 F.3d 1098, 1100 (9th Cir. 1996)).
Accordingly, defendant’s motion will be GRANTED as to plaintiff’s
FDCPA

claim

for

defendant’s

violation

of

N.J.S.A.

45:18-1.

CONCLUSION
In conclusion, plaintiff fails to demonstrate there are fact
questions that need to be resolved as to its claim under 15 U.S.C.
§

1692f(8).

Neither

the

barcode

or

number

implicate

privacy

concerns regarding the deceased debtor or his alleged debt to
confer constitutional standing to plaintiff to bring suit under §
1692f(8). As to plaintiff’s claims under 15 U.S.C. §§ 1692g(a)(3)(5), the Court finds there exists a fact question as to whether
the February 21, 2014 letter was mailed to the right party, if
mailed at all. With regard to plaintiff’s claim under N.J.S.A.
45:18-1, it fails because plaintiff lacks standing. Accordingly,
defendant’s motion will be GRANTED and plaintiff’s motion will be
DENIED as to plaintiff’s claim under 15 U.S.C. § 1692f(8). The
cross-motions

as

to

plaintiff’s

15

U.S.C.

§§

1692g(a)(3)-(5)

claims will be DENIED. As to plaintiff’s claim for a violation of
25

N.J.S.A.

45:18-1,

defendant’s

motion

will

be

GRANTED.

An

appropriate Order will be separately entered.

/s/ Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge

Dated: June 22, 2017

26