Guerrero v. GC Services Limited Partnership
ORDER granting 31 Motion to Amend/Correct/Supplement. Plaintiff's motion to amend the Complaint is GRANTED, in accordance with the attached Memorandum and Order. Plaintiff is directed to serve and file his Amended Complaint within ten (10) days. SEE ATTACHED ORDER for details. Ordered by Magistrate Judge A. Kathleen Tomlinson on 3/23/2017. (Roman, Joshua)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
WILLIAM GUERRERO, Individually and
on Behalf of all others Similarly Situated,
CV 15-7449 (DRH) (AKT)
- against GC SERVICES LIMITED PARTNERSHIP,
A. KATHLEEN TOMLINSON, Magistrate Judge:
Plaintiff William Guerrero (“Plaintiff” or “Guerrero”) brings the instant action on behalf
of himself and all others similarly situated against Defendant GC Services Limited Partnership
(“Defendant” or “GCS”) alleging violations arising under the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq. See generally Complaint (“Compl.”) [DE 1]. Presently
before the Court is Plaintiff’s motion to amend the Complaint. See DE 31. For the reasons set
forth below, Plaintiff’s motion to amend is GRANTED.
A. The Proposed Amended Complaint
The following information has been taken directly from Plaintiff’s Proposed Amended
Complaint. All facts are assumed to be true for purposes of deciding the motion to amend and
are construed in a light most favorable to the Plaintiff as the moving party.1 See, e.g., LaFaro v.
The Court points out that the proposed Amended Complaint (“Am. Compl.”) [DE 32-1]
is substantially similar in scope to the initial Complaint in this action. Compare Compl. with
N.Y. Cardiothoracic Grp., 570 F.3d 471, 475 (2d Cir. 2009); Matthews v. City of N.Y., 889 F.
Supp. 2d 418, 425 (E.D.N.Y. 2012); Alkhatib v. New York Motor Group, LLC, No. CV 13-2337,
2015 WL 3507340, at *7 (E.D.N.Y. June 3, 2015) (quoting Mendez v. U.S. Nonwovens Corp., 2
F. Supp. 3d 442, 451 (E.D.N.Y. 2014)) (noting that the court “is required to accept the material
facts alleged in the amended [pleading] as true and draw reasonable inferences in the [movant’s]
Plaintiff, an individual residing in the State of New York, is a “consumer” as that term is
defined by the FDCPA since he is “allegedly obligated to pay a debt.” Am. Compl. ¶¶ 5-6.2
Defendant, an entity with its principal place of business in Houston, Texas, is a “debt collector”
within the meaning of the FDCPA since it is primarily engaged in “a business the principal
purpose of which is the collection of debts” and because it “uses an instrumentality of interstate
commerce or the mails” in order to engage in the direct or indirect collection of debts. Id.
¶¶ 7-9.3 At some point prior to the filing of the instant action, Plaintiff incurred a debt that was
Am. Compl. The primary differences in the proposed Amended Complaint are: (a) the inclusion
of additional facts in Counts 1 through 3; (b) the addition of Counts 4 and 5, which appear to
assert claims based upon the same statutory sections as Counts 1 through 3; (c) the addition of
Count Six alleging actual damages; and (d) removal of the class claim. As such, the Court
dispenses with a recitation of the facts as alleged in the initial Complaint.
The term “consumer” is defined as “any natural person obligated or allegedly obligated to
pay any debt.” 15 U.S.C. § 1692a(3)
The term “debt collector” as set forth in the FDCPA, means “any person who uses any
instrumentality of interstate commerce or the mails in any business the principal purpose of
which is the collection of any debts, or who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the
exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any
creditor who, in the process of collecting his own debts, uses any name other than his own which
would indicate that a third person is collecting or attempting to collect such debts. For the
purpose of section 1692f(6) of this title, such term also includes any person who uses any
instrumentality of interstate commerce or the mails in any business the principal purpose of
which is the enforcement of security interests.” 15 U.S.C. § 1692a(6).
primarily for “personal, family or household purposes.” Id. ¶ 10. Thereafter, Plaintiff was
deemed to have defaulted and the debt was “assigned or otherwise transferred to Defendant for
collection.” Id. ¶ 11-12. As part of its efforts to collect the debt, Defendant sent Plaintiff a letter
on October 2, 2015. Id. ¶ 13, Ex. 1 (October 2, 2015 Collection Letter). Plaintiff asserts that
Defendant’s letter violated the FDCPA in certain respects. Id. ¶ 15. Specifically, Counts One,
Three and Four allege violations of 15 U.S.C. § 1692g, which requires that certain disclosures be
provided to the debtor in the debt collector’s initial communication, or within 5 days thereafter,
see generally Am. Compl.; 15 U.S.C. § 1692g, while Counts Two and Five allege violations of
15 U.S.C. § 1692e, which prohibits a debt collector from using any false, deceptive, or
misleading representation or means in connection with the collection of a debt. See generally
Am. Compl.; 15 U.S.C. § 1692e. In addition, Count Six alleges that Plaintiff has stated a claim
for actual damages. See Am. Compl. ¶¶ 118-127. Because each factual allegation is inextricably
connected with each enumerated count, the Court will briefly summarize the salient facts
contained in each count of the Amended Complaint.
Turning to Count One, Plaintiff asserts that Defendant’s October 2, 2015 letter violated
15 U.S.C. § 1692g by failing to “clearly” and “explicitly” set forth “the name of the creditor to
whom the debt is owed.” Am. Compl. ¶¶ 18-24. Although the letter states “YOU OWE:
SPRINT,” Am. Compl., Ex. 1 (emphasis in original), Plaintiff states that he: (1) “is unaware of
what the alleged debt represents;” (2) “does not owe ‘Sprint;’” (3) “does not have an account
with any entity named ‘Sprint;’” (4) “never contracted with an entity named ‘Sprint;’” and (5)
does not owe any money to an entity named ‘Sprint.’” Id. ¶¶ 25-40. In addition, Plaintiff claims
that “there are more than one hundred (100) disparate entities registered in New York that begin
their legal name with ‘Sprint’” and therefore “[t]he least sophisticated consumer would likely be
confused as to which of the more than one hundred (100) disparate entities registered in New
York that begin their legal name with ‘Sprint’ is the alleged creditor to whom the debt is owed.”
Id. ¶¶ 32-34. Therefore, because “Defendant failed to explicitly [and] clearly state the name of
the creditor to whom the debt is owed,” it violated 15 U.S.C. § 1692g. Id. ¶¶ 39-45.
With respect to Count Two, Plaintiff contends that the statement “YOU OWE: SPRINT,”
Am. Compl., Ex. 1 (emphasis in original), is “false” since “Plaintiff does not owe any money to
an entity named ‘Sprint’” and that “[t]he least sophisticated consumer would likely be deceived
in a material way by Defendant’s conduct.” Id. ¶¶ 53-57. As such, Plaintiff states that the
statement violates 15 U.S.C. § 1692e by using a “false, deceptive and misleading representation
in its attempt to collect a debt.” Id. ¶ 64. In addition, Plaintiff claims that “[b]ecause the
collection letter . . . is reasonably susceptible to an inaccurate reading, as described in the First
Count [of the Amended Complaint], it is deceptive within the meaning of 15 U.S.C. § 1692e.”
Id. ¶ 52.
As to Count Three, Plaintiff claims that the letter violated 15 U.S.C. § 1692g(a)(3) due to
“Defendant’s addition of the words ‘AFTER YOUR RECEIPT OF GC SERVICES’ INITIAL
WRITTEN NOTICE TO YOU CONCERNING THIS DEBT,’” which “would lead the least
sophisticated consumer to believe there was a prior initial written communication from
Defendant.” Id. ¶ 72. Specifically, Plaintiff claims that this statement, when read together with
the surrounding language, would “confuse the least sophisticated consumer concerning the time
frame to dispute the debt or seek validation of the debt” and would result in the “least
sophisticated consumer [being] uncertain as to her rights.” Id. ¶¶ 73-77. As such, “Defendant
has violated § 1692g as the above-referenced language overshadows the information required to
be provided by that Section.” Id. ¶ 83.
Turning to Count Four, Plaintiff alleges that although the letter states there is a “Balance
Due of $807.04,” Am. Compl., Ex. 1, Defendant has run afoul of 15 U.S.C. § 1692g(a)(1) by
failing to convey the amount of the debt clearly — because the letter “fails to disclose whether
the balance may increase due to interest and fees.” Am. Compl. ¶¶ 84-89, 104. Specifically,
Plaintiff claims that “[t]he least sophisticated consumer would be confused as to how she could
satisfy the debt” since a consumer “might believe she could pay the debt in full by remitting the
sum stated in the letter at any time after she received the letter” but that “such a belief may or
may not be correct, as Defendant has failed to disclose whether the balance may increase due to
interest and fees.” Id. ¶¶ 90-92. In light of this alleged ambiguity, Plaintiff contends that
“Defendant has violated § 1692g as it failed to clearly, explicitly and unambiguously convey the
amount of the debt.” Id. ¶ 105.
Similarly, Count Five alleges that the manner in which the letter sets forth the amount of
the debt also violates § 1692e because “Defendant’s letter [ ] fails to disclose whether the
balance may increase due to interest and fees” and therefore “[t]he least sophisticated consumer
would likely be deceived by Defendant’s conduct.” Id. ¶¶ 106-114. Consequently, Plaintiff
claims that “Defendant has violated § 1692e by using a false, deceptive and misleading
representation in its attempt to collect a debt.” Id. ¶ 117.
Finally, in Count Six, Plaintiff appears to be claiming actual damages based upon his
assertions that Defendant’s actions caused him to: (1) “be distracted from his work;” (2) “lose
time at work;” (3) “waste time;” and (4) “fight with his wife.” Id. ¶¶ 118-127.
B. Relevant Procedural History
Plaintiff instituted this action on December 23, 2015 by filing a Complaint. DE 1. A
summons was issued to Defendant on January 5, 2016 and it was returned executed on
January 14, 2016. DE 6. Thereafter, on February 4, 2016, Defendant filed its Answer. DE 9.
On February 17, 2016, Defendant amended its Answer. DE 12. Subsequently, on June 1, 2016,
the Court held an Initial Conference during which it noted that Plaintiff sought leave to file an
Amended Complaint and directed the parties as follows:
The May 25, 2016 letter motion to Judge Hurley seeking a premotion conference [DE 24] for purposes of leave to file a First
Amended Complaint is deemed MOOT. In cases that are assigned
to Judge Hurley, the assigned Magistrate Judges handle motions to
amend. Based on today’s discussion, the Court directed plaintiff’s
counsel to provide defendant’s counsel with a copy of the proposed
First Amended Complaint by June 13, 2016. Defendant’s counsel
will then have until June 20, 2016 to review the amended pleading
and to communicate with plaintiff’s counsel whether the defendant
can consent to the amended pleading. If so, the parties are directed
to file an appropriate Stipulation on ECF embodying their
agreement by June 24, 2016.
If the defendant is unable to consent, then the Court has set the
following briefing schedule in consultation with the parties:
• Plaintiff’s opening papers and memorandum of law must be served
and filed by July 8, 2016;
• Defendant’s opposition papers and memorandum of law have to
be served and filed by July 18, 2016;
• Plaintiff’s reply papers, if any, must be served and filed by July 25,
DE 27. On July 7, 2016, Plaintiff filed the instant motion seeking to amend the Complaint.
DE 31-33. On July 18, 2016, Defendant filed its opposition [DE 36] and on July 20, 2016,
Plaintiff filed his reply. DE 37. In addition, on January 11, 2017, Plaintiff filed a Notice of
Supplemental Authority. DE 38. The Court now turns to the instant motion.
PLAINTIFF’S MOTION TO AMEND
A. Applicable Law
1. Standard of Review
Rule 15(a) of the Federal Rules of Civil Procedure provides that in cases where a party
cannot amend as a matter of course, “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave.” See FED. R. CIV. P. 15(a); see also Lucente v. Int’l
Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002); Branum v. Clark, 927 F.2d 698, 705 (2d
Cir. 1991); Barber v. Hornbeck Offshore Operators, LLC, No. 11 Civ. 5520, 2014 WL 1010993,
at *5 (E.D.N.Y. Mar. 17, 2014); M.E.S., Inc. v. Liberty Mut. Sur. Group, No. 10 Civ. 2798, 2014
WL 46622, at *8 (E.D.N.Y. Jan. 6, 2014). Leave to amend is within the court’s discretion.
Krupski v. Costa Crociere S. p. A., 130 S . Ct. 2485, 2489 (2010) (Rule 15(a) “gives a district
court discretion to decide whether to grant a motion to amend a pleading before trial.”); MHANY
Mgmt. v. Cty. of Nassau, 843 F. Supp. 2d 287, 340 (E.D.N.Y. 2012) (noting that “it is ultimately
within the sound discretion of the court whether to grant leave to amend”). A court “should
freely give leave when justice so requires.” FED. R. CIV. P. 15(a); Iqbal v. Ashcroft, 574 F.3d
820, 822 (2d Cir. 2009) (quoting FED. R. CIV. P. 15(a)); Grace v. Rosenstock, 228 F.3d 40, 56
(2d Cir. 2000) (same); Guideone Specialty Mut. Ins. Co. v. Hapletah, No. 05 Civ. 1401, 2006
WL 1455468, at *1 (E.D.N.Y. May 24, 2004) (Rule 15(a) “provides for a liberal amendment of
pleadings.”). “Amendments are generally favored because they tend to facilitate a proper
decision on the merits.” MHANY Mgmt., 843 F. Supp. 2d at 340; Allstate Ins. Co. v. Elzanaty,
916 F. Supp. 2d 273, 302 (E.D.N.Y. 2013) (same) (citing Sokolski v. Trans Union Corp., 178
F.R.D. 393, 396 (E.D.N.Y. 1998)).
This liberal standard only requires that the movant provide “colorable grounds” for the
relief sought. See UMG Recordings, Inc. v. Lindor, No. CV-05-1095, 2006 WL 3335048, at *2
(E.D.N.Y. Nov. 9, 2006); Alkhatib v. New York Motor Group, LLC, No. CV 13-2337, 2015 WL
3507340, at *7 (E.D.N.Y. June 3, 2015) (“If the movant has at least colorable grounds for relief,
justice . . . requires that the court grant leave to amend the complaint.”) (quoting Sokolski, 178
F.R.D. at 396); Fiske v. Church of St. Mary of the Angels, 802 F. Supp. 872, 877 (W.D.N.Y.
1992). However, where a proposed amendment is clearly frivolous or advances a claim that has
no merit, the amendment is considered futile and will be rejected. See UMG, 2006 WL 3335048,
at *2; Slavin v. Benson, 493 F. Supp. 32, 33 (S.D.N.Y. 1980). “Futility is a determination, as a
matter of law, that proposed amendments would fail to cure prior deficiencies or to state a claim
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Panther Partners, Inc. v. Ikanos
Communications, Inc., 681 F.3d 114, 119 (2d Cir. 2012); see Lotito v. Recovery Associates Inc.,
No. 13-CV-5833, 2014 WL 4659464, at *9 (E.D.N.Y. Sept. 17, 2014); Sodhi v. Mercedes Benz
Fin. Servs., USA, LLC, 957 F. Supp. 2d 252, 255 (E.D.N.Y. 2013) (“A proposed amendment
would be futile when it would not survive a 12(b)(6) motion to dismiss.”); Hunter v. Deutsche
Lufthansa AG, 863 F. Supp. 2d 190, 202 (E.D.N.Y. 2012). In addition, “[a]n amendment to the
pleadings may be deemed futile if even once the proposed amendment is granted, the plaintiff
would lack standing to bring the claim.” U.S. Underwriters Ins. Co. v. Ziering, No. 06-CV-1130,
2010 WL 3419666, at *4 (E.D.N.Y. Aug. 27, 2010); see Manigaulte v. C.W. Post of Long Island
Univ., 659 F. Supp. 2d 367, 378 (E.D.N.Y. 2009); Davis v. Abrams, No. 13-CV-1405, 2014 WL
279807, at *7 n. 9 (E.D.N.Y. Jan. 23, 2014) (recognizing that where plaintiff’s “claims are . . .
ones for which they otherwise lack standing, it is clear that amendment would be futile.”); see
also All. for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 570 F. Supp. 2d 533, 539
(S.D.N.Y. 2008), aff’d, 651 F.3d 218 (2d Cir. 2011), aff’d sub nom. Agency for Int’l Dev. v. All.
for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 186 L. Ed. 2d 398 (2013) (“As a threshold matter, the
Court must first determine whether the Associations have standing to bring this action, as
amending the complaint would otherwise be futile. An amendment is futile if the court lacks
jurisdiction over the amended pleading, or if it would otherwise be subject to a successful motion
to dismiss.”). It is the opposing party who bears the burden to establish that an amendment
would indeed be futile. See Balk 2013 WL 6990767, at *5; Alkhatib, 2015 WL 3507340, at *7;
Blaskiewicz v. Cty. Of Suffolk, 29 F. Supp. 2d 134, 137-38 (E.D.N.Y. 1998) (citing Harrison v.
NBD Inc., 990 F. Supp. 179, 185 (E.D.N.Y. 1988)).
In assessing whether the proposed amendment asserts colorable grounds for relief, a court
“is required to adopt the same analysis as applied on a motion to dismiss for failure to state a
claim under Rule 12(b)(6) of the [Federal Rules of Civil Procedure].” UMG, 2006 WL 3335048,
at *2; Balk, 2013 WL 6990767, at *5; Golden Trade, S.r.L. v. Jordache, 143 F.R.D. 504, 506
(S.D.N.Y. 1992) (recognizing the general rule that in order to determine whether the amended
pleading puts forth colorable grounds the court should apply the standards of Rule 12(b)(6));
Chan v. Reno, 916 F. Supp. 1289, 1302 (S.D.N.Y. 1996). Therefore, in deciding whether an
amended pleading asserts colorable claims or defenses, the Court “is required to accept the
material facts alleged in the amended [pleading] as true and draw reasonable inferences in the
[movant’s] favor.” Alkhatib, 2015 WL 3507340, at *7 (quoting Mendez v. U.S. Nonwovens
Corp., 2 F. Supp. 3d 442, 451 (E.D.N.Y. 2014)); see Panther Partners, Inc., 681 F.3d at 119 (“In
assessing whether the proposed [amended] complaint states a claim, [courts] consider the
proposed amendments along with the remainder of the complaint, . . . accept as true all nonconclusory factual allegations therein, and draw all reasonable inferences in plaintiff’s favor to
determine whether the allegations plausibly give rise to an entitlement to relief.”). Further,
similar to its analysis of a motion to dismiss pursuant to Rule 12(b)(6), courts will generally not
consider matters outside the pleadings on a motion to amend. See Snoussi v. Bivona, No. 05 CV
3133, 2010 WL 3924255, at *9 (E.D.N.Y. Feb. 17, 2010), report and recommendation adopted,
2010 WL 3924683 (E.D.N.Y. Sept. 29, 2010); Trustees of Laborers Union Local No. 1298 of
Nassau & Suffolk Ctys. Ben. Funds v. A to E, Inc., 64 F. Supp. 3d 435, 438 (E.D.N.Y. 2014)
(“[T]he Court notes that it may not consider the documents the Plaintiff attached in support of its
motion to amend, even if, as the Defendant argues, they undermine the Plaintiff’s theory of alter
ego or single employer liability.”).
In performing this analysis, a court is not required to make a final determination on the
merits of a proposed claim or defense, but instead, must only “satisfy itself that [the claim or
defense] is colorable and not frivolous.” UMG, 2006 WL 3335048, at *2 (quoting T & N PLC v.
Fred S. James & Co, of New York, 1991 WL 190581, at *2 (S.D.N.Y. Sept. 16, 1991)).
Therefore, the moving party “is not required to ‘establish a probability it would prevail on the
merits in order for the court to grant its motion to amend . . . [i]nstead . . . defendant is merely
required to assert proposed amendments which are not frivolous on their face.’” UMG, 2006
WL 3335048, at *2 (quoting T & N PLC, at *2) see UMG, 2006 WL 3335048, at *3 (declining to
address the merits of the proffered affirmative defenses on a motion to amend).
Notwithstanding the above, leave to amend a pleading may be denied where there is
“undue delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure
deficiencies by amendments previously allowed, [or] undue prejudice to the opposing party. . . .”
Balk, 2013 WL 6990767, at *5; see Williams v. Citigroup Inc., 659 F.3d 208, 213-14 (2d Cir.
2011. To determine what constitutes sufficient prejudice to warrant denial of a party’s request to
amend its pleading, “the Court considers whether the amendment would: (i) require the
opponent to expend significant additional resources to conduct discovery and prepare for trial;
(ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiffs from bringing a
timely action in another jurisdiction.” Hernandez v. Immortal Rise, Inc., No. 11 CV 4360, 2013
WL 1703529, at *4 (E.D.N.Y. Apr. 19, 2013) (internal quotations omitted); see Block v. First
Blood Assoc., 988 F.2d 344, 350 (2d Cir. 1993); Kirschenbaum v. Federal Ins. Co., 505 B.R.
126, 132 (E.D.N.Y. 2014).
The party opposing the motion to amend carries the burden to establish that one or more
of the above factors would cause it substantial prejudice thus necessating denial of the motion.
See Kirschenbaum 505 B.R. at 132; Alkhatib, 2015 WL 3507340, at *7; Golden Trade, 143
F.R.D. at 506 (“[T]he party opposing the motion [to amend] must demonstrate that it would be
substantially and unfairly prejudiced by the amendment.”) (emphasis added). Further, courts
have determined that time, money and effort expended in defending a lawsuit does not rise to the
level of prejudice necessary to defeat a motion to amend. See Block, 988 F.2d at 351 (noting that
the time, effort and money expended fail to rise to the level of “substantial prejudice” necessary
to defeat a motion to amend); Kirschenbaum 505 B.R. at 132; S.S. Silverblatt, Inc. v. E. Harlem
Pilot Block-Bldg. 1 Hous. Dev. Fund Co., Inc., 608 F.2d 28, 43 (2d Cir. 1979) (“[T]he burden of
undertaking discovery, which Chemical would have shouldered had the proposed amendment
been incorporated . . . hardly amounts to prejudice outweighing the policy of Rule 15(a) in favor
of permitting the parties to obtain an adjudication of the merits.”).4
The more exacting “good cause” analysis pursuant to Rule 16(b) is not applicable in this
case since Plaintiff filed its Motion to Amend by the August 19, 2016 deadline set forth in the
Initial Conference and Case Management Orders. See DE 28; Parker v. Columbia Pictures
Indus., 204 F.3d 326, 340 (2d Cir. 2000) (holding that the more exacting “good cause” standard
under Rule 16(b) versus the more lenient standard under Rule 15(a) applies where a motion to
amend a pleading is sought after the deadline stated in the court’s published scheduling order).
2. FDCPA Legal Principles
Congress enacted the FDCPA based upon “abundant evidence of the use of abusive,
deceptive, and unfair debt collection practices by many debt collectors” which “contribute to the
number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of
individual privacy.” 15 U.S.C. § 1692(a); see S. Rep. No. 95-382, at 2 (1977), reprinted in 1977
U.S.C.C.A.N. 1695, 1696 (recognizing that “debt collection abuse by third party debt collectors
is a widespread and serious national problem. Collection abuse takes many forms, including
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.). In light of
these evils, the FDCPA’s over-arching purpose is 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(e); see Vincent v. The
Money Store, 736 F.3d 88, 96 (2d Cir. 2013) (quoting § 1692(e)); Gabriele v. Am. Home Mortg.
Serv., Inc., 503 Fed. App’x 89, 93 (2d Cir. 2012) (recognizing that the purpose of the FDCPA is
“to protect consumers from deceptive or harassing actions taken by debt collectors[,] . . . with the
purpose of limiting the suffering and anguish often inflicted by independent debt collectors.”).
“To further these ends, the FDCPA ‘establishes certain rights for consumers whose debts are
placed in the hands of professional debt collectors for collection.’” Vincent, 736 F.3d at 96
(quoting DeSantis v. Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir. 2001)); see Polanco v.
NCO Portfolio Mgmt., Inc., 132 F. Supp. 3d 567, 578 (S.D.N.Y. 2015). In order for consumers
to vindicate their rights under the statute, the FDCPA “grants a private right of action to a
consumer who receives a communication that violates the Act.” Jacobson v. Healthcare Fin.
Servs., Inc., 516 F.3d 85, 91 (2d Cir. 2008); see 15 U.S.C. § 1692k. Thus, “the FDCPA enlists
the efforts of sophisticated consumers . . . as ‘private attorneys general’ to aid their 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, 516 F.3d at 91.
Where a statutory violation has been established, the FDCPA permits recovery equal to a
plaintiff’s actual damages and/or statutory damages totaling no more than $1,000. 15 U.S.C.
§ 1692k(a)(1)-(2)(A). In the case of a class action, the statute allows “(i) such amount for each
named plaintiff as could be recovered under subparagraph (A), and (ii) such amount as the court
may allow for all other class members, without regard to a minimum individual recovery, not to
exceed the lesser of $500,000 or 1 percent of the net worth of the debt collector.” 15 U.S.C.
§ 1692k(a)(2)(B). In addition, where a plaintiff prevails, the court may award “the costs of the
action, together with a reasonable attorney’s fee. . . .” 15 U.S.C. § 1692k(a)(3). Further,
“[b]ecause the FDCPA is ‘remedial in nature, its terms must be construed in liberal fashion if the
underlying Congressional purpose is to be effectuated.’” Vincent, 736 F.3d at 98 (quoting N.C.
Freed Co. v. Bd. of Governors of Fed. Reserve Sys., 473 F.2d 1210, 1214 (2d Cir. 1973)); see
Graff v. United Collection Bureau, Inc., 132 F. Supp. 3d 470, 478 (E.D.N.Y. 2016); Tocco v.
Real Time Resolutions, Inc., 48 F. Supp. 3d 535, 539 (S.D.N.Y. 2014); Fields v. W. Mass. Credit
Corp., 479 F. Supp. 2d 287, 290 (D. Conn. 2007) (“Generally, the FDCPA provisions are
liberally construed in favor of consumers.”); see also Pipiles v. Credit Bureau of Lockport, Inc.,
886 F.2d 22, 27 (2d Cir. 1989) (“Congress painted with a broad brush in the FDCPA to protect
consumers from abusive and deceptive debt collection practices.”).
The FDCPA “is a strict liability statute and a single violation is sufficient to establish
liability.” Gonzalez v. Healthcare Recovery Mgmt. Inc., No. 13-CV-1002, 2013 WL 4851709, at
*2 (E.D.N.Y. Sept. 10, 2013); see Ellis v. Solomon & Solomon, P.C., 591 F.3d 130, 133, 135 (2d
Cir. 2010); Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993). In order to assert a violation
of the FDCPA, a plaintiff must allege that: “(1) the plaintiff is a ‘consumer’ within the meaning
of the Act; (2) the defendant is a ‘debt collector;’ and (3) the defendant must have engaged in
conduct in violation of the statute.” Coburn v. P.N. Fin., No. 13-CV-1006, 2015 WL 520346, at
*3 (E.D.N.Y. Feb. 9, 2015) (citing Katz v. Sharinn & Lipshie, No. 12-CV-2440, 2013 WL
4883474, at *1 (E.D.N.Y. Sep. 11, 2013)); see Barshay v. Specified Credit Assocs. I, Inc., No.
CV 15-1044, 2016 WL 3578993, at *2 (E.D.N.Y. Jun. 3, 2016).
In determining whether a collection letter violates the FDCPA, courts in the Second
Circuit utilize “the least sophisticated consumer” standard. Jacobson v. Healthcare Fin. Servs.,
Inc., 516 F.3d 85, 90 (2d Cir. 2008); Sorel v. Capital One Servs., LLC, No. 3:11-CV-703, 2012
WL 3596487, at *4 (D. Conn. Aug. 20, 2012); see Dewees v. Legal Servicing, LLC, 506 F. Supp.
2d 128, 132 (E.D.N.Y. 2007); Clomon, 988 F.2d at 1318 (Section 1692e); Sparkman v. Zwicker
& Assocs., P.C., 374 F. Supp. 2d 293, 300 (E.D.N.Y. 2005) (Section 1692g); Turner v. Asset
Acceptance, LLC, 302 F. Supp. 2d 56, 58 (E.D.N.Y. 2004) (Section 1692e); Chavez v. MCS
Claim Servs., Inc., No. 15-CV-3160, 2016 WL 1171586 (E.D.N.Y. Mar. 23, 2016) (“The critical
question is therefore whether the notice fails to convey the required information clearly and
effectively and thereby makes the least sophisticated consumer uncertain as to the meaning of the
message.”) (quoting DeSantis v. Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir. 2001));
Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir. 1996). In applying the “least sophisticated
consumer standard,” courts are required to “determine how the ‘least sophisticated consumer’
would interpret the notice received from the debt collector.” Dewees, 506 F. Supp. at 132; see
Sparkman, 374 F. Supp. 2d at 300. Thus, in dispatching its obligation, “[t]he court must analyze
‘collection letters from the perspective of a debtor who is uninformed, naive, or trusting, but is
making basic, reasonable and logical deductions and inferences.’” Dewees, 506 F. Supp. at 132
(quoting Spira v. Ashwood Fin., Inc., 358 F. Supp. 2d 150, 156 (E.D.N.Y. 2005)) (“The least
sophisticated consumer standard therefore ensures the protection of all consumers, but also
protects debt collectors against liability for bizarre or idiosyncratic interpretations of collection
notices.”) (internal quotation omitted); see Daly v. Capital Mgmt. Servs., LP, No. 15-CV-364,
2015 WL 4662759, at *3 (W.D.N.Y. Aug. 6, 2015) (noting that “courts are cautioned to apply
the least sophisticated consumer standard in a manner that protects debt collectors against
liability for unreasonable misinterpretations of collection notices”) (internal quotation omitted);
Easterling v. Collecto, Inc., 692 F.3d 229, 233-34 (2d Cir. 2012); Clomon, 988 F.2d at 1319.
“[T]he Second Circuit has indicated that the determination of how the least sophisticated
consumer would view language in a defendant’s collection letter is a question of law because the
standard is an objective one.” Berger v. Suburban Credit Corp., No. 04 CV 4006, 2006 WL
2570915, at *3 (E.D.N.Y. Sept. 5, 2006) (citing Schweizer v. Trans Union Corp., 136 F.3d 233,
237–38 (2d Cir. 1998)); Sorel, 2012 WL 3596487, at *4; Quinteros v. MBI Associates, Inc., 999
F. Supp. 2d 434, 437 (E.D.N.Y. 2014) (“because the least sophisticated consumer standard is
objective, the determination of how the least sophisticated consumer would view language in a
defendant’s collection letter is a question of law”) (quoting Castro v. Green Tree Servicing LLC,
959 F. Supp. 2d 698, 707 (S.D.N.Y. 2013)); see also Diaz v. Residential Credit Sols., Inc., 965
F. Supp. 2d 249, 256 (E.D.N.Y. 2013) (“Although courts are divided on whether [a] breach of
the least sophisticated consumer standard is a question of law or fact, the trend in the Second
Circuit is to treat this question as a matter of law that can be resolved on a motion to dismiss.”)
(internal citation omitted); Vega v. Credit Bureau Enterprises, No. CIV A02 CV1550, 2005 WL
711657, at *9 (E.D.N.Y. Mar. 29, 2005) (noting that the least sophisticated consumer standard is
a question of law that could be decided in the context of a Rule 12(c) motion and recognizing
that “how the least sophisticated consumer would interpret the defendant’s form debt collection
letter can be determined without the aid of expert testimony at trial.”).
B. Application to the Facts
Defendant opposes Plaintiff’s motion as futile on the sole basis that “Plaintiff has failed
to allege any concrete harm resulting from the alleged procedural violations of the FDCPA he
claims.” Defendant’s Memorandum of Law in Opposition to Plaintiff’s Motion for Leave to File
a First Amended Complaint (“Def.’s Opp’n”) [DE 36] at 7 (emphasis in original). Specifically,
Defendant argues that in order to meet Article III’s standing requirement, “Plaintiff must allege
sufficient facts to explain how Defendant’s alleged violations of the technical procedural
requirements of the FDCPA cause Plaintiff’s various forms of harm alleged [and that] [w]here,
as here, Plaintiff only alleges bare, procedural violations of the federal statute, Plaintiff cannot
establish a sufficiently concrete injury to have standing.” Id. at 11.
In his reply, Plaintiff states that contrary to Defendant’s position, Plaintiff has satisfied
Article III’s standing requirement because “Plaintiff alleges Defendant violated his statutory
rights, and that such violations affected him in a personal and individual way. Further, Plaintiff
claims that the effects of Defendant’s violations, while mostly intangible (non-monetary),
actually existed and some still exist.” Reply Memorandum of Law in Further Support of
Plaintiff’s Motion for Leave to File a First Amended Complaint (“Pl.’s Reply”)
[DE 37] at 8.
As such, Plaintiff states that he has “sufficiently alleged an injury that is both ‘particularized’ and
‘concrete’” and has thus established the requisite standing to file his Amended Complaint.
Id. at 8.
In light of the issue presented, the Court begins its analysis by setting forth the applicable
law prior to and following the Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 194 L. Ed. 2d 635 (2016), as revised (May 24, 2016).
1. Whether Plaintiff’s Amended Complaint is Futile on the Basis that he Lacks
the Requisite Article III Standing in the Wake of Spokeo
The Law of Standing
“The jurisdiction of federal courts is defined and limited by Article III of the Constitution
[, and] the judicial power of federal courts is constitutionally restricted to ‘cases’ and
‘controversies.’” Flast v. Cohen, 392 U.S. 83, 94, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). “This
limitation is effectuated through the requirement of standing.” Cooper v. U.S. Postal Serv.,
577 F.3d 479, 489 (2d Cir. 2009) (citing Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 471–72, 102 S. Ct. 752, 70 L. Ed. 2d 700
(1982)). “The rules of standing, whether as aspects of the Art. III case-or-controversy
requirement or as reflections of prudential considerations defining and limiting the role of the
courts, are threshold determinants of the propriety of judicial intervention. It is the responsibility
of the complainant clearly to allege facts demonstrating that he is a proper party to invoke
judicial resolution of the dispute and the exercise of the court’s remedial powers.”
Warth v. Seldin, 422 U.S. 490, 517-18, 95 S. Ct. 2197, 2215, 45 L. Ed. 2d 343 (1975).
See Pettus v. Morgenthau, 554 F.3d 293, 298 (2d Cir. 2009) ( “[S]tanding . . . is intended to be a
threshold issue at least tentatively decided at the outset of the litigation.”); Licensing by Paolo,
Inc. v. Sinatra (In re Gucci ), 126 F.3d 380, 387–88 (2d Cir. 1997).
In order to establish the requisite standing, “an injury must be ‘concrete, particularized,
and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable
ruling.’” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1140 (2013) (quoting Monsanto Co. v.
Geertson Seed Farms, 561 U.S. 139, 149 (2010)); see Cooper v. U.S. Postal Serv., 577 F.3d at
489 (“It is axiomatic that ‘[t]here are three Article III standing requirements: (1) the plaintiff
must have suffered an injury-in-fact; (2) there must be a causal connection between the injury
and the conduct at issue; and (3) the injury must be likely to be redressed by a favorable
decision.’”) (quoting Kendall v. Employees Ret. Plan of Avon Prods., 561 F.3d 112, 118 (2d Cir.
2009)); see also Lamar Adver. of Penn, LLC v. Town of Orchard Park, N.Y., 356 F.3d 365, 373
(2d Cir. 2004) (“To meet Article III’s constitutional requirements for standing, a plaintiff must
allege an actual or threatened injury to himself that is fairly traceable to the allegedly unlawful
conduct of the defendant.”) (internal citation omitted).
To satisfy Article III’s “injury-in-fact” requirement, a plaintiff’s alleged injury “must be
‘concrete and particularized’ as well as ‘actual or imminent, not conjectural or hypothetical.’”
Baur v. Veneman, 352 F.3d 625, 632 (2d Cir. 2003) (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). It follows that, “even when the
plaintiff has alleged injury sufficient to meet the ‘case or controversy’ requirement . . . the
plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to
relief on the legal rights or interests of third parties.” Warth, 422 U.S. at 499, 95 S. Ct. at 2205,
45 L. Ed. 2d 343; Baur, 352 F.3d at 632 (“[I]n evaluating whether the alleged injury is concrete
and particularized, we assess whether the injury ‘affect[s] the plaintiff in a personal and
individual way,’ to confirm that the plaintiff has a personal stake in the controversy and avoid
having the federal courts serve as ‘merely publicly funded forums for the ventilation of public
grievances or the refinement of jurisprudential understanding[.]’”) (quoting Lujan, 504 U.S. at
560 n. 1, 112 S. Ct. 2130 and Valley Forge, 454 U.S. at 471–72, 102 S. Ct. 752). However, “[a]
plaintiff may assert the constitutional claims of a third party if the plaintiff can demonstrate: (1)
injury to the plaintiff, (2) a close relationship between the plaintiff and the third party that would
cause plaintiff to be an effective advocate for the third party’s rights, and (3) some hindrance to
the third party’s ability to protect his or her own interests.” Camacho v. Brandon, 317 F.3d 153,
159 (2d Cir. 2003) (internal quotation marks omitted). The burden at all times remains with the
movant to clearly allege facts that establish the necessary standing to invoke judicial resolution
of a dispute. See Staten v. Vill. of Monticello, No. 14-CV-4766, 2015 WL 6473041, at *6
(S.D.N.Y. Oct. 26, 2015); Congregation Rabbinical Coll. of Tartikov, Inc. v. Village of Pomona,
915 F. Supp. 2d 574, 589 (S.D.N.Y. 2013); see also Thompson v. Cty. of Franklin, 15 F.3d 245,
249 (2d Cir. 1994).
In addition, although injury-in-fact also requires that a plaintiff show an “‘invasion of a
legally protected interest,’” Strubel v. Comenity Bank, 842 F.3d 181, 188 (2d Cir. 2016) (quoting
Lujan, 504 U.S. at 560, 112 S. Ct. 2130), such an interest may be based on “statutes creating
legal rights, the invasion of which creates standing.” Warth, 422 U.S. at 500, 95 S. Ct. at 2206,
45 L. Ed. 2d 343. Indeed, “Congress’s authority to create new legal interests by statute, the
invasion of which can support standing, is beyond question.” Strubel, 842 F.3d at 188 (citing
Warth, 422 U.S. at 500, 95 S. Ct. at 2206, 45 L. Ed. 2d 343); see Lujan, 504 U.S. at 578, 112
S. Ct. 2130 (recognizing Congress’s authority to “elevat[e] to the status of legally cognizable
injuries concrete, de facto injuries that were previously inadequate in law”). However, the
creation of a statutory interest does not operate to nullify Article III’s standing requirements —
to the contrary — where a plaintiff relies on a codified statutory right to establish standing, he
must still show the “invasion of a legally protected interest” that is “concrete and particularized”
and “actual or imminent, not conjectural or hypothetical.” Strubel, 842 F.3d at 188 (internal
citation omitted); see Bautz v. ARS Nat’l Servs., Inc., No. 16-CV-768, 2016 WL 7422301, at *4
(E.D.N.Y. Dec. 23, 2016).
Analysis of Standing After Spokeo
Recently, the Supreme Court addressed the requirements of standing in Spokeo v. Robins,
in which the Court was tasked with determining whether the respondent had standing to assert a
claim arising under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq. Spokeo,
Inc. v. Robins, 136 S. Ct. 1540, 1544, 194 L. Ed. 2d 635 (2016), as revised (May 24, 2016).
Specifically, the respondent sought redress under the FCRA based upon petitioner’s
dissemination of erroneous information which had been compiled by its web-based “people
search engine.” Id.5
After reviewing the general requirements to assert standing, see id. at 1547, 194 L. Ed. 2d
635, the Supreme Court turned its attention to the injury-in-fact requirement and emphasized that
“Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue
to a plaintiff who would not otherwise have standing.” Id. at 1547-48, 194 L. Ed. 2d 635
“Spokeo . . . operates a Web site that allows users to search for information about other
individuals by name, e-mail address, or phone number. In response to an inquiry submitted
online, Spokeo searches a wide spectrum of databases and gathers and provides information such
as the individual's address, phone number, marital status, approximate age, occupation, hobbies,
finances, shopping habits, and musical preferences. According to Robins, Spokeo markets its
services to a variety of users, including not only ‘employers who want to evaluate prospective
employees,’ but also ‘those who want to investigate prospective romantic partners or seek other
personal information.’ Persons wishing to perform a Spokeo search need not disclose their
identities, and much information is available for free.” Id. at 1546, 194 L. Ed. 2d 635.
(internal citations omitted). Nevertheless, the Court in Spokeo recognized that in some cases,
intangible injuries could be deemed sufficiently concrete for purposes of establishing standing
and that Congress “is well positioned to identify harms that meet minimum Article III
requirements. . . .” Id. at 1549, 194 L. Ed. 2d 635. Accordingly, even where Congress has
“identif[ied] and elevat[ed] 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.” Id. Therefore, even where a statutory
violation is alleged, “Article III standing requires [the presence of] a concrete injury[.]” Id.
From these principles, the Supreme Court concluded that “a bare procedural violation [of a
statute], divorced from any concrete harm, [is insufficient to] satisfy the injury-in-fact
requirement of Article III.” Id. (citing Summers v. Earth Island Inst., 555 U.S. 488, 496, 129 S.
Ct. 1142, 173 L. Ed. 2d 1 (2009) (“[D]eprivation of a procedural right without some concrete
interest that is affected by the deprivation ... is insufficient to create Article III standing”) and
Lujan, 504 U.S. at 572, 112 S. Ct. 2130)).
Notwithstanding the conclusion regarding “bare procedural violations” of statutory rights,
the court in Spokeo nevertheless recognized that in certain circumstances “the violation of a
procedural right granted by statute can be sufficient . . . to constitute injury in fact. In other
words, a plaintiff in such a case need not allege any additional harm beyond the one Congress
has identified.” Id. at 1549-50, 194 L. Ed. 2d 635 (emphasis in original) (citing Federal Election
Comm’n v. Akins, 524 U.S. 11, 20–25, 118 S. Ct. 1777, 141 L. Ed. 2d 10 (1998) (confirming that
a group of voters’ “inability to obtain information” that Congress had decided to make public is a
sufficient injury in fact to satisfy Article III); Public Citizen v. Department of Justice, 491 U.S.
440, 449, 109 S. Ct. 2558, 105 L. Ed. 2d 377 (1989) (holding that two advocacy organizations’
failure to obtain information subject to disclosure under the Federal Advisory Committee Act
“constitutes a sufficiently distinct injury to provide standing to sue”)).
Applying these principles to the facts before it, the Supreme Court concluded that “[o]n
the one hand, Congress [in passing the FCRA] plainly sought to curb the dissemination of false
information by adopting procedures designed to decrease that risk. On the other hand, Robins
cannot satisfy the demands of Article III by alleging a bare procedural violation [of the statute].”
Spokeo, 136 S. Ct. at 1550, 194 L. Ed. 2d 635. However, “[b]ecause the Ninth Circuit . . . did
not address . . . whether the particular procedural violations alleged in this case entail a degree of
risk sufficient to meet the concreteness requirement,” the Supreme Court remanded the case to
the Ninth Circuit to address this issue. Id.
Significantly, Spokeo did not create a sea-change in Article III standing jurisprudence.
Rather, it clarified the proposition that
an alleged procedural violation can by itself manifest concrete injury
where Congress conferred the procedural right to protect a
plaintiff’s concrete interests and where the procedural violation
presents a ‘risk of real harm’ to that concrete interest. But even
where Congress has accorded procedural rights to protect a concrete
interest, a plaintiff may fail to demonstrate concrete injury where
violation of the procedure at issue presents no material risk of harm
to that underlying interest. Id.
Strubel, 842 F.3d at 190 (citing Spokeo 136 S. Ct. at 1549, 194 L. Ed. 2d 635); see Zirogiannis v.
Seterus, Inc., No. 15CV5884, 2016 WL 7410541, at *5 (E.D.N.Y. Nov. 28, 2016); Bautz, 2016
WL 7422301, at *7. As such, “Spokeo did not disturb the Supreme Court’s prior precedent
recognizing that ‘Congress may elevat[e] to the status of legally cognizable injuries concrete, de
facto injuries that were previously inadequate in law.’” Bautz, 2016 WL 7422301, at *7 (quoting
Spokeo, 136 S. Ct. at 1549). “Thus, in cases where a plaintiff sues to enforce a substantive legal
right conferred by statute, she has standing to pursue that claim without need to allege a ‘material
risk of harm’ because the infringement of that right constitutes, in and of itself, a concrete
injury.” Bautz, 2016 WL 7422301, at *8; see, e.g., Church v. Accretive Health, Inc., 654 Fed.
App’x 990, 995 & n.2 (11th Cir. 2016) (per curiam); Zirogiannis, 2016 WL 7410541, at *5-6;
Matera v. Google Inc., No. 15–CV–04062, 2016 WL 5339806, at *11–12 (N.D. Cal. Sept. 23,
2016); Prindle v. Carrington Mortg. Servs., LLC, No. 3:13–CV–1349–J–34PDB, 2016 WL
4369424, at *8 (M.D. Fla. Aug. 16, 2016); Quinn v. Specialized Loan Servicing, LLC, No. 16
C 2021, 2016 WL 4264967, at *5 (N.D. Ill. Aug. 11, 2016).
With these general legal principles in mind, the Court turns its attention to whether
Plaintiff has stated a concrete injury sufficient to meet the injury-in-fact requirement of standing
based upon Defendant’s alleged statutory violations of the FDCPA.
Plaintiff Has Alleged a Concrete Injury Based upon the
Violation of a Substantive Right Afforded by the FDCPA
Defendant contends that in order to satisfy the injury-in-fact requirement, “Plaintiff must
allege sufficient facts to explain how Defendant’s alleged violations of the technical procedural
requirements of the FDCPA cause Plaintiff’s various forms of harm alleged [and that] [w]here,
as here, Plaintiff only alleges bare, procedural violations of the federal statute, Plaintiff cannot
establish a sufficiently concrete injury to have standing.” Def.’s Opp’n at 11 (emphasis added).
Thus, Defendant, relying on the reasoning set forth in Spokeo, is proceeding from the premise
that the statutory requirements set forth in 15 U.S.C. §§ 1692e and 1692g constitute only
“technical procedural requirements” which would require Plaintiff to allege a ‘material risk of
harm’ to the underlying interest(s) that Congress sought to protect by enacting the apposite
statute.” Bautz, 2016 WL 7422301, at *7; see Strubel, 842 F.3d at 190. However, Defendant’s
reliance on Spokeo —which analyzed sections of the FCRA — for the proposition that the
sections of the FDCPA at issue here constitute nothing more than “technical procedural
requirements” is misplaced. See Def.’s Opp’n at 11. Rather, the majority of post-Spokeo
decisions which have analyzed standing within the context of the FDCPA have determined that,
unlike the FCRA section at issue in Spokeo, which contains only procedural requirements, the
FDCPA creates a substantive right, the violation of which would itself give rise to a concrete
injury. See, e.g., Church, 654 Fed. App’x at 995 & n. 2 (finding that “through the FDCPA,
Congress has created a new right—the right to receive the required disclosures in
communications governed by the FDCPA—and a new injuiry—not receiving such disclosure . . .
Thus Congress provided Church with a substantive right to receive certain disclosures and
Church has alleged that Accretive Health violated that substantive right.”); Zirogiannis, 2016
WL 7410541, at *5-6 (“[A] debtor has an interest in receiving accurate information regarding the
amount of his debt, and courts analyzing Article III standing in the wake of Spokeo have held
that a violation of the FDCPA is sufficient to establish a concrete harm.”); Bautz, 2016 WL
7422301, at *11 (“[T]he Court agrees with the weight of post-Spokeo authority holding that
Section 1692e of the FDCPA . . . creates a substantive right to be free from abusive debt
communications.”); Hill v. Accounts Receivable Servs., LLC, No. CV 16-219 (DWF/BRT), 2016
WL 6462119, at *4 (D. Minn. Oct. 31, 2016) (“[T]he FDCPA creates rights, violations of which
may, in some circumstances, cause legally cognizable injury. Just as the Church court found that
§§ 1692e and 1692g establish a right to disclosure of information, the Court finds that § 1692e
establishes a right to truthful information regarding the collection of a debt and § 1692f
establishes a right to be free from the collection of unauthorized interest.”); Biber v. Pioneer
Credit Recovery, Inc., No. 1:16-CV-804, 2017 WL 118037, at *3 (E.D. Va. Jan. 11, 2017) (“Not
surprisingly, in the wake of Spokeo, the overwhelming majority of courts have held that FDCPA
claims similar to Biber’s are sufficient to satisfy Article III’s requirement that a plaintiff establish
an injury in fact. The underlying logic in these opinions is (i) that Congress, in the FDCPA,
created a right to accurate debt-related information and non-abusive collection practices, and (ii)
that a debt collector’s false, misleading, deceptive, or abusive conduct concretely harms a debtor
by detrimentally affecting that debtor’s decisions regarding his debt.”); Kaymark v. Udren Law
Offices, P.C., No. 13–419, 2016 WL 7187840, at *6–7 (W.D. Pa. Dec. 12, 2016) (plaintiff had
standing to allege § 1692e claim because the complaint “alleged misrepresentation of the legal
status and amount of [plaintiff’s] debt itself” and the “alleged violation of [plaintiff’s] right to
truthful information and freedom of efforts to collect unauthorized debt constitute[d] a concrete
injury”); Long v. Fenton & McGarvey Law Firm P.S.C., No. 1:15-CV-01924, 2016 WL
7179367, at *3 (S.D. Ind. Dec. 9, 2016) (plaintiff had standing because “[p]laintiff allege[d] that
she received deficient and misleading information regarding her debts, which is a harm defined
and made cognizable by the FDCPA.”) (internal quotations omitted)); Bowse v. Portfolio
Recovery Assocs., LLC, No. 15 C 4037, 2016 WL 6476545, at *3 (N.D. Ill. Nov. 2, 2016)
(“Because [plaintiff] has alleged a violation of § 1692e(8) of the FDCPA, which protects against
the risk of harm created by a deficient disclosure of credit information to a third party, [plaintiff]
has Article III standing to bring this suit.”); Hayes v. Convergent Healthcare Recoveries, Inc.,
No. 14–1467, 2016 WL 5867818, at *4 (C.D. Ill. Oct. 7, 2016) (“[A] violation of the right under
§ 1692e to be free from false or misleading representations from debt collectors creates a harm,
or risk of harm, sufficient to meet the requirement of concreteness.”); Linehan v. Allianceone
Receivables Mgmt., Inc., No. C15–1012, 2016 WL 4765839, at *8 (W.D. Wash. Sept. 13, 2016)
(“The goal of the FDCPA is to protect consumers from certain harmful practices; it logically
follows that those practices would themselves constitute a concrete injury.”); Sayles v. Advanced
Recovery Sys., Inc., No. 3:14–cv–911, 2016 WL 4522822, at *2–3 (S.D. Miss. Aug. 26, 2016)
(alleged violation of § 1692e(8) represents a concrete injury); Quinn, 2016 WL 4264967, at *3–5
(alleged violation of §§ 1692e(10)–(11) is a concrete injury); Irvine v. I.C. Sys., Inc., No. 14-CV01329, 2016 WL 4196812 at *3 (D. Colo. July 29, 2016) (“Through the FDCPA, Congress
created statutory legal rights to be free from certain abusive debt collection practices, . . . and a
debt collector’s violation of those rights may constitute a concrete and particularized injury.”)
(citation omitted); Macy v. GC Servs. Ltd. P’ship, No. 3:15-CV-819, 2016 WL 5661525, at *4
(W.D. Ky. Sept. 29, 2016) (“Macy and Stowe allege that GC Services violated [15 U.S.C. §
1692g] (a)(4) and (5) by sending them notices that failed to mention the in-writing requirement.
As a result of this omission, they claim, the least sophisticated debtor might make an oral request
instead, thereby waiving the protections of subsection (b). The complaint thus adequately
alleges injury in fact, and plaintiffs have standing to pursue their claims.”).
This Court agrees with the prevailing weight of authority and, as such, similarly finds that
15 U.S.C. §§ 1692e and 1692g — the statutory sections at issue in the present motion — confer
certain substantive rights, consisting of the right “to receive required disclosures in
communications governed by the FDCPA,” Church, 654 Fed. App’x at 995, and the right to “be
free from abusive debt communications.” Bautz, 2016 WL 7422301, at *11. As such, the only
remaining issue at this stage of the proceedings is whether Plaintiff’s proposed Amended
Complaint, accepted as true, sufficiently pleads the requisite injury-in-fact to establish Article III
standing. See Zirogiannis, 2016 WL 7410541, at *5; see also Bautz, 2016 WL 7422301, at *12
(recognizing that “[P]laintiff has pled a concrete interest for the purpose of Article III standing
based on her receipt of the IRS Language in the Letter because a material violation of FDCPA
Section 1692e infringes plaintiff’s substantive statutory right to be free from abusive debt
As stated above, Plaintiff’s proposed Amended Complaint alleges violations arising
under 15U.S.C. §§ 1692e and 1692g. Section 1692e states, in part, 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. This section sets forth a non-exclusive list of
actions that are deemed false, deceptive or misleading and thus run afoul of the statute. Id.
(noting that “[w]ithout limiting the general application of the foregoing, the following conduct is
a violation of this section. . . .”). Likewise, Section 1692g sets forth certain information that a
debt collector must convey in writing to a debtor when attempting to collect a debt. Specifically,
this section provides that
[w]ithin five days after the initial communication with a consumer
in connection with the collection of any debt, a debt collector shall,
unless the following information is contained in the initial
communication or the consumer has paid the debt, send the
consumer a written notice containing-(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after
receipt of the notice, disputes the validity of the debt, or any portion
thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in
writing within the 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 judgment against the consumer and a copy of
such verification or judgment will be mailed to the consumer by the
debt collector; and
(5) a statement that, upon the consumer's written request within the
thirty-day period, the debt collector will provide the consumer with
the name and address of the original creditor, if different from the
15 U.S.C. § 1692g. However, although communicating the above language to a debtor is
necessary to comply with the statute, it does not follow that the provision of such language is in
all cases sufficient to insulate a debt collector from liability. “[E]ven if the debt collector’s
notice contains all the information required by statute, it will still violate Section 1692g if the
letter also contains language that overshadows or contradicts other language informing a
consumer of her rights.” McStay v. I.C. Sys., Inc., 308 F.3d 188, 190 (2d Cir. 2002) (internal
citation omitted); see Vega, 2005 WL 711657, at *6 (“Simply including the mandated validation
notice in a debt collection letter is not enough to ensure compliance with the FDCPA. The
validation notice must be clearly conveyed. Therefore, if the debt collector includes other
language that overshadows or contradicts the validation notice to the extent that it renders the
notice ineffective, the debt collector violates § 1692g as a matter of law.”)
Plaintiff has alleged that the October 2, 2015 notification letter violated these two
statutory sections by: (1) failing to “clearly” and “explicitly” set forth “the name of the creditor
to whom the debt is owed,” because the letter identified the debt collector as “SPRINT” and
“there are more than one hundred (100) disparate entities registered in New York that begin their
legal name with ‘Sprint.’” Therefore, “[t]he least sophisticated consumer would likely be
confused as to which of the more than one hundred (100) disparate entities registered in New
York that begin their legal name with ‘Sprint’ is the alleged creditor to whom the debt is owed.”
Am. Compl. ¶¶ 18-24; 32-34; (2) by using a “false, deceptive and misleading representation in
its attempt to collect a debt,” id. ¶ 64, namely, that the statement “YOU OWE: SPRINT,” is
“false” since “Plaintiff does not owe any money to an entity named ‘Sprint’” and that “[t]he least
sophisticated consumer would likely be deceived in a material way by Defendant’s conduct.” Id.
¶¶ 53-57. In addition, Plaintiff claims that “[b]ecause the collection letter . . . is reasonably
susceptible to an inaccurate reading, as described in the First Count [of the Amended
Complaint], it is deceptive within the meaning of 15 U.S.C. § 1692e.” Id. ¶ 52; (3) adding to the
letter the words “‘AFTER YOUR RECEIPT OF GC SERVICES’ INITIAL WRITTEN NOTICE
TO YOU CONCERNING THIS DEBT,’” which “would lead the least sophisticated consumer to
believe there was a prior initial written communication from Defendant.” Id. ¶ 72. Specifically,
Plaintiff claims that this statement, when read together with the surrounding language, would
“confuse the least sophisticated consumer concerning the time frame to dispute the debt or seek
validation of the debt” and would result in the “least sophisticated consumer [being] uncertain as
to her rights.” Id. ¶¶ 73-77; (4) failing to convey the amount of the debt clearly in light of the
fact that the letter “fails to disclose whether the balance may increase due to interest and fees.”
Am. Compl. ¶¶ 84-89, 104. In particular, Plaintiff claims that “[t]he least sophisticated
consumer would be confused as to how she could satisfy the debt” since a consumer “might
believe she could pay the debt in full by remitting the sum stated in the letter at any time after
she received the letter” but that “such a belief may or may not be correct, as Defendant has failed
to disclose whether the balance may increase due to interest and fees.” Id. ¶¶ 90-92. In light of
this alleged ambiguity, Plaintiff asserts that “Defendant has violated § 1692g as it failed to
clearly, explicitly and unambiguously convey the amount of the debt.” Id. ¶ 105; and (5) failing
to “disclose whether the balance may increase due to interest and fees” and therefore “[t]he least
sophisticated consumer would likely be deceived by Defendant’s conduct.” Id. ¶¶ 106-114. As
such, Plaintiff claims that “Defendant has violated § 1692e by using a false, deceptive and
misleading representation in its attempt to collect a debt.” Id. ¶ 117. See also Section II.A.
supra (providing a full summary of Plaintiff’s factual allegations). In addition, Plaintiff has
alleged that he suffered actual damages based upon the underlying allegations in that
Defendant’s actions caused him to: (1) “be distracted from his work;” (2) “lose time at work;”
(3) “waste time;” and (4) “fight with his wife.” Id. ¶¶ 118-127.
Although it is questionable whether Plaintiff will be able to prove these allegations at
trial, that is a question for another day. At this juncture, the allegations in the proposed
Amended Complaint, taken as true, illustrate that Plaintiff has adequately stated that he suffered
a concrete injury sufficient to meet the injury-in-fact requirement in that he “was harmed by
receiving a deficient and allegedly misleading communication from [Defendant]—a harm
defined and made cognizable by the statute, but a concrete harm nonetheless. The alleged
violations of the FDCPA in this case are concrete and particularized to [Plaintiff], and [therefore]
he has Article III standing to bring suit.” Saenz v. Buckeye Check Cashing of Illinois, No. 16 CV
6052, 2016 WL 5080747, at *2 (N.D. Ill. Sept. 20, 2016); see Zirogiannis, 2016 WL 7410541, at
*5-6 (“Zirogiannis’s allegations, accepted as true, establish that he suffered an injury in fact
sufficient to confer Article III standing. Plaintiff alleges that he personally received the
Collection Letter, and that the Collection Letter failed to convey statutorily required information.
As a result, Plaintiff alleges that he was ‘deprived of the information required to be provided by
statute. . . .’”) (internal citation omitted); Bautz, 2016 WL 7422301, at *12; Macy, 2016 WL
5661525, at *4 (“Macy and Stowe allege that GC Services violated [15 U.S.C. § 1692g] (a)(4)
and (5) by sending them notices that failed to mention the in-writing requirement. As a result of
this omission, they claim, the least sophisticated debtor might make an oral request instead,
thereby waiving the protections of subsection (b). The complaint thus adequately alleges injury
in fact, and plaintiffs have standing to pursue their claims.”).
The Court has determined that (1) 15 U.S.C. §§ 1692(e) and 1692(g) confer certain
substantive rights upon the Plaintiff; and (2) Plaintiff has set forth sufficient facts alleging a
violation of such rights based upon Defendant’s purported failure to adhere to the FDCPA’s
statutory requirements. Consequently, Plaintiff has met his burden at this stage to illustrate that
he suffered an injury-in-fact sufficient to confer Article III standing. See Bellino v. JPMorgan
Chase Bank, N.A., No. 14-CV-3139, 2016 WL 5173392, at *9 (S.D.N.Y. Sept. 20, 2016) (“The
statutes [at issue] create a substantive right for Plaintiff to have the satisfaction of mortgage
timely filed, and Defendant violated that right. Nothing more is required, here, to demonstrate
For the foregoing reasons, Plaintiff’s motion to amend the Complaint is GRANTED, in
accordance with this Memorandum and Order. Plaintiff is directed to serve and file his
Amended Complaint within ten (10) days.
Dated: Central Islip, New York
March 23, 2017
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge
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