ROBINSON v. NORTHLAND GROUP, INC. et al
Filing
22
OPINION. Signed by Judge Noel L. Hillman on 7/18/2018. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
IMANI ROBINSON, on behalf of
herself and all others
similarly situated,
Case No. 1:17-cv-12023
OPINION
Plaintiff,
v.
NORTHLAND GROUP, INC.,
Defendant.
APPEARANCES:
JOSEPH K. JONES
BENJAMIN J. WOLF
JONES, WOLF & KAPASI, LLC
375 PASSAIC AVENUE, SUITE 100
FAIRFIELD, NJ 07004
On behalf of plaintiff
ANDREW J. BLADY
SESSIONS, FISHMAN, NATHAN & ISRAEL
3682 GREEN RIDGE ROAD
FURLONG, PA 18925
On behalf of defendant
Hillman, District Judge
Presently before the Court is the motion of defendant to
dismiss plaintiff’s putative class action claims for defendant’s
alleged violations of the Fair Debt Collection Practices Act
(“FDCPA”).
For the reasons expressed below, defendant’s motion
will be granted.
BACKGROUND
Plaintiff, Imani Robinson, claims that defendant, Northland
Group Inc., violated the Fair Debt Collection Practices Act, 15
U.S.C. § 1692, et seq., when it sent her a notice regarding an
unpaid debt.
Plaintiff claims that defendant did not comply
with § 1692g(a)(3), which requires debt collectors to inform
debtors that a debt dispute must be in writing in order to be
valid.
Plaintiff claims that defendant led the debtor to
believe that she could orally dispute her debt in violation of §
1692e(10), which provides that a debt collector may not use
false, deceptive, or misleading misrepresentations in connection
with the collection of any debt.
Defendant has moved to dismiss plaintiff’s complaint for
failure to state a claim for § 1692g(a)(3) and § 1692e(10)
violations.
Plaintiff has opposed defendant’s motion.
DISCUSSION
A. Jurisdiction
This Court has jurisdiction over plaintiff’s federal
statutory claims under 28 U.S.C. § 1331.
B. Standard for Motion to Dismiss
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
It is well
settled that a pleading is sufficient if it contains “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
Under the
liberal federal pleading rules, it is not necessary to plead
evidence, and it is not necessary to plead all the facts that
serve as a basis for the claim.
F.2d 434, 446 (3d Cir. 1977).
Bogosian v. Gulf Oil Corp., 562
However, “[a]lthough the Federal
Rules of Civil Procedure do not require a claimant to set forth
an intricately detailed description of the asserted basis for
relief, they do require that the pleadings give defendant fair
notice of what the plaintiff’s claim is and the grounds upon
which it rests.”
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S.
147, 149-50 n.3 (1984) (quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claim.’”
Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007)
(quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in
Twombly expounded the pleading standard for ‘all civil actions’
. . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009) (“Iqbal . . . provides the final nail-in-the-coffin for
the ‘no set of facts’ standard that applied to federal
complaints before Twombly.”).
Following the Twombly/Iqbal standard, the Third Circuit has
instructed a two-part analysis in reviewing a complaint under
Rule 12(b)(6).
First, the factual and legal elements of a claim
should be separated; a district court must accept all of the
complaint's well-pleaded facts as true, but may disregard any
legal conclusions.
S. Ct. at 1950).
Fowler, 578 F.3d at 210 (citing Iqbal, 129
Second, a district court must then determine
whether the facts alleged in the complaint are sufficient to
show that the plaintiff has a “‘plausible claim for relief.’”
Id. (quoting Iqbal, 129 S. Ct. at 1950).
A complaint must do
more than allege the plaintiff's entitlement to relief.
Id.;
see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d
Cir. 2008) (stating that the “Supreme Court's Twombly
formulation of the pleading standard can be summed up thus:
‘stating . . . a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element.
This
‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of’
the necessary element”).
A court need not credit either “bald assertions” or “legal
conclusions” in a complaint when deciding a motion to dismiss.
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 142930 (3d Cir. 1997).
The defendant bears the burden of showing
that no claim has been presented.
Hedges v. U.S., 404 F.3d 744,
750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor,
Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
A court in reviewing a Rule 12(b)(6) motion must only
consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.
S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,
181 F.3d 410, 426 (3d Cir. 1999).
A court may consider,
however, “an undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the plaintiff’s
claims are based on the document.”
Pension Benefit Guar. Corp.
v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993).
If any other matters outside the pleadings are presented
to the court, and the court does not exclude those matters, a
Rule 12(b)(6) motion will be treated as a summary judgment
motion pursuant to Rule 56.
Fed. R. Civ. P. 12(b)(6).
C. Analysis
The purpose of the FDCPA is “to eliminate abusive,
deceptive and unfair debt collection practices by debt
collectors, to ensure 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 abuse.”
U.S.C. § 1692(e).
15
The FDCPA establishes a private cause of
action against debt collectors who fail to comply with its
provisions.
Grubb v. Green Tree Servicing, LLC, No. 13-07421
(FLW), 2014 WL 369626, at *4 (D.N.J. July 24, 2014).
It is a
remedial statute where the terms and language of the statute are
interpreted broadly to effectuate the purpose of the statute.
Brown v. Card Service Center, 464 F.3d 450, 453 (3d Cir. 2006).
Moreover, the FDCPA is a strict liability statute.
Allen ex
rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 368 (3d Cir.
2011) (“The FDCPA is a strict liability statute to the extent
that it imposes liability without proof of an intentional
violation.”).
Relevant to the case here, the provision governing a debt
collector’s notice of debt to the consumer provides:
a) Notice of debt; contents
Within 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; (4) a statement that if the consumer
notifies the debt collector in writing within the thirtyday 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).
This portion of the statute, referred to as the debt
validation provisions, was included to ensure that lay consumers
received notice of their rights.
F.3d 350, 354 (3d Cir. 2000).
Wilson v. Quadramed Corp., 225
The Court recognizes that the
Third Circuit has required debt collectors to inform debtors
that debt disputes need to be in writing to be valid.
Graziano
v. Harrison, 950 F.2d 107 (3d Cir. 1991) (“We therefore conclude
that subsection (a)(3), like subsection (a)(4) and (a)(5),
contemplates that any dispute, to be effective, must be in
writing.”).
Plaintiff claims that the notice letter informing her of
her rights was not conveyed in accordance with § 1692g(a)(3).
The notice letter is a one-sided document with three paragraphs.
The last two paragraphs, relevant to plaintiff’s claims, state:
Unless you notify this office within 30 days after
receiving this notice that you dispute the validity of this
debt, or any portion thereof, this office will assume this
debt is valid. If you notify this office in writing within
30 days after receiving this notice that you dispute the
validity of this debt, or any portion thereof, this office
will obtain verification of the debt or obtain a copy of a
judgment and mail you a copy of such judgment or
verification. If you request of this office in writing
within 30 days after receiving this notice this office will
provide you with the name and address of the original
creditor, if different from the current creditor.
Should you have any questions regarding this account,
please feel free to call us at 866-277-9745 ext. 3203. We
look forward to hearing from you.
(Docket No. 1 at 14)(emphasis added).
Plaintiff does not contend that the second paragraph of the
notice (the first paragraph above) containing the consumer’s
rights violates the FDCPA, but she argues that the language of
the third paragraph (the second paragraph above and highlighted)
violates § 1692g(a)(3) and § 1692e(10) by failing to effectively
communicate the proper way to dispute her debt.
Plaintiff
argues that “[s]hould you have any questions regarding this
account, please feel free to call us at 866-277-9745 . . .” and
“[w]e look forward to hearing from you” overshadows and
contradicts the rights laid out in the second paragraph of the
notice.
This is because, plaintiff argues, the least sophisticated
debtor – which is the standard to be applied to assessing debt
collection notices - would misunderstand the wording to allow
the debtor to dispute her debt orally which is legally
insufficient in this Circuit.
Contrary to plaintiff’s position,
defendant argues that the invitation to call with any questions
does not overshadow and contradict the validation notice.
In all cases, the required notice must be conveyed
effectively, and to determine whether a validation notice is
proper, as noted above, the Court must interpret the notice in
the perspective of the “least sophisticated debtor.”
Wilson,
225 F.3d at 354-55 (“[A]lthough this 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.”
(quotation and citation omitted)).
The Third Circuit directs that in order to determine
whether a collection letter adequately provides an
unsophisticated consumer notice of her rights, a court must
evaluate the form and the substance of the letter to determine
whether the statutory required notice has been overshadowed or
contradicted by the entirety of the letter.
For example, in Caprio v. Healthcare Revenue Recovery
Group, LLC, 709 F.3d 142 (3rd Cir. 2013) the collection letter
sent to the debtor was a double-sided document that consisted of
the following:
The health care provider(s) listed below, recently
hired Healthcare Revenue Recovery Group, LLC (HRRG) to
collect the balance on this account. Our client's records
show you as the person responsible for payment of the
charges for PHYSICIAN SERVICES.
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. This is an attempt
to collect a debt. Any information obtained will be used
for that purpose. (NOTICE: SEE REVERSE SIDE FOR IMPORTANT
INFORMATION.)
You may send payment in full. Just fill in your credit
card information on the reverse, or enclose your
check/money order payable to the creditor along with the
payment voucher below. The reply envelope provided needs no
postage. Unless specified, your payment will be applied to
the oldest balance first.
We hope to have your full cooperation in this
collection matter.
Id. at 145 (emphasis in original).
The reverse side of the
collection letter contained:
Pursuant to Sec. 809 of the Fair Debt Collection
Practices Act, unless you notify this office within 30 days
after receiving this notice that you dispute the validity
of this debt or any portion thereof, this office will
assume this debt is valid. If you notify this office in
writing within 30 days from receiving this notice that you
dispute the validity of this debt or any portion thereof,
this office will: obtain verification of the debt or obtain
a copy of a judgement [sic] and mail you a copy of such
judgement [sic] or verification. If you request this office
in writing within 30 days after receiving this notice, this
office will provide you with the name and address of the
original creditor, if different from the current creditor.
Id.
The Third Circuit held that the letter was deceptive
because it could be read to have two or more different meanings,
one of which was inaccurate.
Id. at 152.
The Third Circuit
determined that the validation notice on the backside of the
letter was overshadowed or contradicted both in substance and in
form by the front side of the collection letter because it would
lead the least sophisticated debtor to take the legally
insufficient but easier mode of oral contact to dispute the
debt.
Id.; see also Laniado v. Certified Credit & Collection
Bureau, 705 F. App’x 87 (3d Cir. 2017)(unpublished)(finding that
“should there be any discrepancy please call” language
overshadowed the statutory required validation notice).
In contrast, in Wilson, the Third Circuit found that the
one-page debt collection letter in that case containing three
paragraphs, all of which in the same size font, did not violate
the FDCPA.
There, the collection letter provided:
Our client has placed your account with us for immediate
collection. We shall afford you the opportunity to pay this
bill immediately and avoid further action against you.
To insure immediate credit to your account, make your check
or money order payable to ERI. Be sure to include the top
portion of this statement and place your account number on
your remittance.
Unless you notify this office within 30 days after
receiving this notice that you dispute the validity of this
debt or any portion thereof, this office will assume this
debt is valid. If you notify this office in writing within
30 days from receiving this notice, this office will obtain
verification of the debt or obtain a copy of a judgement
and mail you a copy of such judgement or verification. If
you request this office in writing within 30 days after
receiving this notice this office will provide you with the
name and address of the original creditor, if different
from the current creditor.
Wilson, 225 F.3d at 352.
The Third Circuit found that this collection letter did not
violate § 1692g(a), explaining:
We find that, contrary to Wilson's argument, the
collection letter did not violate section 1692g of the Act
for the reason that the first two paragraphs of the
collection letter neither overshadow nor contradict the
validation notice. First of all, upon review of the
physical characteristics and form of the letter, we have
concluded that the first two paragraphs of the letter do
not overshadow the validation notice. The validation
notice was presented in the same font, size and color typeface as the first two paragraphs of the letter. Moreover,
the required notice was set forth on the front page of the
letter immediately following the two paragraphs that Wilson
contends overshadow and contradict the validation notice.
Accordingly, Wilson's overshadowing claim must fail.
Second, an actual or apparent contradiction between
the first two paragraphs and the third one containing the
validation notice does not exist here. Unlike the
collection letter in Graziano, which demanded payment
within ten days and threatened immediate legal action if
payment was not made in that time, Quadramed's letter makes
no such demand or threat. Instead, Wilson is presented with
two options: (1) an opportunity to pay the debt immediately
and avoid further action, or (2) notify Quadramed within
thirty days after receiving the collection letter that he
disputes the validity of the debt. As written, the letter
does not emphasize one option over the other, or suggest
that Wilson forego the second option in favor of immediate
payment. Thus, we find the least sophisticated debtor would
not be induced to overlook his statutory right to dispute
the debt within thirty days.
Id. at 356.
Although it was not central to the decision, it is
important to note that information similar to the information
Plaintiff finds offensive in this case was in the collection
letter in Wilson.
More specifically, the Wilson collection
letter included the debt collector’s name and address and closed
with the name of the debt collector representative “and her
telephone number.”
Id. at 352.
Moreover, in finding no
violation of the statute, the Wilson panel cited with approval
two cases in which the debt collector facilitated and encouraged
oral communications with the debtor.
See Terran v. Kaplan, 109
F.3d 1428, 1430 (9th Cir. 1997) (use of “[u]nless an immediate
telephone call is made” did not overshadow or contradict
validation notice); Vasquez v. Gertler & Gertler, Ltd., 987 F.
Supp. 652, 657 (N.D. Ill. 1997) (use of “contact[] me without
further delay” did not overshadow or contradict validation
notice).
Thus, a careful reading of Wilson and Caprio together
suggests that in this Circuit merely providing contact
information and encouraging a telephone call are insufficient
standing alone to undermine an otherwise clear validation
notice.
Rather, the contact information or other language must be
used in such a way as to confuse the least sophisticated debtor
or offer an inaccurate choice of action.
See Caprio, 709 F.3d
at 152-54 (contrasting collection letters that merely encourage
calls to “answer any questions” with letters that undermine the
30 day period to dispute the debt in writing by demanding
immediate payment or telephone call to dispute debt).
For example, in Magana v. Amcol Systems, Inc., No. 17-cv11541 (RBK), 2018 WL 2723828 at *1 (D.N.J. June 6, 2018), a case
almost identical to the instant matter, the court found that a
one-page collection letter containing three paragraphs of text
to be in compliance with the FDCPA.
The first paragraph stated,
in pertinent part, “[i]f you need help with this bill, or have
questions, please contact our office where a representative is
on hand to assist you.”
Id.
The second paragraph contained:
Unless you notify this office within 30 days and after
receiving this notice that you dispute the validity of this
debt or any portion thereof, this office will assume this
debt is valid. If you notify this office in writing within
30 days from receiving this notice that you dispute the
validity of this debt or obtain verification of the debt or
obtain a copy of a judgment and mail you a copy of such
judgement or verification. If you request this office in
writing within 30 days after receiving this notice this
office will provide you with the name and address of the
original creditor, if different from the current creditor.
Id.
The final paragraph of text in the notice informed the
debtor of information on the hospital’s financial assistance
policy, and provided a telephone number for interested customers
to inquire into additional information about the policy and
application process.
Id.
The Court in Magana found that the collection letter did
not violate § 1692g(a):
While the Court finds the language in the first
paragraph to be less than a model of clarity or
comprehensiveness, it does not find that it overshadows or
contradicts the second paragraph’s recitation of the
writing requirement, even from the view of the least
sophisticated debtor.
The Court also does not find that the third paragraph,
whether taken on its own or in conjunction with the first,
could be read to overshadow or contradict the writing
requirement contained in the second. The final paragraph
informs the debtor that she may qualify for the hospital’s
financial assistance policy, and that if she would like to
“request additional information about the policy and
application process,” the debtor should call the number
listed . . . .
Id. at *5.
Applying the view of the least sophisticated debtor, the
Court found that the invitation to call with any questions did
not overshadow or contradict the second paragraph’s accurate
recitation of the writing requirement found in the statutory
language.
Id.; see id. at *4 (“One must stretch their
imagination past the point of discomfort, and past the point of
the least sophisticated debtor, to read the phrase ‘please
contact’ for ‘questions’ as being equivalent to an invitation to
call to dispute, quarrel, or argue over the validity of a
claim.”).
In an attempt to distinguish Wilson, Magana, and other
similar cases, 1 plaintiff contends that the language “hearing
1
See, e.g., Reynolds v. Encore Receivable Management, Inc., No.
17-2207 (JMV) (MF) 2018 WL 2278105 at *5 (D.N.J. May 18, 2018)
(holding that the invitation to call if plaintiff already paid
her debt did not overshadow or contradict the validation notice
because it was formatted in the same font, size and color as
other text and the notice is all on one page of the document);
Riccio v. Sentry Credit, Inc., No. 17-1773 (BRM)(TJB) 2018 WL
638748 (D.N.J. Jan. 31, 2018) (holding that the invitation for
the consumer to contact defendant by phone, mail, or via
website, as provided in the display boxes, did not overshadow or
contradict the validation notice directly above because it
merely was providing the consumer with the debt collector’s
contact information); Borozan v. Financial Recovery Services,
Inc., No. 17-11542 (FLW), 2018 WL 3085217 at *6 (D.N.J. June 22,
2018) (finding that the general invitation to call or use the
online help desk did not overshadow or contradict the validation
from you” is analogous to how the debt collector used it in
Homer v. Law Offices of Frederic I. Weinberg & Assoc., P.C., 292
F. Supp. 3d 629, 631 (E.D. Pa. 2017).
In Homer, the language
“hears from you” was used within the statutorily required
paragraph of the debt collection notice informing the consumer
of their rights.
Id. at 631.
The letter there read, “Unless
his office hears from you within thirty (30) days after the
receipt of this letter that you dispute the validity of the
debt, or any portion of thereof, this office will assume the
debt is valid.”
Id.
Within the same paragraph, the validation
letter included the statutorily required notice of the writing
requirement consistent with § 1692g(a)(4) and § 1692g(a)(5).
Id.
The Court found, however, that the “hears from you”
language was not a colloquial phrase that would be understood by
the least sophisticated debtor to mean that a dispute must be in
writing.
Id. at 632.
The Homer Court accurately describes the dilemma that has
arisen in this Circuit in light of the holding in Graziano
interpreting § 1692g(a)(3) to require a consumer to dispute the
debt in writing.
Id. at 632-33.
In contrast to our Circuit, no
consumer confusion can arise when a debt collector provides a 1-
notice in the following paragraph because the substance and form
of the letter as a whole would not lead the least sophisticated
consumer to multiple interpretations).
800 number or otherwise encourages oral communication with the
debtor in those Circuits where no writing is required to dispute
the debt.
Id.
The issue district courts in this Circuit have
been grappling with is under what circumstances a debt collector
can encourage oral communication without leading the least
sophisticated debtor to believe, incorrectly, that she can
effectively dispute the debt orally.
This Court’s review of the relevant precedents in this
Circuit does not establish that Graziano and its progeny have
the effect of creating a per se rule barring a debt collector
from encouraging oral communication.
Indeed, both Caprio and
Laniado involved solicitations for oral communications and
turned on the narrower grounds that the particular way the debt
collectors worded and communicated that invitation in
conjunction with the statutory notice created the potential for
consumer confusion.
And as noted above the Wilson case involved
language facilitating telephone communications.
We believe,
therefore, the inquiry to be fact-specific and the touchstone to
be whether the particular language facilitating oral
communication has the effect of overshadowing or contradicting
language that otherwise complies with the statutorily required
notice.
Under this view, Homer is dissimilar to the case at bar.
In this case, the “hearing from you” language is not intertwined
with the statutory required notice concerning a disputed debt as
it was in Homer.
Instead, it is used in the context of a
general invitation to call about any questions in a separate,
closing paragraph.
This invitation is separate and apart from
the statutory required language.
To read “hearing from you”
into the previous paragraph which uses language nearly identical
to that which is required by § 1692g(a) would be a “bizarre and
idiosyncratic interpretation of the letter as a whole.”
Magana,
2018 WL 2723828 at *4.
Moreover, the Court finds that through the lens of the
least sophisticated debtor, it is clear that the collection
letter at issue here adequately provides an unsophisticated
consumer with her rights, as required by FDCPA.
See Caprio, 709
F.3d 142, 149 (“[T]he standard does not go so far as to provide
solace to the willfully blind or non-observant.
The debtor is
still held to a quotient of reasonableness, a basic level of
understanding, and a willingness to read with care . .
(quotations and citations omitted).
. .”)
The third paragraph in
defendant’s collection letter does not overshadow or contradict
the prior paragraph informing plaintiff of her rights because
the invitation to call within the last paragraph is the same
font, size, and color type face as the other two paragraphs.
In addition, unlike the letter in Caprio which instructed
the consumer to call if she had any questions related to
disputing her debt, the collection letter in this case does not
invite the consumer to call if she uncovers any discrepancies in
her debt or if she feels she did not owe this debt.
It only
invites her to call if she has general questions regarding the
account.
This distinguishes this case from Caprio and the
unpublished decision in Laniado and makes it more akin to
Wilson.
Absent a rule from our Circuit barring any language
encouraging or facilitating oral communication with the debt
collector, this Court holds that the language in this case,
placed where it was and presented as it was, is innocuous at
worst and does not violate the statute.
Because plaintiff’s § 1692g(a)(3) claim fails, plaintiff’s
§ 1692e(10) claim likewise fails.
Id. at *6.
Section 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.”
15 U.S.C. § 1692e(10).
“When allegations under 15 U.S.C. § 1692e(10) are based on the
same language or theories as allegations under 15 U.S.C. §
1692g, the analysis of the § 1692g claim is usually
dispositive.”
Caprio, 709 F.3d at 154; see Reynolds, 2018 WL
2278105 at *6 (“In making its § 1692(e)(10) argument, plaintiff
relies on the same language contained in the first paragraph of
the collection letter that it relied on in its § 1692(g)(a)(3)
argument.
Thus, this Court ‘must reach the same conclusion with
respect to the claim brought under § 1692(e)(10).’”).
Even if,
however, the judgment on the § 1692g(a)(3) claim is not
dispositive of the § 1692e(10) claim, the language used in the
debt collection letter is not “a false representation or
deceptive,” because the language cannot be “reasonably read to
have two or more different meanings, one of which is incorrect.”
Magana, 2018 WL 2723828 at *6 (quoting Rosenau v. Unifund Corp.,
539 F.3d 218, 222 (3d Cir. 2008)).
The letter reasonably
articulates to plaintiff, accurately tracking the statutory
language, that to legally dispute her debt it must be in
writing.
In sum, the debt collection letter adequately informs
plaintiff how to dispute her debt in compliance with the
requirements of the FDCPA.
Consequently, plaintiff has failed
to state a valid claim that defendant violated the FDCPA.
CONCLUSION
For the reasons expressed above, defendant’s motion to
dismiss plaintiff’s complaint will be granted. 2
2
An appropriate
Plaintiff has requested permission to file a motion to stay the
matter pending appeals in Riccio v. Sentry Credit, Inc.,
Reynolds v. Encore Receivable Management, Inc., Magana v. Amcol
Systems, and Borozan v. Financial Recovery Services, Inc., which
are cited in this Opinion and also brought by plaintiff’s
counsel. (See Docket No. 19, 21.) Whether a case should be
stayed is within the court’s power to control the disposition of
its docket, and “how this can best be done calls for the
exercise of judgment, which must weigh competing interests and
maintain an even balance.” Landis v. North American Co., 299
Order will be entered.
Date: July 18, 2018
At Camden, New Jersey
s/ Noel L. Hillman
Noel L. Hillman, U.S.D.J.
U.S. 248, 254-55 (1936). Because none of the letters in those
cases is identical to the letter at issue in this case, the
Court is not persuaded that the Third Circuit’s decisions in
those appeals would be directly dispositive here. The Court
therefore denies plaintiff’s request to stay the resolution of
defendant’s motion pending the outcome of the appeals in
counsel’s other cases.
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