RODRIGUEZ v. NORTHLAND GROUP, LLC
Filing
14
OPINION filed. Signed by Judge Freda L. Wolfson on 12/13/2018. (km)
*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
FRANK RODRIGUEZ,
:
On behalf of himself and all others :
similarly situated,
:
Civil Action No.: 18-7692(FLW)
:
Plaintiff,
:
v.
:
OPINION
:
NORTHLAND GROUP, LLC,
:
:
Defendant. :
____________________________________:
WOLFSON, United States District Judge:
This putative class action suit against Defendant Northland Group, LLC
(“Defendant), arises out of Plaintiff Frank Rodriquez’s (“Plaintiff”) claim that
Defendant violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §
1692 et seq., by sending a debt-collection letter that failed to adequately notify
Plaintiff of his rights to dispute a debt. In the present matter, Defendant moves
to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons
set forth below, Defendant’s motion to dismiss is GRANTED.
BACKGROUND
For the purposes of this motion, the following facts are taken from the
Complaint and assumed as true. Plaintiff is a resident of Ocean, New Jersey.
Compl. ¶ 7.
Defendant is a debt collection agency operating in Edina,
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Minnesota. 1 Id. at ¶ 8. On February 12, 2018, Defendant sent Plaintiff a onepage collection letter regarding a debt owed to TD Auto Finance, LCC, in the
amount of $6,793.69. See Compl., Exh. A., Letter dated February 12, 2018. In
its entirety, the letter reads as follows:
Customer Service: 866-550-6872
OFFIC HOURS: MON- FRI: 8AM- 5PM CENTRAL TIME
Creditor: TD Auto Finance, LCC
February 12, 2018
Northland Reference Number: F4414270
Account #: ******6825
Balance Due: $6,793.69
We Would Like to Help You Resolve Your Account
Dear Frank A Rodriquez,
On 02/08/18 TD Auto Finance, LCC authorized Northland Group to collect this
debt on their behalf. We are willing to negotiate a settlement for less than the full
balance owed. Contact Northland Group to discuss a settlement or to make
payment arrangements. This offer does not affect your rights set forth below:
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 judgement and mail you a
copy of such judgment or verification. If you request of this office in writing with
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.
We look forward to hearing from you.
Thank you,
Northland Group
866-550-6872
Payment Methods
Online: www.payments2northland.com- Phone: 866-550-6872- Mail: P.O. Box
390846, Minneapolis, MN 55439
Id.
There is no dispute that under 15 U.S.C. § 1692a(3), Plaintiff meets the
statutory definition of a “consumer,” and Defendant is a “debt collector” under
the FDCPA. See 15 U.S.C. § 1692a(6).
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Based on this written communication, Plaintiff alleges that Defendant
violated: 1) 15 U.S.C. § 1692e by making false, deceptive, or misleading
representation or means in connection with the collection of the debt; and 2) 15
U.S.C. § 1692g for using unfair or unconscionable means to collect or attempt
to collect the debt. Id. at ¶ 38. Plaintiff advances two theories in support his
FDCPA claims; first, Plaintiff alleges that by using the word “if”, the validation
notice in the second paragraph of the letter, confuses the debtor on how to
dispute the debt. Second, Plaintiff submits that the phrase — “We look forward
to hearing from you” — conflicts with his right to dispute or request validation
of the debt in writing.
In lieu of an answer, Defendant moves to dismiss Plaintiff’s claims, arguing
that Plaintiff fails to state a legal claim under the FDCPA.
DISCUSSION
I.
Standard of Review
Under Federal Rule of Civil Procedure 12(b)(6) a court may dismiss a
pleading “for failure to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a)(2) requires that a pleader’s
complaint contains “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
When reviewing a Rule
12(b)(6) motion to dismiss, the court views the complaint and determines if the
factual allegations pleaded, if taken as true, “state a claim to relief that is
plausible on its face.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007).
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When reviewing the motion to dismiss, the court must “accept as true all
the factual allegations in the complaint.” Letherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993).
In addition, it is
required that all reasonable readings of the complaint be made in the favor of
the plaintiff.
Kaymark v. Bank of America, N.A., 783 F. 3d 168, 174 (3d. Cir.
2015). A motion to dismiss does not attack the merits of the action but requires
that the legal sufficiency of the complaint be tested.
See Fowler v. UPMC
Shadyside, 578 F. 3d 203, 210 (3d Cir. 2009).
While the court accepts the facts alleged in the complaint as true, the
plaintiff’s pleadings must allege more than legal conclusions. Id. For a plaintiff
to survive a Rule 12(b)(6) motion, a plaintiff is obligated to provide factual
allegations that are sufficient to raise a right to relief above the speculation that
all of the allegations in the complaint are true and that are facially plausible on
their face. Twombly, 550 U.S. at 1959.
A complaint is plausible 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). A “sheer possibility that the defendant has
acted unlawfully” will not satisfy the plausibility requirement. Id. (quoting
Twombly, 550 U.S. 544 at 127).
In determining whether a complaint meets the pleadings standard, the
Third Circuit requires that: 1) the court “outlines the elements a plaintiff must
plead to state a claim for relief; 2) carefully determine which allegations “are no
more than conclusions and thus not entitled to the assumption of truth; and 3)
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determine whether the remaining allegations that are well-pled give an
entitlement to relief. Bistrian v. Levi, 696 F. 3d 352, 365 (3d Cir. 2012); see also
Iqbal, 556 U.S. at 679.
II.
FDCPA
Congress enacted the FDCPA “to eliminate abusive debt collection
practices by debt collectors.” 15 U.S.C. § 1692e. The purpose of the FDCPA is
to ensure that consumers are protected from fraudulent practices by prohibiting
certain abusive, deceptive, and unfair debt collection practices. Marx v. General
Revenue Corp., 568 U.S. 371, 374 (2013). Under the FDCPA, a debt collector is
prohibited from engaging in “any conduct the natural consequences of which is
to harass, oppress, or abuse any person in connection with the collection of
debt.” 15 U.S.C. § 1692d. As such, a debt collector cannot “use any false,
deceptive, or misleading representation or means in connection with the
collection of any debt.” 15 U.S.C. § 1692e. In connection with the present case,
the FDCPA requires debt collectors to provide the consumer with a written notice
containing certain information regarding the debt allegedly owed within five days
of initial communication. See 15 U.S.C. § 1692g(a).
To ensure enforcement, the FDCPA creates a private right of action for
plaintiffs which enables them to bring suits against debt collectors who violate
the FDCPA’s provisions. 15 U.S.C. § 1692K; see Grant v. JPMorgan Chase Bank,
No. 12-06248, 2013 WL 1558773, at *2 (D.N.J. Apr. 10, 2013). To state a claim
under the FDCPA, a plaintiff must establish that “(1) he or she is a ‘consumer’
who is harmed by violation of the FDCPA; (2) the ‘debt’ arises out of a transaction
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entered into primarily for personal, family, or household purposes; (3) the
defendant collecting the debt is a ‘debt collector’; and (4) the defendant has
violated, by act or omission, a provision of the FDCPA.” Id. (quoting Berk v. J.P.
Morgan Chase Bank, N.A., No. 11-2715, 2011 WL 4467746, at *3 (E.D. Pa. Sept.
26 2011) (citing 15 U.S.C. §§ 1692a-o)). Additionally, “[a] threshold requirement
for application of the FDCPA is that the prohibited practices are used in an
attempt to collect a ‘debt.’” Zimmerman v. HBO Affiliate Group, 834 F. 2d. 1163,
1167 (3d Cir. 1987).
The Third Circuit construes the language of the FDCPA broadly as it is a
remedial statute. Brown v. Card Service Center, 464 F. 3d. 450, 454 (3d Cir.
2006). Because of the FDCPA’s remedial nature, the court analyzes “any lenderdebtor communications [as] potentially giving rise to claims under the FDCPA”
and thus, communications between lenders and debtors “should be analyzed
from the perspective of the least sophisticated debtor.”
Id.
The least
sophisticated debtor perspective is a well-established legal principal recognized
throughout the Courts of Appeals. See, e.g., Baker v. G.C. Services Corp., 677 F.
2d 775 (9th Cir. 1982); U.S. v. National Financial Services, Inc., 98 F. 3d 131, 135
(4th Cir. 1996); Smith v. Transworld Systems, Inc., 953 F. 2d 1025, 1028 (6th
Cir. 1992). Further, the Third Circuit has held that the least sophisticated debtor
perspective is consistent with “basic consumer-protection principles” that are at
the heart of the FDCPA’s purpose. see Wilson v. Quadramed Corp., 225 F. 3d
350, 354 (3d Cir. 2000).
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Under that standard, the court requires more than “simply examining
whether particular language would deceive or mislead a reasonable debtor.”
Brown, 464 F. 3d. at 454 (quoting Wilson, 225 F. 3d at 354); see also Gaziano v.
Harrison, 950 F. 2d 107, 111 (3d Cir. 1991). Rather, the least sophisticated
debtor standard requires less than that of a reasonable debtor, which would ask
“whether a particular debt collection communication would mislead or deceive a
reasonable debtor.” The reasonable debtor standard, however, does not “provide
solace to the willfully blind or non-observant.” Campuzano-Burgos v. Midland
Credit Management, Inc., 550 F. 3d 294, 299 (3d Cir. 2008).
The least
sophisticated debtor standard, on the other hand, presumes that the debtor has
“a basic level of understanding and willingness to read with care.” Rosenau v.
Unifund Corp., 538 F. 3d 218, 211 (3d Cir. 2008).
In addition, “the least
sophisticated debtor is bound to read collection notices in their entirely.”
Campuzano-Burgos, 550 F. 3d at 299.
Indeed, this standard “comports with
[the] basic purpose of the FDCPA . . . to protect ‘all consumers, the gullible as
well as the shrewd.’” Id. (quoting Wilson, 225 F. 3d at 354-55 (internal quotation
marks and citation omitted)).
A.
§ 1692g
In the Complaint, Plaintiff alleges that Defendant violated § 1692g “by
failing to clearly and effectively convey to [] Plaintiff that any disputes must be in
writing, instead implying that such disputes may be made verbally.” Compl., ¶
52. Specifically, Plaintiff maintains that by using the word “if”, the validation
notice, included in the debt collection letter, is confusing to the least
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sophisticated debtor. According to Plaintiff, the notice is phrased in “permissive
terms,” which “ambiguously impl[ies] that the debt could be disputed in writing
or verbally.”
Pl. Opp. To Mot. To Dis. 6.
As such, Plaintiff argues that the
validation notice is misleading as the letter’s contents can be read to have two or
more meanings, and in that regard, Plaintiff maintains that the correct
information as to how to dispute the debt was not effectively communicated to
him, in violation of § 1692g.
Section 1692g(a) provides that a debt collector is required to include the
following information within five days after the initial communication with a
consumer:
(1) The amount of the debt
(2) The name of the creditor to whom the debt is owed;
(3) A statement that unless the consumer, within thirty days after
receipt of the notice, disputes the validity of the debt, or any
portion thereof, the debt will be assumed to be valid by the debt
collector;
(4) A statement that if the consumer notifies the debt collector in
writing within the thirty-day period that the debt or any portion
thereof, is disputed, the debt collector will obtain verification of
the debt or a copy of a judgement against the consumer and a
copy of such verification or judgement will be mailed to the
consumer by the debt collector; and
(5) A statement that, upon the consumer’s written request within the
third-fay 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). Indeed, Congress included these debt validation provisions
to guarantee that consumers would receive notice of their rights under the law.
Wilson, 225 F. 3d at 354. The FDCPA further mandates that if the consumer
has provided written notice within the 30-day period that he or she disputes the
debt, or requests the name of the original creditor, the debt collector must cease
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all efforts to collect the debt until the debt collector obtains and mails to the
consumer either verification of the debt, a copy of a judgement to the consumer,
or the name and address or the original creditor. See 15 U.S.C. § 1962g(b).
Under these provisions of the FDCPA, debt collectors must provide
consumers with an explanation of their rights, which is known as a validation
notice. See Gaziano, 950 F. 2d at 111; Wilson, 225 F. 3d at 353. Congress
specifically included the requirement of a validation notice to ensure that
consumers would receive adequate notice of their rights under the law. Wilson,
225 F. 3d at 354 (citing Miller v. Payco-General American Credits, Inc., 943 F. 2d
482, 483-84 (4th Cir. 1991)). The “mere inclusion of the statutory debt validation
notice in the debt collection letter” by debt collectors is not sufficient to comply
with the law, however, true compliance with the FDCPA by debt collectors
requires that the validation notice is “conveyed effectively to the debtor.” Id.
The Third Circuit has routinely held that an effective validation notice is
one “where the validation notice is [not] overshadowed or contradicted by
accompanying messages or notices from the debt collector.”
Id. at 355; see
Graziano, 950 F. 2d at 11; see also Caprio v. Healthcare Revenue Recovery Group,
LLC, 709 F. 3d 142 (3d Cir. 2013). Moreover, Congress has reconfirmed the
requirement that the validation notice not be overshadowed as integral to the
FDCPA, as Congress amended § 1692g(b) in 2016 to provide that “[a]ny collection
activities and communications during the 30-day period may not overshadow or
be inconsistent with the disclosure of consumer’s rights to dispute the debt or
request the name and address of the original creditor.” Caprio, 709 F.3d at 148.
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Thus, a collection letter cannot be deceptive, overshadowing, or contradictory so
as to make the least sophisticated debtor uncertain of their rights. Wilson, 225
F 3d. at 354. A collection letter is deceptive “when it can be reasonably read to
have two or more different meanings, one of which is inaccurate.” Id. (quoting
Russel v. Equifax A.R.S., 74 F. 3d 30, 34-35 (2nd Cir. 1996)). It is a question of
law left to the courts as to whether the language in a collection letter
overshadows or contradicts the FDCPA validation notice. Caprio, 709 F. 3d at
147.
Here, to reiterate, the at-issue validation notice reads as follows:
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 judgement and mail you
a copy of such judgment or verification. If you request of this office
in writing with 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.
Compl., Exh. A., Letter dated February 12, 2018 (emphasis added). Plaintiff
takes issue with the word “if” used in the notice. Plaintiff argues that the first
sentence of the notice does not direct the debtor to submit a dispute in writing,
and he further contends that the next two sentences, despite referencing an “in
writing” requirement, are nonetheless couched in permissive terms. In other
words, Plaintiff posits that such language leaves the door open for the debtor to
conclude that a written dispute is merely an option, but not required. In support
of his position, Plaintiff cites two recent decisions in this district, Cadillo v.
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Stoneleigh Recovery Assocs., LLC, No. 17-7472, 2017 U.S. Dist. LEXIS 210870
(D.N.J. Dec. 21, 2017) and Poplin v. Chase Receivables, Inc., No. 18-404, 2 which
found identical validation notices violative of the FDCPA.
In Cadillo and Poplin, the courts reasoned that using the word “if” in the
validation notice could confuse the least sophisticated consumer as to whether
a written response was required. See Cadillo, 2017 U.S. Dist. LEXIS, at *6-7.
Both courts were concerned that by employing such permissive language, a
consumer could believe that either a written or oral response is sufficient to
dispute the debt.
While the reasoning of Cadillo and Poplin is well taken, I
respectfully disagree. This is not the first time I have confronted this issue.
Previously, I held in Borozan v. Fin. Recovery Servs., No. 17-11542, 2018 U.S.
Dist. LEXIS 104691 (D.N.J. Jun. 22, 2018), that a validation notice identical to
the one here did not violate the FDCPA. I reasoned, which explanation equally
applies here, that by using the word “unless” in the first sentence, the notice
informs the consumer of the consequences if he or she fails to dispute the debt.
Id. at *19. Then, the remainder of the notice provides instructions on how to
dispute the debt and the effect of disputing a debt. Under the least sophisticated
debtor standard, the consumer is presumed to have read the whole letter. See
Campuzano-Burgos, 550 F.3d at 299.
In that regard, the consumer would
understand that the notification mentioned in the second sentence refers to the
first; that is, read together, unless the debtor disputes the debt in writing, the
The Poplin decision is not published online. A copy of the Letter Order was
submitted by Plaintiff.
2
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debt would be presumed valid. In fact, nowhere does the notice suggest that a
debtor may verbally dispute the debt. Rather, the only method included in the
notice is an in-writing requirement. As such, I do not find that by using the word
“if” in the validation notice here, a consumer would be confused as to how to
dispute the debt. Furthermore, it cannot be overstated that the language used
in the validation notice tracks closely the statutory language contained in §
1692g(a)(3)-(5). Indeed, in drafting its notice, Defendant presumably relied on
the plain language of the statute and mirrored such language in its debt
collection letters. As a matter of fairness, Defendant should not be subjected to
statutory liability in this context when it reasonably relied on the very statute to
craft the notice at issue.
I note that numerous courts, when confronted with identical validation
notices, are in accord with my conclusion. See, e.g., Hernandez v. Mercantile
Adjustment Bureau, LLC, No. 13-843, 2013 U.S. Dist. LEXIS 166836 (D.N.J. Nov.
22, 2013); Hillman v. NCO Fin. Sys., Inc., No. 13-2128, 2013 U.S. Dist. LEXIS
137221 (E.D. Pa. Sep. 25, 2013); Max v. Gordon & Weinberg P.C., No. 15-2202,
2016 U.S. Dist. LEXIS 14703 (D.N.J. Feb. 8, 2016); Riccio v. Sentry Credit, Inc.,
No. 17-1773, 2018 U.S. Dist. LEXIS 15661 (D.N.J. Jan. 31, 2018); Ferrulli v. BCA
Fin. Servs., No. 17-13177, 2018 U.S. Dist. LEXIS 168631 (D.N.J. Sep. 28, 2018);
Velez v. Cont'l Serv. Grp., No. 17-2372, 2018 U.S. Dist. LEXIS 57282 (M.D. Pa.
Apr. 4, 2018); Parker v. CMRE Fin. Servs., Inc., No. 07-1302, 2007 U.S. Dist.
LEXIS 82272 (S.D. Cal. Nov. 5, 2007); Sebrow v. NCO Fin. Sys., Inc., No. 081725, 2009 U.S. Dist. LEXIS 76582 (E.D.N.Y. Aug. 27, 2009); Borucki v. Vision
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Fin. Corp., No. 13-386, 2013 U.S. Dist. LEXIS 80419 (E.D. Wis. June 7, 2013);
Moore v. Ingram & Assoc., Inc., 805 F. Supp. 7, 8-9 (D.S.C. 1992); Aronson v.
Commercial Fin. Servs., No. 96-2113, 1997 U.S. Dist. LEXIS 23534 (W.D. Pa.
Dec. 22, 1997).
Next, Plaintiff argues that the placement of the phrase — “We look forward
to hearing from you” — after the validation notice further misleads a consumer
into calling Defendant to dispute his or her debt. Having already determined
that the validation notice did not use any false, deceptive, or misleading
representation in connection with the collection of Plaintiff’s debt, Plaintiff’s
argument is unconvincing. Contrary to Plaintiff’s position, the phrase, read in
conjunction with the rest of the letter, does not come close to suggesting to a
least sophisticated debtor that he or she should contact Defendant in the event
the debt is to be disputed. Instead, the phrase, where it is placed, merely invites
the consumer to call to resolve, not dispute, the account; the phrase neither
explicitly invites the consumer to call to dispute a debt, nor threatens or
encourages the consumer to waive his or her statutory rights to challenge the
validity of the debt. Similar language used in debt collection letters had been
found to be appropriate under the FDCPA. See Magana v. Amcol Sys., No. 1711541, 2018 U.S. Dist. LEXIS 94779, at *12 (D.N.J. June 6, 2018)(“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.”); Robinson v. Northland Grp., Inc., No. 17-12023, 2018 U.S.
13
Dist. LEXIS 119518, at *19 (D.N.J. Jul. 18, 2018)(finding that the phrase “[w]e
look forward to hearing from you” does not violate the FDCPA because it is merely
“used in the context of a general invitation to call about any questions in a
separate closing paragraph”); Reizner v. Nat'l Recoveries, Inc., No. 17-2572, 2018
U.S. Dist. LEXIS 74229, at *23 (D.N.J. May 2, 2018) (finding that the phrase
“[f]or further information, please write or call us at the address or number
contained in this notice,” did not violate the FDCPA because it “does not
expressly state that Plaintiff should call to contest the debt”); see also 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).
Plaintiff’s comparison of the disputed phrase here to the language
examined in Caprio is inapt.
In Caprio, the plaintiff challenged a collection
letter's instruction for him to call or write to defendant, if he believed he was not
responsible for the debt in connection with the service described. Caprio, 709
F.3d at 145 (“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.”) (emphasis removed). The Third Circuit held that this language
overshadowed the letter's validation notice, because it directed the plaintiff to
call or write in order to dispute the debt, even though a consumer is required to
raise a debt dispute in writing under the FDCPA. Id. at 152. In other words, the
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Third Circuit found that the letter was invalid, because the complained-of
language could “be reasonably read to have two or more different meanings, one
of which is inaccurate.” Id. (citation and quotations omitted). Here, no such
language was used. Unlike Caprio, the indication that Defendant was looking
forward to hearing from Plaintiff in order to resolve the account is not subject to
different meanings, since the phrase lacks any reference to the debt itself. In
other words, the invitation to call in this case was not used in such a way as to
confuse the least sophisticated debtor or to offer an inaccurate choice of action.
Caprio is clearly distinguishable from this case.
Likewise, Plaintiff’s reliance on Homer v. Law Offices of Frederic I. Weinberg
& Assocs., P.C., 292 F. Supp. 3d 629 (E.D. Pa. 2017), is misplaced. In Homer,
the offending language — “hears from you” — was used within the statutorily
required paragraph of the debt validation notice informing the consumer of his
rights. Id. at 631. The letter there read, “Unless this 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.
(emphasis added). In the same paragraph, the notice went on to provide the
writing requirement consistent with § 1692g(a)(4) and § 1692g(a)(5). Id. However,
the court found 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.
Here, the phrase, “We look forward to hearing from you,” is not placed or
intertwined within the statutory required notice concerning a disputed debt as
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in Homer. Rather, it is a general invitation to call about resolving — not disputing
— the debt, and in a separate closing paragraph. To read the phrase at issue
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 U.S. Dist. LEXIS 94779, at *13 (citation
and quotations omitted). Accordingly, Plaintiff has failed to state a claim under
§ 1692g.
B.
§ 1692e
Plaintiff’s § 1692e claim is premised on the same allegations as his § 1692g
claim regarding the debt collection letter. Because Plaintiff’s § 1692g claim fails,
correspondingly, his § 1692e claim also fails. 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). Indeed, “[w]hen 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;
Reynolds v. Encore Receivable Mgmt, No. 17-2207, 2018 U.S. Dist. LEXIS 83902,
at *16-17 (D.N.J. May 18, 2018)(“Because Plaintiff's claim under Section 1692e
is based on the same allegations as her claim under Section 1692g, the foregoing
analysis as to Section 1692g is dispositive.”). Even if it were not dispositive, 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
16
different meanings, one of which is incorrect. See Rosenau v. Unifund Corp., 539
F.3d 218, 222 (3d Cir. 2008).
Accordingly, Defendant’s motion to dismiss is GRANTED.
Dated: December 13, 2018
/s/ Freda L. Wolfson
Hon. Freda L. Wolfson
United States District Judge
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