Scott v. Frankel ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TAWANDA JONES )
)
Plaintiff, )
)
)
v. ) Civil Case No. 14-00533 (RJL)
)
) ,
LAW OFFICE OF DAVID SEAN DUFEK, ) f I i" E E
) JAN 06 21115
and ) A
Clark, U.S. Distlict ix Bankruptcy
) Courts for the District of Columbia
CACH, LLC, )
)
Defendants. )
~11»
MEMORANDUM OPINION
January :, 2015[Dkt.#12,16]
Plaintiff, Tawanda Jones, (“plaintiff’ or “Jones”) filed this purported class action
against defendants CACH, LLC (“CACH”), a debt collection agency, and the Law Office
of David Sean Dufek (“Dufek”) in DC. Superior Court on February 28, 2014, alleging
Violations of the Fair Debt Collection Procedures Act, 15 U.S.C. § 1692, et seq.
(“FDCPA”), the District of Columbia Debt Collection Law, DC. Code § 28-3814, et seq.
(“DCDCL”), and the District of Columbia Consumer Protections Procedures Act, DC.
Code § 28-3901, et seq. (“DCCPPA”), arising out of the attempted collection of a credit
card debt that plaintiff owed CACH. See Comp]. and Demand for Jury Trial [Dkt. # 1-1]
(“Complaint” or “Compl.”). Defendants removed the action to this Court on March 31,
2014, on the basis of federal question jurisdiction, and plaintiff moved for class
certification on May 28, 2014. See Pl.’s Mot. for Class Certification [Dkt. # 12]. CACH
subsequently moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(0) on June 27, 2014, arguing that the debt collection letter at issue does not
violate the relevant statutes as a matter of law. See Def. Cach, LLC’s Mot. to Dismiss on
the Pleadings Pursuant to Rule 12(c) [Dkt. # l6] (“Def’s Mem.”). After due
consideration of defendant’s motion, plaintiff‘s opposition thereto, and the relevant law,
the Court GRANTS defendant’s Motion for Judgment on the Pleadings and DISMISSES
the Complaint in its entirety. As a result, plaintiff's Motion for Class Certification is
DENIED as moot.
BACKGROUND
CACH hired attorneys from Dufek’s firm to send a demand letter to plaintiff for
payment of her debt to CACH in the amount of $1,050.29. The letter, dated March 1,
2013, stated that Dufek had been “retained to collect the debt owed by you to CACH,
LLC.” See Compl. W 26-27. The letter contained certain warnings and disclaimers,
including that “we are acting in our capacity as a debt collector and at this time, no
attorney with our law firm has personally reviewed the particular circumstances of your
account.” See Compl. W 30-31, EX. A.
Plaintiff claims that she “believed that an attorney was involved in the collection
of the alleged debt” and that she “believed that Defendants could and would take legal
action against her in connection with the alleged debt if payment was not made.” Compl.
W 33—34. Plaintiff also alleges that defendants made false suggestions and implications
in the collection letter. Compl. W 36-43.
ANALYSIS
Defendant moves for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). Under Rule 12(c), any party may move for judgment on the pleadings
“[a]fter the pleadings are closed but within such time as not to delay the trial.” A motion
for judgment on the pleadings shall be granted if the moving party demonstrates that “no
material fact is in dispute and that it is ‘entitled to judgment as a matter of law.” Stewart
v. Evans, 275 F.3d 1126, 1132 (DC. Cir. 2002) (quoting Peters v. Nat'l RR. Passenger
Corp, 966 F.2d 1483, 1485 (DC. Cir. 1992)). In considering a motion forjudgment on
the pleadings, the Court should “accept as true the allegations in the opponent’s
pleadings” and “accord the benefit of all reasonable inferences to the non-moving party.”
Ia’. (internal quotation marks omitted). However, whether a particular collection letter or
notice violates the FDCPA “is a question of law to be determined by the Court.” See
Bodine v. First Nat. Collection Bureau, Inc, No. 10 Civ. 2472, 2010 WL 5149847, at *3
(D.N.J. Dec. 13, 2010).1
I Although our Circuit Court has not specifically addressed the issue, the Third Circuit has noted that the
majority of courts to have considered this question have found collection letters analogous to the
interpretation of contracts, not dependent on any extrinsic evidence, and thus, presenting a question of
law. See Wilson v. Quadramed Corp, 225 F.3d 350, 353 (3d Cir. 2000).
3
Plaintiff alleges certain violations of FDCPA, 15 U.S.C. §§ l692e(2), -(3), -(5), -
(10), 1692f, and l692j. See Compl. W 13-15. The relevant portions of 15 U.S.C. § l692e
provide that a “debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any debt.” Id. Specifically,
plaintiff alleges violation of the following sections of § l692e, which prohibit: (i) the
false representation of the character, amount, or legal status of any debt, see § l692e(2);
(ii) the false representation or implication that any individual is an attorney or that any
communication is from an attorney, see § 1692e(3); (iii) the threat to take any action that
cannot legally be taken or that is not intended to be taken, see § l692e(5); and (iv) the use
of any false representation or deceptive means to collect or attempt to collect any debt or
to obtain information concerning a consumer, see § l692e(10). In addition, she claims
that the defendant has violated Section 1692f, which makes it unlawful for a debt
collector to “use unfair or unconscionable means to collect or attempt to collect any debt.”
§ 1692f. The DCDCL similarly prohibits false or misleading statements in connection
with the collection ofa debt. See DC. Code. § 28-38146).
Although our Circuit Court has not yet decided the standard that governs contested
language in collection letters under FDCPA, the Third Circuit uses a “least sophisticated
consumer” standard, which is “lower than simply examining whether particular language
would deceive or mislead a reasonable debtor.” Wilson v. Quadramed Corp, 225 F.3d
350, 354 (3d Cir. 2000). The Third Circuit has explained that the “basic purpose ofthe
least-sophisticated—consumer standard is to ensure that the FDCPA protects all
consumers, the gullible as well as the shrewd” and that this “standard is consistent with
the norms that courts have traditionally applied in consumer-protection law.” Id. (citing
United States v. Nat ’l Fin. Servs., Inc, 98 F.3d 131, 136 (4th Cir. 1996)). To date two of
my colleagues have applied the “least sophisticated consumer” standard to FDCPA
claims. See Mazza v. Verizon Washington DC, Inc, 852 F. Supp. 2d 28, 36 (D.D.C.
2012) (EGS); Fed. Trade Comm ’n v. Capital City Mortgage Corp, No. 98 Civ. 237, 1998
WL 1469619, at *5 (D.D.C. July 13, 1998) (JLG) (“The test for determining potential
violations of the FDCPA is an objective standard based on the ‘least sophisticated
consumer.’” (citing Maguire v. Citicorp Retail Servs., 147 F.3d 232, 236 (2d Cir.1998))).2
Plaintiff argues that the Dufek letter is false and misleading under all three statutes
because defendant Dufek did not have any authority to either collect or sue. Compl. 11 57
(“failing to advise unrepresented consumers . . . that they can take no legal action against
them”); see also Pl.’s Opp. to Def. CACH’s Mot. to Dismiss [Dkt # 10] (“Opp”), at 10-
13. I disagree. There cannot be a “misrepresentation” about Dufek’s authority to sue
unless such an action was actually threatened. Unfortunately for the plaintiff, the letter
makes no mention ofa lawsuit. See Nichols v. FrederickJ. Hanna & Assocs., PC, 760 F.
Supp. 2d 275, 279 (N.D.N.Y. 201 1) (“Naturally, when analyzing an alleged violation of
2 The Seventh and Eighth Circuits have adopted the “unsophisticated consumer” standard, which is more
lenient than the “least sophisticated consumer” standard, see Gruber v. Creditors ’ Prot. Serv., 742 F.3d
271, 273-74 (7th Cir. 2014); Dufifi/ v. Landberg, 215 F.3d 871, 873 (8th Cir. 2000). Plaintiff’s claims fail
either standard.
this section, it must first be determined whether the defendant actually threatened to take
action”). Indeed, the letter at issue here specifically disclaimed meaningful lawyer
involvement on the first page. See Compl. at Ex. A (“Please be advised that we are acting
in our capacity as a debt collector and at this time, no attorney with our law firm has
personally reviewed the particular circumstances of your account”). In Greco v. T rauner,
Cohen & Thomas, LLP, the Second Circuit explained that it “does not follow that
attorneys may participate in [the debt collection] process only by providing actual legal
services.” 412 F.3d 360, 364 (2d Cir. 2005). Attorneys can participate in debt collection
as long as their status as attorneys is not misleading. Id. Here, nothing was misleading
about Dufek’s involvement. Dufek’s involvement was accurately disclosed, and there
was no threat of suit or other legal action.
Plaintiff further alleges that it was a misrepresentation that the Dufek firm was
authorized to take legal action against consumers in the District of Columbia, because
Dufek is a California law firm not licensed to practice law in the District of Columbia.
Compl. 1i 58; Pl. Mem. at 14—16. However, as discussed above, there was no “threatened”
legal action, thus there cannot be a misrepresentation about the ability to take action in the
District of Columbia. Furthermore, there was no misrepresentation in the letter regarding
the Dufek’s status as a law firm comprised of lawyers because Dufek is, in fact, a law
firm. See Nichols, 760 F. Supp. 2d at 278; see also Slurdevant v. Thomas E. Jolas, PC,
942 F. Supp. 426, 430 (W.D. Wis. 1996) (“plaintiff contends that because the individual
defendant Thomas E. J olas is not an attorney licensed to practice in the State of
Wisconsin, defendants could not legally bring an action to collect this debt in Wisconsin.
This argument is frivolous”).
Plaintiff further alleges that, under all three statutes, the collection letters used
Dufek’s title, letterhead, status, and position as an attorney to make false, deceptive, or
confusing statements. Compl. 1] 62; Pl. Mem. at 16-20. The collection letter at issue here,
however, specifically disclaimed that an attorney had “personally reviewed the
circumstances of your account” and made clear that Dufek was “acting in our capacity as
a debt collector.” Compl. at Ex. A. Courts have found that language similar to the
language here defeats an FDCPA claim because it accurately states the level of attorney
involvement and, thus, is not misleading under the least sophisticated consumer standard.
See Greco, 412 F.3d at 365; Eddis v. Midland Funding, L.L.C., No. 11 Civ. 3923, 2012
WL 664812, at *8 (D.N.J. Feb. 28, 2012) (“‘Additionally, since Defendant’s disclaimer
appears on the front of the letter, in the body of the text and in the same font, Defendant
has not made a false representation or implication that the letter is from an attorney with
meaningful involvement as an attorney in the debtor's case”). And the fact that the
disclaimer here was not in the body of the letter itself is unavailing because it was on the
front page, in the same font as the rest of the letter. The Third Circuit itself has noted in
that regard that “[e]ven the least sophisticated debtor is bound to read to read collection
notices in their entirety.” Campuzano-Burgos v. Midland Credit Mgmt., 550 F.3d 294,
299 (3d Cir. 2008).
Plaintiff also alleges that defendant created a “false sense of urgency” by using the
title of an attorney. Compl. ‘J 62; P1. Mem. at 24-25. This argument is also unavailing.
The collection letter clearly and unambiguously states that Dufek is acting as a debt
collector, not as an attorney. Compl. at Ex. A. Furthermore, the only time period
referenced in the letter is 30 days from the date of receipt of the letter, and that disclosure
is expressly mandated by 15 U.S.C. § 1692g(a). The references to 30 days in the letter are
limited to the following notices required by the FDCPA: (1) when the debt will be
assumed valid, (2) when an offer to provide verification if requested, and (3) when an
offer to provide the name and address of the original creditor must be provided. Compl.
at Ex. A; see also 15 U.S.C. § 1692g(a).
Finally, plaintiff alleges certain similar violations of the DCCPPA. See Compl.
W 17, 20-34. However, these fail for the additional reason that DCCPPA does not apply
to plaintiff because plaintiff is not a “consumer” within the meaning of DC. law. The
DCCPPA defines “consumer” as a “person who, other than for purposes of resale, does
or would purchase, lease (or lessee), or receive consumer goods or services, including as
a co—obligor or surety, or does or would otherwise provide the economic demand for a
trade practice.” DC. Code § 28-3901(a)(2)(A). Plaintiff does not allege that she
purchased or leased any goods or services from defendant, only that there was a loan