White v. Professional Claims Bureau, Inc.
Filing
32
ORDER granting 16 Motion for Summary Judgment. For the reasons set forth herein, the Court grants plaintiff's motion for summary judgment on Claims One and Two of her complaint. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/22/2018. (Baum, Sabrina)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
Nos 15-cv-7187 (JFB) (ARL), 16-CV-3210 (JFB) (AKT),
17-cv-279 (JFB) (GRB)
_____________________
CYNTHIA WHITE,
Plaintiff,
VERSUS
PROFESSIONAL CLAIMS BUREAU, INC.,
Defendant.
MATTHEW SHIELDS,
Plaintiff,
VERSUS
PROFESSIONAL CLAIMS BUREAU, INC.,
Defendant.
JOSEPHINE GRACCI AND BERNABE L. ANDRES,
Plaintiffs,
VERSUS
PROFESSIONAL CLAIMS BUREAU, INC.,
Defendant.
_______________________
MEMORANDUM AND ORDER
February 22, 2018
_______________________
JOSEPH F. BIANCO, District Judge:
Plaintiffs Cynthia White (“White”),
Matthew Shields (“Shields”), Josephine
Gracci (“Gracci”), and Bernabe L. Andres
(“Andres,” and collectively, “plaintiffs”)
filed complaints against Professional Claims
Bureau, Inc. (“Professional Claims Bureau”
or “PCB” or “defendant”), alleging violations
of 15 U.S.C. §§ 1692g(a)(2) and 1692e of the
Fair Debt Collection Practices Act (the
“FDCPA”) in Claims One and Two,
respectively, of their complaints. Presently
before the Court are plaintiffs’ motions for
summary judgment pursuant to Federal Rule
of Civil Procedure 56. As plaintiffs’ claims
and grounds for moving for summary
judgment are identical in plaintiffs’ three
separate cases,1 the Court decides plaintiffs’
motions together in this opinion.
concludes that defendant is collaterally
estopped from relitigating these issues and, in
in any event, also independently holds that
the letters at issue violate §§ 1692g(a)(2) and
1692e of the FDCPA.
I. BACKGROUND
A. Factual Background2
The Court takes the following facts from
the parties’ joint Rule 56.1 Statements of
Facts3 and any admissible affidavits,
depositions, and exhibits.
The Court
construes the facts in the light most favorable
to defendant, the nonmoving party. See
Capobianco v. City of New York, 422 F.3d 47,
50 n.1 (2d Cir. 2005).
Plaintiffs notified the Court of two recent
decisions in this district in which the courts
granted summary judgment in favor of other
plaintiffs against Professional Claims
Bureau, finding the same Professional
Claims Bureau form letters at issue in this
case to be in violation of §§ 1692g(a)(2) and
1692e of the FDCPA. In addition to putting
forth arguments for summary judgment on
the merits of their cases, plaintiffs argue that,
in light of these prior adverse rulings against
defendant, this Court should find defendant
collaterally estopped from relitigating these
issues and rule in favor of plaintiffs.
1. Defendant’s Collection Letters to
Plaintiffs
Plaintiffs are “consumers” and defendant
is a “debt collector,” as defined by the
FDCPA. (ECF No. 17 at 1.) Defendant sent
plaintiffs collection letters “in an effort to
collect an alleged debt.” (Id. (discussing
defendant’s letter to White, dated March 12,
2015); Shields, ECF No. 23 at 1 (discussing
defendant’s letter to Shields, dated
September 8, 2015); Gracci, ECF No. 17 at 1
For the reasons set forth in detail below,
the Court grants plaintiffs’ motions for
summary judgment. Specifically, the Court
1
2
White brought her claims in White v. Professional
Claims Bureau, Inc., No. 15-cv-7187(JFB)(ARL)
(E.D.N.Y. Dec. 17, 2015), ECF No. 1; Shields brought
his claims in Shields v. Professional Claims Bureau,
Inc., No. 16-cv-3210(JFB)(AKT) (E.D.N.Y. June 17,
2016), ECF No. 1; and Gracci and Andres brought
their claims in Gracci v. Professional Claims Bureau,
Inc., No. 17-cv-279(JFB)(GRB) (E.D.N.Y. Jan. 18,
2017), ECF No. 1. The parties’ submissions in each
of these cases are identical in all but the plaintiff’s and
medical provider’s names listed on the form collection
notice specific to that case, and the sections of the
parties’ submissions referencing these recipientspecific facts. As discussed infra, the rest of the text
in these form collection notices and the parties’
arguments relating to these forms can be discussed
without differentiation.
The Court cites to the record in White v. Professional
Claims Bureau, Inc., 15-cv-7187(JFB)(ARL), unless
otherwise indicated. The parties filed the same
documents in each of the three cases, with minor
differences as discussed supra in note 1.
References to the record in White will be cited as “ECF
No. [docket number].” References to the record in
Shields will be cited as “Shields, ECF No. [docket
number].” References to the record in Gracci will be
cited as “Gracci, ECF No. [docket number].”
3
Defendant notified the Court that the parties have
agreed on the facts of these cases as stated in plaintiffs’
Rule 56.1 Statements. (ECF No. 23 at 2.) The Court
therefore accepts plaintiffs’ Rule 56.1 Statements
(ECF No. 17)—which are essentially identical in all
three cases—as joint Rule 56.1 Statements.
2
(discussing defendant’s letter to Gracci,4
dated January 14, 2016), ECF No. 1, Ex. 1 at
3 (attaching defendant’s letter to Andres,
dated February 2, 2016).) These collection
letters were the initial written communication
defendant sent to plaintiffs concerning these
debts. (ECF No. 17 at 2.)
The PCB and client account numbers are
partially redacted. (Id.) Below this text, the
collection letters provide defendant’s
information, including its name (Professional
Claims Bureau, Inc.), contact information,
and a computer icon accompanied by the
message “Pay Online 24/7/365,” below
which defendant provides the website
address “www.paypcb.com.” (Id.)
The upper right-hand corner of each letter
includes the following recipient-specific text:
The body of the letter contains the
following message:
Re: SAMARITAN EMERGENCY
MED SVCS-ER
Patient name: CYNTHIA WHITE
Service Date: 10/19/14
IMPORTANT
INFORMATION
ACCOUNT
The above referenced account has
been referred to our offices for
collection.
(ECF No. 1, Ex. 1 at 1.)
Re:
NSLIJ
HEALTH
SYSSOUTHSIDE
Patient name: RYAN THOMAS
SHIELDS5
Service Date: 01/26/14
Our
professional
account
representatives are available to help
you resolve this situation in a way that
is acceptable to both you and our
client.
(Shields, ECF No. 1, Ex. 1 at 1.)
Re: MSK PHYSICIANS
Patient
name:
JOSEPHINE
GRACCHI6
Service Date: 02/04/14
There is a good chance that this
balance represents a balance after
insurance or a balance that your
insurance carrier has denied for some
reason.
(Gracci, ECF No. 1, Ex. 1 at 1.)
For your convenience you may access
our website (24 hrs/7 days) to pay
your bill by check or credit card.
www.paypcb.com
Re: MERCY MEDICAL CENTER
Patient name: BERNABE ANDRES
Service Date: 06/25/15
(Gracci, ECF No. 1, Ex. 1 at 3.)
Additionally, feel free to mail your
check, money order or credit card
information along with the payment
stub below.
The collection notices also include the
“Balance Due,” “PCB #,” and “Client Acct
#” specific to each recipient in another box at
the top of the letter. (ECF No. 1, Ex. 1 at 1.)
4
See infra note 8 (discussing the two collection letters
at issue in Gracci).
names appear in both the lower left-hand and upper
right-hand corners, next to “Patient name.”
5
6
Plaintiff’s name is spelled “Gracchi” where it appears
in both the lower left-hand and upper right-hand
corners of the collection notice.
As indicated in the lower left-hand corner of the debt
collection notice, plaintiff Matthew Shields received
this collection letter requesting payment for services
performed for patient Ryan Thomas Shields. (Shields,
ECF No. 1, Ex. 1 at 1.) On the other letters, plaintiffs’
3
reflect a charge from Professional Claims
Bureau, Inc.” (Id.)
Whatever you do, please do not
choose to ignore this outstanding
debt.
2. Defendant’s Collection
Challenged in Prior Actions
This is an attempt to collect a debt.
Any information obtained will be
used for that purpose.
Letters
As discussed infra, the courts ruling in
Diaz v. Professional Claims Bureau, Inc. and
McGinty v. Professional Claims Bureau, Inc.
granted summary judgment to plaintiffs
alleging that defendant’s form collection
letters violated §§ 1692g(a)(2) and 1692e of
the FDCPA.
Diaz, No. 16-cv-2184
(ADS)(SIL) (E.D.N.Y. Nov. 27, 2017), ECF
No. 37 (hereinafter, “Diaz” or “Diaz
Opinion”) at 1-2; McGinty, No. 15-cv-4356
(SJF)(ARL) (E.D.N.Y. Jan. 2, 2018), ECF
No. 42 (hereinafter, “McGinty” or “McGinty
Opinion”) at 1-2.7 One of the two collection
letters at issue in Diaz8 and all of the letters at
issue in McGinty were essentially identical to
the letters plaintiffs in this case received. The
only differences among the letters were the
recipient-specific statements, discussed
supra,
which
included
information
identifying the recipient and the debt that
defendant sought to collect through that letter
(the name of the institution following “Re:”
in the top box, patient name, balance due,
PCB and client account numbers, and service
and statement dates). (See supra; Diaz
Opinion at 3; McGinty Opinion at 2-4; ECF
No. 18, Exs. 1, 2.)
(Id.) In slightly smaller font underneath this
message, the letter states:
If you request of this office in writing
. . . this office will provide you with
the name and address of the original
creditor, if different from the current
creditor.
(Id.)
The bottom portion of the collection letter
is a detachable payment slip, with spaces for
recipients to provide their credit card
information and the “Amount Paid.” (Id.)
The payment slip contains some of the same
information as appears at the top of the letter:
the partially redacted account number,
patient name, and balance due. (Id.) The slip
also includes a “Statement Date,” which the
parties refer to as the date of the collection
letter. (Id.) In smaller font, the top of the
payment slip reads: “To ensure proper credit
to your account, detach this section and
return with your payment.” (Id.)
The payment slip portion of each letter
also includes that plaintiff’s mailing address,
Professional Claims Bureau’s mailing
address, and a return address for “pcb.” (Id.)
The payment slip includes, in smaller font:
“Please note your credit card statement will
B. Procedural History
Plaintiffs filed their complaints against
defendant on the following dates: White filed
on December 17, 2015 (ECF No. 1); Shields
filed his original complaint on June 17, 2016,
7
The court issued a combined decision in McGinty,
Eastby v. Professional Claims Bureau, Inc., No. 15cv-7183 (SJF)(GRB) (E.D.N.Y.), and Barbero v.
Professional Claims Bureau, Inc., No. 16-cv-3339
(SJF)(AYS) (E.D.N.Y.).
letter in Diaz addressed to co-plaintiff Andres, which
differed from the form collection letters at issue here.
Diaz, ECF No. 37 at 5. When referring to the Diaz
letter in this opinion, this Court is discussing the letter
that co-plaintiff Diaz received, which was identical to
the letters at issue in this case in all relevant respects,
id. at 3, as discussed infra.
8
The Diaz opinion involved two collection letters, one
sent to each plaintiff in the case. For the purposes of
this opinion, however, this Court need not discuss the
4
and his amended complaint on September 8,
2016 (Shields, ECF Nos. 1, 10); and Gracci
and Andres filed on January 18, 2017
(Gracci, ECF No. 1). Defendant filed its
answer in White on February 3, 2016 (ECF
No. 6); in Shields on September 16, 2016
(Shields, ECF No. 11); and in Gracci on
February 22, 2017 (Gracci, ECF No. 5).
their own notices of supplemental authority:
plaintiffs filed a letter regarding the decision
in Diaz on November 27, 2017 (ECF No. 30;
Shields, ECF No. 37; Gracci, ECF No. 31),
and another letter regarding the decision in
McGinty on January 10, 2018 (ECF No. 31;
Shields, ECF No. 38; Gracci, ECF No. 32).
The Court has fully considered the
parties’ arguments and submissions.
On March 29, 2017, White filed a letter
requesting permission to move for summary
judgment. (ECF No. 13.) Plaintiffs filed the
same letters in Shields and Gracci on April
20, 2017. (Shields, ECF No. 17; Gracci, ECF
No. 10.) The Court held a pre-motion
conference in White on April 3, 2017 (ECF
No. 14), and in Shields and Gracci on May 2,
2017 (Shields, ECF No. 20; Gracci, ECF No.
14).
II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil
Procedure 56(a), a court may grant a motion
for summary judgment only if “the movant
shows that there is no genuine dispute as to
any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Gonzalez v. City of
Schenectady, 728 F.3d 149, 154 (2d Cir.
2013). The moving party bears the burden of
showing that he is entitled to summary
judgment. See Huminski v. Corsones, 396
F.3d 53, 69 (2d Cir. 2005).
Plaintiffs filed their motions for summary
judgment in the three cases on May 24, 2017.
(ECF Nos. 16-19; Shields, ECF Nos. 22-25;
Gracci, ECF Nos. 16-19.)
Defendant
submitted its oppositions on August 14, 2017
(ECF No. 23; Shields, ECF No. 28; Gracci,
ECF No. 22), and plaintiffs replied on August
29, 2017 (ECF No. 24; Shields, ECF No. 29;
Gracci, ECF No. 23). The Court held a joint
oral argument in the three cases on
September 27, 2017. (ECF No. 29; Shields,
ECF No. 34; Gracci, ECF No. 28.)
A party asserting that a fact cannot be
or is genuinely disputed must support
the assertion by:
(A) citing to
particular parts of materials in the
record,
including
depositions,
documents, electronically stored
information,
affidavits
or
declarations, stipulations (including
those made for purposes of the
motion
only),
admissions,
interrogatory answers, or other
materials; or (B) showing that the
materials cited do not establish the
absence or presence of a genuine
dispute, or that an adverse party
cannot produce admissible evidence
to support the fact.
On September 29, 2017, defendant filed a
notice of supplemental authority in Shields
and Gracci, bringing the recent decision in
Hernandez v. Prof’l Claims Bureau, Inc., No.
16 Civ. 6849 (PGG), 2017 U.S. Dist. LEXIS
193819 (S.D.N.Y. Sept. 23, 2017), to the
Court’s attention. (Shields, ECF No. 35;
Gracci, ECF No. 29.)9 Plaintiffs in Shields
and Gracci filed replies in opposition to this
letter the same day. (Shields, ECF No. 36;
Gracci, ECF No. 30.) Plaintiffs also filed
9
Defendant did not file a letter notifying the Court of
this supplemental authority in White.
5
Fed. R. Civ. P. 56(c)(1). The court “is not to
weigh the evidence but is instead required to
view the evidence in the light most favorable
to the party opposing summary judgment, to
draw all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).
(quoting Research Automation Corp., 585
F.2d at 33).
Once the moving party has met its
burden, the opposing party “must do more
than simply show that there is some
metaphysical doubt as to the material facts
. . . . [T]he nonmoving party must come
forward with specific facts showing that there
is a genuine issue for trial.” Caldarola v.
Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)
(alteration in original) (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986)). As the Supreme
Court stated in Anderson, “[i]f the evidence
is merely colorable, or is not significantly
probative, summary judgment may be
granted.” 477 U.S. at 249-50 (citations
omitted). Indeed, “the mere existence of
some alleged factual dispute between the
parties will not defeat an otherwise properly
supported motion for summary judgment.”
Id. at 247-48. Thus, the nonmoving party
may not rest upon mere conclusory
allegations or denials, but must set forth
“concrete particulars” showing that a trial is
needed. R.G. Grp., Inc. v. Horn & Hardart
Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting
SEC v. Research Automation Corp., 585 F.2d
31, 33 (2d Cir. 1978)). Accordingly, it is
insufficient for a party opposing summary
judgment “merely to assert a conclusion
without supplying supporting arguments or
facts.” BellSouth Telecomms., Inc. v. W.R.
Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996)
A. Collateral Estoppel
III. DISCUSSION
Plaintiffs move for summary judgment on
Claims One and Two of their complaints.
Specifically,
plaintiffs
argue
that:
(1) defendant’s form collection letters are
deficient under the FDCPA, and (2) plaintiffs
should succeed because courts in this district
have already found defendant’s form
collection letters to be deficient, and
defendant is therefore collaterally estopped
from relitigating these issues.
As a threshold matter, for the reasons
discussed below, this Court finds that
defendant is collaterally estopped from
relitigating the question of whether its form
collection letters violate the FDCPA in light
of the rulings in Diaz and McGinty.
1. Applicable Law
A court may conclude that the doctrine of
collateral estoppel applies to a claim at the
summary judgment stage. Swiatkowski v.
Citibank, 745 F. Supp. 2d 150, 168 (E.D.N.Y.
2010), aff’d, 446 F. App’x 360 (2d Cir.
2011). “[C]ollateral estoppel . . . means
simply that when an issue of ultimate fact has
once been determined by a valid and final
judgment, that issue cannot again be litigated
between the same parties in any future
lawsuit.” Leather v. Eyck, 180 F.3d 420, 424
(2d Cir. 1999) (quoting Schiro v. Farley, 510
U.S. 222, 232 (1994)). “Collateral estoppel,
like the related doctrine of res judicata, has
the dual purpose of protecting litigants from
the burden of relitigating an identical issue
with the same party or his privy and of
promoting judicial economy by preventing
needless litigation.” Parklane Hosiery Co. v.
Shore, 439 U.S. 322, 326 (1979) (footnote
omitted). The Second Circuit has established
6
the following four-part test for collateral
estoppel to apply:
from relitigating the issues which the
defendant previously litigated and lost
against another plaintiff.” Id. at 329-33.
(1) the issues of both proceedings
must be identical, (2) the relevant
issues were actually litigated and
decided in the prior proceeding,
(3) there must have been “full and fair
opportunity” for the litigation of the
issues in the prior proceeding, and
(4) the issues were necessary to
support a valid and final judgment on
the merits.
2. Analysis
Here, as the Supreme Court established in
Parklane, plaintiffs can use offensive
collateral estoppel to prevent defendant from
relitigating issues that were decided
adversely to defendant in a prior action (even
though plaintiffs were not parties to those
proceedings), 439 U.S. at 333, so long as they
can satisfy the four-part test for collateral
estoppel. Plaintiffs argue that, because courts
in this district have already found that
defendant’s form collection letters—which
they allege were essentially identical to the
letters they received—violate the same
FDCPA provisions plaintiffs raise, this Court
should find defendant collaterally estopped
from relitigating these issues.
Cent. Hudson Gas & Elec. Corp. v. Empresa
Naviera Santa S.A., 56 F.3d 359, 368 (2d Cir.
1995) (citing Gelb v. Royal Globe Ins. Co.,
798 F.2d 38, 44 (2d Cir. 1986)). “The party
seeking the benefit of collateral estoppel
bears the burden of proving the identity of the
issues, while the party challenging its
application bears the burden of showing that
he or she did not have a full and fair
opportunity to adjudicate the claims
involving those issues.”
Khandhar v.
Elfenbein, 943 F.2d 244, 247 (2d Cir. 1991)
(citing Kaufman v. Eli Lilly & Co., 65 N.Y.2d
449, 456 (1985)).
The Court agrees with plaintiffs that
(1) the issues of whether defendant’s letters
in the instant cases violate §§ 1692g(a)(2)
and 1692e of FDCPA are identical to the
issues raised in Diaz and McGinty, (2) these
issues were actually litigated and decided in
those proceedings, (3) defendant had a “full
and fair opportunity” to litigate these issues,
and (4) these issues were necessary to support
a valid and final judgment on the merits in
both Diaz and McGinty.
Although collateral estoppel requires
identity of issues, it does not require
mutuality of parties. See Parklane, 439 U.S.
at 326-27. Under the mutuality doctrine, a
party was barred from using a prior judgment
for estoppel unless both parties were bound
by that prior judgment. Id. The Supreme
Court has abandoned the mutuality
requirement for collateral estoppel,10 and has
ruled that a plaintiff can use “offensive
collateral estoppel” to “estop a defendant
Like plaintiffs here, plaintiffs in Diaz11
and McGinty argued that Professional Claims
Bureau’s form letters failed to identify the
owners of plaintiffs’ debts, in violation of
§§ 1692g(a)(2) and 1692e of FDCPA. Diaz
Opinion at 11-12, 16; McGinty Opinion at 8.
10
11
See United States v. Mendoza, 464 U.S. 154, 158
(1984); see also Amadasu v. Bronx Lebanon Hosp.
Ctr., No. 03 Civ. 6450 (LAK) (AJP), 2005 WL
121746, at *8 (S.D.N.Y. Jan. 21, 2005) (“[T]he
doctrine of collateral estoppel does not require that the
same parties are named in the earlier action in order to
apply to the instant action.”).
As discussed supra in note 8, the Court discusses
only the claims pertaining to Diaz’s allegedly identical
form letter, without addressing the Diaz opinion as it
relates to co-plaintiff Andres’s different form
collection letter.
7
The court in Diaz granted summary
judgment on the § 1692e claim for the same
reasons provided in its § 1692g(a)(2)
analysis. Diaz Opinion at 16. The McGinty
court agreed with the Diaz court’s decision
and found that, in addition to violating
§ 1692e by failing to sufficiently identify the
current creditors, the letters could also be
found to be “false, deceptive, or misleading”
for the following reasons:
In Diaz, Diaz claimed that the collection
letter he received “failed to identify any
entity using the label ‘creditor,’ ‘current
creditor,’ ‘original creditor,’ ‘or creditor to
whom the debt is owed.’” Diaz Opinion at
12. In McGinty, the court stated that it was
“presented with the same, deficient PCB
Collection Letters” as were at issue in Diaz.
McGinty Opinion at 15. The court next
described all of the letters (including the Diaz
letter as well as those in the case before it) as
follows:
(1) other than the numerous times
PCB is mentioned in the Collection
Letters, including several directions
to pay it, as to each Letter, there is
one, ambiguous reference to another
entity; and (2) in each Collection
Letter, PCB’s opaque reference to its
“client”, without more, does not
elucidate a connection, if any,
between itself and the vaguely
referenced entity. Moreover, since
PCB did not identify the named
entities as the Plaintiffs’ current
creditors, that failure is sufficient to
satisfy the materiality requirement, if
there is one . . . .
Each letter has a single reference, in
the top, right-hand corner, to an entity
for which, other than the preceding
“Re:”, there are no identifiers
therewith, e.g., “creditor,” “current
creditor,” “original creditor,” or
“creditor to whom this debt is owned
[sic].” Nor is there anything in the
Collection Letters which would
connect the referenced entity to PCB
or identify its relationship to PCB, if
any, e.g., “PCB’s client, [named
entity].” Without[] this “something
more”, the Collection Letters do not
state the required § 1692g(a)(2)
information clearly enough that the
least sophisticated consumer is likely
to understand it.
McGinty Opinion at 17-18.
As discussed supra, aside from the
recipient-specific information they contain,
the form letters in the instant cases are
identical to the letters discussed in Diaz and
McGinty, and are also, therefore, deficient in
the ways identified by the courts ruling in
those cases. This Court, therefore, finds the
first requirement for collateral estoppel
satisfied: the issues in those cases and the
instant cases are the same. Further, as those
courts ruled on the parties’ summary
judgment motions after reviewing the parties’
briefs, Diaz, ECF Nos. 25, 28-37; McGinty,
ECF Nos. 24, 30-42, (1) these issues were
actually litigated and decided in those
proceedings, (2) defendant had a “full and
fair opportunity” to litigate, and (3) the issues
were necessary to support the courts’ valid
Id. Based on this Court’s review of the form
letters in Diaz and McGinty (as displayed in
the exhibits and described in the opinions in
those cases), this Court agrees with the
McGinty court’s determination that the letters
in those cases were essentially identical and
presented the same issues. The court in
McGinty concluded its analysis by stating
that “substantially for the same reasons
articulated by Judge Spatt in his Diaz
Decision, as a matter of law, the Plaintiffs are
entitled to summary judgment in their favor
as to their § 1692g(a)(2) causes of action.”
McGinty Opinion at 16.
8
receipt of the initial communication,
lest the debt be assumed valid by the
debt collector; (4) a statement that if
the consumer notifies the debt
collector that the consumer is
disputing the debt, the debt collector
must provide verification of the debt;
and (5) a statement that, if the
consumer requests the name and
address of the original creditor in
writing within thirty days of receiving
the initial communication, the debt
collector must provide it.
and final judgments on the merits in both
cases, finding that defendant’s form
collection letters had violated §§ 1692g(a)(2)
and 1692e.
The Court, therefore, concludes that
defendant is collaterally estopped from
relitigating the issue of the deficiency of the
same form collection letter in the instant
cases. Further, the Court has conducted an
independent analysis of plaintiffs’ FDCPA
claims in these cases, and for the reasons
discussed below, also determines that
plaintiffs are entitled to summary judgment
on their claims on the merits.
15 U.S.C. § 1692g(a). The sole portion of
this provision at issue in this case is
§ 1692g(a)(2), requiring debt collectors to
include “the name of the creditor to whom the
debt is owed.” Id.
B. The FDCPA
Congress created the FDCPA to respond
to the “use of abusive, deceptive, and unfair
debt collection practices by many debt
collectors.” 15 U.S.C. § 1692(a); see Greco
v. Trauner, Cohen & Thomas, L.L.P., 412
F.3d 360, 363 (2d Cir. 2003). Finding that
such practices “contribute to the number of
personal bankruptcies, to marital instability,
to the loss of jobs, and to invasions of
individual privacy,” the FDCPA aims “to
eliminate abusive debt collection practices by
debt collectors, to insure that those debt
collectors who refrain from using abusive
debt
collection
practices
are
not
competitively disadvantaged, and to promote
consistent State action to protect consumers
against debt collection abuses.” 15 U.S.C.
§§ 1692(a), 1692(e).
2. Section 1692e
Section 1692e provides that “[a] debt
collector may not use any false, deceptive, or
misleading representation or means in
connection with the collection of any debt.”
15 U.S.C. § 1692e. To determine whether a
debt collector’s communication violates
§ 1692e, courts apply an objective test based
on the understanding of the “least
sophisticated consumer.” Bentley v. Great
Lakes Collection Bureau, 6 F.3d 60, 62 (2d
Cir. 1993); see Clomon v. Jackson, 988 F.2d
1314, 1318 (2d Cir. 1993); Vu v. Diversified
Collection Servs., Inc., 293 F.R.D. 343, 359
(E.D.N.Y. 2013). According to the Second
Circuit, the “least sophisticated consumer”
standard is “an objective analysis that seeks
to protect the naive from abusive practices
while simultaneously shielding debt
collectors from liability for bizarre or
idiosyncratic
interpretations
of debt
collection letters.” Greco, 412 F.3d at 363
(citations omitted). The Second Circuit has
emphasized, however, that “even the least
sophisticated consumer can be presumed to
possess a rudimentary amount of information
about the world and a willingness to read a
1. Section 1692g(a)(2)
Section 1692g(a) sets forth the required
disclosures for a debt collector’s initial
communication to a consumer. Specifically,
the debt collector must include:
(1) the amount of the debt; (2) the
name of the creditor to whom the debt
is owed; (3) a statement that the
consumer may dispute the validity of
the debt within thirty days after
9
collection notice with some care.” Id.
(quoting Clomon, 988 F.2d at 1318-19).
debt was owed in their collection letters, as
required under § 1692g(a)(2). While “the
Second Circuit appears not to have directly
addressed how clearly a debt collection
notice must identify the name of the
creditor,” numerous decisions in this circuit
have found collection letters to be in violation
of § 1692g(a)(2) for, among other reasons,
failing to make the creditor’s identity
explicit, or identifying a creditor only once.
See, e.g., Datiz v. Int’l Recovery Assocs., Inc.,
No. 15-cv-3549 (ADS)(AKT), 2016 WL
4148330, at *8-11 (E.D.N.Y. Aug. 4, 2016)
(rejecting defendant’s argument that its letter
“clearly implie[d] that [the medical
institution] [wa]s the Plaintiff’s creditor,”
and therefore denying defendant’s motion to
dismiss because “the fact that the caption [of
the] . . . Letter lists [the medical institution] is
not, without more explanation, sufficient to
satisfy Section 1692g(a)(2) because it does
not identify the Hospital as the Plaintiff’s
current creditor”); Sparkman v. Zwicker &
Assocs., P.C., 374 F. Supp. 2d 293, 300-01
(E.D.N.Y. 2005).
A communication is considered false,
deceptive, or misleading to the “least
sophisticated consumer” if it is “open to more
than one reasonable interpretation, at least
one of which is inaccurate.”12 Easterling v.
Collecto, Inc., 692 F.3d 229, 233 (2d Cir.
2012).
3. Analysis
Plaintiffs argue that defendant’s form
collection letters violated the FDCPA
because of “certain deficiencies . . .
concerning the identity of the owner of
Plaintiff’s debt,” and that plaintiffs are
therefore entitled to summary judgment.
(ECF No. 19 at 1.)13 As a threshold matter,
the first two elements of an FDCPA claim are
not disputed: the parties agree that plaintiffs
are “consumers” as defined by § 1692a(3),
and that defendant is a “debt collector” as
defined by § 1692a(6). (ECF No. 17 at 1.) At
issue in this case is the last element required
for plaintiffs’ claims: whether defendant has
violated §§ 1692g(a)(2) and 1692e of the
FDCPA.
As plaintiffs argue, defendant’s letter
“fails to identify any entity as ‘account
owner,’ ‘creditor,’ ‘current creditor,’
‘original creditor,’ or ‘creditor to whom the
debt is owed.’” (ECF No. 19 at 5.) Plaintiffs
also highlight that the letters here, as the court
noted in McGinty, inform recipients that
a. Section 1692g(a)(2)
Plaintiffs argue that defendant failed to
include the name of the creditor to whom the
12
District court decisions in this circuit have
incorporated a materiality prong into this analysis, see,
e.g., Vu, 293 F.R.D. at 360 (citing Fritz v. Resurgent
Capital Servs., L.P., 955 F. Supp. 2d 163, 170-71
(E.D.N.Y. 2013)), relying on the Second Circuit’s
apparent approval of the materiality requirement in an
unpublished opinion, Gabriele v. Am. Home Mortg.
Servicing, Inc., 503 F. App’x 89, 94 (2d Cir. 2012).
Pursuant to Gabriele, “communications and practices
that could mislead a putative-debtor as to the nature
and legal status of the underlying debt, or that could
impede a consumer’s ability to respond to or dispute
collection,” are material misrepresentations that
violate the FDCPA. 503 F. App’x at 94. This Court,
however, need not decide whether to incorporate the
materiality requirement in this case because, even
assuming such a requirement exists, this Court
concludes that failing to name the creditor is
misleading in a material way because it could impede
a consumer’s ability to respond to, or dispute,
collection. Thus, any materiality requirement is met
in this case.
13
Plaintiffs in these three cases submitted briefs that
were identical in all but the three-line section in each
brief quoting the recipient-specific information in the
upper right-hand corners of plaintiffs’ form collection
letters. (See supra; ECF No. 19 at 5-6; Shields, ECF
No. 25 at 5-6; Gracci, ECF No. 19 at 5-6.) The Court,
therefore, continues to provide a single citation to the
White docket, unless otherwise indicated.
10
The court first explained that, in other cases
in which courts had found letters to be
deficient under § 1692g(a)(2)—including
McGinty—the creditor was “listed only once
in the subject line of a collection notice, and
there [wa]s no reference to the term
‘creditor.’” Id. at *10-11. Conversely, other
courts had determined that collection letters
that repeated the creditor’s name, even where
they failed to use the term “creditor,”
sufficiently identified the creditor for the
purposes of the FDCPA. Id. at *11-12. After
highlighting that the letter before it included
more than a single reference to the creditor,
the Hernandez decision discussed the
significance it assigned to the fact that
defendant included the creditor’s name on the
payment slip. Id. at *12-13. The court
specifically distinguished McGinty (in which
defendant’s name appeared on the payment
slip) on this basis, and explained that “[t]he
inclusion of the creditor’s name on the
payment slip – considered together with the
‘Patient Name’ field, the suggestion that the
debt is a co-pay, and the listing of a medical
facility – is sufficient for this court to
conclude . . . that [the medical institution] is
identified as the current creditor.” Id. The
Hernandez decision discussed the McGinty
case as rightly decided, and this Court
concurs. Additionally, the Court notes that
the payment slips in plaintiffs’ letters, unlike
in the Hernandez letter (1) are addressed to
defendant rather than to the medical
institutions, and (2) include a note stating that
“[the recipient’s] credit card statement will
reflect a charge from Professional Claims
Bureau, Inc.” (ECF No. 1, Ex. 1 at 1).
“[t]he above referenced account has been
referred to our offices for collection” (ECF
No. 1, Ex. 1 at 1), but “fail to make clear on
whose behalf [the debt collector] was acting
when it sent the Collection Letters,” McGinty
Opinion at 4. As was true of the Diaz and
McGinty letters, here, defendant’s letters to
plaintiffs each contain only “one, ambiguous
reference” to the creditor (the medical
institution that initially performed the service
for which plaintiffs owed a debt), McGinty
Opinion at 17-18: the single reference is in
the upper right-hand corner of the letters,
where the medical institution’s name follows
the word “Re:” (ECF No. 1, Ex. 1 at 1). After
the “Re:” line, nothing else in each letter
directs the recipient back to the creditor’s
name. The body of each letter refers to the
institution as defendant’s “client,” but does
not clarify further if the recipient will satisfy
his or her debt to that client by submitting the
payment slip in the collection notice. (ECF
No. 1, Ex. 1 at 1.) For these reasons, the
Court agrees with plaintiffs, and finds that
these letters would mislead recipients as to
whom they owe a debt, possibly even to
believe that they owe a debt to defendant.
Defendant asks the Court to consider the
recent Southern District of New York ruling
in its favor in Hernandez v. Professional
Claims Bureau, Inc. (Shields, ECF No. 35;
Gracci, ECF No. 29.) The letter at issue in
Hernandez also resembles the letters in Diaz,
McGinty, and the instant cases, aside from
one critical difference: the payment slip in
Hernandez’s letter was addressed to the
medical institution that had performed the
service for which she owed a debt,
Hernandez, 2017 U.S. Dist. LEXIS 193819,
at *12-13, rather than to defendant.
Viewing the same set of relevant facts as
were present in McGinty and Diaz, this Court
finds the analysis in those decisions to be
persuasive. Here, based on the language in
defendant’s letters alone, this Court finds that
it would be at best unclear to the “least
sophisticated consumer” which entity owned
plaintiffs’ debts. In fact, the Court believes it
Distinguishing McGinty, the Hernandez
court found that plaintiff had not
demonstrated, as a matter of law, that the
letter insufficiently identified the name of the
creditor seeking collection. Id. at *11-13.
11
of Sanders Law, PLLC, I 00 Garden City
Plaza, Suite 500, Garden City, New York
11530. Defendant is represented by Arthur
Sanders of Barron & Newburger, P.C., 30
South Main Street, New City, New York
I 0956.
is equally, if not more likely, that recipients
would read these collection notices to suggest
that the creditor they would be paying was
defendant.
b. Section I 692e
In addition to finding that defendant
insufficiently identified the current creditor
in its form collection letters under
§ I 692g(a)(2), the Court also agrees with
plaintiffs and the courts in the prior
proceedings against defendant that its letters
Plaintiffs argue that
violate § I 692e .
defendant' s letters are " open to more than
one reasonable interpretation as to the owner
of the debt," and are therefore deceptive as a
matter of law under§ l 692e. (ECF No . 19 at
7.) The Court agrees with plaintiffs for the
reasons stated supra. In particular, the least
sophisticated consumer would find the
language of the letter, as it relates to the
identity of the creditor, to be confusing and
The Court, therefore, finds
misleading.
defendant' s form collection letters to be
deceptive as a matter of law under § 1692e.
lV. CONCLUSION
For the foregoing reasons, the Court
grants plaintiffs ' motions for summary
judgment on Claims One and Two of their
complaints.
'
Dated:
Feoruary 22, 2018
Central Islip, NY
***
Plaintiff is represented by Craig B . Sanders,
David M. Barshay, and Jonathan Mark Cader
12
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