JARZYNA v. HOME PROPERTIES, L.P. et al

Filing 251

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 7/17/15. 7/17/15 ENTERED AND COPIES MAILED TO SPECIAL MASTER BLAIR, EMAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARIUSZ G. JARZYNA,
Plaintiff,
v.
HOME PROPERTIES, L.P. et al.,
Defendants.

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CIVIL ACTION
No. 10-4191

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

July 17, 2015

Table of Contents
I.

BACKGROUND................................................ 4

II.

PROCEDURAL HISTORY....................................... 10

III. STANDARD OF REVIEW....................................... 12
IV.

DISCUSSION............................................... 14
A.

COUNT I: FDCPA...................................... 14
1.

Claims Against Defendant Home.................. 14

2.

Claims Against Defendant FCO................... 18
a.

§ 1692g(a): FCO’s dunning letters
do not adequately provide the required
information............................... 19
i.

The AV2 and HD1AC letters............ 21

ii.

The HD1A letter...................... 23

b.

§ 1692g(b): FCO failed to verify the
debt and improperly continued its
collection attempts....................... 36

c.

§§ 1692e(11) and 1692d(6): FCO failed
to self-identify as a debt collector
over the telephone........................ 42

d.

§§ 1692f(1), 1692e(2), and 1692e(10):
FCO attempted to collect a debt that
Plaintiff did not owe..................... 47

B.

COUNT II: FCEUA..................................... 53
1.

Claims Against Defendant Home.................. 54
a.
b.

Home continually changed the amount due... 61

d.

C.

Home sends accounting letters to prior
addresses................................. 59

c.

2.

No notice fee provision in the lease
agreement................................. 55

Plaintiff’s alleged debt to Home is
bogus and illegal......................... 62

Claims Against Defendant FCO................... 66

COUNT III: UTPCPL................................... 66
1.
2.

D.

Claims Against Defendant Home.................. 67
Claims Against Defendant FCO................... 69

COUNT IV: Landlord and Tenant Act................... 70
1.

Home Improperly Withheld the Security
Deposit........................................ 71

2.

Home Did Not Send a Timely Accounting.......... 72

E.

COUNT V: Civil Conspiracy........................... 74

F.

Defendant Home’s Counterclaim....................... 77

G.

Defendant Home’s Request for Sanctions.............. 78

V.

CONCLUSION............................................... 79

VI.

APPENDIX A: Sample Form AV2 Letters from
Defendant FCO............................................ 84

VII. APPENDIX B: Sample Form HD1AC Letters from
Defendant FCO............................................ 88

This case, despite the relative simplicity of its
claims, has proceeded along an unusually circuitous and
contentious path: through fifteen months of discovery battles
under the supervision of a Special Master, several iterations of
the Complaint, and protracted but unsuccessful settlement
negotiations. Now the parties have all filed dispositive motions
and the Court, briefs in hand (totaling 320 pages at last
2

count), is ready to bring the matter one step closer to a final
disposition.
Plaintiff Mariusz Jarzyna (“Plaintiff”) brings this
action on behalf of himself and others similarly situated
against Defendant Home Properties L.P. (“Home”) and Defendant
Fair Collections and Outsourcing, Inc. (“FCO”), alleging
violations of the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. § 1692 et seq., Pennsylvania’s Fair Credit Extension
Uniformity Act (“FCEUA”), 73 P.S. § 2270.1 et seq.,
Pennsylvania’s Unfair Trade Practices and Consumer Protection
Law (“UTPCPL”), 73 P.S. § 201-1 et seq., and Pennsylvania’s
Landlord and Tenant Act, 68 P.S. § 250.101. Plaintiff also
brings a claim of civil conspiracy under Pennsylvania common
law. Each party has moved for summary judgment. For the reasons
that follow, the Court will grant these motions in part and deny
them in part.

3

I.

BACKGROUND1
In January 2008, Plaintiff entered into a residential

lease agreement with Defendant Home, which operates and manages
the Glen Brook Apartments in Glenolden, Pennsylvania (“Glen
Brook”). Home’s Br. Ex. E, Pl. Dep. 11:22-12:22, Mar. 18, 2011
[hereinafter Pl. Dep.]; id. at 1.2 The lease term lasted from
January 2008 to January 2009, and Plaintiff resided at Glen
Brook during that time. Pl. Dep. 12:18-19. Pursuant to the

1

Each party has included within its motion a separate
statement of the facts which are largely disputed by the
opposing parties. However, by comparing the parties’ statements
of facts and objections thereto, the Court has been able to
identify an underlying series of events related to Plaintiff’s
claims. The Court will note where the parties disagree. In
deciding the motions, the Court reviews the evidence in the
light most favorable to--and makes all reasonable inferences in
favor of--the respective nonmoving party.
2

For ease of reference, the Court uses “Pl.’s Mot.” for
Plaintiff’s Motion for Summary Judgment (ECF No. 225), “Pl.’s
Br.” for Plaintiff’s Memorandum of Law in Support of His Motion
for Summary Judgment (ECF No. 225-2), “Home’s Resp.” for
Defendant Home’s Response in Opposition to Plaintiff’s Motion
for Summary Judgment (ECF No. 237), “Home’s Br.” for Defendant
Home’s Memorandum of Law in Support of Its Motion for Summary
Judgment (ECF No. 234-17), “Pl.’s Resp. to Home” for Plaintiff’s
Memorandum of Law in Opposition to Defendant Home’s Motion for
Summary Judgment (ECF No. 236-1), “Pl.’s Suppl.” for Plaintiff’s
Supplement in Opposition to Defendant Home’s Motion for Summary
Judgment (ECF No. 246), “Home’s Suppl. Resp.” for Defendant
Home’s Response to Plaintiff’s Supplement (ECF No. 250), “Home’s
Countercl.” for Defendant Home’s Counterclaim (ECF No. 231),
“FCO’s Br.” for Defendant FCO’s Brief in Opposition to
Plaintiff’s Motion for Summary Judgment and in Support of FCO’s
Cross-Motion for Summary Judgment (ECF No. 233-1), and “Pl.’s
Resp. to FCO” for Plaintiff’s Memorandum of Law in Opposition to
Defendant FCO’s Cross-Motion for Summary Judgment (ECF No. 2351).
4

agreement, Plaintiff paid a $500.00 security deposit, which Home
placed into an escrow account. Id. at 22:7-15.
On November 17, 2008, in anticipation of the end of
his lease, Plaintiff entered into a new lease agreement with
Home, Home’s Br. Ex. D, at 2, with a term lasting from January
12, 2009, to August 11, 2009, id.; Pl. Dep. 13:2-7. The $500.00
security deposit from the first lease carried over to the second
lease. Pl. Dep. 22:10-15; Home’s Br. Ex. D, at 2, 5. The second
lease agreement contained the following provisions:
[A.]2.
Return of Security Deposit. Your security
deposit will be returned to you after your Lease has
ended and if you have met the following conditions:
a.
b.
c.
d.

You have vacated your Apartment;
You have paid the rent and other charges due
under the Lease;
You have given us proper notice of your
leaving;
You have removed your personal property and
have left the Apartment in good and clean
order, except for ordinary wear and tear.

If we retain some or all of your security deposit, we
will notify you at the forwarding address you provide
of the reasons we withheld part or all of your
security deposit. We will send you notice and/or
return your security deposit within the time set forth
in the State Law Provisions attached to this Lease.
. . . .
[B.1.]
Late Fees.
If you fail to pay the rent in full before the end of
the 5th day of the month, you will immediately pay us,
as additional rent, a late fee of 10% of the monthly
rent. If you still fail to pay the rent in full before
the end of the 15th day of the month, you will pay us,
as additional rent, an additional late fee of 5% of
5

the monthly rent for a total late fee of 15% of the
monthly rent.
. . . .
[C.]3.
Notice to Vacate at End of Lease Term.
You must give us at least sixty (60) days written
notice of your intention to vacate the Apartment at
the end of the term. If you fail to give this notice,
you will be held liable for rent for the period for
which you failed to give us notice. Please note that
you are not permitted based on this section to give us
notice that you will leave prior to the end date of
this Lease (on page 2).
. . . .
5.
Failure to Vacate at End of Lease Term.
In the event you do not vacate the Apartment at the
end of the term, we may use legal process to remove
you. Or, if we accept rent for the period after the
end of the Lease Term, then you shall be deemed a
holdover Resident and your tenancy shall be month-tomonth, with monthly rent at the current market rate
for a month-to-month lease. We will provide you with
at least 60 days notice of that rate. Either you or we
can terminate the month-to-month lease as of the last
day of any calendar month by giving one calendar
month’s written notice to the other party.
Home’s Br. Ex. D, at 3-8.
On August 11, 2009, Plaintiff did not vacate his
apartment, and his lease converted to a month-to-month tenancy.
Pl. Dep. 23:10-14; Home’s Br. 5. On September 1, 2009, Plaintiff
gave Home the required one month’s notice, stating that he
planned to vacate on October 1, 2009. Pl. Dep. 72:12-20; Home’s
Br. 7. The next day, Home offered Plaintiff a deal if he would
consider renting another apartment at Glen Brook. Pl. Dep. 77:778:5. In pursuing this opportunity, Plaintiff rescinded his
6

September 1, 2009, notice of termination and Home removed him
from the “move-out list.” Id. at 78:8-9; see also Home’s Br. Ex.
J. Although Plaintiff and an intended roommate attempted to find
a new apartment--with the roommate going so far as to sign a new
lease--their efforts ultimately fell through. Pl. Dep. 78:879:2, 88:19-90:20; Pl.’s Resp. to Home 7. Therefore, on October
7, 2009, Plaintiff signed a third lease in order to secure his
current apartment from December 12, 2009, to December 11, 2010.
Home’s Br. Ex. H, at 1-2.3
On October 23, 2009, Plaintiff received a late notice
under his door with a balance due of $1,415.30.4 Third Am. Class
Action Compl. (“TAC”) Ex. 8, ECF No. 205-1; Pl. Dep. 85:1-12.
Plaintiff disputed this charge, and Home allegedly could not
immediately explain it--although the onsite leasing office
promised to “send it up to corporate.” Pl. Dep. 86:12-15. After
this, Plaintiff resolved to end his tenancy at Glen Brook and
consulted with his brother and attorney, Konrad Jarzyna, in
3

Home states that the October 7, 2009, lease related to
the different apartment Plaintiff attempted to lease with a
roommate. Home’s Br. 7. However, Home appears to be mistaken on
this point, since both Plaintiff’s deposition testimony and the
October 7, 2009, lease clearly indicate that Plaintiff signed a
third lease for his current apartment. See Pl. Dep. 89:21-23
(“After [the roommate] terminated that lease, I mean I signed a
third lease for Apartment M, just so I would have a place to
live.”); see also Home’s Br. Ex. H, at 1-2.
4

This amount was apparently later reduced to $1,300.40.
TAC Ex. 8.
7

order to do so. Id. at 86:15-22. On October 28, 2009, Konrad
Jarzyna sent Home a letter informing it that Plaintiff would be
vacating on October 31, 2009, and declaring the October 7, 2009,
lease agreement to be “null and void.” TAC Ex. 7; Home’s Br. 8.
On October 31, 2009, Plaintiff vacated the apartment, having
given Home two days’ notice. Pl. Dep. 72:23-73:8, 97:20-98:1.
On November 1, 2009, Plaintiff accessed his online
balance with Home and learned that it had increased to $2,200.
Pl.’s Resp. to Home 8 n.39; Home’s Br. 10. Based on a Statement
of Deposit prepared by Home on November 16, 2009--by which date
the balance had increased to $2,397.925--the amount included a
thirty-day notice fee of $888.00, a rental charge of $379.20 as
of September 30, 2009, a rental charge of $888.00 as of October
31, 2009, and miscellaneous other fees. Pl.’s Resp. to Home Ex.
1. The statement also indicated that Home had applied
Plaintiff’s $500.00 security deposit to the amount due, which
reduced the total due to $1,897.92. Id. After moving out of Glen
Brook, Plaintiff had no contact with anyone at Home regarding
his balance due. Pl. Dep. 92:16-94:2; Home’s Br. 10.
In February 2010, Home retained Defendant FCO--a
national debt collection company that regularly contracts with
Home--to pursue recovery of Plaintiff’s alleged debt. TAC ¶ 54;
5

Plaintiff claims he did not receive this statement
until a later date. Pl.’s Resp. to Home 8 n.39; Pl. Dep. 94:1395:18.
8

Home’s Br. 11; FCO’s Br. 22. Home and FCO’s relationship at that
time was governed by a Collection Services Agreement (“CSA”),
dated April 28, 2008. Home’s Br. Ex. K. As part of its
collection effort, FCO made several attempts to contact
Plaintiff. For example, FCO sent Plaintiff its AV2 dunning
letter on March 3, 2010; its HD1A dunning letter on March 22,
2010, and May 21, 2010; its HD1AC dunning letter on April 9,
2010; and its AV1 dunning letter on May 21, 2010. FCO’s Br. 2223; Pl.’s Mot. 2-4. However, FCO mailed these letters either to
Plaintiff’s old Glen Brook address or to Plaintiff’s parents’
address in Reading, Pennsylvania, and Plaintiff never received
them. FCO’s Br. 22-23.6
On June 21, 2010, FCO mailed a dunning letter which
Plaintiff did receive, and which the parties have produced. See
TAC Ex. 11; see also Pl. Dep. 30:16-31:11; First Am. Compl.
¶ 57, ECF No. 21. The June 21, 2010, letter demanded payment of
a “past due account” in the amount of $1,897.92. TAC Ex. 11. On
6

Plaintiff appears to suggest that he received these
letters but that he “cannot locate [them] in his files, nor can
FCO.” Pl.’s Mot. 2 n.2, 4 n.10. However, the First Amended
Complaint stated that, after vacating his apartment, the next
time he was contacted regarding his alleged debt was on June 21,
2010, via a letter from FCO. First Am. Compl. ¶ 57, ECF No. 21.
Plaintiff corroborated this in his deposition testimony. See Pl.
Dep. 30:16-31:11 (“Q. Other than [the June 21, 2010, letter],
did you receive any other letters from [FCO]? A. Not that I
remember, no.”). For purposes of summary judgment, the Court
will consider the June 21, 2010, letter as the first one FCO
sent that actually reached Plaintiff.
9

July 17, 2010, Plaintiff sent a letter to FCO disputing the debt
and requesting verification. Id. Ex. 12; FCO’s Br. 21. FCO
responded by furnishing Plaintiff with the Statement of Deposit
mentioned above. TAC Ex. 13; FCO’s Br. 21. Plaintiff alleges
that FCO also called him and his family members numerous times
throughout the spring and summer of 2010, despite having
received notice that Plaintiff was represented by his brother as
counsel. TAC ¶¶ 64-65.
Plaintiff brings the following six claims: FDCPA
violations, against Home and FCO (Count I); FCEUA violations,
against Home and FCO (Count II); UTPCPL violations, against Home
and FCO (Count III); Landlord and Tenant Act violations, against
Home only (Count IV); civil conspiracy, against Home and FCO
(Count V); and unjust enrichment, against Home and FCO (Count
VI).7
II.

PROCEDURAL HISTORY
On August 18, 2010, Plaintiff filed his initial

Complaint. ECF No. 1. In light of myriad discovery disputes
among the parties, the Court on August 31, 2011, appointed
Stephanie Blair, Esquire, as Special Master in the case to
address all pretrial discovery matters. ECF No. 153. On November
7

As noted in the Procedural History section below, the
Court granted Defendants’ motions to dismiss Count VI and it is
no longer part of this action.
10

21, 2012, Special Master Blair submitted her Final Report and
Recommendation, ECF No. 190, which the Court adopted in full on
April 4, 2013, over Plaintiff’s objections, ECF No. 202.
On April 8, 2013, pursuant to the Court’s Order,
Plaintiff filed a Third Amended Class Action Complaint against
Defendants. ECF No. 205. Defendants filed motions to dismiss for
failure to state a claim as to Plaintiff’s claim for unjust
enrichment (Count VI of the Third Amended Class Action
Complaint). ECF Nos. 207-208. Following a hearing, the Court
granted these motions. ECF No. 220.
On December 19, 2013, Plaintiff filed a motion for
class certification. ECF No. 222. The Court thereafter set
deadlines for summary judgment motions and ordered that
Defendants were to respond to Plaintiff’s motion for class
certification within twenty days of the disposition of all
motions for summary judgment. ECF No. 227.
On December 30, 2013, Plaintiff filed a motion for
summary judgment. ECF No. 225. On January 16, 2014, Defendant
Home filed an Answer and Counterclaim against Plaintiff, seeking
the balance of the alleged amount owed to Home by Plaintiff. ECF
No. 231. On February 18, 2014, Home filed a motion for summary
judgment, ECF No. 234, and Defendant FCO filed a cross-motion
for summary judgment, ECF No. 233. All parties have filed their
responses. On August 13, 2014, Plaintiff filed a supplemental
11

brief related to additional discovery material that Home had
produced. ECF No. 246. Pursuant to the Court’s order, Home filed
a supplemental response on May 12, 2015. ECF No. 250.
On March 10, 2014, the Court issued an order staying
all further proceedings in this case, pending the outcome of
settlement negotiations by the parties before Magistrate Judge
Rueter. ECF No. 239. The parties participated in settlement
conferences on March 31, 2014, and August 11, 2014, to no avail.
On February 12, 2015, the Clerk removed the case from suspense.
The motions have been fully briefed and are now ripe for
disposition.
III. STANDARD OF REVIEW
Summary judgment is appropriate if there is no genuine
dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A motion
for summary judgment will not be defeated by ‘the mere
existence’ of some disputed facts, but will be denied when there
is a genuine issue of material fact.” Am. Eagle Outfitters v.
Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A
fact is “material” if proof of its existence or nonexistence
might affect the outcome of the litigation, and a dispute is
“genuine” if “the evidence is such that a reasonable jury could

12

return a verdict for the nonmoving party.” Anderson, 477 U.S. at
248.
The Court will view the facts in the light most
favorable to the nonmoving party. “After making all reasonable
inferences in the nonmoving party’s favor, there is a genuine
issue of material fact if a reasonable jury could find for the
nonmoving party.” Pignataro v. Port Auth., 593 F.3d 265, 268 (3d
Cir. 2010). While the moving party bears the initial burden of
showing the absence of a genuine issue of material fact, meeting
this obligation shifts the burden to the nonmoving party who
must “set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 250.
The guidelines governing summary judgment are
identical when addressing cross-motions for summary judgment.
See Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir.
2008). When confronted with cross-motions for summary judgment,
“[t]he court must rule on each party’s motion on an individual
and separate basis, determining, for each side, whether a
judgment may be entered in accordance with the Rule 56
standard.” Schlegel v. Life Ins. Co. of N. Am., 269 F. Supp. 2d
612, 615 n.1 (E.D. Pa. 2003) (quoting 10A Charles A. Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure
§ 2720 (1998)) (internal quotation marks omitted).

13

IV.

DISCUSSION
A.

COUNT I: FDCPA
Congress’s purposes in enacting the FDCPA were “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).
Plaintiffs claim that Defendants violated numerous provisions of
the FDCPA, as discussed below.
1.

Claims Against Defendant Home

In his summary judgment brief, Plaintiff makes no
mention of Defendant Home in connection with the FDCPA claim.
However, the Third Amended Class Action Complaint alleges the
following:
9. Defendant Home is a “creditor” with respect to the
alleged debt at issue in this action and for others
similarly situated as that term is defined by 15
U.S.C. § 1692a(6), and therefore also is a “debt
collector” under the FDCPA with respect to those
alleged debts because Home, “in the process of
collecting [its] own debts, uses any name other than
[its] own which would indicate that a third person is
collection [sic] or attempting to collect such debts.”
15 U.S.C. § 1692a(6).
10. Home regularly and routinely uses Defendant [FCO]
to collect Home’s debts using FCO’s name, including
the alleged debt at issue in this case as well as
similar debts of other class members.

14

TAC ¶¶ 9-10 (first and second alterations in original). Thus,
although Plaintiff does not allege that Home directly collected
the debt, he nevertheless alleges that Home is subject to the
FDCPA via the conduct of FCO, which did directly attempt to
collect the debt.
“The FDCPA’s provisions generally apply only to ‘debt
collectors.’ Creditors--as opposed to ‘debt collectors’-generally are not subject to the FDCPA.” Pollice v. Nat’l Tax
Funding, L.P., 225 F.3d 379, 403 (3d Cir. 2000) (citation
omitted). For the purposes of this action, the FDCPA defines a
“debt collector” as
any person . . . who regularly collects or attempts to
collect, directly or indirectly, debts owed or due or
asserted to be owed or due another. . . . [T]he 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.
15 U.S.C. § 1692a(6). “Creditor” is defined as “any person who
offers or extends credit creating a debt or to whom a debt is
owed, but such term does not include any person to the extent
that he receives an assignment or transfer of a debt in default
solely for the purpose of facilitating collection of such debt
for another.” § 1692a(4).
In the portion of the Third Amended Class Action
Complaint quoted above, Plaintiff appears to make two separate
arguments. First, he asserts that Home is a debt collector by
15

nature of seeking to have its debts collected by FCO. But as
Judge Jones recently and convincingly articulated in a similar
case brought by Plaintiff’s counsel here against Defendants Home
and FCO,
[t]his assertion is erroneous, as Plaintiff conflates
the meaning of creditor and debt collector under the
FDCPA. The alleged debt was owed to Home . . . , and
had been owed prior to the debt going into default;
accordingly, Home . . . [was a] creditor[] for the
purposes of the FDCPA. By attempting to collect [its]
own debt, which Plaintiff acknowledges [it] did by
retaining debt collector FCO, Home . . . do[es] not
fall under the purview of the FDCPA and cannot be held
liable for the claims as alleged.
Brignola v. Home Props., L.P., No. 10-3884, 2013 WL 1795336, at
*6 (E.D. Pa. Apr. 26, 2013) (Jones, J.).
Second, Plaintiff argues that Home, though a creditor,
fits within the § 1692a(6) exception for creditors who collect
their own debts using a name other than their own. In other
words, Home’s attempt to collect its debt using FCO renders Home
itself a debt collector. The Brignola court addressed an
identical argument, finding that it
distorts the FDCPA, which does not prohibit a creditor
from indicating that a debt collector is attempting to
collect a debt on behalf of the creditor. Rather, the
FDCPA forbids a creditor from attempting to collect
its own debt by falsely representing that the debt is
being collected by another entity. Plaintiff does not
claim that Home . . . attempted to collect [its] own
debt after hiring FCO to collect . . . on [its]
behalf, and any indication by Home . . . that FCO was
collecting this debt does not transpose [it] into [a]
debt collector[].

16

Id. The Court finds this reasoning to be persuasive. Home is a
creditor under the FDCPA, not a debt collector, and thus is not
subject to the provisions at issue in this case.8
Perhaps anticipating this result, Plaintiff also
argues that Home is vicariously liable for FCO’s alleged
violations of the FDCPA. Pl.’s Resp. to Home 33. However,
although the Third Circuit has held that “an entity which itself
meets the definition of ‘debt collector’ may be held vicariously
liable for unlawful collection activities carried out by another
on its behalf,” Pollice, 225 F.3d at 404, the Court has already
found that Home is a creditor and not a debt collector.
Plaintiff having offered no authorities to the contrary,9 the

8

In the Court’s previous ruling on Defendants’ motions
to dismiss, the Court considered Plaintiff’s argument that
Defendant Home is an “operating partnership” owned by another
entity, Home Properties, Inc., and that Home therefore is a debt
collector under the FDCPA’s corporate affiliate exemption at
§ 1692a(6)(B). Jarzyna v. Home Props., L.P., 763 F. Supp. 2d
742, 751 (E.D. Pa. 2011) [hereinafter Jarzyna I]. However,
Plaintiff now appears to have dropped this argument and the
Court will not treat it further.
9

None of Plaintiff’s cases is on point. See Pl.’s Resp.
to Home 33 (citing F.T.C. v. Check Investors, Inc., 502 F.3d
159, 172 (3d Cir. 2007) (holding that when a debt collector
purchases a debt from a creditor, the debt collector does not
thereby become the “creditor” under the FDCPA); Fox v. Citicorp
Credit Servs., Inc., 15 F.3d 1507, 1516 (9th Cir. 1994)
(allowing vicarious liability under the FDCPA in an attorneyclient context); Dahlhammer v. Citibank (S.D.) N.A., No. 051749, 2006 WL 3484352, at *7 (M.D. Pa. Nov. 30, 2006) (noting
that vicarious liability exists between debt collectors); Flamm
v. Sarner & Assocs., P.C., No. 02-4302, 2006 WL 43770, at *4
(E.D. Pa. Jan. 3, 2006) (Angell, Mag. J.) (same); Commonwealth
17

Court finds that Home cannot be held vicariously liable under
the FDCPA for FCO’s alleged conduct.
The facts are undisputed that Home transferred the
alleged debt to FCO and FCO proceeded to collect on it. As a
matter of law, this Court finds Home to be a creditor for which
no vicarious liability under the FDCPA can attach based on the
actions of FCO as debt collector. Therefore, related to Count I
of the Third Amended Class Action Complaint, Plaintiff’s motion
for summary judgment will be denied as to Defendant Home, and
Home’s motion for summary judgment will be granted.
2.

Claims Against Defendant FCO

As presented in his motion for summary judgment,
Plaintiff’s FDCPA claims against Defendant FCO10 may be grouped
as follows: (1) FCO’s standard dunning letters do not adequately
provide the required information, in violation of 15 U.S.C.
§ 1692g(a); (2) FCO failed to verify the debt per Plaintiff’s
demand and improperly continued its attempts to collect on the
debt, in violation of § 1692g(b); (3) FCO’s employees did not
identify themselves as working for a debt collector when they
ex rel. Preate v. Events Int’l, Inc., 585 A.2d 1146, 1147-48
(Pa. Commw. Ct. 1991) (considering claims under Pennsylvania
law, not the FDCPA); and Fretts v. Pavetti, 422 A.2d 881, 883
(Pa. Super. Ct. 1979) (same)).
10

The parties do not dispute that FCO is a “debt
collector” that is subject to the FDCPA.
18

made calls to Plaintiff, in violation of §§ 1692e(11) and
1692d(6); and (4) FCO illegally attempted to collect debt that
Plaintiff did not owe, in violation of §§ 1692f(1), 1692e(2),
and 1692e(10). The Court will evaluate each of these claims
below.
a.

§ 1692g(a): FCO’s dunning letters do not
adequately provide the required information

Under the FDCPA, a debt collector must include the
following information in its initial communication to a debtor,
or in a communication to be sent within five days after the
initial communication:
(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 current creditor.
19

15 U.S.C. § 1692g(a).
When a debt collector conveys this information, “more
is required than the mere inclusion of the statutory debt
validation notice in the debt collection letter--the required
notice must also be conveyed effectively to the debtor.” Wilson
v. Quadramed Corp., 225 F.3d 350, 354 (3d Cir. 2000). In
determining whether a particular validation notice meets the
statutory requirements, it must “be interpreted from the
perspective of the least sophisticated debtor.” Graziano v.
Harrison, 950 F.2d 107, 111 (3d Cir. 1991) (internal quotation
marks omitted). This is a relatively low standard, as the Third
Circuit has observed:
The least sophisticated debtor standard requires
more
than
“simply
examining
whether
particular
language would deceive or mislead a reasonable debtor”
because a communication that would not deceive or
mislead a reasonable debtor might still deceive or
mislead the least sophisticated debtor. [Wilson], 225
F.3d at 354 (internal quotation marks and citation
omitted). This lower standard comports with a basic
purpose of the FDCPA: as previously stated, to protect
“all consumers, the gullible as well as the shrewd,”
“the trusting as well as the suspicious,” from abusive
debt collection practices.
Brown v. Card Serv. Ctr., 464 F.3d 450, 454 (3d Cir. 2006). But
the standard “does not go so far as to provide solace to the
willfully blind or non-observant.” Campuzano-Burgos v. Midland
Credit Mgmt., Inc., 550 F.3d 294, 299 (3d Cir. 2008). Rather, it
works to “prevent[] liability for bizarre or idiosyncratic
20

interpretations of collection notices by preserving a quotient
of reasonableness and presuming a basic level of understanding
and willingness to read with care.” Brown, 464 F.3d at 454
(quoting Wilson, 225 F.3d at 354-55) (internal quotation marks
omitted). Specific to a § 1692g claim, a statutorily compliant
validation notice will “be in print sufficiently large to be
read, and must be sufficiently prominent to be noticed. More
importantly . . . , the notice must not be overshadowed or
contradicted by accompanying messages from the debt collector.”
Graziano, 950 F.2d at 111. Finally, in this Circuit, “whether
language in a collection letter contradicts or overshadows the
validation notice is a question of law.” Wilson, 225 F.3d at 353
n.2.
Here, Plaintiff references at least three of FCO’s
standard dunning letters--forms AV2, HD1A, and HD1AC--each of
which is alleged either to have omitted the § 1692g validation
notice or to have overshadowed such notice with other language.
See Pl.’s Br. 20.
i.

The AV2 and HD1AC letters

FCO concedes that its standard AV2 and HD1AC letters
(attached as Appendices to this memorandum) do not contain the
mandatory FDCPA disclosures, but notes that “these letters are
designed as follow up correspondence that is sent after the

21

mailing of the initial letter that includes the § 1692g
disclosures.” FCO’s Br. 29. The parties do not address whether
FCO also sent an initial letter (which Plaintiff did not
receive) that included the required disclosures. Assuming that,
for purposes of the motions for summary judgment, the initial
letter contained the required disclosures, it remains a question
of fact as to whether the letter was ever sent or received.11
Accordingly, there remains a genuine dispute of material fact as
to whether FCO violated the FDCPA when it sent the AV2 and HD1AC
letters. Plaintiff’s motion for summary judgment on this claim
will be denied, and FCO’s cross-motion for summary judgment will
be denied as well.12

11

Plaintiff attaches an exhibit that purports to show
FCO’s “collection file” related to Plaintiff’s account. See
Pl.’s Mot. Ex. 4. Although this document appears to note when
FCO took certain actions on Plaintiff’s account, the parties
have not addressed this in detail and it remains unclear what
each notation means. This document, therefore, does not on its
own eliminate the genuine dispute of material fact regarding
what letters FCO sent to Plaintiff.
12

FCO also argues that Plaintiff never received the AV2
and HD1AC letters, and therefore they could not have violated
the FDCPA. FCO’s Br. 29. Rather, FCO would limit Plaintiff’s
FDCPA claim to the first letter he actually received: the HD1A
letter dated June 21, 2010. Id. at 30. However, the question of
whether a defendant’s mere sending of a letter will implicate
FDCPA liability, or whether a plaintiff must receive the letter
in order to pursue an FDCPA claim with respect to it, need not
be addressed by the Court at this time, as the factual issues
mentioned above preclude further consideration of FCO’s
argument.
22

ii.

The HD1A letter13

13

Plaintiff argues that “[t]his Court is not writing on
a clean slate” with respect to the HD1A letter, since the Court
already denied FCO’s motion to dismiss on the § 1692g claim.
Pl.’s Resp. to Home 48. In Plaintiff’s estimation, FCO is
impermissibly attempting to relitigate this prior ruling, which
remains binding under the law of the case doctrine. See id. at
66-68.
The Third Circuit has provided:
The law of the case doctrine directs courts to refrain
from re-deciding issues that were resolved earlier in
the litigation. The doctrine applies as much to the
decisions of a coordinate court in the same case as to
a court’s own decisions. . . .
The law of the case doctrine does not limit a
federal court’s power; rather, it directs its exercise
of discretion. . . . This Circuit has recognized
several extraordinary circumstances that warrant a
court’s reconsideration of an issue decided earlier in
the course of litigation. They include situations in
which:
(1) new
evidence
is
available;
(2) a
supervening new law has been announced; or (3) the
earlier decision was clearly erroneous and would
create manifest injustice.
Pub. Interest Research Grp. of N.J., Inc. v. Magnesium Elektron,
Inc., 123 F.3d 111, 116-17 (3d Cir. 1997) (citations omitted)
(internal quotation marks omitted).
In the case at bar, no new evidence has been provided
on the § 1692g claim; indeed, the Court denied the motion to
dismiss as a matter of law, based on its review of the very HD1A
collection letter that remains at issue here. See Jarzyna I, 763
F. Supp. 2d at 748-49. Likewise, in the time since the Court
ruled on the motion to dismiss, no supervening new law has been
announced, and no controlling court decision has come down.
Nevertheless, the Court finds that certain other
factors render this an extraordinary circumstance that warrants
the Court’s reconsideration of the issue. First, as FCO notes,
the Court mistakenly denied as moot its motion for leave to file
a reply brief, see Jarzyna I, 763 F. Supp. 2d at 747 n.2, which
was FCO’s only opportunity to address whether the validation
23

Following is the HD1A letter, dated June 21, 2010,
that Plaintiff received from FCO:

notice was overshadowed by other language, given that Plaintiff
raised that argument for the first time in its response to the
motion to dismiss. The section of FCO’s summary judgment brief
addressing this question is carefully reasoned and cogent, and
deserves the Court’s attention. Second, although no new, onpoint authority requires this Court to reverse its earlier
decision, a number of courts have continued to examine the
question of overshadowing under § 1692g, and these decisions
provide helpful guidance. Not least among these is Caprio v.
Healthcare Revenue Recovery Group, LLC, 709 F.3d 142 (3d Cir.
2013), which analyzed the “please call” language debt
collectors, and FCO here, include in collection letters. See id.
at 150-54. Also highly relevant is Velazquez v. Fair Collections
& Outsourcing, Inc., No. 12-4209, 2013 WL 4659564 (N.D. Ill.
Aug. 30, 2013), in which the court considered the identical
defendant and claim as here, and specifically disagreed with
this Court’s ruling in Jarzyna I. See id. at *4-5. Finally, the
Court recognizes that a deeper look at the reasoning of relevant
Third Circuit cases--particularly Wilson and Graziano--merits
reconsideration of its previous ruling. For these reasons, the
Court will proceed afresh with its analysis of the overshadowing
question.
24

25

TAC Ex. 11, HD1A Letter 1-2.
Plaintiff complains that this letter is structured so
that the payment demand overshadows the statutorily required
validation notice, and thus the letter violates § 1692g.
Specifically, Plaintiff takes issue with the following:


“Payment demand - $1897.92” appears in bold text in a
prominent, central position on the page;

26



A boldly bordered box appears at the top right, inviting
the recipient to “Pay in full online anytime” at the
website listed;



The first line of the letter’s main text announces that
FCO’s client (i.e., Home) “is demanding full payment of
your past due account”;



Farther down the page, an FCO telephone number is
provided, as is a statement indicating that checks and
credit cards are accepted;



The validation notice itself is “[b]uried at the bottom
of the letter, in patently non-descript font,” and is
followed by a boldly lettered and capitalized notice that
the reverse side has “important information regarding
state and federal laws and your rights”; and



The reverse side does not contain adequate disclosures.

See Pl.’s Br. 25-27; TAC Ex. 11, HD1A letter 1-2.
In Graziano, the Third Circuit’s seminal case on the
overshadowing of validation notices, a debt collector sent the
plaintiff a collection notice that, on the first page,
“threatened legal action within ten days unless the debt was
resolved in that time”; at the bottom of the first page, noted,
“See reverse side for information regarding your legal status!”;
and, on the reverse side, printed the proper validation notice
in a manner “sufficient to bring it to [the plaintiff’s]
attention.” 950 F.2d at 109. The court found “a reasonable
probability that the least sophisticated debtor, faced with a
demand for payment within ten days and a threat of immediate
legal action if payment is not made in that time, would be
induced to overlook his statutory right to dispute the debt
27

within thirty days.” Id. at 111. Because “[a] notice of rights,
when presented in conjunction with such a contradictory demand,
is not effectively communicated to the debtor,” the court held
that the other messages overshadowed the required notice, and
the collection letter violated § 1692g. Id.
In Wilson, the Third Circuit reached the opposite
conclusion. There, the collection letter at issue contained
three paragraphs, each “printed in the same font, size and color
type-face.” 225 F.3d at 352. The first paragraph read: “Our
client has placed your account with us for immediate collection.
We shall afford you the opportunity to pay this bill immediately
and avoid further action against you.” Id. The second paragraph
read: “To insure immediate credit to your account, make your
check or money order payable to ERI. Be sure to include the top
portion of this statement and place your account number on your
remittance.” Id. The third paragraph provided the validation
notice. Noting that “the debt collection letter here presents a
close question,” id. at 353, the court nevertheless held that it
“did not violate section 1692g of the Act for the reason that
the first two paragraphs of the collection letter neither
overshadow nor contradict the validation notice,” id. at 356.14

14

Congress amended § 1692g(b) several years after the
Wilson decision, as follows: “Any collection activities and
communication during the 30-day period [during which the
consumer may dispute the alleged debt] may not overshadow or be
28

The court supported this conclusion by analyzing the three
paragraphs in terms of form and substance15:
First
of
all,
upon
review
of
the
physical
characteristics and form of the letter, we have
concluded that the first two paragraphs of the letter
do
not
overshadow
the
validation
notice.
The
validation notice was presented in the same font, size
and color type-face as the first two paragraphs of the
letter. Moreover, the required notice was set forth on
the front page of the letter immediately following the
two paragraphs that Wilson contends overshadow and
contradict
the
validation
notice.
Accordingly,
Wilson’s overshadowing claim must fail.
Second, an actual or apparent contradiction
between the first two paragraphs and the third one
containing the validation notice does not exist here.
Unlike the collection letter in Graziano, which
demanded payment within ten days and threatened
immediate legal action if payment was not made in that
time, Quadramed’s letter makes no such demand or
threat. Instead, Wilson is presented with two options:
(1) an opportunity to pay the debt immediately and
avoid further action, or (2) notify Quadramed within
thirty days after receiving the collection letter that
he disputes the validity of the debt. As written, the
letter does not emphasize one option over the other,
or suggest that Wilson forego the second option in
favor of immediate payment. Thus, we find the least
sophisticated debtor would not be induced to overlook
his statutory right to dispute the debt within thirty
days.
Id. (footnote omitted).

inconsistent with the disclosure of the consumer’s right to
dispute the debt or request the name and address of the original
creditor.” The Third Circuit has noted “that this amendment has
generally been viewed as a codification of the ‘overshadowed or
contradicted’ rule or gloss previously adopted by the courts
themselves.” Caprio, 709 F.3d at 148-49.
15

This dichotomy was remarked upon by the court in
Caprio. See 709 F.3d at 150.
29

After closely examining the collection letter in the
instant case, the Court finds that it falls much closer to
Wilson’s letter than to Graziano’s. Looking at the letter’s
formal elements, although “Payment demand - $1897.92” is bolded
and certainly draws the eye, the validation notice is clearly
printed on the front of the form, in the middle of the page, and
in a font that appears as big as, if not slightly bigger than,
the text in the body of the letter. The direction to see the
reverse side for important legal information is located below
the validation notice and, although it is capitalized, it does
not appear to be in appreciably larger font size than the
notice. Thus, although the payment demand is highlighted to a
greater extent than in Wilson (and is not incorporated into one
of three similar paragraphs), the demand and the validation
notice are clearly perceptible and in reasonable proximity on
the front of the form. This retains the effect that the letter’s
recipient has a choice, as in Wilson, between paying the debt
and disputing its validity.16
Moreover, neither the demand nor the letter’s main
text contains the kind of “screaming” headlines, blunt
16

The validation notice’s placement--in particular,
whether it appeared on the front or back of the letter--carried
significant analytical weight in the Wilson court’s decision.
See Wilson, 225 F.3d at 357-59 (distinguishing cases in which
courts found § 1692g violations, but in which the validation
notices appeared on the backs of the collection letters).
30

imperatives, and copious use of capital letters and exclamation
points used by letters other courts have found to be violative
of § 1692g. See, e.g., Miller v. Payco-Gen. Am. Credits, Inc.,
943 F.2d 482, 484 (4th Cir. 1991) (“The front of the . . . form
demands ‘IMMEDIATE FULL PAYMENT’ and commands the consumer to
‘PHONE US TODAY,’ emphasized by the word ‘NOW’ emblazoned in
white letters nearly two inches tall against a red
background.”).17 For these reasons, the Court finds that the
letter’s form does not cause other messages to overshadow the
validation notice.
Looking to the letter’s substance, Plaintiff argues
that the payment demand “insisted on immediate payment of the
bogus debt and did not even afford the alleged debtor the 10
days in Graziano.” Pl.’s Br. 28 n.34. Plaintiff also considers
the letter’s offer to “Pay in full online anytime” and its
notice of acceptance of payment by check and credit card to
constitute inappropriately “immediate and urgent” demands. Id.
at 27. However, unlike in Graziano, nowhere does FCO’s letter
require action by a certain time. In fact, the payment demand
17

See also, e.g., Hishmeh v. Cabot Collection Sys.,
L.L.C., No. 13-4795, 2014 WL 460768, at *1 (E.D. Pa. Feb. 5,
2014) (evaluating a letter stating, among other things, “DO NOT
IGNORE THIS NOTICE--CONTACT THIS OFFICE IMMEDIATELY!!”);
Rabideau v. Mgmt. Adjustment Bureau, 805 F. Supp. 1086, 1089
(W.D.N.Y. 1992) (considering a letter stating, “THIS IS A DEMAND
FOR PAYMENT IN FULL TODAY. TO AVOID FURTHER CONTACT, RETURN THE
BOTTOM SECTION OF THIS NOTICE WITH YOUR FULL PAYMENT TODAY!”).
31

does not use the word “immediately” at all, as the Wilson letter
did. Any immediacy in the payment demand is perhaps implicit in
its central location, bolded text, and larger size. However,
these features also serve the purpose of alerting the recipient
to the fact and amount of the debt.
The Court agrees with its counterpart in the Northern
District of Illinois that, at most, “[FCO’s] payment ‘demand’
and request for payment online ‘anytime’ is in the nature of
puffing, which is rhetoric designed to create a mood rather than
communicate information or misinformation, and does not,
standing alone, run afoul of § 1692g(b).” Velazquez v. Fair
Collections & Outsourcing, Inc., No. 12-4209, 2013 WL 4659564,
at *5 (N.D. Ill. Aug. 30, 2013).18 But even assuming that the
payment demand and similar terms communicated a sense of
immediacy, this would not change the Court’s analysis, as a
collection letter’s request “for [the debtor’s] immediate
attention . . . has never been found to violate section 1692g.”

18

The Velazquez court evaluated an FCO collection letter
identical to the one here. 2013 WL 4659564, at *4. Plaintiff
denies the utility of the Velazquez opinion, arguing that the
Seventh Circuit uses an “unsophisticated consumer” standard
which differs substantively from the Third Circuit’s “least
sophisticated debtor” standard. See Pl.’s Resp. to FCO 59-62.
However, the Velazquez court eschewed such a notion, noting that
“the Seventh Circuit did not intend to create a new substantive
standard. Rather, ‘the unsophisticated consumer standard is a
distinction without much of a practical difference in
application.’” 2013 WL 4659564, at *4 n.6 (quoting Avila v.
Rubin, 84 F.3d 222, 227 (7th Cir. 1995)).
32

Vasquez v. Gertler & Gertler, Ltd., 987 F. Supp. 652, 657 (N.D.
Ill. 1997) (cited favorably by Wilson, 225 F.3d at 360). For
these reasons, the Court finds that the payment demand and
similar terms here do not contradict the validation notice by
demanding action sooner than the statutorily required thirty-day
period. Instead, unlike the letter in Graziano but like that in
Wilson, the letter here preserves the impression--discernable by
even the least sophisticated debtor, who the Court must assume
will read the entire letter with care, Wilson, 225 F.3d at 35455--that it presents a choice between paying the debt and
pursuing validation.
The letter’s other features do not change this result.
First, Plaintiff surmises a “sinister” purpose in the letter’s
several mentions of FCO’s telephone number, which is that it
obscures the fact that, under § 1692g, a debtor must dispute the
debt in writing in order to have it validated. See Pl.’s Br. 2930. In Caprio v. Healthcare Revenue Recovery Group, LLC, the
Third Circuit considered this question in the context of a
collection letter that included the following notice: “If we can
answer any questions, or if you feel you do not owe this amount,
please call us toll free at 800-984-9115 or write us at the
above address.” 709 F.3d 142, 150 (3d Cir. 2013). The court
found that this language overshadowed the validation notice
because “this ‘please call’ language basically instructed [the]
33

debtor to call or write in order to dispute the debt itself”--an
action insufficient to dispute the debt under § 1692g. See also,
e.g., Hishmeh v. Cabot Collection Sys., L.L.C., No. 13-4795,
2014 WL 460768, at *1 (E.D. Pa. Feb. 5, 2014) (finding a
collection letter violated § 1692g where it directed the debtor
to “advise” or “contact” the debt collector in order to dispute
the debt, but did not specifically instruct the debtor to do so
in writing).
Here, by contrast, there is no indication in the
collection letter that the debtor must call FCO in order to
dispute the debt. After announcing the payment demand, the
letter merely states, “Our professional debt collectors are here
to help you resolve this matter,” and follows this with the
telephone number. TAC Ex. 11. Underneath the telephone number is
the phrase “Check by phone, Visa, and Master Card accepted.” Id.
A space of several lines then separates this portion of the
letter from the validation notice. The letter’s reverse side
reads, “The collection agent assigned to your account may change
from time to time. If you experience any difficulty finding the
appropriate collection agent handling your account, contact the
collection manager at 877-324-7959.” Id. This layout would not
confuse the least sophisticated debtor because the telephone
number is provided to the debtor as an alternative method by
which he could pay off the debt, not as a method by which he
34

should dispute the debt. The telephone number therefore does not
overshadow the validation notice.
Second, and finally, neither the notice to see the
reverse side for important legal information nor the reverse
side itself has any bearing on this analysis. Although Plaintiff
is correct that the reverse side does not contain adequate
§ 1692g disclosures, see Pl.’s Resp. to FCO 55, this is
irrelevant since such disclosures were adequately presented on
the letter’s face. Furthermore, the notice to see the reverse
side, appearing below the validation notice and apparently
referring to additional state and federal laws, does not
overshadow or contradict the validation notice. The remaining
disclosures on the reverse side relate to state law and are not
applicable here.
For all of the above reasons, and considering the
perspective of the least sophisticated debtor, the HD1A
collection letter as a whole does not overshadow or contradict
the validation notice under § 1692g. Plaintiff’s motion for
summary judgment on this claim will be denied and FCO’s crossmotion for summary judgment will be granted.

35

b.

§ 1692g(b): FCO failed to verify the debt
and improperly continued its collection
attempts19

Plaintiff claims that, upon sending a letter to FCO
disputing the alleged debt, FCO verified the debt by sending him
“just another copy of the same bill or invoice sent by Home to
FCO for collection in the first place.” Pl.’s Br. 31. As noted
above, FCO sent Plaintiff the Statement of Deposit, listing the
individual charges that comprised the alleged debt. See TAC Ex.
13. This was insufficient, according to Plaintiff, because it
did not provide “some proof of the grounds or basis for the
alleged debt in addition to any itemization of the amounts
claimed.” Pl.’s Br. 31. Instead, Plaintiff argues that FCO
should have at least sent the Resident Ledger Detail Report,
which “list[s] all financial transactions for each tenant.” Id.

19

In Jarzyna I, the Court denied FCO’s motion to
dismiss, holding that FCO failed to properly verify Plaintiff’s
debt. 763 F. Supp. 2d at 749. Nevertheless, the Court will
reconsider its previous ruling, which now appears to have been
based on an error regarding the record evidence. For further
discussion on the law of the case doctrine, see supra note 13.
Specifically, when the Court considered the motion to
dismiss, it believed that FCO “provided verification [for
Plaintiff’s debt] by simply copying the same bill or invoice
sent in the June 21, 2010, letter.” Jarzyna I, 763 F. Supp. 2d
at 749. The Court held that “[s]imply copying the invoice used
in the dunning letter is insufficient.” Id. On closer look,
however, Plaintiff has never shown that a bill or invoice
accompanied the HD1A letter dated June 21, 2010. Per Plaintiff’s
submissions, the HD1A letter was sent without any attachments.
See TAC Ex. 11. The Court’s error justifies another look at this
issue. See Pub. Interest Research Grp., 123 F.3d at 116-17.
36

at 32-33. In addition, Plaintiff believes FCO should have
attempted “to verify the validity of the debt for
plaintiff . . . by . . . inquiring of Home whether the debt was
invalid and uncollectible under state landlord-tenant law.” Id.
at 33. By continuing to pursue the debt after improperly
verifying it, Plaintiff contends that FCO violated § 1692g(b).
Section 1692g(b) provides, in relevant part:
If the consumer notifies the debt collector in writing
within the thirty-day period described in subsection
(a) of this section that the debt, or any portion
thereof, is disputed, or that the consumer requests
the name and address of the original creditor, the
debt collector shall cease collection of the debt, or
any disputed portion thereof, until the debt collector
obtains verification of the debt or a copy of a
judgment, or the name and address of the original
creditor, and a copy of such verification or judgment,
or name and address of the original creditor, is
mailed to the consumer by the debt collector.
15 U.S.C. § 1692g(b). Aside from its opinion in Graziano, the
Third Circuit has not had occasion to articulate definitively
what “verification” might entail. See Sasscer v. Donnelly, No.
10-464, 2011 WL 1522320, at *4 (M.D. Pa. Apr. 20, 2011) (noting
Graziano to be “the one reported Third Circuit case that
addresses the adequacy of the verification supplied by a debt
collector”). In Graziano, the defendant debt collector verified
the alleged debt by furnishing “a bill and computer printout for
[the] debt.” 950 F.2d at 109. The Court affirmed the district
court’s conclusion that these materials were sufficient: “The

37

computer printouts provided to Graziano were sufficient to
inform him of the amounts of his debts, the services provided,
and the dates on which the debts were incurred.” Id. at 113.20
Here, FCO’s provision of the Statement of Deposit was
sufficient verification of the alleged debt. The collection
letter that Plaintiff received included only the amount of the
payment demand. The Statement of Deposit itemized the charges
that made up the total payment demand. This document
sufficiently informed Plaintiff of the amount of the debt, the
“services provided” (here, charges included), and the dates to
which these charges related. See id. Although Plaintiff
complains in retrospect that FCO should have sent the Resident
Ledger Detail Report as well, as the Court suggests in the
discussion of Plaintiff’s FCEUA claims below, the Statement of
Deposit is consistent with the Resident Ledger Detail Report.
The fact that this latter document provides a full history of
Plaintiff’s transactions does not change the Court’s conclusion
that the Statement of Deposit--which fully supports the amount
of alleged debt--is sufficient verification.

20

Plaintiff points to the district court opinion in
Graziano in an attempt to distinguish it on the facts from the
instant case. See Pl.’s Br. 32. However, the Third Circuit in
that case provided clear criteria for evaluating a
verification’s sufficiency, which the Court need not look
beyond.
38

Moreover, Plaintiff’s suggestion that FCO was required
to verify the alleged debt with Home is ill-founded. In support
of this argument, Plaintiff relies on Casterline v. Credit
Protective Services of I.C. Systems, Inc., No. 89-3951, 1991
U.S. Dist. LEXIS 21728 (D.N.J. June 26, 1991). In that case, the
plaintiff complained that the defendant debt collector failed to
properly verify a late fee for a videotape that had not been
returned. Id. at *4. The court agreed, finding that the
defendant should have provided plaintiff with an “agreement to
pay a late fee for a non-returned videotape.” Id. at *5. The
court noted that “[w]ithout verification which includes at least
a colorable claim of entitlement to the debt, the provisions of
the FDCPA . . . are less effective.” Id.
The problem with Plaintiff’s narrow focus on
Casterline’s “colorable claim of entitlement” language is that
it seems to impose a duty on debt collectors over and above that
imposed by Graziano. Plaintiff misinterprets § 1692g(b) to
require the debt collector to perform its own verification
against the creditor’s files. However, while courts interpreting
this section have required that a debt collector do more than
“merely repeat its assertion that a debt is due,” Norton v.
Wilshire Credit Corp., No. 95-3223, 1997 U.S. Dist. LEXIS 23360,
at *22 (D.N.J. July 14, 1997), they have not read into it an
affirmative obligation on the debt collector’s part to
39

investigate the debt’s validity. See, e.g., Chaudhry v.
Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999) (agreeing with the
district court that debt collectors need “not . . . vouch for
the validity of the underlying debt” (internal quotation marks
omitted)).
The debt collector is not charged with auditing the
creditor’s records or opining on the debt’s validity. In other
words, the debt collector is not the judge of the merits of the
creditor’s claim against the debtor. Rather, the debt collector
must merely forward supporting information along to the debtor,
so that the debtor can better understand the alleged debt’s
origin and perhaps dispute it further, if warranted.21 At most,
the statutory language would have the debt collector “obtain[]
verification” from the creditor. See § 1692g(b). But even under
such a standard, FCO here reasonably complied with the statute.
FCO forwarded Plaintiff a more detailed statement explaining the
charges underlying the alleged payment demand. It had no reason
to believe that more was needed.22

21

See also Chaudhry, 174 F.3d at 406 (“Consistent with
the legislative history, verification is only intended to
‘eliminate the . . . problem of debt collectors dunning the
wrong person or attempting to collect debts which the consumer
has already paid.’” (quoting S. Rep. No. 95-382, at 4 (1977)).
22

Contrary to Plaintiff’s worries, the Court’s ruling
does not engraft a “specificity requirement” onto Congress’s
debt verification scheme. See Pl.’s Resp. to FCO 66. At the same
time, it is not unreasonable to require a debtor to indicate
40

In sum, the Third Circuit has only held that
verification entails informing the debtor of the amount of the
debt, the services provided, and the dates on which the debts
were incurred. See Graziano, 950 F.2d at 113. FCO’s provision of
the Statement of Deposit fulfilled these criteria and to the
extent that Casterline requires more than Graziano, the Court
does not follow it. Plaintiff complains that FCO sent him “just
another copy of the same bill or invoice sent by Home to FCO for
collection in the first place,” Pl.’s Br. 31, but this is
exactly what FCO was supposed to do. Accordingly, the Court
finds that FCO did not violate § 1692g(b) by continuing to
collect on the debt after providing verification, and
Plaintiff’s claim under this section fails. Plaintiff’s motion
for summary judgment on this claim will be denied and FCO’s
cross-motion for summary judgment will be granted.

which portions of the debt he disputes. Plaintiff here summarily
disputed the debt, see TAC Ex. 12 (“I would like to dispute the
validity of this debt and request a copy of a judgment or
verification be mailed to me at the above stated address.”). In
response, FCO provided a listing of the underlying charges. Had
Plaintiff responded that he objected to the thirty-day notice
fee specifically, it perhaps would have behooved FCO to provide
additional documents supporting that specific charge. However,
that is not the case here. The Court finds FCO’s verification
adequate under the circumstances.
41

c.

§§ 1692e(11) and 1692d(6): FCO failed to
self-identify as a debt collector over the
telephone

Plaintiff asserts that FCO violated sections 1692e(11)
and 1692d(6) when its employees left voice messages on his cell
phone but did not disclose that the caller was seeking to
collect a debt. Pl.’s Br. 33.
Section 1692e(11) provides that the following violates
the FDCPA:
The failure to disclose in the initial written
communication with the consumer and, in addition, if
the initial communication with the consumer is oral,
in that initial oral communication, that the debt
collector is attempting to collect a debt and that any
information obtained will be used for that purpose,
and
the
failure
to
disclose
in
subsequent
communications that the communication is from a debt
collector, except that this paragraph shall not apply
to a formal pleading made in connection with a legal
action.
Section 1692d(6) prohibits, “[e]xcept as provided in section
1692b of this title, the placement of telephone calls without
meaningful disclosure of the caller’s identity.” Section 1692b
prevents debt collectors from disclosing to third parties the
nature of the communication or that the debtor owes any debt.23

23

In a recent case dealing with this provision, the
Third Circuit held that the debt collector carries the burden of
proof in “alleg[ing] that it made a contact that falls within
the exception for acquisition of location information.”
Evankavitch v. Green Tree Servicing, LLC, No. 14-1114, 2015 WL
4174441, at *2 (3d Cir. July 13, 2105). However, as Plaintiff
has not argued that FCO violated § 1692b, Evankavitch is not
relevant here.
42

Finally, § 1692a(2) defines “communication” as “the conveying of
information regarding a debt directly or indirectly to any
person through any medium.”
Here, the parties do not dispute that FCO made several
telephone calls to Plaintiff’s cell phone and left corresponding
voice messages. Indeed, FCO’s president, Michael Sobota,
submitted an affidavit which provides details on at least eleven
voice messages that FCO left on Plaintiff’s cell phone24 from
March 16, 2010, to July 2, 2010, including transcripts of the
messages themselves. See Pl.’s Mot. Ex. 25, Sobota Affidavit Ex.
1, at 1-3, Apr. 7, 2011 [hereinafter Sobota Aff. I]. In none of
these messages does the FCO caller identify the nature of the
call, with the exception of the first message on March 16, in
which the caller says he is from “FCO” but does not further
explain what that means. See id. Likewise, the parties do not
dispute that the first--and seemingly only--time Plaintiff
actually accessed a voice message from FCO was on July 28,
although the contents of that message are not in the record. See
Pl. Dep. 45:6-46:7; Sobota Aff. I Ex. 1, at 1-3; FCO’s Br. 37.
Neither do the parties dispute that the voice messages
were communications that in theory violated § 1692e(11) by

24

Plaintiff provided his cell phone number during his
deposition, see Pl. Dep. 45:12-15, and this number corresponds
to the one at which FCO left the eleven messages, see Pl.’s Mot.
Ex. 25, Sobota Affidavit Ex. 1, at 1-3.
43

failing to include the required disclosures or violated
§ 1692d(6) by failing to meaningfully disclose the caller’s
identity. See, e.g., Everage v. Nat’l Recovery Agency, No. 142463, 2015 WL 1071757, at *4 (E.D. Pa. Mar. 11, 2015) (noting
that “meaningful disclosure” “has been held to require the debt
collector ‘to disclose the caller’s name, the debt collection
company’s name, and the nature of the debt collector’s
business’” (quoting Gryzbowski v. I.C. Sys., Inc., 691 F. Supp.
2d 618, 625 (M.D. Pa. 2010))); see also, e.g., Inman v. NCO Fin.
Sys., Inc., No. 08-5866, 2009 WL 3415281, at *3-4 (E.D. Pa. Oct.
21, 2009) (holding that voice messages requesting a return call
but not identifying the caller or the purpose of the call are
“communications” under the FDCPA); Foti v. NCO Fin. Sys., Inc.,
424 F. Supp. 2d 643, 657 (S.D.N.Y. 2006) (holding similarly and
noting that “the FDCPA should be interpreted to cover
communications that convey, directly or indirectly, any
information relating to a debt, and not just when the debt
collector discloses specific information about the particular
debt being collected”).
On this claim, then, the parties’ only dispute is a
legal one: whether a voice message that a debtor never listens
to can still violate the FDCPA. No direct authority considering
this question appears to exist. However, the FDCPA is a
remedial, strict liability statute that is focused on the
44

conduct of the debt collector rather than the injuries sustained
by the debtor. See Allen ex rel. Martin v. LaSalle Bank, N.A.,
629 F.3d 364, 368 & n.7 (3d Cir. 2011). Therefore, when a debt
collector places a phone call and leaves a message that does not
include the required disclosures, the debt collector has
“communicated” with the debtor and thus the violation of the
FDCPA is complete.
The cases that FCO cites to the contrary are
distinguishable: (1) a debt collector placed a telephone call to
debtor but hung up without leaving a message, see Zortman v.
J.C. Christensen & Assocs., Inc., 870 F. Supp. 2d 694, 705-08
(D. Minn. May 2, 2012) (granting debt collector’s motion for
summary judgment); Wilfong v. Persolve, LLC, No. 10-3083, 2011
WL 2678925, at *4 (D. Or. June 2, 2011) (same); and (2) a debt
collector placed several unanswered calls to a wrong number, see
Worsham v. Account Receivables Mgmt., No. 10-3051, 2011 WL
5873107, at *3-4 (D. Md. Nov. 22, 2011) (holding that unanswered
calls are not “communications” under the FDCPA and granting debt
collector’s motion for summary judgment), aff’d, 497 F. App’x
274 (4th Cir. 2012).25 In each of these cases, the plaintiffs had

25

FCO also relies on a case in which a debtor never
received a debt collector’s correspondence that was sent to the
debtor’s home, where the home did not have a mailbox, see
Seaworth v. Messerli, Nos. 09-3437, 09-3438, 09-3440, 09-3441,
2010 WL 3613821, at *5 (D. Minn. Sept. 7, 2010) (dismissing
45

no access to the attempted communications and could thus never
have had anything “conveyed” to them, as required by the FDCPA’s
definition of “communication.” See § 1692a(2).
Here, by contrast, messages were left on Plaintiff’s
cell phone, which he could have accessed at any time. It is
clear that, by leaving a message on Plaintiff’s voicemail, FCO
“conveyed information” indirectly to Plaintiff and thus
implicated FDCPA liability.26
For these reasons, the Court finds that FCO violated
sections 1692e(11) and 1692d(6) when its employees left voice
messages on Plaintiff’s cell phone but did not properly identify
who was calling. On this claim, Plaintiff’s motion for summary
judgment will be granted and FCO’s cross-motion for summary
judgment will be denied.

FDCPA claim). This case is distinguishable for the same reasons
as FCO’s other cases are.
26

The Court also notes that no authority appears to
exist on this exact question because it is highly unlikely for a
plaintiff to receive, but not listen to, any voice messages left
on his cell phone from a debt collector. Plaintiff appears to
have purposefully neglected these messages. See Pl. Dep. 46:1-4
(“Q. Is [July 28, 2010,] the first time you received a call from
FCO? A. It’s the first time I looked at the voice mail from an
800 number.”).
46

d.

§§ 1692f(1), 1692e(2), and 1692e(10): FCO
attempted to collect a debt that Plaintiff
did not owe

In his motion for summary judgment, Plaintiff claims
that FCO “attempt[ed] to collect monies neither lawfully owed
nor collectable.” Pl.’s Br. 34. Although he does not further
elaborate the claim, his response to FCO’s cross-motion for
summary judgment suggests that the claim is based on FCO’s
attempt to collect the thirty-day notice fee that Defendant Home
assessed.27
Section 1692f(1) of the FDCPA prohibits “[t]he
collection of any amount (including any interest, fee, charge,
or expense incidental to the principal obligation) unless such
amount is expressly authorized by the agreement creating the
debt or permitted by law.” In the discussion below covering
Plaintiff’s FCEUA claims, the Court finds that Defendant Home
assessed a thirty-day notice fee which was not supported by
Plaintiff’s lease agreement. FCO’s attempt to collect on this
fee, which accounted for $888.00 of the $1,897.92 total, see TAC
Ex. 13, was neither “expressly authorized by the agreement

27

Although his argument is not entirely clear, Plaintiff
also suggests that FCO improperly attempted to collect or retain
his security deposit in contravention of Pennsylvania’s Landlord
and Tenant Act. See Pl.’s Resp. to FCO 76. However, as discussed
below, Plaintiff’s Landlord and Tenant Act claim fails; it
therefore cannot serve as the basis for liability under
§ 1692f(1).
47

creating the debt” nor permitted by any state law to which the
parties cite, appears to have violated § 1692f(1).28
In response, FCO puts forward the bona fide error
defense, which has been codified by the FDCPA:
A debt collector may not be held liable in any action
brought under this subchapter if the debt collector
shows by a preponderance of evidence that the
violation was not intentional and resulted from a bona
fide
error
notwithstanding
the
maintenance
of
procedures reasonably adapted to avoid such error.
15 U.S.C. § 1692k(c). The Third Circuit has held that, in order
to avail itself of the bona fide error defense, a debt collector
must establish: “(1) the alleged violation was unintentional,
(2) the alleged violation resulted from a bona fide error, and
(3) the bona fide error occurred despite procedures designed to
avoid such errors.” Beck v. Maximus, Inc., 457 F.3d 291, 297-98
(3d Cir. 2006).
The particular error here--attempting to collect an
amount that is not supported by Plaintiff’s lease agreement--may
be characterized as a mistake of law, and contract law in
particular. The Supreme Court has ruled that the bona fide error
defense “does not apply to a violation of the FDCPA resulting
from a debt collector’s incorrect interpretation of the
28

Plaintiff also references two other FDCPA provisions,
which the Court considers along with the § 1692f(1) claim:
§ 1692e(2), prohibiting “[t]he false representation of . . . the
character, amount, or legal status of any debt”; and
§ 1692e(10), prohibiting “[t]he use of any false representation
or deceptive means to collect or attempt to collect any debt.”
48

requirements of that statute.” Jerman v. Carlisle, McNellie,
Rini, Kramer & Ulrich LPA, 559 U.S. 573, 604-05 (2010) (emphasis
added). However, the Supreme Court did not reach the question of
whether mistakes of state or contract law are similarly outside
the scope of the bona fide error defense. Id. at 580 n.4. The
Court sees no reason why such mistakes should not be covered by
the defense. See Jenkins v. Heintz, 124 F.3d 824, 833 (7th Cir.
1997) (finding that the bona fide error defense covers the
mistaken collection of legally invalid debts because to find
otherwise would “limit a debt collector to only collecting
legally valid claims,” thereby causing the bona fide error
defense to “be read out of the statute with respect to the
violations of 15 U.S.C. §§ 1692e and 1692f”).
With respect to the elements of the bona fide error
defense, the Court’s analysis can begin and end with the third
element: that FCO maintained procedures designed to avoid the
particular error here. FCO has failed to establish by a
preponderance of the evidence that such procedures were in
place. See § 1692k(c). FCO claims that it “reasonably relied on
Home’s data” upon referral of Plaintiff’s debt, FCO’s Br. 41,
and that it “maint[ained] . . . procedures reasonably adapted to
avoid errors,” id. at 42-43. Upon further investigation, these
“procedures” are based on two summary statements: (1) having
handled Home’s account since FCO’s inception, FCO has found
49

Home’s records to be reliable; and (2) FCO requires a Statement
of Deposit for each debtor-tenant and will only conduct a deeper
investigation if the tenant specifically disputes a charge. Id.
at 23 (citing id. Ex. 2, Sobota Affidavit ¶¶ 6-10, Feb. 13, 2014
[hereinafter Sobota Aff. II]). While the FDCPA does not require
debt collectors to perform an independent investigation of the
debts referred to them, see, e.g., Jenkins, 124 F.3d at 833-34,
it does require debt collectors to implement procedures that
reasonably avoid errors, see § 1692k(c). Neither of the
procedures FCO offers is designed to avoid the specific error in
this case. In fact, FCO has not offered any evidence of a
tangible company policy or practice that would even minimally
ensure that the debts it receives are traceable to debtors’
agreements. See, e.g., Walter v. Palisades Collection, LLC, No.
06-378, 2011 WL 1666869, at *7 (E.D. Pa. May 2, 2011) (Robreno,
J.) (rejecting a bona fide error defense where “[i]t was . . .
not typical procedure for [the debt collector] to have th[e]
information” necessary to prevent the error).
Moreover, in each of the cases FCO cites in support of
its position, the debt collector had offered evidence of
procedures much more robust than those FCO offers here.29 On the

29

See Wilhelm v. Credico, Inc., 519 F.3d 416, 420-21
(8th Cir. 2008) (finding procedures sufficient where debt
collector’s employees received specific instructions on how to
segregate principal and interest to avoid the error of charging
50

evidence here, no reasonable jury could find that FCO is
entitled to the bona fide error defense. Accordingly, on this
claim, Plaintiff’s motion for summary judgment will be granted
and FCO’s cross-motion for summary judgment will be denied.30

interest on past-due interest); Jenkins, 124 F.3d at 834
(holding similarly where debt collector provided evidence of “an
in-house fair debt compliance manual,” “training seminars for
firm employees,” and “an eight-step, highly detailed prelitigation review process to ensure accuracy and to review the
work of firm employees to avoid violating the Act”); Smith v.
Transworld Sys., Inc., 953 F.2d 1025, 1032 (6th Cir. 1992)
(holding similarly where debt collector’s referral form, which
was completed and signed by the creditor, included “specific
instructions to claim only amounts legally due and owing”
(internal quotation marks omitted)); Sayyed v. Wolpoff &
Abramson, LLP, 733 F. Supp. 2d 635, 647 (D. Md. 2010) (holding
similarly where debt collector offered its procedures in detail,
and stated that its attorneys regularly review the Maryland
Rules of Procedure and verify every summary judgment motion by
oath).
30

Plaintiff brings two other FDCPA claims, although he
does not argue these in his motion for summary judgment. The
Court treats them briefly here. First, Plaintiff asserts that
FCO continued to contact him after it learned that he was
represented by an attorney (his brother), in violation of
§ 1692c(a)(2), which prohibits further communications with
consumers once “the debt collector knows the consumer is
represented by an attorney with respect to such debt and has
knowledge of, or can ascertain, such attorney’s name and
address.” It is undisputed that Plaintiff never directly
informed FCO that he was represented by his brother, as it is
that no information FCO received stated as much. See Pl.’s Resp.
to FCO 79-81. Plaintiff instead argues that Home was aware that
his brother represented him, and that, had FCO properly
researched the account, it would have known as well. Id.
However, § 1692c(a)(2) is that rare provision of the FDCPA that
does not impose strict liability but rather requires knowledge.
The Court will not enforce a lower state of mind by holding that
FCO should have followed up with Home to determine whether
Plaintiff was represented by counsel.
51

. . . .
In sum, on Count I of the Third Amended Class Action
Complaint, and as to Defendant FCO, Plaintiff’s motion for
summary judgment will be denied and FCO’s cross-motion for
summary judgment will be denied with respect to the claim that
FCO’s AV2 and HD1AC letters lacked the required notice, in
violation of 15 U.S.C. § 1692g(a).
Plaintiff’s motion for summary judgment will be
granted and FCO’s cross-motion for summary judgment will be
denied with respect to the following claims: (1) failing to
identify as a debt collector when leaving voice messages on
Plaintiff’s cell phone, in violation of §§ 1692e(11) and
1692d(6); and (2) attempting to collect a debt that Plaintiff

Second, Plaintiff asserts a violation of § 1692c(b),
which prohibits debt collectors from communicating with third
parties in connection with the collection of the debt except as
necessary to obtain location information. See also § 1692b. FCO
argues that Plaintiff has offered no evidence and made no
argument that FCO’s calls to his family members violated the
FDCPA. FCO’s Br. 45-46. Plaintiff apparently concedes this, as
he does not reply. As such, the Third Circuit’s recent case
dealing with the burden of proof when alleging § 1692b’s
location-information exception is not applicable here.
Evankavitch v. Green Tree Servicing, LLC, No. 14-1114, 2015 WL
4174441, at *10 (3d Cir. July 13, 2105) (placing the burden of
proof on the debt collector).
On each of the above claims, the Court will grant
FCO’s cross-motion for summary judgment and deny Plaintiff’s
motion for summary judgment.
52

did not owe, in violation of §§ 1692f(1), 1692e(2), and
1692e(10).
Plaintiff’s motion for summary judgment will be denied
and FCO’s cross-motion for summary judgment will be granted with
respect to the following claims: (1) lacking the required notice
on the HD1A letter, in violation of § 1692g(a); (2) failing to
properly verify the disputed debt, in violation of § 1692g(b);
and (3) all other claims Plaintiff may have under the FDCPA.
Therefore, the only remaining claim against FCO under
Count I is the following: the AV2 and HD1AC letters lacked the
required notice, in violation of § 1692g(a).
B.

COUNT II: FCEUA
The FCEUA prohibits, among other things, “unfair or

deceptive acts or practices with regard to the collection of
debts,” 73 P.S. § 2270.2, and applies to both debt collectors
and creditors, see § 2270.4.31 A debt collector’s violation of
the FDCPA is a per se violation of the FCEUA. See § 2270.4(a). A

31

For the purposes of this action, the FCEUA’s
definitions of “debt collector” and “creditor” are not
substantively different from the FDCPA’s. For example, the FCEUA
defines “debt collector” as “[a] person not a creditor
conducting business within this Commonwealth, acting on behalf
of a creditor, engaging or aiding directly or indirectly in
collecting a debt owed or alleged to be owed a creditor or
assignee of a creditor.” § 2270.3. A “creditor” is “[a] person,
including agents, servants or employees conducting business
under the name of a creditor and within this Commonwealth, to
whom a debt is owed or alleged to be owed.” Id.
53

creditor may only be liable under the FCEUA if it engages in
various activities that generally mirror those proscribed by the
FDCPA. See § 2270.4(b).
1.

Claims Against Defendant Home

The Court has already held above that Defendant Home
is not a “debt collector” under the FDCPA and cannot be liable
as such. For this reason, Home cannot be per se liable under the
FCEUA. However, Plaintiff also alleged that Home’s
“conduct . . . constitutes separate and independent substantive
violations of the FCEUA.” TAC ¶ 93. The Court therefore must
consider whether Home’s actions as a creditor implicate the
FCEUA.
Plaintiff does not specify which of Home’s alleged
actions violated the FCEUA, but assumes that his presentation of
the allegations establishes Home’s FCEUA liability. See, e.g.,
Pl.’s Resp. to Home 35 (noting that “plaintiff Jarzyna is
entitled to summary judgment on his claims . . . directly
against Home under the FCEUA”). Separately, Plaintiff indicates
that “Home is also independently liable, at a minimum, under
section (b)(5)(ii) . . . and also under section (b)(6)(i)” of
the FCEUA. Pl.’s Suppl. 9. The sections Plaintiff refers to
provide for the following:
(5) A creditor may not use any false, deceptive or
misleading representation or means in connection with
54

the collection of any debt. Without limiting the
general application of the foregoing, the following
conduct is a violation of this paragraph:
. . . .
(ii) The false representation of the character,
amount or legal status of any debt.
. . . .
(6) A creditor may not use unfair or unconscionable
means to collect or attempt to collect any debt.
Without limiting the general application of the
foregoing, the following conduct is a violation of
this paragraph:
(i) The collection of any amount, including any
interest, fee, charge or expense incidental to
the principal obligation, unless such amount is
expressly authorized by the agreement creating
the debt or permitted by law.
73 P.S. § 2270.4(b). Upon review of Plaintiff’s briefing, the
Court finds only four allegations as to Home that implicate
concerns of “any false, deceptive or misleading representation”
or “unfair or unconscionable means,” and which therefore may
plausibly implicate the FCEUA. The Court considers each in turn.
a.

No notice fee provision in the lease
agreement

Plaintiff claims the lease agreement made no mention
of a fee for failing to give proper notice. See Pl.’s Resp. to
Home 23 (“Home’s standard form lease does not mention a word
about any ‘notice’ fee or any penalty at all . . . .”). This is
incorrect. The second lease agreement that Plaintiff signed on

55

November 17, 2008, has a “Notice to Vacate at End of Lease Term”
section that reads, in relevant part: “You must give us at least
sixty (60) days written notice of your intention to vacate the
Apartment at the end of the term. If you fail to give this
notice, you will be held liable for rent for the period for
which you failed to give us notice.” Home’s Br. Ex. D, at 7.32
The lease agreement therefore clearly sets out a sixty-day
notice fee, equivalent to one month’s rent, for a tenant’s
failure to provide timely notice that he will be vacating at the
end of his agreed-upon lease term.
Here, the situation is slightly different, in that
Plaintiff was a holdover tenant at the time Home assessed the
notice fee. In a section entitled “Failure to Vacate at End of
Lease Term,” Plaintiff’s November 17, 2008, lease agreement
reads: “[I]f we accept rent for the period after the end of the
Lease Term, then you shall be deemed a holdover Resident and
your tenancy shall be month-to-month . . . . Either you or we
can terminate the month-to-month lease as of the last day of any
calendar month by giving one calendar month’s written notice to

32

Plaintiff’s third lease agreement, signed on October
7, 2009, contains identical language. See Home’s Br. Ex. H, at
7.
56

the other party.” Id. at 8.33 This language does not explicitly
assign a thirty-day notice fee for failure to give timely notice
that the tenant will be ending his month-to-month tenancy. The
question is therefore whether Home’s assessment of such a
thirty-day notice fee is based upon a proper interpretation of
the lease’s language.
Under Pennsylvania law,34 “[t]he task of interpreting
[a] contract is generally performed by a court rather than by a
jury.” Gene & Harvey Builders, Inc. v. Pa. Mfrs.’ Ass’n Ins.
Co., 517 A.2d 910, 913 (Pa. 1986). The Third Circuit has
summarized Pennsylvania law on contract35 interpretation:
Pennsylvania contract law begins with the “firmly
settled” point that “the intent of the parties to a
written contract is contained in the writing itself.”
Krizovensky v. Krizovensky, 425 Pa. Super. 204, 624
A.2d 638, 642 (1993) (citing Steuart v. McChesney, 498
Pa. 45, 444 A.2d 659 (1982)). “‘Where the intention of
the parties is clear, there is no need to resort to
extrinsic aids or evidence,’” instead, the meaning of
33

Plaintiff’s third lease agreement, signed on October
7, 2009, contains identical language. See Home’s Br. Ex. D, at
7.
34

As Home notes, “[t]here is no dispute Pennsylvania
statutory or common law governs the state law claims by Mr.
Jarzyna against Home and by Home against Mr. Jarzyna.” Home’s
Br. 14. In addition, the lease agreement itself notes that it
was formed under Pennsylvania law and refers to and includes
several Pennsylvania state law provisions. See id. Ex. H, at 1,
11. Accordingly, the Court will apply Pennsylvania law in
interpreting the lease agreement.
35

Under Pennsylvania law, “a lease is in the nature of a
contract and is to be controlled by principles of contract law.”
Pugh v. Holmes, 405 A.2d 897, 903 (Pa. 1979).
57

a clear and unequivocal written contract “‘must be
determined by its contents alone.’” Steuart, 444 A.2d
at 661 (quoting East Crossroads Ctr., Inc. v. Mellon–
Stuart Co., 416 Pa. 229, 205 A.2d 865, 866 (1965)).
“[W]here language is clear and unambiguous, the focus
of interpretation is upon the terms of the agreement
as manifestly expressed, rather than as, perhaps,
silently intended.” Id. “Clear contractual terms that
are capable of one reasonable interpretation must be
given effect without reference to matters outside the
contract.” Krizovensky, 624 A.2d at 642.
Bohler-Uddeholm Am., Inc. v. Ellwood Grp., Inc., 247 F.3d 79,
92-93 (3d Cir. 2001). Finally, if a contract provision is found
to be ambiguous, “doubtful language is construed most strongly
against the drafter thereof.” Rusiski v. Pribonic, 515 A.2d 507,
510 (Pa. 1986).
In the instant case, the section of the lease
agreement entitled “Failure to Vacate at End of Lease Term” is
the only section discussing what notice is required once the
lease has been converted to a month-to-month tenancy. This
section makes no mention of any fee or penalty for failure to
provide the required one month’s notice before vacating.
Although Home may have intended to include a thirty-day notice
fee associated with month-to-month tenancies--which seems
likely, given that it included a sixty-day notice fee for
tenants with contractual lease terms--it did not do so. The
Court, reading no ambiguous terms in the lease agreement, must
interpret the agreement “as manifestly expressed, rather than
as, perhaps, silently intended.” Steuart, 444 A.2d at 661.
58

Accordingly, the Court construes the lease agreement against the
drafter, Home, as containing no thirty-day notice fee.36 Home’s
assessment of such a fee for Plaintiff’s failure to provide
proper notice is not supported by the contract and therefore is
a “collection of any amount, including any interest, fee, charge
or expense incidental to the principal obligation,” which is not
“expressly authorized by the agreement creating the debt or
permitted by law.” 73 P.S. § 2270.4(b)(6)(i). As a matter of
law, Plaintiff has shown that Home violated the FCEUA and
Plaintiff is entitled to summary judgment on this particular
claim.
b.

Home sends accounting letters to prior
addresses

Plaintiff complains of the following:
[A]n astounding eighty-percent (80%) of Home’s “firstletter” accountings went, like plaintiffs [sic], to
the tenant’s prior address with Home. . . .
Home
systematically
and
automatically
sent
untimely accountings to tenants at all of the
apartment complexes that it owns and operates,
deliberately
sending
those
notices
to
apartment
addresses that those tenants had vacated weeks earlier
36

Additionally, “[i]f the rights, duties and remedies of
the lease are to be extended beyond the clear meaning of the
lease, the burden is on the party so claiming to show that the
parties intended such extension either by provisions of the
contract or by implication.” Ross v. Gulf Oil Corp., 522 A.2d
97, 99 (Pa. Super. Ct. 1987). Home has not offered any evidence
that the parties intended the thirty-day notice fee to be
included in the lease agreement; it therefore has not satisfied
its burden under Ross.
59

when Home [had] current alternative mailing addresses
and e-mail addresses for those tenants.
Pl.’s Br. 5-6 (footnotes omitted). Despite Plaintiff’s strong
language, he offers no evidence supporting his allegation that
Home sent an accounting to his prior Glen Brook address.
Instead, Plaintiff cites to a document Home filed in response to
a request by the Special Master. However, contrary to
Plaintiff’s averment, the document merely states: “Home
Properties L.P. has calculated 19.4% of the post-lease
communications to former lease tenants did use other zip codes
for mailings beyond the lease address zip code.” Pl.’s Mot. Ex.
36, at 7. This statement makes no mention of “first-letter”
accountings, nor does it confirm that accountings were sent to
tenants’ prior addresses, as there is quite a difference between
a single address and a zip code. Such paltry evidence clearly
fails to establish an FCEUA violation for this allegation, at
least with respect to Plaintiff.37

37

Relatedly, Plaintiff claims that Home failed to return
his security deposit, along with a written accounting, within
thirty days of termination of the lease (presumably, the monthto-month tenancy), as required by Pennsylvania law. See TAC
¶¶ 106-108. However, this allegation arises within Count IV of
the Third Amended Class Action Complaint, and relates to
Plaintiff’s claim that Home breached Pennsylvania’s Landlord and
Tenant Act. The Court does not see how this alleged conduct
either falsely represents a debt or collects an amount not
agreed to by the parties. See 73 P.S. § 2270.4(b)(5)(ii),
(6)(i). Accordingly, the Court will address this claim under the
discussion of Count IV below.
60

c.

Home continually changed the amount due

Plaintiff alleges that, toward the end of his tenancy
and after, he received multiple notices from Home with differing
amounts due. See TAC ¶¶ 42, 47, 49; Pl.’s Br. 5 n.12.
Specifically, he claims that (1) he received a bill for
approximately $1,400 in October 2009; (2) later, he received an
updated bill for $1,300.40; (3) per his account online, the
amount due had risen to approximately $2,200 in November 2009;
(4) shortly thereafter, he received an “Apartment Inspection
Report” listing only $982.62; (5) a statement of deposit, which
he never received, later listed the total amount due as
$2,397.92; and (6) after applying his security deposit, the
amount due was reduced to $1,897.92. See Pl.’s Mot. 5 n.12.
Although Plaintiff characterizes these differing
amounts as part of a practice of deceptive debt collection by
Home, these amounts are readily explained by the documents
Plaintiff himself has submitted. For example, after receiving
the notice that he owed approximately $1,400, Plaintiff disputed
the charge; the reduced amount of $1,300.40 appears to be a
result of Plaintiff’s complaint to the leasing office. See Pl’s
Dep. 85:23-86:22. As discussed in more detail below, the
increases to approximately $2,200 and $2,397.92 relate to
charges incurred prior to Plaintiff’s move-out, and are
supported by the Resident Ledger Detail Report. See Pl.’s Suppl.
61

Ex. D. The only amount that cannot be explained is the $982.62
on the “Apartment Inspection Report.” However, Plaintiff has not
offered this report into evidence and, for this allegation, has
not established that Home violated the FCEUA.
d.

Plaintiff’s alleged debt to Home is bogus
and illegal

Plaintiff alleges generally that Home attempted to
collect--and forwarded to Defendant FCO in order to collect--a
debt that is “bogus,” Pl.’s Br. 6, and based on illegal fees,
id. at 38. Plaintiff contends that he owed Home nothing when he
vacated his Glen Brook apartment on October 31, 2009. Pl.’s
Resp. to Home 20 & n.59. In support of this allegation,
Plaintiff points to two documents, the Statement of Deposit and
the Resident Ledger Detail Report (“the Ledger”). Notably, he
does not dispute the payment information or method of
calculation of these reports. Instead, he focuses his argument
on the lack of contractual support for the fees and penalties
therein. Plaintiff writes: “Tellingly, not a single one of the
provisions Home points to in its standard form lease discloses
any of the fees and penalties Plaintiff would not pay.” Pl.’s
Suppl. 8. The Court examines the Statement of Deposit and Ledger
in turn.
The Statement of Deposit, prepared on November 16,
2009, and printed on December 1, 2009--although allegedly not
62

received by Plaintiff until some later date38--lists several
outstanding charges totaling $2,397.92. Pl.’s Resp. to Home Ex.
1. After applying Plaintiff’s security deposit, the amount due
was reduced to $1,897.92. Id. Plaintiff does not dispute charges
totaling $206.52, which relate to miscellaneous utility charges
and fees. Aside from the thirty-day notice fee, covered above,
he disputes a charge of $33.20 for “LF2 RM LATE FEE,” a charge
of $379.20 for “RNT AUTOCHRG @ 9/30/2009,” and a charge of
$888.00 for “RNT AUTOCHRG @ 10/31/2009.”39 Pl.’s Resp. to Home
25; see also id. Ex. 1.
With respect to the late fee, Plaintiff argues that it
“was derived and assessed . . . against Plaintiff only because
he refused to pay Home the undisclosed 30 day notice penalty[,]
rent for November[,] the pro-rated unit-swap fee . . . [,] or
their (ironically) ‘final admin fee.’” Pl.’s Resp. to Home 25.
However, a review of the Ledger, produced by Home during
discovery, shows that this late fee was assessed, in accordance
with the lease agreement’s late fee provision, for Plaintiff’s
failure to pay timely rent in August, September, and October
2009. See Pl.’s Suppl. Ex. D.
38

See supra note 5.

39

He also mentions a charge of $3.00 for “BAF soda final
admin fee.” Pl.’s Resp. to Home 25; see also id. Ex. 1. However,
as this appears to be a standard administrative fee for a
negligible sum, and as Plaintiff does not appear to seriously
dispute it, the Court will not consider it further.
63

With respect to the “9/30/2009” rental charge,
Plaintiff argues that this improperly related to “the pro-rated
unit-swap fee that was to be waived.” Pl.’s Resp. to Home 25.
Again, the Ledger indicates to the contrary that this $379.20
charge actually relates to the portion of unpaid rent from
August and September 2009. See Pl.’s Suppl. Ex. D.
With respect to the “10/31/2009” rental charge,
Plaintiff argues that this improperly related to “rent for
November.” Pl.’s Resp. to Home 25. The Ledger belies this
assertion, showing that the $888.00 actually related to October
2009, which was Plaintiff’s last month at Glen Brook. See Pl.’s
Suppl. Ex. D.
In Plaintiff’s supplemental brief, he again argues
that his alleged debt to Home is based entirely on “illegal
fees,” although he makes a further contention that Home owes him
approximately $1,700. Pl.’s Suppl. 6-8. Essentially, he argues
that Home steadily and inexplicably increased his average
monthly bill from July through November 2009. Id. at 6. However,
a brief review of the Ledger reveals Plaintiff’s error. The
additional charges Plaintiff complains of comprise late fees
legitimately assessed; a utility bill true-up which Plaintiff
has acknowledged, Pl. Dep. 43:3-44:21; the increased rent
associated with his month-to-month tenancy, which Plaintiff has
also acknowledged, id. at 23:10-20; the thirty-day notice fee;
64

and rent for November which (Plaintiff fails to note) was
subsequently credited back to his account. See Pl.’s Supp. Ex.
D. In other words, aside from the thirty-day notice fee,
Plaintiff’s argument is completely unsupported by the record; he
has not shown that Home has violated the FCEUA by generally
attempting to collect a bogus or illegal debt.
. . . .
In sum, the Court finds that Plaintiff is entitled to
summary judgment on his FCEUA claim as it relates to the thirtyday notice fee only. On Plaintiff’s other claims under the
FCEUA, and taking the evidence in the light most favorable to
Defendant Home as the nonmoving party, Plaintiff has not
established that summary judgment is appropriate. Moreover,
considering Home’s motion for summary judgment on these claims,
and taking the evidence in the light most favorable to Plaintiff
as the nonmoving party, Plaintiff has not shown that a genuine
dispute of material fact exists sufficient to survive summary
judgment. Accordingly, on Count II of the Third Amended Class
Action Complaint, Plaintiff’s motion for summary judgment will
be granted as to the thirty-day notice fee claim and denied as
to all other claims. Likewise, Home’s motion for summary
judgment will be denied as to the thirty-day notice fee claim
and granted as to all other claims.

65

2.

Claims Against Defendant FCO

As stated above, a debt collector’s violation of the
FDCPA is a per se violation of the FCEUA. See 73 P.S.
§ 2270.4(a). Having previously granted summary judgment in favor
of two of Plaintiff’s claims under the FDCPA, the Court will
follow this course for Plaintiff’s claims under the FCEUA.40
Accordingly, on Count II of the Third Amended Class
Action Complaint, Plaintiff’s motion for summary judgment will
be granted and FCO’s cross-motion for summary judgment will be
denied to the extent the Court granted summary judgment to
Plaintiff on his FDCPA claims. Plaintiff’s motion for summary
judgment will be denied and FCO’s cross-motion for summary
judgment will be denied to the extent the Court denied summary
judgment to both parties on Plaintiff’s FDCPA claims.
Plaintiff’s motion for summary judgment will be denied and FCO’s
cross-motion for summary judgment will be granted on all other
claims.
C.

COUNT III: UTPCPL
Pennsylvania’s UTPCPL provides that

[a]ny person who purchases or leases goods or services
primarily for personal, family or household purposes
and thereby suffers any ascertainable loss of money or
40

To the extent FCO asserts the bona fide error defense
on any of Plaintiff’s FCEUA claims, see FCO’s Br. 47, the Court
notes that this defense failed with respect to Plaintiff’s FDCPA
claims and FCO cannot avail itself of the defense here.
66

property, real or personal, as a result of the use or
employment by any person of a method, act or practice
declared unlawful by section 3 of this act, may bring
a private action to recover actual damages or one
hundred dollars ($100), whichever is greater.
73 P.S. § 201-9.2. The act declares unlawful “[u]nfair methods
of competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce,” § 201-3, and sets out a
nonexhaustive listing of such prohibited conduct. See § 201-2.
1.

Claims Against Defendant Home

Plaintiff argues principally that Home’s FCEUA
violations constitute per se violations of the UTPCPL. See TAC
¶ 98; Pl.’s Resp. to Home 36. As the FCEUA provides, “[i]f a
debt collector or creditor engages in an unfair or deceptive
debt collection act or practice under this act, it shall
constitute a violation of the act of December 17, 1968 (P.L.
1224, No. 387), known as the Unfair Trade Practices and Consumer
Protection Law.” 73 P.S. § 2270.5(a). Accordingly, because the
Court found above that Home violated the FCEUA--albeit with
respect to the thirty-day notice fee claim only--it follows that
Home’s conduct amounts to a per se violation of the UTPCPL as
well. Furthermore, Home suggests that Plaintiff suffered no loss
as a result of Home’s actions, as the UTPCPL requires. Home’s
Br. 26. However, as the Court pointed out previously, “Plaintiff
alleges that he was forced to retain counsel to resist FCO’s

67

collection efforts and in his prayer for relief requests all
reasonable attorneys’ fees.” Jarzyna v. Home Props., L.P., 763
F. Supp. 2d 742, 749 (E.D. Pa. 2011) [hereinafter Jarzyna I].
Likewise, Plaintiff retained counsel here to effectively dispute
the improperly charged thirty-day notice fee. Plaintiff’s UTPCPL
claim as to this charge withstands thus summary judgment.
Although Plaintiff states that Home “also [is] liable
for separate, independent substantive violations of the UTPCPL,”
he only generally alleges Home’s “misrepresentation that
Plaintiff owed the debt” and that Home “engaged in deceptive
and/or fraudulent conduct that created likelihood [sic] of
confusion or of misunderstanding prohibited by [the UTPCPL].”
TAC ¶ 101. Upon review of Plaintiff’s briefing, the Court notes
that he alleges the same conduct for both his FCEUA and UTPCPL
claims. See Pl.’s Br. 34-39; Pl.’s Resp. to Home 34-36. The
Court therefore finds that--as with his FCEUA claims--not only
has Plaintiff not established that summary judgment is
appropriate on these UTPCPL claims, he has not shown that a
genuine dispute of material fact exists sufficient to allow
these claims to survive Home’s motion for summary judgment.
In sum, on Count III of the Third Amended Class Action
Complaint, Plaintiff’s motion for summary judgment will be
granted as to the thirty-day notice fee claim and denied as to
all other claims. Likewise, Defendant Home’s motion for summary
68

judgment will be denied as to the thirty-day notice fee claim
and granted as to all other claims.
2.

Claims Against Defendant FCO

Similarly, because the Court found above that FCO
violated the FCEUA (by way of certain FDCPA violations), it
follows that FCO’s conduct amounts to a per se violation of the
UTPCPL as well. See 73 P.S. § 2270.5(a). FCO argues that
Plaintiff suffered no “ascertainable loss of money or property”
as a result of Home’s actions, as the UTPCPL requires. FCO’s Br.
48. However, as the Court pointed out previously, “Plaintiff
alleges that he was forced to retain counsel to resist FCO’s
collection efforts and in his prayer for relief requests all
reasonable attorneys’ fees.” Jarzyna I, 763 F. Supp. 2d at 749.
Plaintiff’s UTPCPL claim as to this charge thus withstands
summary judgment.41
Accordingly, on Count III of the Third Amended Class
Action Complaint, Plaintiff’s motion for summary judgment will
be granted and FCO’s cross-motion for summary judgment will be
denied to the extent the Court granted summary judgment to
Plaintiff on his FDCPA claims. Plaintiff’s motion for summary
judgment is denied and FCO’s cross-motion for summary judgment
41

It may very well turn out that Plaintiff has no
ascertainable loss because he has not paid any attorneys’ fees.
However, the Court will make a determination as to damages at a
later stage.
69

is denied to the extent the Court denied summary judgment to
both parties on Plaintiff’s FDCPA claims. Plaintiff’s motion for
summary judgment will be denied and FCO’s cross-motion for
summary judgment will be granted on all other claims.
D.

COUNT IV: Landlord and Tenant Act
Pennsylvania’s Landlord and Tenant Act regulates

landlords’ holding of security deposits as follows: “No landlord
may require a sum in excess of two months’ rent to be deposited
in escrow for the payment of damages to the leasehold premises
and/or default in rent thereof during the first year of any
lease.” 68 P.S. § 250.511a(a). In addition,
(a) Every landlord shall within thirty days of
termination
of
a
lease
or
upon
surrender
and
acceptance of the leasehold premises, whichever first
occurs, provide a tenant with a written list of any
damages to the leasehold premises for which the
landlord claims the tenant is liable. Delivery of the
list shall be accompanied by payment of the difference
between any sum deposited in escrow, including any
unpaid interest thereon, for the payment of damages to
the leasehold premises and the actual amount of
damages to the leasehold premises caused by the
tenant. Nothing in this section shall preclude the
landlord from refusing to return the escrow fund,
including any unpaid interest thereon, for nonpayment
of rent or for the breach of any other condition in
the lease by the tenant.
(b) Any landlord who fails to provide a written list
within thirty days as required in subsection (a),
above, shall forfeit all rights to withhold any
portion of sums held in escrow, including any unpaid
interest thereon, or to bring suit against the tenant
for damages to the leasehold premises.

70

. . . .
(e) Failure of the tenant to provide the landlord with
his new address in writing upon termination of the
lease or upon surrender and acceptance of the
leasehold premises shall relieve the landlord from any
liability under this section.
§ 250.512.
Plaintiff claims that Home violated the above-quoted
provisions by (1) improperly withholding the security deposit,
and (2) failing to mail Plaintiff an accounting of damages
within thirty days after he left Glen Brook. See TAC ¶¶ 105-109.
The Court considers each of these allegations below.
1.

Home Improperly Withheld the Security Deposit

Plaintiff asserts that “Home’s ‘30 day notice fee’
does not and cannot possibly be classified as ‘rent’ because it
is a one-time penalty (and not a regular, periodic payment) that
Home itself assesses and applies outside the provisions of the
lease. Pl.’s Resp. to Home 23. In other words, he argues that
his security deposit was improperly withheld to pay for the
notice fee, whereas Pennsylvania law only permits landlords to
apply security deposits to damages and rent defaults. See 68
P.S. § 250.511a(a) (noting security deposit may be used for
“payment of damages to the leasehold premises and/or default in
rent thereof”). Regardless of whether, in the abstract,
Pennsylvania law allows landlords to apply security deposits to

71

notice fees,42 Plaintiff’s claim fails here. As the Court
discussed above, Plaintiff’s balance due included a rental
charge related to October 2009 for $888.00. This amount more
than offset the security deposit and Home was justified in
withholding the deposit to partially cover for the missing rent.
2.

Home Did Not Send a Timely Accounting

Plaintiff also alleges that Home failed to send an
accounting of the security deposit within the required thirty
days. Home responds that its failure to send the accounting did
not violate the Landlord and Tenant Law “because [P]laintiff
failed to meet the prerequisite of providing a forwarding
address to Home pursuant to Subsection 512(e).” Home’s Br. 34.
Plaintiff rejoins by pointing to several instances where he had
“provide[d] Home with a plethora of forwarding information.”
Pl.’s Resp. to Home 37. He cites to his provision of (1) his
mother’s and brother’s addresses on the “Resident Consent for
Release of Personal Property and Deposits/Refunds,” attached to
the November 11, 2008, lease agreement, see TAC Ex. 5, at 21;
Pl. Dep. 27:10-28:16; (2) his cell phone number and email
42

The Court suspects that landlords are generally within
their rights to do so, as a provision of § 250.512 holds that
“[n]othing in this section shall preclude the landlord from
refusing to return the escrow fund, including any unpaid
interest thereon, for nonpayment of rent or for the breach of
any other condition in the lease by the tenant.” § 250.512(a)
(emphasis added).
72

address on his September 1, 2009, notice letter, see TAC Ex. 6;
and (3) the address of his brother as counsel, listed on the
termination letter his brother sent Home on October 28, 2009,
see TAC Ex. 7.
However, none of this information is responsive to
§ 250.512(e), which plainly requires the tenant to provide a
forwarding address in writing at the time of the lease’s
termination. In other words, in the absence of a written
communication from the tenant to the landlord advising the
landlord of tenant’s forwarding information, Pennsylvania law
does not require the landlord to investigate or track down the
departing tenant’s new address.43 On the evidence presented here,
no reasonable jury could find that Plaintiff satisfied the
§ 250.512(e) requirement; Home was thus discharged from its duty
to send Plaintiff an accounting.

43

Moreover, Plaintiff testified during his deposition
that he did not provide Home with his forwarding address when he
vacated Glen Brook. See, e.g., Pl. Dep. 28:17-22 (Q. When you
moved from [Glen Brook], did you provide the office with a
forwarding address for you? A. No. When I moved out, there was
nobody in the office. After they got the letter of termination,
nobody else contacted me.”); id. at 29:11-18 (“[Q.] Prior to the
time you moved out of [Glen Brook], did you provide the landlord
with a forwarding address? . . . A. Besides this document
[referring to his mother’s and brother’s addresses on the lease
agreement], no.”). Plaintiff offers no authority in support of
his suggestions that his duty under § 250.512(e) was somehow
obviated by the fact that no one was in the leasing office at
the time of his departure, or that Home had a duty to track down
his forwarding address using the piecemeal information he had
provided previously.
73

For the above reasons, Plaintiff has not established
his Landlord and Tenant Law claim against Home. Therefore, on
Count IV of the Third Amended Class Action Complaint,
Plaintiff’s motion for summary judgment will be denied and
Defendant Home’s motion for summary judgment will be granted.
E.

COUNT V: Civil Conspiracy
Under Pennsylvania law, “[t]he essential elements of a

claim for civil conspiracy are as follows: (1) a combination of
two or more persons acting with a common purpose to do an
unlawful act or to do a lawful act by unlawful means or for an
unlawful purpose, (2) an overt act done in pursuance of the
common purpose, and (3) actual legal damage.” Phillips v. Selig,
959 A.2d 420, 437 (Pa. Super. Ct. 2008); see also Thompson Coal
Co. v. Pike Coal Co., 412 A.2d 466, 472 (Pa. 1979). Furthermore,
“[p]roof of malice, i.e., an intent to injure, is essential in
proof of a conspiracy.” Id.
Plaintiff’s civil conspiracy claim--brought against
both Defendants--is based on the following allegations:
(1) “Home and FCO contracted for a series of illegal, selfstyled ‘pre-collection’ activities that involve the use of
illegal letters . . .”; (2) “Home and FCO jointly and
systematically, through common and uniform practice, pursue the
collection of debts that are forfeited, waived and uncollectable

74

under state statutory law and under Home’s own standard form
Lease Agreement . . .”; and (3) “Home and FCO jointly and
systematically, through common and uniform practice, pursue the
collection of debts which include unlawful ‘30 day notice’
charges and other illegal fees . . . , which charges and fees
both Home and FCO know to be unlawful and, therefore,
uncollectable.” TAC ¶¶ 115-117.
However, in support of these allegations, Plaintiff
offers little more than a restatement of the arguments he made
with respect to his other claims. Regarding the first
allegation, Plaintiff makes much of a “pre-collection”
arrangement between the Defendants wherein, for an initial
thirty-day period after the transfer of a debt, “FCO retains as
its compensation 15% of the amount recovered.” Pl.’s Br. 43. But
aside from painting this arrangement as a “blitzkrieg” designed
to “exploit” debtors, Plaintiff does not explain why it is
illegal or even improper to incentivize the efficient collection
of past-due debts, and does not establish that this “precollection” period involves procedures that flout any legal
requirement. See id.
Regarding the second and third allegations, Plaintiff
complains primarily of the notice fee, and points to Home’s
“standard, uniform policies and procedures and, most especially,
automated processes and systems.” Pl.’s Br. 40. Although, as
75

discussed above, Home’s assessment of the thirty-day notice fee
was not supported by Plaintiff’s lease agreement, the fact that
Home may have had an automated process to charge such fees does
not mean that Home was involved in a conspiracy with FCO.
Plaintiff alleges that “[Home] and FCO rigged the system so that
tenants would not receive lawful notice that their security
deposits had been wiped out and bogus charges applied.” Id. But
Plaintiff does not offer any evidence that an agreement existed
between the two Defendants to illegally assess these charges or
that Defendants had any “intent to injure.” Merely stating that
a conspiracy exists will not suffice.
Finally, although Plaintiff holds out the Collection
Services Agreement as evidence of conspiratorial agreement,
nothing in the agreement displays an intent to conspire to
commit illegal acts. See Home’s Br. Ex. K, Collection Services
Agreement. In fact, the CSA cuts against Plaintiff’s position,
because it provides that “[FCO] agrees that its collection
activities shall meet the constraints of the Fair Debt
Collection Practices Act and other applicable federal, state and
local laws and statutes.” Id. at 1. As the Brignola court noted
when rejecting the same claim, the CSA “clearly states that the

76

parties agree to act lawfully and use lawful means.” 2013 WL
1795336, at *14.44
In sum, viewing the facts in the light most favorable
to Plaintiff, and making all reasonable inferences in his favor,
no reasonable jury could find for Plaintiff on his civil
conspiracy claim. Therefore, on Count V of the Third Amended
Class Action Complaint, Plaintiff’s motion for summary judgment
will be denied, Defendant Home’s motion for summary judgment
will be granted, and Defendant FCO’s cross-motion for summary
judgment will be granted.
F.

Defendant Home’s Counterclaim
In Home’s Answer to the Third Amended Class Action

Complaint, it brings a Counterclaim, asserting one count of

44

Plaintiff’s civil conspiracy claim fails for another
reason as well. Under Pennsylvania law, the intracorporate
conspiracy doctrine holds that, “[a] single entity cannot
conspire with itself and, similarly, agents of a single entity
cannot conspire among themselves.” Rutherfoord v. PresbyterianUniv. Hosp., 612 A.2d 500, 508 (Pa. Super. Ct. 1992). Under that
doctrine, “an entity cannot conspire with one who acts as its
agent.” Gen. Refractories Co. v. Fireman’s Fund Ins. Co., 337
F.3d 297, 313 (3d Cir. 2003). Here, as the CSA provides, FCO is
the agent of Home. See Home’s Br. Ex. K, at 1, and the two
cannot be held liable under a theory of civil conspiracy.
Plaintiff’s cases to the contrary either involved parentsubsidiary liability under the Sherman Act, see, e.g., Siegel
Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1131-33
(3d Cir. 1995), or were otherwise inapplicable, see Morelia
Consultants, LLC v. RCMP Enters., LLC, No. 10-432, 2011 WL
4021070, at *11 (M.D. Pa. Sept. 9, 2011) (declining to apply the
intracorporate conspiracy doctrine where the corporate veil had
been pierced).
77

breach of the lease agreement. ECF No. 231. In essence, Home
seeks from Plaintiff the very $1,897.92 (albeit now bolstered
with attorneys’ fees and costs) which Home had referred to FCO
and which forms the basis of this entire lawsuit. In its motion
for summary judgment, Home argues that Plaintiff “has not
contested the final balance demanded by Home or provided any
proof or substantiation [sic] the amount demanded by Home is
not, in fact, due to Home by [Plaintiff].” Home’s Br. 16.
However, this overlooks that Plaintiff did contest the final
balance throughout his briefing, up to and including his
Supplemental Brief. Moreover, as the Court held above, the
thirty-day notice provision was not supported by the lease
agreement. Because the amount Plaintiff actually owes Home, if
any, is uncertain and Home has not shown the absence of a
genuine dispute of material fact on this question, the Court
denies Home’s motion for summary judgment on the Counterclaim.
G.

Defendant Home’s Request for Sanctions
Finally, Home requests that sanctions under 18 U.S.C.

§ 1927 be imposed upon Plaintiff’s counsel for his “design[] to
multiply the proceedings, unreasonably and vexatiously, for what
appears to be the purpose of creating unnecessary cost[s] and
expenses for Home.” Home’s Br. 40. The Court declines to make a
determination on Home’s request at this time, and will instead

78

deny the request without prejudice. Should Home wish to pursue
sanctions at the conclusion of the proceedings, it may properly
file a motion at that time.
V.

CONCLUSION
For the foregoing reasons, the Court grants in part

and denies in part the parties’ motions for summary judgment, as
follows:


COUNT I - FDCPA
o As to Defendant Home, Plaintiff’s motion for summary
judgment is denied, and Home’s motion for summary
judgment is granted.
o As to Defendant FCO, Plaintiff’s motion for summary
judgment is denied and FCO’s cross-motion for summary
judgment is denied with respect to the claim that
FCO’s AV2 and HD1AC letters lacked the required
notice, in violation of 15 U.S.C. § 1692g(a).
o As to Defendant FCO, Plaintiff’s motion for summary
judgment is granted and FCO’s cross-motion for summary
judgment is denied with respect to the following
claims: (1) failing to identify as a debt collector
when leaving voice messages on Plaintiff’s cell phone,
in violation of §§ 1692e(11) and 1692d(6); and
(2) attempting to collect a debt that Plaintiff did
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not owe, in violation of §§ 1692f(1), 1692e(2), and
1692e(10).
o As to Defendant FCO, Plaintiff’s motion for summary
judgment is denied and FCO’s cross-motion for summary
judgment is granted with respect to the following
claims: (1) lacking the required notice on the HD1A
letter, in violation of § 1692g(a); (2) failing to
properly verify the disputed debt, in violation
§ 1692g(b); and (3) all other claims Plaintiff may
have under the FDCPA.


COUNT II - FCEUA
o As to Defendant Home, Plaintiff’s motion for summary
judgment is granted with respect to the thirty-day
notice fee claim and denied as to all other claims.
Defendant Home’s motion for summary judgment is denied
as to the thirty-day notice fee claim and granted as
to all other claims.
o As to Defendant FCO, Plaintiff’s motion for summary
judgment is granted and FCO’s cross-motion for summary
judgment is denied to the extent the Court granted
summary judgment to Plaintiff on his FDCPA claims.
Plaintiff’s motion for summary judgment is denied and
FCO’s cross-motion for summary judgment is denied to

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the extent the Court denied summary judgment to both
parties on Plaintiff’s FDCPA claims. Plaintiff’s
motion for summary judgment is denied and FCO’s crossmotion for summary judgment is granted on all other
claims.


COUNT III - UTPCPL
o As to Defendant Home, Plaintiff’s motion for summary
judgment is granted with respect to the thirty-day
notice fee claim and denied as to all other claims.
Defendant Home’s motion for summary judgment is denied
as to the thirty-day notice fee claim and granted as
to all other claims.
o As to Defendant FCO, Plaintiff’s motion for summary
judgment is granted and FCO’s cross-motion for summary
judgment is denied to the extent the Court granted
summary judgment to Plaintiff on his FDCPA claims.
Plaintiff’s motion for summary judgment is denied and
FCO’s cross-motion for summary judgment is denied to
the extent the Court denied summary judgment to both
parties on Plaintiff’s FDCPA claims. Plaintiff’s
motion for summary judgment is denied and FCO’s crossmotion for summary judgment is granted on all other
claims.

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

COUNT IV - Landlord and Tenant Act
o Plaintiff’s motion for summary judgment is denied and
Defendant Home’s motion for summary judgment is
granted.



COUNT V - Civil Conspiracy
o Plaintiff’s motion for summary judgment is denied,
Defendant Home’s motion for summary judgment is
granted, and Defendant FCO’s cross-motion for summary
judgment is granted.

In addition, Defendant Home’s motion for summary judgment on its
Counterclaim is denied and Home’s motion for sanctions is denied
without prejudice.
Therefore, the only remaining claims in this case are
the following:


Count I (FDCPA), against Defendant FCO: the AV2 and HD1AC
letters lacked the required notice, in violation of 15
U.S.C. § 1692g(a);



Count II (FCEUA), against Defendant FCO: the AV2 and HD1AC
letters lacked the required notice, in violation of 15
U.S.C. § 1692g(a);



Count III (UTPCPL), against Defendant FCO: the AV2 and
HD1AC letters lacked the required notice, in violation of
15 U.S.C. § 1692g(a); and
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

Defendant Home’s Counterclaim.
An appropriate order follows.

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VI.

APPENDIX A: Sample Form AV2 Letters from Defendant FCO

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85

86

Source: TAC Ex. 2.

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VII. APPENDIX B: Sample Form HD1AC Letters from Defendant FCO

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89

90

Source: TAC Ex. 4.

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