GRIFFIN v. ANDREA VISGILIO-MCGRATH, LLC et al

Filing 15

OPINION. Signed by Judge Kevin McNulty on 7/18/17. (DD, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

DORIS GRIFFIN, etc.,
Civ. No. 17-0006 (KM/MAH)

Plaintiff,
V.

OPINION

ANDREA VISGILIO-MCGRATH, LLC,
et al.,
Defendants.

Plaintiff Doris Griffin brings a putative class action based on a statement
in a debt collection letter she received (the “Letter”) advising that “[u]ntil this
(deht} is paid, it may appear on your credit report and adversely impact your
credit,” and requesting prompt payment. Griffin’s Complaint alleges that this
statement is false, deceptive, and misleading, and therefore violates Fair Debt
Collection Practices Act (the “FDCPA”), in particular 15 U.S.C.

§

1692e and

1692e(1O). Defendant Andrea Visgilio-McGrath, LLC (“AVM”), which sent the
Letter, moves to dismiss the Complaint for lack of standing and for failure to
state a claim pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). For the reasons
stated herein, the motion to dismiss is denied.
The Complaint
The allegations of the Complaint may be summarized as follows:
Griffin is a consumer, and AVM a debt collector, within the meaning of
FDCPA. (Cplt.

¶J

6,

g)’

Griffin incurred a consumer debt obligation to a

For purposes of this opinion, citations to the record will hereinafter be
abbreviated as follows:
•

“Cplt,”

•

“Letter”

•

“Br.”

=

=

Complaint, ECF no. 1
=

Letter to Griffin from AVM, dated July 14, 2016, ECF no. 1 at 13.

Brief in Support of Motion to Dismiss, ECF no. 7-1

1

¶11 15—18) The
(Cplt. ¶ 19—2 1)

creditor, Mountainside Hospital. (Cplt.
was referred to AVM for collection.

debt was past due, and

AVM sent Griffin a Letter dated July 14, 2016, in relation to the
Mountainside debt. The pertinent part of the Letter reads:
With reference to the above entitled matter, please be advised that
there remains a judgment against you and in favor of my client,
Mountainside Hospital, A N.J. Corporation. The total amount due
currently stands at $2,374.68....
Until this is paid, it may appear on your credit report and
adversely impact your credit, Therefore, if you wish to resolve this
matter, prompt payment should be remitted directly to my office
made payable to “Andrea Visgilio-McGrath, LLC, Trust Account.”
(Letter, ECF no. 1 at 13; Cplt.

¶jJ

26, 27)

The quoted language is alleged to be false and misleading for two
reasons: (a) first, “[a] judgment appearing on a credit report will be deleted
within the reporting period allowed pursuant to 15 U.S.C.

§

1681c(a) [i.e., seven

years) whether or not a payment is made on the judgment” (Cplt.

¶

31); second,

“[a] payment made on a judgment has no effect as to whether a judgment
continues to appear on a credit report or not.” (Cplt.

¶

30)

The Complaint alleges a single cause of action under FDCPA, 15 U.S.C.

§

1692e and 1692e(1O). The statements in the Letter allegedly “would cause the
least sophisticated consumer to believe that making a payment of the judgment
would have an effect on
reports.” (CpIt.

¶

[]

whether the judgment continued to appear on credit

39) That least sophisticated consumer would allegedly glean

from the Letter the false implication “that only a payment would cause it to be
removed from the consumer’s credit history.” (Cplt.

¶

46) On behalf of Griffin

and others similarly situated, the Complaint seeks statutory and actual
damages, interest, and attorneys’ fees.

•

“Opp.”

•

“Reply-”

Plaintiffs Brief in Opposition to Motion to Dismiss, ECF no. 11

=
=

Reply Brief in Further Support of Motion to Dismiss, ECF no. 14

2

Legal Standard
Under Fed. R. Civ. P. 12(b)(6), the defendant, as the moving party, bears
the burden of showing that no claim has been stated. Animal Science Products,
Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n. 9 (3d Cir. 2011). For the
purposes of a motion to dismiss, the facts alleged in the complaint are accepted
as true and all reasonable inferences are drawn in favor of the plaintiff. New
Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp. of New
Jersey, 760 F.3d 297, 302 (3d Cir. 2014).2
Federal Rule of Procedure 8(a) does not require that a complaint contain
detailed factual allegations. Nevertheless, “a plaintiffs obligation to provide the
‘grounds’ of his ‘entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell AtI. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint’s factual allegations must be sufficient to raise a plaintiff’s right to
relief above a speculative level, so that a claim is “plausible on its face.” Id. at
570; see also West Run Student Housing Assoca, LLC a Huntington Nat. Bank,
712 F.3d 165, 169 (3d Cir. 2013). That facial-plausibility standard is met
“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) (citing Twombly, 550 U.S. at 556).
While “[t]he plausibility standard is not akin to a ‘probability requirement’
it asks for more than a sheer possibility.” Iqbal, 556 U.S. at 678.
In addition, the defendants contend that Griffin lacks standing to assert
her claim. Standing has a Constitutional aspect, which implicates the court’s
subject matter jurisdiction under Rule 12(b) (1).
A copy of Letter is attached to the Complaint as Exhibit A (ECF no. 1 at 13). A
court may consider “document[sj integral to or explicitly relied upon in the complaint,”
without turning a motion to dismiss into one for summary judgment. In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). See also In re Asbestos
Products Liability Litigation (No. VI), 822 F.3d 125, 134 n.7 (3d Cir. 2016).
2

3

Rule 12(b)(1) challenges may be either facial or factual attacks:
A facial attack “concerns ‘an alleged pleading deficiency’ whereas a
factual attack concerns ‘the actual failure of [a plaintiff sJ claims to
comport [factually] with the jurisdictional prerequisites.’” [quoting
CNA i’. United States, 535 F.3d 132, 139 (3d Cir. 2008) (alterations
in original) (quoting United States ex rel. Atkinson v. Pa.
Shipbuilding Co., 473 F.3d 506, 514 (3d Cir.2007)).]
“In reviewing a facial attack, the court must only consider
the allegations of the complaint and documents referenced therein
and attached thereto, in the light most favorable to the plaintiff.”
[quoting Gould Elecs. Inc. u. United States, 220 F.3d 169, 176 (3d
Cir. 2000).] By contrast, in reviewing a factual attack, “the court
must permit the plaintiff to respond with rebuttal evidence in
support of jurisdiction, and the court then decides the
jurisdictional issue by weighing the evidence. If there is a dispute
of a material fact, the court must conduct a plenary hearing on the
contested issues prior to determining jurisdiction.” [citing McCann
i1’. Newman Irrevocable Trust, 458 F.3d 281, 290 (3d Cir. 2006)
(citations omitted).]
Lincoln Ben. Life Co. u. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (footnotes
omitted; case citations in footnotes inserted in text).
Analysis
AVM’s motion to dismiss the complaint has two components: lack of
standing, under Rule 12(b)(1), and failure to state a claim, under Rule 12(b)(2).
Where, as here, the interest allegedly invaded is a statutory one, the standing

and substantive analyses tend to be intertwined.
A. Spokea and cases interpreting it
Under Article III of the U.S. Constitution, a plaintiff must establish
standing to sue. As the Supreme Court recently summarized in Spokeo, Inc.
Robins:
[Sjtanding consists of three elements. Lujan, 504 U.S.,
at 560, 112 S. Ct. 2130. The plaintiff must have (1)
suffered an injury in fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that
is likely to be redressed by a favorable judicial
decision. Id., at 560—561, 112 S. Ct. 2130; Friends of
the Earth, Inc., 528 U.S., at 180—181, 120 S. Ct. 693.
4

i-c

The plaintiff, as the party invoking federal jurisdiction,
bears the burden of establishing these elements.
FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S. Ct.
596, 107 L. Ed. 2d 603 (1990). Where, as here, a case
is at the pleading stage, the plaintiff must “clearly
allege facts demonstrating” each element. Warth,
supra, at 518, 95 S. Ct. 2197.
136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016).
That constitutional injury-in-fact must be “concrete and particularized”
aj-id “fairly traceable to the challenged action of the defendant and likely to be
redressed by a favorable judicial decision.” Lexmark Int’l, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377, 1386 (2014) (citing Lujan, supra). A
particularized injury is one that affects the plaintiff in a “personal and
individual way” and a concrete injury is one that actually exists, though it need
not be tangible. Spokeo, Inc., 136 S. Ct. at 1548—49 (quoting Lujan, 504 U.S. at
560 ni).
In Spokeo, the plaintiff alleged that the operator of an online “people
search engine” that conducts computerized background checks violated the
Fair Credit Reporting Act of 1970 (“FCRA”) by providing inaccurate personal
information about the plaintiff to Spokeo’s customers. The plaintiff did not
allege actual damages, prompting Spokeo to challenge the plaintiffs standing
to sue. Id. at 1546. Reasoning that the plaintiffs allegation of a “bare
procedural violation” of the FCRA might result in no harm at all,3 the Supreme
Court reversed the Ninth Circuit, which, without analyzing particularity and
concreteness, had concluded that the alleged violation of a statutory right was
sufficient injury-in-fact to confer standing. Id. at 1550; Robins v. Spokeo, Inc.,
742 F.3d 409, 413—14 (9th Cir. 2014). The Supreme Court “t[ook] no position
as to whether the Ninth Circuit’s ultimate conclusion—that [the plaintiff]
adequately alleged an injury in fact—was correct.” Id.
To illustrate, the Court stated: “An example that comes readily to mind is an
incorrect zip code. It is difficult to imagine how the dissemination of an incorrect zip
code, without more, could work any concrete harm.” Id. at 1550.
3

D

In Spokeo, the Supreme Court explained that whether an intangible
harm rises to the level of injury-in-fact depends on historical practice and
Congressional judgment. Id. at 1549. Specifically, courts should look to (a)
whether the right violated was one traditionally recognized at law, and (b)
whether Congress has elevated it to the status of a legally cognizable,
redressable injury. In re Horizon Healthcare Servs. Inc. Data Breach Litig., No.
15-2309, 2017 WL 242554, at *9 (3d Cir. Jan. 20, 2017) (citing Spokeo, 136 S.
Ct. at 1549).
Thus, “the violation of a procedural right granted by statute can be
sufficient in some circumstances to constitute injury in fact.

.

.

.

[A) plaintiff in

such a case need not allege any additional harm beyond the one Congress has
identified.” Id. (quoting Spokeo, 136 S. Ct. at 1549). See also In re Nickelodeon
Consumer Privacy Litig., 827 F.3d 262, 273 (3d Cir. 2016), cert. denied sub
nom. C. A. F. u. Viacom Inc. (U.S. Jan. 9, 2017) (“in some cases an injury—in—
fact may exist solely by virtue of statutes creating legal rights, the invasion of
which creates standing.”). But, “Congress’s role in identifying and elevating
intangible harms does not mean that a plaintiff automatically satisfies the
injury-in-fact requirement whenever a statute grants a person a statutory right
and purports to authorize that person to sue to vindicate that right. Article III
standing requires a concrete injury even in the context of a statutory violation.”
Spokeo, 136 S. Ct. at 1549. “Essentially, ‘the question framed by [Spokeo’sj
discussion [is) whether the particular procedural violations alleged in [a] case
entail a degree of risk sufficient to meet the concreteness requirement.”’ Bock v.
Pressler & Pressler, LLP, 658 F. App’ic 63, 65 (3d Cir. 2016) (quoting Spokeo,
136 S. Ct. at 1550).
The United States Court of Appeals for the Third Circuit has not
thoroughly explored the question of when, in light of Spokeo, a bare violation of
the FDCPA may constitute concrete injury. Rather, the cases applying Spokeo
have tended to focus on disclosures of private information in violation of the
FCRA. Compare, e.g., Bock v. Pressler & Pressler, LLP, 658 F. App’x at 65 (sua

6

sponte remanding to the district court under the freshly-decided case of
Spokeo, to more fully analyze standing to bring FDCPA claim), with In re
Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 274 (3d Cir. 2016), cert.
denied sub nom. C. A. F. v. Viacom Inc. (U.s. Jan. 9, 2017) (alleged disclosure of
information about personal online behavior in violation of state and federal
privacy statutes is concrete and particularized injury-in-fact), and In Re:
Horizon Healthcare Services Inc. Data Breach Litigation, No. 15-2309, 2017 WL
242554, at *12 (3d Cir. Jan. 20, 2017) (whether or not a “procedural” violation
of the FCRA would confer standing, it was sufficient to allege that lax security
procedures had permitted the theft of a laptop containing personal data, even if
no further exploitation of the data was alleged). Such privacy cases are not
necessarily instructive here. Griffin does not allege that AVM leaked his private
information, but rather that AVM’s Letter gave him inaccurate advice.
I therefore look to cases by judges in this district that have applied
Spokeo to FDCPA claims involving false or omitted disclosures.
For example, in Camey v. Goldman, No. CV 15-260-ERM-DEA, 2016 WL
7408849 (D.N.J. Dec. 22, 2016), Judge Martinotti found standing where the
the plaintiff had alleged “informational injury” and a “risk of economic injury.”
In Camey, the defendant’s debt collection letters demanded an amount that
included attorney’s fees and costs not yet due. Such demands, Judge
Martinotti held, were legitimately alleged to have inflicted a concrete injury
redressable by the FDCPA Section 1692e. Id. at *2, 5. To arrive at this
determination, Judge Martinotti looked to the historical practice and
Congressional judgment concerning the FDCPA:
The FDCPA unambiguously grants recipients of debtcollection letters (such as Plaintiffs) a right to be free
from abusive collection practices. In other words, the
FDCPA “create[s] a private duty owed personally to” a
consumer to refrain from using false, deceptive, or
misleading means or representations in attempting to
collect a debt. See Spokeo, 136 S. Ct. at 1554
(Thomas, J., concurring). Because Plaintiffs have a
personal statutory right to be free from abusive debt-

7

collection practices, and because Plaintiffs have
alleged facts plausibly showing Defendant violated that
right, Plaintiffs “need not allege any additional harm.”
See id. at 1549 (emphasis omitted).
Id., at *5
Similarly, in Blaha v. First National Collection Bureau, Case No. 16-279 1,
slip op. at 13—16 (D.N.J. Nov. 10, 2016), Judge Walls found sufficient concrete
injury-in-fact where the plaintiff alleged that the defendants’ collection letter
failed to disclose that the debt sought was time-barred, Plaintiffs thus had
“made a plausible claim under l692e(2)(A), which specifically prohibits the
false representation of the character or legal status of any debt.” Id. at 12, 15.
In Pisarz v. DC Sews. Ltd. P’ship, No. CV 16-4552 (FLW), 2017 WL
1102636, at *4 (D.N.J. Mar. 24, 2017), Judge Wolfson had little difficulty in
finding standing where a defendant had left voice mail messages that failed to
disclose his identity or status as a debt collector. This, she held was an
“informational injury” —i.e., a deprivation of information to which the plaintiff
was entitled—sufficient to confer standing.
These and other recent cases trend in favor of finding concrete injury
under the FDCPA where a debt collection letter contains materially misleading
statements.4 The right to be free from such statements is one recognized by

See Church v. Accretive Health, Inc., 654 F. App’x 990, 995 (11th Cir. 2016)
(allegation that plaintiff did not receive FDCPA-required disclosures sufficiently alleged
concrete injury); Medina v. AllianceOne Receivables Mgmt., Inc., 2017 U.S. Dist. LEXIS
7325, at *1 (E.D. Pa. Jan. 19, 2017) (where sentence in debt collection letter was
found deceptive or misleading under Section 1692e so as to survive a motion to
creates a particularized and
dismiss, “[tjhe deceptive declaration in the letter
concrete injury, at the very least unnecessary fear and anxiety on the part of the
consumer. While the harm may be intangible, it involves a de facto injury nonetheless.
The FDCPA was enacted to provide redress for such a result.”); Bautz v. ARS Nat’l
Sews., Inc., No. 16CV768JFBSIL, 2016 WL 7422301, at *1 (E.D.N.Y. Dec. 23, 2016)
(“[Adequately alleging a ‘false, deceptive, or misleading representation’ under Section
1692e that is materially misleading to the least sophisticated consumer satisfies the
concrete injury component of Article III standing because such conduct violates an
individual’s substantive statutory right to be free of abusive debt practices.”); Kaymark
v. Udren Law Offices, P.C., 2016 WL 7187840, at *7 (W.D. Pa. Dec. 12, 2016) (“The
goal of the FDCPA is to protect consumers from harmful debt-collection practices, and
...

8

Section 1692e and its subsections, which protect consumers from false,
deceptive, and misleading representations.5
B. This Case

1.

Standing

Whether reviewing standing or substance, it is first important to define
the nature of Griffin’s claim. The Complaint alleges a single cause of action
under the FDCPA, sections 1692e and 1692e(10):
A debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any
debt. Without limiting the general application of the foregoing, the
following conduct is a violation of this section:

(10) The 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 & 1692e(10). Ms. Griffin claims that statements in the Letter

were false and that they constituted deceptive means of collecting a debt.
Obviously, Ms. Griffin, as the recipient of the letter, is the proper person
to pursue the claim, and she possesses standing in that sense. I likewise have
little difficulty in concluding that she possesses the requisite injury-in-fact. The
statute provides that she is entitled to receive true information, and not false
information, in creditor-debtor communications for the purpose of collecting a
debt. This prohibition on false statements to induce a person to part with
debtors have a statutory right to be free from being subjected to false, deceptive,
unfair or unconscionable means to collect a debt.” (internal quotation marks omitted)).
Some pre-Spokeo cases in this Circuit held that a mere showing of a statutory
violation is sufficient to confer standing under FDCPA, a statute that provides for
statutory damages. E.a, Salvati v. Deutsche Bank Nati Trust Co., N.A., 575 F. App’x
49, 56 (3d Cir. 2014) (non-precedential) (plaintiff suing under the FDCPA had standing
to sue for bare violation of the act because the act provided for statutory damages); see
also Sacchi u. Care One, USC, No., 2015 WL 3966034 (D.N.J. June 30, 2015) (“A
statute may permit recovery of statutory damages for statutory violations even when
the plaintiff had not suffered actual damages.”). Post-Spokeo, such cases must be
relied on with great care, if at all.

9

money is similar to rights “traditionally recognized at law.” In re Horizon
Healthcare Sews. Inc. Data Breach Litia, No. 15-2309, 2017 WL 242554, at *9
(3d Cir. Jan. 20, 2017) (citing Spokeo, 136 S. Ct. at 1549). It bears a family
resemblance to traditional causes of action for fraud and deceit, and protects
interests previously recognized at law. Here, Congress has elevated that
entitlement to accurate disclosure “to the status of a legally cognizable,
redressable injury.” Id. About that, I will have more to say in the following
subsection.
In short, Griffin has alleged an informational injury—specifically, the
receipt of false information—of the kind recognized in the case law cited above.
I find that the Complaint sets forth a concrete injury-in-fact, and therefore
deny the Rule 12(b)(1) motion to dismiss for lack of standing.
2.

Failure to state a claim

Defendant AVM also moves under Rule 12(b)(6) to dismiss the Complaint
for failure to state a claim. This aspect of the motion, too, will be denied.
To state a claim under the FDCPA, a plaintiff must allege that “(1) she is
a consumer, (2) the defendant is a debt collector, (3) the defendant’s challenged
practice involves an attempt to collect a ‘debt’ as the Act defines it, and (4) the
defendant has violated a provision of the FDCPA in attempting to collect the
debt.” Douglass v. Convergent Outsourdng, 765 F.3d 299, 303 (3d Cir. 2014);
see also Piper v. Portnoff Law Assocs., Ltd., 396 F.3d 227, 232 (3d Cir. 2005);
Johns v. Northland Gip., Inc., 76 F. Supp. 3d 590, 597 (ED. Pa. 2014). As for
element 4, the alleged violation of the FDCPA here consists of the use of a
“false, deceptive, or misleading representation or means in connection with the
collection of any debt.” 25 U.S.C.

§

1692e; see also 25 U.S.C.

§

1692e(10).

In misleading-representation cases, like this one, courts routinely apply
the “least sophisticated debtor” standard when “analyz[ing] the communication
giving rise to the FDCPA claim.” Kaymark v. Bank of Am., N.A., 783 F.3d 168,
174 (3d Cir. 2015) (quoting Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d
Cir. 2008)). As the Third Circuit explained in Jensen v. Pressler & Presslen

10

Although the least sophisticated debtor standard is
“lower than the standard of a reasonable debtor,” it
“presen’[es] a quotient of reasonableness and
presum[es] a basic level of understanding and
willingness to read with care.” Id. (quoting Wilson v.
Quadramed Corp., 225 F.3d 350, 354—55 (3d
Cir.2000)). In so doing, it “give[s] effect to the Act’s
intent to ‘protect[ j the gullible as well as the shrewd.’”
Campuzano—Burgos v. Midland Credit Mgrnt., Inc., 550
F.3d 294, 298 (3d Cir.2008) (second alteration in
original) (quoting Brown, 464 F.3d at 453).
The standard is an objective one, meaning that the
specific plaintiff need not prove that she was actually
confused or misled, only that the objective least
sophisticated debtor would be. See Pollard v. Law
Office of Mandy L. Spaulding, 766 F.3d 98, 103 (1st
Cir.2014) (“[T]he FDCPA does not require that a
plaintiff actually be confused.”); Bentley v. Great Lakes
Collection Bureau, 6 F.3d 60, 62 (2d Cir. 1993) (“We
apply an objective test based on the understanding of
the ‘least sophisticated consumer’ in determining
whether a collection letter violates section 1692e.”).
Thus, “the FDCPA enlists the efforts of sophisticated
as ‘private attorneys general’ to aid their
consumers
less sophisticated counterparts, who are unlikely
themselves to bring suit under the Act, but who are
assumed by the Act to benefit from the deterrent effect
of civil actions brought by others.” Jacobson v.
Healthcare Fin. Sen’s., Inc., 516 F.3d 85, 91 (2d Cir.
2008).
...

791 F.3d 413, 418—19 (3d Cir. 2015).
Section 1692e contains an additional materiality requirement, but it “is
simply a corollary of the well-established ‘least sophisticated debtor’ standard.”
Jensen a Pressler & Pressler, 791 F.3d 413, 418 (3d Cir. 2015). “[A] statement
in a communication is material if it is capable of influencing the decision of the
least sophisticated debtor.” Id. at 420—2 1. That is not a high bar. “fT}he
materiality requirement, correctly applied, effectuates the purpose of the
FDCPA by precluding only claims based on hypertechnical misstatements
under

§

1692e that would not affect the actions of even the least sophisticated

debtor.” Id. at 422.
11

The Letter is the relevant communication between debt collector and
consumer. It must therefore be read through the eyes of the least sophisticated
debtor. See Brown u. Card Seru. Ctr., 464 F.3d 450, 454 (3d Cir. 2006) (“[Ajny
lender-debtor communications potentially giving rise to claims under the
FDCPA.

.

.

should be analyzed from the perspective of the least sophisticated

debtor.”).
The pertinent part of the Letter reads:
With reference to the above entitled matter, please be advised that
there remains a judgment against you and in favor of my client,
Mountainside Hospital, A N.J. Corporation. The total amount due
currently stands at $2,374.68....
Until this is paid, it may appear on your credit report and
adversely impact your credit. Therefore, if you wish to resolve this
matter, prompt payment should be remitted directly to my office
made payable to “Andrea Visgilio-McGrath, LLC, Trust Account.”
(Letter, ECF no. 1 at 13; Cplt. ¶3j 25, 27)
The quoted language is alleged to be false and misleading in the following
respects.
First, the judgment would not in fact continue to appear on a credit
report “[ujntil [it} is paid.” Rather, “[p]ursuant to 15 U.S.C.
period is generally limited to a 7 year period.” (Cplt.

¶

§

1661c(a), the

29) “A judgment

appearing on a credit report will be deleted within the reporting period allowed
pursuant to 15 U.S.C.

§

1681c(a) [i.e., seven years] whether or not a payment is

made on the judgment.” (Cplt.

¶

31)

The statement in the Letter is therefore misleading. By saying the item
will “continue to appear,” the Letter implies that the debt is a permanent black
mark, erasable only by payment of the obligation. In fact, however, the
Complaint alleges, the item will disappear of its own accord after seven years.
That fact could well be material to a debtor weighing her options. A
misstatement of that fact could therefore violate

§

1692e, and inflict on the

debtor an informational injury of the kind contemplated by the statute.

12

Second, the judgment would not disappear from the credit report simply
because it has been paid. “A payment made on a judgment has no effect as to
whether a judgment continues to appear on a credit report or not.” (Cplt.

¶

30)

The Letter states or implies that the debtor should pay up now to avoid
or minimize the negative effect on her credit report. In fact, the Complaint
alleges, the item will continue to appear on the credit report (for up to seven
years, anyway), even if it has been paid off. The benefit to the debtor’s credit
rating, then, is alleged to be exaggerated, if not illusory. That, too, would be of
importance to a debtor in weighing her options.
These allegations remain to be proven. But as allegations, they set forth a

§

1692e claim sufficient to permit the case to go forward to discovery.

Conclusion
For the reasons expressed above, the defendant’s motion to dismiss the
complaint (ECF no. 7) is DENIED.
Dated: July 18, 2017

/

KEVIN MCNU
United States District Ju e

13