Santibanez v. National Credit Systems, Inc.

Filing 21

ORDER: Granting Defendant's Motion for Summary Judgment 10 ; Denying Plaintiff's Motion for Partial Summary Judgment 13 ). See formal, Opinion. Signed on 1/11/2017 by Judge Ann L. Aiken. (rdr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

CARLOS SANTIBANEZ,

Case No. 6:16-cv-00081-AA
OPINION AND ORDER

Plaintiff,

v.
NATIONAL CREDIT SYSTEMS, INC.,
Defendant.

AIKEN, Judge:
This dispute concerns whether a debt collection letter sent to plaintiff Carlos Santibanez by
defendant National Credit Systems, Inc., complied with the provisions of the Fair Debt Collection
Practices Act, ("FDCPA"), 15 U.S.C. § 1692 et seq. Before the Comt arethe parties' cross-motions

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for summary judgment. For the reasons set forth below, plaintiffs motion is denied, defendant's
motion is granted, and this case is dismissed.

BACKGROUND
Plaintiff allegedly owes $875.33 to Encompass Management & Consulting LLC ("EMC")
in connection with a rental prope1iy. Trigsted Deel. Ex. A. On Februmy 5, 2015, defendant sent
plaintiff a collection letter regarding that debt ("the letter"). The letter stated, in relevant part:
Re:
Acconnt #:
Balance:

ENCOMPASS MANAGEMENT CONSULTANTS
3118797
$875.33

Dear CARLOS SANTIBANEZ,
It is imperative that you give this matter your prompt attention.

The above referenced account has been placed with this office for collection.
National Credit Systems, Inc. has been authorized to recover this debt by way of
credit bureau reporting (following this initial 30 day validation period) as well as
other remedies available under the law. It is our intention to pursue this debt until
resolved.
However, if you contact our office, we will work with you to satisfy this debt in a
friendly manner. Your representative will review and explain all charges assessed,
consider your individual circumstances, and assist you in resolving this matter.
Please be assured that you may still avoid the aforementioned consequences.
We encourage you to take advantage of this oppo11unity so we may settle this debt
amicably.
Trigsted Deel. Ex. C.
Defendant sent plaintiff a second collection letter on April 21, 2015. That letter listed the
same balance due: $875.33. Hasson Deel. Ex. F. Consistent with that fact, Ron Sapp, a vice
president for defendant, stated in an affidavit that no interest was added to plaintiffs debt and that
the balance did not vary. Sapp. Deel.

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'!l 16.

Plaintiff filed this action alleging the letter violated the FDCP A because it failed to
effectively disclose the identity of the creditor and the amount of the debt, in violation of 15 U.S.C.

§ 1592g. After discovery, both patties moved for summary judgment.
STANDARD
Summary judgment is appropriate if "there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a). The moving party has
the burden of establishing the absence of a genuine issue of material fact. Id; Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence ofa genuine issue of
material fact, the nonmoving party must go beyond the pleadings and identify facts which show a
genuine issue for trial. Id at 324. "Summary judgment is inappropriate ifreasonable jurors, drawing
all inferences in favor of the nonmoving party, could return a verdict in the nonmoving patty's
favor." Diaz v. Eagle Produce Ltd. Partnership, 521F.3d1201, 1207 (9th Cir. 2008).
DISCUSSION
The FDCP A is a broad remedial statute, designed to "eliminate abusive debt collection
practices by debt collectors" by "comprehensively regulat[ing] the conduct of debt collectors,
imposing affirmative obligations and broadly prohibiting abusive practices." Gonzalez v. Arrow Fin.

Servs., LLC, 660 F.3d 1055, 1060-61 (9th Cir. 2011) (quoting 15 U.S.C. § 1692(e)). When a debt
collector sends an initial communication about a debt to a consumer, 1 the FDCP A requires that
communication, or a subsequent notice sent within five days of the initial notice, to include certain
information, including "the amount of the debt" and "the name of the creditor to whom the debt is

1

It is undisputed that defendant is a debt collector, plaintiff is a consumer, and the letter
was a communication about a debt within the meaning of the statute. Trigsted Deel. Ex. B;
Def. 's Resp. Mot. Pait Summ. J. 2.
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owed." 15 U.S.C. § 1692g(a)(l), (2). A debt collector cannot satisfy the requirements of section
1692g merely by including the required information in the notice; rather, the information must be
"conveyed effectively to the debtor." Swanson v. S. Or. Credit Serv., Inc., 869 F.2d 1222, 1225 (9th
Cir. 1988).
Courts assess whether the required information was "conveyed effectively" using the "least
sophisticated debtor" standard. Id.

That standard is "lower than simply examining whether

particular language would deceive or mislead a reasonable debtor." Gonzalez, 660 F.3d at 1061
(quotation marks omitted). It is "designed to protect consumers of below average sophistication or
intelligence, or those who are uninformed or naive, particularly when those individuals are targeted
by debt collectors." Id. at 1062 (quotation marks omitted). Nonetheless, the standard "preserves a
quotient of reasonableness and presumes a basic level of understanding and willingness to read with
care." Id. (quotation marks omitted and alterations normalized). In the Ninth Circuit, whether a
collection letter would effectively convey the required information to the least sophisticated debtor
is a question oflaw. Id. at 1061.

I.

Amount of the Debt
Plaintiff first contends defendant failed to effectively communicate the amount of the debt

because the letter listed only a "balance" and did not explain whether interest was accruing on the
debt or at what rate. Plaintiff does not contend that defendant attempted to collect any interest;
instead, he argues that every initial collection letter must state the interest rate (even if that interest
rate is zero) and warn the consumer that if the debt is sold to another creditor, that creditor may elect
to add interest or fees to the debt amount.

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Although the Ninth Circuit has not decided the issue, several other federal comis have held
that when interest is accruing on a debt, section l 692g(a)(l) requires a debt collector to disclose that
fact and include both principle and interest when stating the amount due. See Miller v. lvfcCal/a,
Raymer, Padrick, Cobb, Nichols & Clark, LLC, 214 F.3d 872, 875 (7th Cir. 2000) ("[T]he unpaid

principal balance is not the debt; it is only a paii of the debt; the Act requires statement of the
debt."); Marucci v. Cawley & Bergmann, LLP, 66 F. Supp. 3d 559, 566 (D.N.J. 2014) ("What the
debtor needs to know is what he or she owes."); but see Weiss v. Zwicker & Assocs., P.C., 664 F.
Supp. 2d 214, 217 (E.D.N.Y. 2009) (finding no "authority for the proposition that a debt collector
has an obligation to explain why a consumer's debt has increased" because "even the most
unsophisticated consumer would understand that credit card debt accrnes interest"). Interpreting
another provision of the FDCPA, the Second Circuit explained that disclosure of information about
interest and fees is imp01iant because its omission "can mislead the least sophisticated consumer into
believing that payment of the amount stated will clear her account[.]" See Avila v. Riexinger &
Assocs., LLC, 817 F .3d 72, 76 (2d Cir. 2016) (holding that failure to disclose interest and fees is a

"false, misleading, or deceptive" practice, in violation of section l 692e of the FDCP A).
Here, there no was no danger plaintiff would be misled. It is undisputed that defendant never
attempted to collect any interest and that payment of the "balance" listed in the letter would have
cleared plaintiffs account. Plaintiff has cited no authority for the proposition that the FDCPA
requires a debt collector to affirmatively state that no interest is accruing or to warn the consumer
that interest could accrue if the account is sold to another creditor in the future. The few federal
courts to address analogous fact patterns have held that no such disclosure is required. See lvfartin
v. Trott Law, P.C.,-F. Supp. 3d-, 2016 WL3997029, *8 (E.D. Mich. Jul. 26, 2016)("[Plaintiffs]

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have not cited any authority for the apparently novel proposition that a collection letter can ...
violate ... [section] 1692g(a)(l) by failing to accurately state the 'amount of the debt,' where it
merely omits sums that the plaintiffs presume were due at the time of the sending, but which were
not stated or demanded by the debt collector in the notice letter."); Curto v. Palisades Collection,
LLC, 2011 WL 5196708, *8 (W.D.N.Y. Oct. 31, 2011) (holding that summary judgment is

appropriate when the collection letter does not mention interest and the defendant is not seeking
interest). Indeed, including information about interest when no interest is due carries a higher risk
of confusing an unsophisticated consumer than simply stating the balance due. See Chuway v. Nat'!
Action Fin. Servs. Inc., 362 F.3d 944, 949 (7th Cir. 2004) (holding that a debt collector who did not

intend to collect any interest or fees violated the FDCPA by including language that suggested the
amount due might be higher than the balance listed).
Because the least sophisticated consumer would understand from the letter that payment of
the "balance" would satisfy the debt in full, defendant is entitled to summaiy judgment on plaintiff's
section 1692g(a)(l) claim.

II.

Identity of the Creditor

Plaintiff next avers defendant failed to effectively convey the identity of the creditor.
Plaintiff asse1is the least sophisticated debtor could be confused about the identity of the creditor for
two reasons. First, the letter never expressly states EMC is the creditor. Second, the entity named
in the letter, Encompass Management Consultants, does not exist. EMC's business name is
Encompass Managing & Consulting LLC.
Regarding the first point, plaintiff relies heavily on Janetos v. Fulton Friedman & Gullace,
LLP, 825 F.3d 317 (7th Cir. 2016). In Janetos, the Seventh Circuit considered a debt collection

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letter that identified the creditor, Asset Acceptance, as the "assignee" of another company rather than
clearly stating it was the current creditor or owner of the debt. Id. at 321. The Janetos Jetter also
stated that the referenced account was "transferred" to Fulton, Friedman & Gullace, LLP. Id. Noting
the ambiguity in the terms "assignee" and "transferred," the court concluded that debtors reading
such a letter would "find themselves obliged to guess who currently owned the debts in question.
Since the name was on the letters, some might correctly guess that Asset Acceptance was the current
creditor, but a lucky guess would have nothing to do with any disclosures the letters provided." Id.
at 323. The court reiterated the basic rule that a collection communication must "identify the cunent
creditor clearly and accurately." Id. at 325; see also Sparkman v. Zwicker & Assocs., P.C., 374 F.
Supp. 2d 293, 301 (E.D.N.Y. 2005) (stating that the inquiry under section 1692g(a)(2) is whether
the least sophisticated debtor could "deduce from reading the Collection Letter" the name of the
creditor).
This case is distinguishable fromJanetos. InJanetos, the subject line of the letter stated
"Asset! Acceptance, LLC Assigne of AMERISTAR,'' then provided an "Original Creditor Acct#"
and a separate account number associated with Fulton, Friedman & Gullace. 825 F.3d at 320. Here,
the subject line contains a single name (EMC's) and a single account number. That strongly suggests
EMC is the creditor. Second, the letter here indicates that the account has been "placed" with
defendant "for collection" and further states defendant "has been authorized to recover this debt[.]"
Id. Unlike the words "assignee" and "transferred" in Janetos, the word "placed" does not suggest

any change in ownership. Moreover, the fact that defendant was "authorized" to collect the debt
clearly indicates that defendant was collecting the debt on behalf of EMC, as defendant would not
need to be "authorized" to collect a debt it owned. Although it would have been better if the letter

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had expressly identified EMC as the "creditor" or "owner" of the debt, the least sophisticated
consumer would understand based on the letter that EMC was the creditor.
Moving on to the second point, it is undisputed that the subject line incorrectly stated EM C's
name as Encompass Management Consultants rather than Encompass Management & Consulting
LLC. The question is whether this clerical error would confuse the least sophisticated consumer.
Plaintiff contends that it would, citing the fact that Encompass Management & Consulting LLC is
listed in the Oregon Secretaiy of State's Business Regisliy Database, but Encompass Management
Consultants is not.
There are situations in which an error in the creditor's name would confuse the least
sophisticated consumer. For example, in Schneider v. TSYS Total Debt 2\1anagement, Inc., 2006 WL
1982499, *1 (E.D. Wis. Jul. 13, 2006), the collection letter identified the creditor as "TARGET."
The plaintiff identified nine different corporations whose names began with the word "Target." Id.
The court held the claim under 1692g(a)(2) could proceed because, depending on the creditor's
actual name (unknown to the comt at the time of the rnling), it was possible the name "Target" on
the collection letter would have left the least sophisticated consumer confused about the creditor's
identity. Id. at *4. No such confusion results from the eJTor here. Even selecting the "exact words
in exact order" search option for the Business Registry Database on the Secretaiy of State's website,2
a search for Encompass Management Consultants yields only one hit: Encompass Management &
Consulting LLC. 3 Ifplaintiff were to look up Encompass Management Consultants in a phone book,

2

The search engine for the database can be accessed at
http://egov.sos.state.or.us/br/pkg web name srch inq.login (last visited Jan. 5, 2017).
3

I sua sponte take judicial notice of the contents of the Oregon Secretary of State's
Business Registry Database and the search results pursuant to Federal Rules of Evidence
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the alphabetical listing would similarly take him to Encompass Management & Consulting LLC.
Plaintiff has not pointed to any business entities with confusingly similar names that would prevent
the least sophisticated debtor from realizing EMC is the creditor. Because the least sophisticated
debtor would understand from the letter that EMC was the creditor, defendant is entitled to summaty
judgment on plaintiffs claim under section 1692g(a)(2).
CONCLUSION
Plaintiffs Motion for Summaty Judgment (doc. 13) is DENIED. Defendant's Motion for
Summaty Judgment (doc. 10) is GRANTED. This case is DISMISSED.
IT IS SO ORDERED.

11:.)of January 2017.

Dated this ll_

Ann Aiken
United States District Judge

201(b)(2) and 201(c)(l). See Vejo v. Portland Pub. Schs., -F. Supp. 3d-, 2016 WL 4708534,
*10 n.9 (D. Or. Sept. 6, 2016).
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