Isaac et al v. NRA Group, LLC et al

Filing 69

ORDER denying 41 Motion for Summary Judgment. For the reasons set forth herein, plaintiffs' motion for summary judgment is denied. Ordered by Judge Joseph F. Bianco on 3/29/2018. (Karamigios, Anna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 16-CV-5210 (JFB) (SIL)
_____________________

ALDEAN ISAAC AND JULISSA ORTIZ,
Plaintiff,
VERSUS

NRA GROUP, LLC D/B/A NATIONAL RECOVERY AGENCY AND STEVEN C. KUSIC,
Defendants.
___________________
MEMORANDUM AND ORDER
March 28, 2018
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiffs Aldean Isaac (“Isaac”) and
Julissa Ortiz (“Ortiz” and, together with
Isaac, “plaintiffs”) bring this putative class
action against NRA Group, LLC (“NRA”)
and NRA’s chief executive officer, Steven
C. Kusic (“Kusic” and, together with NRA,
“defendants”), for alleged violations of the
Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et. seq.
Plaintiffs assert two causes of action against
both NRA and Kusic. The first cause of
action alleges that debt collection letters sent
by NRA to plaintiffs misrepresented the
amount of debt that plaintiffs owed in
violation of FDCPA Sections 1692g and
1692e. The second cause of action alleges
that defendants violated FDCPA Sections
1692e and 1692f because the same
collection letters falsely implied that NRA
had the legal right to collect interest and fees
from plaintiffs. Presently before the Court is
plaintiffs’ motion for partial summary

judgment on the first cause of action, as
against NRA. For the reasons that follow,
the Court denies the motion.
I. BACKGROUND
A. Facts
The Court takes the following facts from
the parties’ Rule 56.1 Statements of Fact,
affidavits, and exhibits, and construes the
facts in the light most favorable to NRA as
the nonmoving party. See Capobianco v.
City of New York, 422 F.3d 47, 50 n.1 (2d
Cir. 2005). Unless otherwise indicated, the
facts are either undisputed or uncontroverted
by admissible evidence.
At some unspecified time, both Isaac
and Ortiz incurred debt to Peconic Bay
Medical Center (“Peconic”). (Pls.’ 56.1
¶ 3.) Thereafter, Peconic assigned the debts
to NRA for collection. (Id. ¶ 5.)
NRA asserts that it sent debt collection
letters dated August 20, 2015 to both

plaintiffs (“the August 2015 letters”). 1
(Def.’s 56.1 ¶¶ 8, 18; Chille Aff. ¶¶ 6-9,
Exs. B, C.) The August 2015 letter
addressed to Ortiz indicates that she owes
$1,254.93 for services rendered by Peconic
on June 9, 2013, with an account number
ending in 6681. (Chille Aff. Ex. C.) A
detachable payment slip at the bottom of the
letter states a “total due” of $1,254.93. (Id.)
Ortiz does not dispute that this letter states
an accurate amount owed. (Pls.’ 56.1 ¶ 14.)

the same amount— $1,254.93—for services
rendered by Peconic on “00/00/00,” with the
same account number ending in 6681. (Id.)
The detachable payment slip at the bottom
of the letter indicates that Ortiz’s “total due”
is $2,509.86, or double $1,254.93. (Id.)
Similarly, the September 2015 letter to
Isaac repeats the information contained in
the August 2015 letter addressed to him:
that he owes $145.96 for services rendered
by Peconic on August 9, 2013, with an
account number ending in 3930, and
$1,139.56 for services rendered by Peconic
on August 19, 2013, with an account
number ending in 0322. (Chille Aff. Ex. E.)
Immediately beneath that information, the
letter states that Isaac owes the same
amount—$145.96—for services rendered by
Peconic on “00/00/00,” with the same
account number ending in 3930, and the
same amount—$1,139.56—for services
rendered by Peconic on “00/00/00,” with the
same account number ending in 0322. (Id.)
The detachable payment slip at the bottom
of the letter indicates that Isaac’s “total due”
is $2,571.04. (Id.)

The August 2015 letter addressed to
Isaac includes amounts owed for two
separate dates of service. (Chille Aff. Ex.
B.) Specifically, it states that Isaac owes
$145.96 for services rendered by Peconic on
August 9, 2013, with an account number
ending in 3930, and $1,139.56 for services
rendered by Peconic on August 19, 2013,
with an account number ending in 0322.
(Id.) A detachable payment slip at the
bottom of the letter indicates that Isaac’s
“total due” is $1,285.52. (Id.) Isaac does
not dispute that these amounts are accurate.
(Pls.’ 56.1 ¶ 11.)
NRA sent plaintiffs additional collection
letters dated September 23, 2015 (“the
September 2015 letters”). (Compl. Ex. 1.)
The September 2015 letter to Ortiz repeats
the information contained in the August
2015 letter: that she owes $1,254.93 for
services rendered by Peconic on June 9,
2013, with an account number ending in
6681. (Chille Aff. Ex. F.) Immediately
beneath that information, however, the
September 2015 letter states that Ortiz owes

According to NRA, the duplicate
information was included in the September
2015 letters because it was mistakenly
included in an excel spreadsheet received
from Peconic Bay. (Def.’s 56.1 ¶¶ 18-20.)
When NRA received the spreadsheet with
the duplicate information, its system
automatically processed the information and
prompted the mailing of the September 2015
letters with the duplicate charges. (Id. ¶ 20.)
B. Procedural History

1

At oral argument, plaintiffs’ counsel disputed that
the August 2015 letters were ever received by
plaintiffs. Plaintiffs’ reply brief, however, does not
address the issue. In any event, the Court need not
resolve this issue for purposes of this motion because
plaintiffs are not entitled to summary judgment on
the first cause of action even if the September 2015
letters were the initial communication, as alleged by
plaintiffs.

Plaintiffs filed the complaint on
September 19, 2016.
(ECF No. 1.)
Defendants answered on November 17,
2016. (ECF No. 8.) Plaintiffs moved for
summary judgment as to liability on the first
cause of action against NRA on July 28,
2017. (ECF No. 41.) Defendants opposed
2

the motion on August 31, 2017. (ECF No.
49.) Plaintiffs replied on September 15,
2017. (ECF No. 50.) The Court heard oral
argument on October 20, 2017. At the
conclusion of that argument, the Court held
the motion in abeyance under Federal Rule
of Civil Procedure 56 pending further
discovery into whether any putative class
members inquired about the at-issue letters
or paid double the amount they owed. On
November 20, 2017, defendants provided
that discovery in further support of their
opposition to plaintiffs’ motion for summary
judgment. 2

II. STANDARD OF REVIEW
The standard for summary judgment is
well settled. Under Federal Rule of Civil
Procedure 56(a), a court may only grant a
motion for summary judgment 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). The moving
party bears the burden of showing that he or
she is entitled to summary judgment.
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2005). “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.” 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 West
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see 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”).

2

More specifically, during oral argument, the Court
asked the parties whether discovery had revealed how
many of the putative class members, if any, overpaid
or made an inquiry in response to receiving an atissue debt collection letter. The parties informed the
Court that discovery had not yet revealed that
information; that discovery was ongoing; and that
plaintiffs were attempting to obtain the information
from defendants. The Court ordered defendants to
provide the information to plaintiffs and to the Court.
On November 20, 2017, NRA informed the Court
that it had determined that, of the 12,550 putative
class members, not one overpaid in response to
receiving an at-issue debt collection letter. NRA
further informed the Court that it was unable to
determine whether any putative class members had
made an inquiry regarding an at-issue letter.
Although this evidence supports defendants’ position,
whether the Court may consider such facts in
deciding this motion is unclear, as “the trend in the
Second Circuit” is to treat the question of whether a
collection letter violates the FDCPA “as a matter of
law.” E.g., Moukengeschaie v. Eltman, Eltman &
Cooper, P.C., No. 14-CV-7539 (MKB), 2016 WL
1274541, at *4 (E.D.N.Y. Mar. 31, 2016) (collecting
cases). Other circuits do consider whether consumers
were actually misled by a debt collection letter in
making these determinations. See, e.g., Lox v. CDA,
Ltd., 689 F.3d 818, 822 (7th Cir. 2012). In an
abundance of caution, this Court has not considered
the above-described evidence in holding that the
September 2015 letters do not violate the FDCPA as
a matter of law under the least sophisticated
consumer standard, and thereby denying plaintiffs’
summary judgment motion on those claims.

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
3

forward with specific facts showing that
there is a genuine issue for trial.” Caldarola
v. Calabrese, 298 F.3d 156, 160 (2d Cir.
2002) (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” alone will not
defeat a properly supported motion for
summary judgment. Id. at 247-48. 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)).
Thus, 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) (quoting Research
Automation Corp., 585 F.2d at 33).

Id. §§ 1692a, 1692e. The FDCPA provides
“examples of particular practices that debt
collectors are forbidden to employ,” but the
list of examples “is non-exhaustive, and the
FDCPA generally forbids collectors from
engaging in unfair, deceptive, or harassing
behavior.” Kropelnick v. Siegel, 290 F.3d
118, 127 (2d Cir. 2002).
Here, plaintiffs have moved for
summary judgment on their claims under
FDCPA Sections 1692e and 1692(g).
Section 1692e establishes a general
prohibition against a debt collector’s use of
“any false, deceptive, or misleading
representation or means in connection with
the collection of any debt.” 15 U.S.C.
§ 1692e. The section then includes a nonexhaustive list of prohibited conduct,
including (1) “the false representation of the
character, amount, or legal status of any
debt,” id. § 1692e(2)(A); (2) “threat[s] to
take any action that cannot legally be taken
or that is not intended to be taken,” id.
§ 1692e(5); and (3) “[t]he use of any false
representation or deceptive means to collect
or attempt to collect any debt or to obtain
information concerning a consumer,” id.
§ 1692e(10). Section 1692g(a) sets forth
required disclosures for a debt collector’s
initial communication to a consumer. As
relevant here, this section requires that the
initial communication include “the amount
of the debt.” 15 U.S.C. § 1692g(a)(1).

III. DISCUSSION
Congress enacted the FDCPA in
response to the “use of abusive, deceptive,
and unfair debt collection practices by many
debt collectors.”
15 U.S.C. § 1692a.
Because “[a]busive debt collection 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.”

A. Plaintiffs Have Standing
As a threshold matter, the Court
concludes that plaintiffs have standing to
bring the instant claims. Defendants argue
that plaintiffs lack standing because they
have not suffered imminent and concrete
injuries. However, defendants ignore that
the FDCPA “provides for liability for
attempting to collect an unlawful debt” and
“permits the recovery of statutory damages
up to $1,000 in the absence of actual
damages.” Miller v. Wolpoff & Abramson,
4

inaccurate.” Easterling v. Collecto, Inc.,
692 F.3d 229, 233 (2d Cir. 2012). This is a
question of law. Shami v. Nat’l Enters. Sys.,
914 F. Supp. 2d 353, 359 (E.D.N.Y. 2012).

L.L.P., 321 F.3d 292, 307 (2d Cir. 2003).
Court have accordingly “held that actual
damages are not required for standing under
the FDCPA.” Id.; accord Ehrich v. I.C.
Sys., Inc., 681 F. Supp. 2d 265, 270
(E.D.N.Y. 2010) (“Courts have consistently
interpreted the FDCPA to confer standing on
plaintiffs who have suffered no actual harm,
allowing them to sue for statutory
violations.” (collecting cases)). Thus, that
plaintiffs received debt collection letters that
potentially violate the FDCPA is sufficient
to establish their standing in this case.

Although “Congress painted with a
broad brush” in drafting the FDCPA, “not
every technically false representation by a
debt collector amounts to a violation of the
FDCPA.” Gabriele v. Am. Home Mortg.
Servicing, Inc., 503 F. App’x 89, 94 (2d.
Cir. 2012) (citation omitted). Instead, a
communication violates the FDCPA if it
“could mislead a consumer as to the nature
and legal status of the underlying debt, or if
it could impede a consumer’s ability to
respond to or dispute collection,” or if it is
“contradictory, vague, or threatening.” Id. at
94-95 (collecting cases).

B. The September 2015 Letters Do Not
Violate Section 1692e or Section 1692g
To determine whether a communication
violates the FDCPA, 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 also 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 v. Trauner, Cohen & Thomas, LLP,
412 F.3d 360, 363 (2d. Cir. 2005) (citations
omitted).
The Second Circuit has
emphasized
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 collection notice with
some care.” Id. (quoting Clomon, 988 F.2d
at 1318-19). Thus, a communication is
considered false, deceptive, or misleading to
the “least sophisticated consumer” only if it
is “open to more than one reasonable
interpretation, at least one of which is

Here, the Court concludes that even the
least sophisticated consumer—who is
presumed to possess a rudimentary amount
of information about the world and a
willingness to read a collection notice with
some care—would not be misled by the
September 2015 letters. 3 The fact that the
second charges are for the same amounts
and account numbers 4 as the first charges
makes clear that they are duplicative.
Further, the “00/00/00” service dates for the
repetitive charges would indicate to even the
least sophisticated consumer that those
charges were included in error.

3

Defendant argues that the least sophisticated
consumer standard should not apply because
plaintiffs immediately forwarded the collection letters
to their attorneys. Because the Court concludes that
even the least sophisticated consumer would not have
been misled by the September 2015 letters, it need
not reach this argument.

4
Importantly, the account numbers referenced in the
letters appear to be specific to each date of service.
Put differently, the account number is not linked to a
patient, and changes with each charge. Thus, the fact
that the account numbers were the same would
indicate that the charges were duplicative.

5

The fact that the detachable payment
slips at the bottom of the September 2015
letters state an amount owed that is double
the amount that each plaintiff actually owed
does not render the letters misleading. Even
the least sophisticated consumer is presumed
to make "basic, reasonable and logical
deductions and inferences."
Dewees v.
Le,gal Servicing, LLC, 506 F. Supp. 2d 128,
132 (E.D.N.Y. 2007) (citing Spira v.
Ashwood Fin., Inc.; 358 F. Supp. 2d 150,
156 (E.D.N.Y. 2005)).
Reading the
September 2015 letters in their entirety, the
least sophisticated consumer could readily
determine that the "total due" on the
payment slip included the duplicative
charges above. 5 In short, the only "basic,
reasonable, and logical inference" to be
drawn from the September 2015 letters is
that the duplicative charges were included
by mistake, and were not actually owed.
Thus, the duplicative charges, although
"false in some technical sense," would not
have "mis le[ d] a consumer as to the nature
and legal status of the underlying debt," or
"impede[d] a consumer's ability to respond
to or dispute collection." Gabriele, 503 F.
App'x at 94-95. 6

IV. CONCLUSION
For the foregoing reasons, the Court
denies plaintiffs' motion for summary
judgment on the first cause of action against
NRA.

Dated: March 28, 2018
Central Islip, NY

***
Plaintiffs are represented by Craig B.
Sanders, David M. Barshay, and Jonathan
Mark Cader of Sanders Law, PLLC, 100
Garden City Plaza, Garden City, NY 11530
and Todd D. Muhlstock of the Muhlstock
Law Firm PC, 100 Garden City Plaza,
Garden City, NY 11530. Defendants are
represented by Hilary Felice Korman of
Warshaw Burstein LLP, 555 Fifth Avenue,
New York, NY 10017 and Scott Evan
Wortman and Jacquelyn Alena DiCicco of
Blank Rome LLP, 405 Lexington Avenue,
New York, NY 10174.

5

The cases relied on by plaintiffs are distinguishable.
In Lee v. Kueker & Bruh, LLP, 958 F. Supp. 2d 524
(S.D.N.Y. 2013), Crqfton v. Law Firm ofJonathan B.
Levine, 957 F. Supp. 2d 992 (E.D. Wis. 2013), and
Mehling v. Fu/let Rosenlund Anderson PC, No. 16 C
5921, 2016 WL 7231931 (N.D. Ill. Dec. 12, 2016),
the at-issue debt collection letters sought to collect
more than the debtors owed without any indication,
on the face of the letters, that an error had occurred.
In other words, the debt collectors in those cases
sought to collect lump sums in excess of what the
debtors owed without indicating how the debt
collector had arrived at the lump sum. Christopher v.
RJM Acquisitions LLC, No. CV-13-02274-PHX-JAT,
2015 WL 437541 (D. Ariz. Feb. 3, 2015) is also
inapposite, as that case involved attempts to collect a
debt from a plaintiff who was not a debtor to the
relevant creditor.

were initial communications subject to Section
1692g. Specifically, NRA has submitted evidence
that the August 2015 collection letters were the initial
communication· between NRA and plaintiffs. (Def.' s
56.1 iJiJ 8, 18; Chille Aff. iJiJ 6-9, Exs. B, C.)
However, because the Court concludes that, even
assuming arguendo that the September 2015 letters
were initial communications, the letters do not violate
FDCP A Section 1692g, the Court need not address
this issue.

6

The Court also notes that there is an additional
factual issue as to whether the September 2015 letters

6