Robinson v. Municipal Services Bureau

Filing 15

ORDER granting 10 Motion to Dismiss for Failure to State a Claim. For the reasons set forth in the attached memorandum and order, Defendants' 12(b)(6) motion is granted. Ordered by Judge John Gleeson on 11/24/2015. (Bensing, Kayla)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

FOR ONLINE PUBLICATION

LEEROY ROBINSON,
Plaintiff,
- versus -

MEMORANDUM
AND ORDER
15-cv-04832 (JG) (RML)

MUNICIPAL SERVICES BUREAU,
Defendant.

A P P E A R A N C E S:
RC LAW GROUP, PLLC
285 Passaic St.
Hackensack, NJ 07601
By:
Daniel Harris Kohn
Attorneys for Plaintiff
RC LAW GROUP, PLLC
7118 Main St., Suite 2
Flushing, NY 11367
By:
Matthew Sarles
Attorneys for Plaintiff
PELTAN LAW, PLLC
128 Church Street
East Aurora, NY 14052
By:
David G. Peltan
Attorneys for Defendants
MINTZER, SAROWITZ, ZERIS, LEDVA & MEYERS LLP
17 West John St., Suite 200
Hicksville, NY 11801
By:
Kate Cifarelli
Bradley Jay Levien
Attorneys for Defendants
PELTAN LAW, PLLC
1207 Delaware Ave., Suite 466
Buffalo, NY 14209
By:
Brandon M. Wrazen
Attorneys for Defendants

JOHN GLEESON, United States District Judge:
Plaintiff Leeroy Robinson filed this action against Defendant Municipal Services
Bureau (“MSB”), alleging that it violated the Fair Debt Collection Practices Act (the “FDCPA”),
15 U.S.C. § 1692 et seq. Robinson claims that the glassine window of the envelope in which
MSB sent him a debt collection letter displayed a reference number, which violated the
FDCPA’s prohibition against using unfair or unconscionable means to collect a debt. MSB filed
a motion to dismiss the complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).
For the following reasons, I agree and dismiss the complaint.
BACKGROUND
I draw all facts from the Complaint, ECF No. 1-1, the factual assertions in which I
assume to be true in deciding this motion. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).
In March 2014, MSB sent Robinson a letter—in an envelope with a see-through
window—to collect on a debt.1 Compl. ¶¶ 9, 11. Along with Robinson’s name and address, a
reference number associated with Robinson’s debt was visible in the envelope’s window.
Compl. ¶ 12. Robinson did not file a copy of the envelope or letter as an exhibit to the
Complaint.
Robinson commenced this action in state court on March 17, 2015, claiming that
the visibility of the reference number on the envelope violates the FDCPA’s provisions
governing personal and confidential information. Compl. ¶¶ 12-14. Robinson seeks actual and
statutory damages pursuant to 15 U.S.C. §§ 1692k(a)(1) and 1692k(a)(2)(A), attorneys’ fees and
costs pursuant to 15 U.S.C. § 1692k(a)(3), and a declaration that MSB’s practices violated the

MSB is a “debt collector” as defined by 15 U.S.C. § 1692a(6). Compl. ¶ 3. The debt at issue was
“a financial obligation that was primarily for personal, family or household purposes,” and meets the definition of a
“debt” as defined by 15 U.S.C. § 1692a(5). Compl. ¶ 8.
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FDCPA. Compl. at 5. On August 18, 2015, MSB removed the case to this Court pursuant to 28
U.S.C. §§ 1441 and 1446, see ECF No. 1.2
DISCUSSION
A.

Legal Standard for Motion to Dismiss
To survive a motion to dismiss pursuant to Rule 12(b)(6), Robinson must have

alleged facts that “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). Although as mentioned above I accept the facts alleged in the
complaint as true, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), this tenet “is
inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). I draw all
inferences, within reason, in Robinson’s favor. Bolt Elec. Inc. v. City of New York, 53 F.3d 465,
469 (2d Cir. 1995).
B.

Section 1692f(8) of the FDCPA
Robinson alleges various violations of the FDCPA, “including but not limited to

15 U.S.C. §§ 1692c(b), 1692d, 1692f, and 1692f(8),” but his complaint appears to rest on the
provisions set forth in § 1692f. Compl. ¶ 15.
1.

Text of the FDCPA
The FDCPA prohibits debt collectors from using “unfair or unconscionable means

to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. Specifically, § 1692f(8) bars debt
collectors from “[u]sing 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 not indicate that he is in the debt
collection business.” 15 U.S.C. § 1692f(8). Reviewing courts look at FDCPA claims using the

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This Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331.

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“least sophisticated consumer” standard of review, that is, the “test is how the least sophisticated
consumer—one not having the astuteness of a ‘Philadelphia lawyer’ or even the sophistication of
the average, everyday, common consumer—understands the notice he or she receives.” Russell
v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir. 1996).
I begin by looking at the statute’s text. See Universal Church v. Geltzer, 463 F.3d
218, 223 (2d Cir. 2006). Robinson argues that the visibility of the reference number violated the
plain language of the statute’s text and is “unfair or unconscionable because subsection (8) says
it is.” Pl.’s Opp. Br. at 5. For its part, MSB argues that § 1692f(8)’s prohibition against
language or symbols on envelopes, if read literally, would produce absurd results: a debt
collector would be unable to put a stamp—much less a recipient’s name and address—on an
envelope. Def.’s Br. at 4.
I agree with MSB that § 1692f(8) cannot mean precisely what it says without
producing at least some illogical results. I therefore turn to the purpose and legislative history of
the statute for assistance in divining the meaning of its text. See Universal Church, 463 F.3d at
223 (“[Courts] may look to the legislative history to determine the legislative intent where the
plain statutory language is ambiguous or would lead to an absurd result.”); see also Gardner v.
Credit Mgmt. LP, 2015 WL 6442246, at *2 (S.D.N.Y. Oct. 23, 2015) (“[A] literal application of
[§ 1692f(8)] would similarly prohibit the inclusion of the recipient’s name, her address, or
preprinted postage, which would . . . yield the absurd result that a statute governing the manner
in which the mails may be used for debt collection might in fact preclude the use of the mails
altogether.”).

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2.

The Legislative History and Purpose of the FDCPA
The FDCPA seeks “to protect consumers from a host of unfair, harassing, and

deceptive debt collection practices without imposing unnecessary restrictions on ethical debt
collectors.” S. Rep. No. 95-382, at 1 (1977). It has, then, a two-pronged purpose—to protect
consumers from abuse without overly restricting “ethical” debt collectors. Regarding the first
prong, Congress listed various abuses it sought to prevent: “obscene or profane language, threats
of violence, telephone calls at unreasonable hours, misrepresentation of a consumer’s legal
rights, disclosing a consumer’s personal affairs to friends, neighbors, or an employer, obtaining
information about a consumer through false pretense, impersonating public officials and
attorneys, and simulating legal process.” Id. at 2. Although this list of abuses is non-exhaustive,
it does not include communications with consumers that neither mislead them nor identify them
as debtors.
In its interpretation of the FDCPA, the Federal Trade Commission (“FTC”) has
determined that a debt collector does not violate the FDCPA for non-abusive and non-identifying
communications. It has crafted a “[h]armless words or symbols” exception to the general
prohibition against printing symbols on envelopes sent to consumers, allowing that “[a] debt
collector does not violate this section by using an envelope printed with words or notations that
do not suggest the purpose of the communication.” Statements of Gen. Policy or Interpretation
Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed. Reg. 50097-02, 50108
(Dec. 13, 1988).
Courts reviewing § 1692f(8) have agreed with this interpretation and have found
it to be in line with the statute’s text. Though subsection (8) contains a blanket prohibition
against using language or symbols on envelopes, it must be read “in the context of the preface of

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section 1692, [which] prohibit[s] unfair and unconscionable conduct by debt collectors.”
Gelinas v. Retrieval-Masters Creditors Bureau, Inc., 2015 WL 4639949, at *2 (W.D.N.Y. July
22, 2015). Eschewing a literal application of the subsection to account for both the language of
the statute and its legislative history, “[m]ost of the reported cases construing section 1692f(8)
consider [harmless] the use of so-called ‘benign language’ on the mailing envelope, such as the
terms ‘immediate reply requested,’ and ‘priority letter,’ a blue stripe and the word
“TRANSMITTAL,” the words “REVENUE DEPARTMENT” in the return address, and the
terms “personal and confidential.” Id. at *3 (collecting cases) (internal citations omitted).
3.

Application of the FDCPA
I must decide whether the display of the reference number associated with the

debt on the envelope sent to Robinson falls within this “benign language” exception to the
FDCPA, or constitutes the type of confusing, abusive, or identifying communication the FDCPA
seeks to prevent.
Robinson does not argue that the visibility of the reference number has harassed
or confused him, but instead that the inclusion of this information, because it is tied to his
specific debt, makes him vulnerable to potential harm. Pl.’s Br. at 7. Robinson describes this
vulnerability as being at risk “to exposure of the number to a third party who, as opposed to a
random stranger, may have some knowledge of the debtor’s predicament, but not know the
account number.” Pl.’s Br. at 6. MSB argues that the reference number does not suggest the
purpose of its mailing to Robinson and instead is “just a number without context.” Def.’s Reply
Br. at 4.
I agree with MSB and conclude as a matter of law that the inclusion of a reference
number visible through the envelope’s “window” cannot violate the FDCPA. Although the

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reference number has import within MSB’s internal system, when it is printed on an envelope, it
is meaningless—even to someone with knowledge of Robinson’s debtor status. Robinson has
not alleged that the reference number looks any different from such identifiers on insurance
policies, bank statements, subscription notices, “or any of the other myriad junk mail
communications that arrive in plain white envelopes with glassine windows on a daily basis in
the mailboxes of America.” Perez v. Global Credit and Collection, Corp., 2015 WL 4557064,
at *4 (S.D.N.Y. July 27, 2015).
Robinson further argues that the exposure of the reference number could be used
by someone impersonating him to uncover information about his debt and asks: “[w]as Congress
not concerned about a nosey roommate, a concerned relative, or a vindictive ex-spouse?” Pl.’s
Br. at 6-7. I note first that Robinson has neither alleged that the reference number printed on the
envelope sent to him actually identifies him as a debtor, nor that its publication actually
threatened or harassed him. At any rate, I reject the contention that the mere presence of a
reference number—a string of random digits—creates an actionable violation under the FDCPA,
even if it were to fall into the hands of the blackhearted cast of characters Robinson
hypothesizes.
In order for any hypothetical member of the public who views the envelope . . . to
perceive that debt collection is involved and is at issue . . . that member of the
public would have to be blessed (or cursed?) with x-ray vision that enabled him or
her to read the letter contained in the sealed and assertedly offending envelope.
Absent that, any deciphering of the impenetrable string of numbers and symbols
on the outside of the [envelope at issue] would have to depend on some sort of
divination. That is simply not the stuff of which any legitimate invocation of the
Act or its constructive purposes can be fashioned.
Sampson v. MRS BPO, LLC, 2015 WL 4613067, at *1 (N.D. Ill. Mar. 17, 2015) (dismissing a
complaint seeking damages against a debt collector for placing the collection account number on
the outside of an envelope). In short, Congress intended the FDCPA to prevent debt collectors
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from intimidating or identifying debtors, and neither purpose is implicated by the reference
number’s presence on the envelope at issue here.
The Second Circuit has yet to decide this issue, but my colleagues within the
circuit who have done so—in claims alleging substantially similar facts to the instant claim—
agree with me. See Perez, 2015 WL 4557064, at *3 (“[T]his Court finds that plaintiff’s account
number—a string of eight meaningless digits—falls comfortably within the ‘benign language’
exception to § 1692f(8); Gelinas, 2015 WL 4639949, at *4 (“[I]t cannot be said that the visibility
of a series of letters and numbers above the recipient’s name is capable of identifying that person
as a debtor.”); Gardner, 2015 WL 6442246, at *6 (“A string of alphanumeric characters does not
disclose anything about Gardner’s private affairs, nor can Gardner plausibly assert that such
characters would tend to mislead a debtor.”).3
The text of § 1692f, its legislative history and purpose, and common sense all
support dismissing the complaint as a matter of law for its failure to state a claim.
CONCLUSION
For the reasons set forth above, I grant MSB’s motion and dismiss the complaint
with prejudice.

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I acknowledge that the Third Circuit, in considering an account number printed on a debt
collection envelope, found it to be “a core piece of information pertaining to [the debtor’s] status as a debtor and
[Defendant’s] debt collection effort. Disclosed to the public, it could be used to expose her financial predicament.”
Douglass v. Convergent Outsourcing, 765 F.3d 299, 303 (3d Cir. 2014). I am not bound by the Third Circuit’s
conclusions. Moreover, I disagree with Douglass and agree with Perez that it is unsupported by any analysis as to
how the printing of random symbols, meaningful only to those at the organization who issued those symbols and
who already know the consumer is in debt, can be used to expose a consumer’s status as a debtor. Perez, 2015 WL
4557064, at *4.

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So ordered.

John Gleeson, U.S.D.J.

Dated: November 24, 2015
Brooklyn, New York

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