Matteo, S. v. EOS USA ( 2023 )

J-A06036-23
2023 PA SUPER 51
STARLEEN MATTEO, ON BEHALF OF : IN THE SUPERIOR COURT OF
HERSELF AND ALL OTHERS IN THE : PENNSYLVANIA
STATE OF PENNSYLVANIA SIMILARLY :
SITUATED :
:
Appellant :
:
:
v. : No. 733 WDA 2022
:
:
EOS USA, INC. :
Appeal from the Order Entered May 26, 2022
In the Court of Common Pleas of Erie County Civil Division at No(s): No.
11936-2021
BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*
OPINION BY PELLEGRINI, J.: FILED: March 30, 2023
Sharleen Matteo (Matteo) appeals from the order entered in the Court
of Common Pleas of Erie County (trial court) that sustained EOS USA, Inc.’s
(EOS) preliminary objections in the nature of a demurrer with leave to
amend.1 Matteo argues that the trial court erred in sustaining the preliminary
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* Retired Senior Judge assigned to the Superior Court.
1 On July, 29, 2022, this Court issued a Rule upon Matteo to show cause why
this appeal should not be quashed as interlocutory since, generally, an order
granting preliminary objections and granting leave to file an amended
complaint is not an appealable, final order. See Lichtenwalner v.
Schlicting, 552 A.2d 302, 302 (Pa. Super. 1989). In response, Matteo
maintains that the order is final because any amendment to the complaint is
futile where the trial court determined as a matter of law that the subject
collection letter was not false, deceptive, or misleading, which is a primary
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objections where she properly alleges violations of the Federal Fair Debt
Collection Practices Act (FDCPA),2 which is incorporated by reference into the
Pennsylvania Fair Credit Extension Uniformity Act (FCEUA),3 because the
subject dunning (collection) letter is false, deceptive or misleading. We affirm.
We take the following factual background and procedural history from
the trial court’s May 26, 2022 opinion and our independent review of the
record.
I.
In May 2021, EOS sent Matteo the subject dunning letter. It read, in its
entirety:
Statement Date: 05/22//21
EOS Account #: XXXX
Current Creditor: US Asset Management, Inc.
Original Creditor: Verizon
TOTAL BALANCE
$121.56
NOTICE OF PAST DUE ACCOUNT
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claim of her action. She notes that amending the complaint again will not
alter the language of the letter and asks this Court not to place “form over
function” and to permit the appeal to proceed. Under the circumstances,
where the court’s order effectively puts Matteo out of court, we will treat the
May 26, 2022 order as final. See Pugar v. Greco, 394 A.2d 542 (Pa. 1978)
(“if the practical consequence of the order by the trial court is effectively to
put an appellant ‘out of court’ the order will be treated as final. Similarly, an
order is ‘final’ if it precludes a party from presenting the merits of his claim to
the lower court.”).
2 15 U.S.C. §§ 1692-1692p.
3 73 P.S. §§ 2270.1-2270.7.
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At EOS CCA we have a goal of helping consumers gain financial
freedom and we believe it starts with a willingness to work with
you on your account that has been placed with us for collections.
You are receiving this notice because payment is past due on the
above referenced debt originally owned by VERIZON.
We understand and that having an account placed with a collection
agency can be difficult. Please be advised we are here to assist
and help you. If you cannot pay your balance in full then simply
call us at 1-214-XXX-XXXX or 1-844-XXX-XXXX and we can
discuss other options with you.
* * *
This communication is from a debt collector. This is an attempt
to collect a debt and any information obtained will be used for that
purpose.
(Amended Complaint, at Exhibit A, Notice of Past Due Account) (phone
numbers and contact information redacted).
Matteo commenced litigation by filing a complaint against EOS on
September 3, 2021. In response to preliminary objections, she filed an
amended complaint on November 5, 2021. The trial court explains:
Matteo filed this Complaint seeking relief under the FCEUA
and specifically alleging that the Notice of Past Due Account was
a false, deceptive, or misleading communication because it
purported to try to collect on debt that was beyond the statute of
limitations and beyond the time for reporting to the credit
bureaus. (See Amended Complaint, at ¶ 7). Matteo also avers
that the communication is false, deceptive, or misleading because
it offers to “work” with her and offers “other” options to pay the
amount due, but does not specify that the statute of limitations
applicable to the debt had expired, or what the ramifications of
exploring “other options” might be. Matteo further alleges that
the communication was misleading or deceptive because it did not
indicate that Matteo could not be sued on the debt. (See id. at
¶¶ 7(a), 8 & 10). The Amended Complaint does not allege that
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[EOS] threatened Matteo with litigation on the debt. Additionally,
the Complaint alleges that [EOS] failed to provide Matteo with the
validation of debt notice required by 15 U. S.C. § 1692(g). (See
id. at ¶ 6). The Amended Complaint seeks class action status and
requests relief on behalf of Matteo and all others similarly situated.
The Amended Complaint does not aver that Matteo suffered
any direct damages as a result of the attempt to collect on the
debt. Rather, the Amended Complaint seeks statutory damages
and injunctive relief precluding [EOS] from sending dunning
letters to any Pennsylvania citizen beyond the expiration of the
statute of limitations associated with their debts. (See id. at
Wherefore Clause).
(Trial Court Opinion, 5/26/22, at 3) (some record citation formatting
provided).
On November 16, 2021, EOS filed preliminary objections to the
amended complaint. It argued: (1) its conduct in sending the collection letter
to Matteo on an allegedly time-barred debt without disclosing that it was time-
barred does not violate the law; (2) it was not required to send a validation
notice because the May 11, 2021 letter was not the first one it sent to Matteo;4
(3) Matteo failed to allege that she suffered an ascertainable loss as required
by the Unfair Trade Practices and Consumer Protection Law5 (UTPCPL), which
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4In her brief to this Court, Matteo states that in her amended complaint, she
averred that EOS violated the FDCPA by failing to provide the required
validation notice. (See Matteo’s Brief, at 11); 15 U.S.C. § 1692(g) (debt
collector shall send debt validation notice within five days of initial
communication with consumer). However, she offers no argument about this
and appears to have abandoned the claim on appeal other than the brief
mention.
5 73 P.S. §§ 201.1-201.10.
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is applicable to her FCEUA claim; and (4) class certification is inappropriate
because the proposed class is unidentifiable and FCEUA claims cannot serve
as a basis for class actions since such claims require a showing of reliance.
(EOS Preliminary Objections to Amended Complaint, 11/16/21, at ¶¶ 15, 17-
23, 26, 29). Thereafter, both parties filed memoranda of law, and the court
held oral argument by telephone on January 28, 2022.
On May 26, 2022, the court sustained the preliminary objections in part
and found they were moot in part. (See Order, 5/26/22). Specifically, after
a review of the relevant law, the court concluded: (1) Matteo failed to plead
sufficient facts to support a claim for a violation of the FDCPA and FCEUA and
it is denied as a matter of law; (2) because the FCEUA does not provide a
private cause of action, but is enforced through the remedial provision of the
UTPCPL, Matteo was required to plead an ascertainable loss, which she failed
to do; and (3) because Matteo failed to state a claim entitling her to relief, the
arguments about the class action are moot and/or premature. See Trial Ct.
Op., at 9-12). Matteo timely appealed and complied with the court’s order
that she file a statement of errors complained of. See Pa.R.A.P. 1925(b).
On appeal, Matteo argues that the court erred in sustaining the
preliminary objections6 because she has properly alleged that “the dunning
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6 Our standard of review of this matter is well-settled:
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letter is false, deceptive or misleading.” (Matteo’s Brief, at 11). She also
maintains that the court erred in finding that she was required to plead
ascertainable loss pursuant to the language of the UTPCPL because the
amended complaint relies on violations of the FDCPA as enforced through the
FCEUA, making the UTPCPL irrelevant.7 (See id. at 25-31).
II.
A.
Matteo argues that the dunning letter was false, deceptive or misleading
because “it offered financial freedom even though such freedom had already
been obtained by virtue of the statute of limitations” and it stated that EOS
“was there to ‘help’ and ‘assist’ the debtor.” (Matteo’s Brief, at 12-13). She
also complains that the invitation to call to discuss other options is an
invitation for settlement and failed to inform her “that the debt is time-barred
____________________________________________
Our standard of review in an appeal arising from an order
sustaining preliminary objections in the nature of a demurrer is de
novo, and our scope of review is plenary. We recognize a
demurrer is a preliminary objection to the legal sufficiency of a
pleading and raises questions of law; we must therefore accept as
true all well-pleaded, material, and relevant facts alleged in the
complaint and every inference that is fairly deducible from those
facts. A preliminary objection in the nature of a demurrer should
be sustained only in cases that clearly and without a doubt fail to
state a claim for which relief may be granted.
Laret v. Wilson, 279 A.3d 56, 58 (Pa. Super. 2022) (citation and brackets
omitted).
7 Matteo does not challenge the class certification issue.
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and the ramifications thereof.” (Id. at 13). The trial court found that because
the FDCPA does not prohibit attempting to collect a time-barred debt or
require debt collectors to explicitly inform consumers that the debt is no longer
legally enforceable, the mere fact that EOS did not inform Matteo of the legal
status of the debt does not state a claim for an FDCPA and FCEUA violation.
(See Trial Ct. Op., at 8-9).
We provide the following legal background relevant to Matteo’s issue.
1.
Pursuant to Pennsylvania’s FCEUA, “[i]t shall constitute an unfair or
deceptive debt collection act or practice under this act if a debt collector
violates any of the provisions of the [FDCPA.]” 73 P.S. 2270.4(a). Congress
enacted the FDCPA to deter “abusive, deceptive, and unfair debt collection
practices.” 15 U.S.C. § 1692(a). The statute prohibits debt collectors from
using “any false, deceptive, or misleading representation or means in
connection with the collection of any debt,” including falsely representing “the
character, amount, or legal status of any debt.” Id. at §§ 1692(e), (f).
The FDCPA is remedial, so we construe its language broadly,
so as to effect its purpose. In addition, we employ a “least
sophisticated debtor” standard to evaluate whether a particular
debt-collection practice violates the Act. This standard aims to
protect the gullible as well as the shrewd, but it nevertheless
preserves a quotient of reasonableness and presumes a basic level
of understanding and willingness to read with care. The standard
is objective, meaning that the specific plaintiff need not prove that
she was actually confused or misled, only that the objective least
sophisticated debtor would be.
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Tatis v. Allied Interstate, LLC, 882 F.3d 422, 427 (U.S. Court of Appeals
3rd Cir. 2018) (brackets and internal citations and some quotation marks
omitted; emphasis in original).8, 9
As aptly noted by the trial court, federal decisions on this issue are
evolving about what language can improperly mislead or deceive an
unsophisticated debtor.10 For example, in Huertas v. Galaxy Asset
Management, 641 F.3d 28 (3d Cir. 2011), a debt collector sent the plaintiff
a letter in which it sought to collect a credit card debt after the statute of
limitations’ expiration. The Huertas Court noted that although the Third
Circuit had not previously addressed the issue, precedent from other
jurisdictions has held that “the FDCPA permits a debt collector to seek
voluntary repayment of the time-barred debt so long as the debt collector
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8“On issues of federal law, we are free to consider federal court decisions as
persuasive authority.” Zaleppa v. Seiwell, 9 A.3d 632, 638 n.8 (Pa. Super.
2010) (citations omitted).
9 To prevail on her FDCPA claim, a plaintiff must plead and prove that “(1) she
is a consumer, (2) the defendant is a debt collector, (3) the defendant’s
challenged practice involves an attempt to collect a ‘debt’ as the Act defines
it, and (4) the defendant has violated a provision of the FDCPA in attempting
to collect the debt.” Tatis, 882 F.3d at 427 (internal citation and most
quotation marks omitted). Instantly, only the fourth element is disputed.
10Matteo’s claim that the court failed to broadly interpret the FCEUA is not
persuasive. The trial court thoroughly addressed applicable law interpreting
the statute and applied it accordingly. (See Trial Court Opinion, 5/26/22, at
5-8).
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does not initiate or threaten legal action in connection with its debt
collection efforts.” Huertas, 641 F.3d at 33 (emphasis added).
Since Huertas, the Third Circuit has read the FDCPA more broadly and
concluded that, even absent a threat of litigation on a time-barred debt, a
collection letter can violate the FDCPA.
For example, Tatis recognized that the threat of legal action was not
required for a collection letter to potentially violate the FDCPA because it
“sweeps far more broadly” and prohibits “any false, deceptive, or misleading
representation” associated with debt-collection practices. Tatis, 882 F.3d
at 428 (emphasis in original). It observed that “a communication subject to
the FDCPA is deceptive if it can be reasonably read to have two or more
different meanings, one of which is inaccurate.” Id. at 429 (citation omitted).
Tatis agreed with its “sister courts that, in the specific context of a debt-
collection letter, the least-sophisticated debtor could be misled into thinking
that ‘settlement of the debt’ referred to the creditor’s ability to enforce the
debt in court rather than a mere invitation to settle the account.” Id. at 429
(citing Buchanan v. Northland Group, Inc., 776 F.3d 393, 395 (6th Cir.
2015); McMahon v. LVNV Funding, LLC, 744 F.3d 1010, 1022 (7th Cir.
2014)). It explained the significance of the use of the term, “settle”:
As the Buchanan court’s survey of sources suggests,
multiple dictionaries define “settle” to refer not only to “settling
accounts,” but also to the avoidance or resolution of litigation.
See [Buchanan,] 776 F.3d at 399. Moreover, the chance that
the letter could mislead the least-sophisticated debtor increases
with the use of phrases such as “settlement offer,” which Black’s
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Law Dictionary defines as “[a]n offer by one party to settle a
dispute amicably (usu[ally] by paying money) to avoid or end a
lawsuit or other legal action.” (10th ed. 2014).
Tatis, 882 F.3d at 429-30.
Tatis declined to hold that using the word “settlement” is misleading or
deceptive as a matter of law and, instead, established a totality of the
circumstances approach, noting, “that any such letters, when read in their
entirety, must not deceive or mislead the least-sophisticated debtor into
believing that she has a legal obligation to pay the time-barred debt.” See
Tatis, 882 F.3d at 430 (emphasis added). Applying this standard, the court
reversed the trial court’s order granting Allied’s motion to dismiss, finding that
Tatis stated a facially plausible claim for relief since, considering the letter as
a whole, “the words ‘settlement’ and ‘settlement offer’ could connote litigation,
and the least-sophisticated debtor could be misled into thinking Allied could
legally enforce the debt.” Id. (citations omitted); see also Buchanan, 776
F.3d 393 at 398-400 (same); McMahon, 744 F.3d at 1022 (same).
The Third Circuit has not revisited this issue since Tatis. However, in
Holzman v. Malcolm S. Gerald & Assoc., Inc., 920 F.3d 1264 (11th Cir.
2019), a case relied upon by Matteo, the court considered a collection letter
that contained an offer to “resolve” a time-barred debt, urged the debtor to
“take advantage” of the offer, stated that “payment must be received in our
office no later than 5/31/2015” and that defendants are “not obligated to
renew” the offer. Id. at 1272 (internal quotation mark omitted). The court
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considered precedent from multiple jurisdictions and found that the plaintiff
set forth a “plausible” argument that the letter violated the FDCPA. It noted
that the fact that the debtor received an offer to “resolve” the debt rather than
“settle” it was merely semantics, and that it was still “plausible” that the letter
would leave an unsophisticated consumer with an inaccurate impression. Id.Further, “by urging the debtor to ‘take advantage’ of the offer, the letter might
have caused an unsophisticated consumer to mistakenly believe that the debt
was legally enforceable and that he had something to gain by accepting the
offer, or to lose by declining it[,]” an impression reinforced by announcing a
deadline, thus creating urgency. Id. at 1272.
2.
As stated previously, Matteo maintains that the letter was false,
deceptive and misleading because (1) it offered financial freedom where she
already had obtained it by virtue of the statute of limitations’ expiration, but
it failed to inform her that “the debt is time-barred and the ramifications
thereof;” (2) it used words like, “help” and “assist,” although “a debt collector
is not in the business of helping a debtor;” and (3) it invites her to settle by
calling to discuss “other options.” (Matteo’s Brief, at 13). EOS responds that
it was not required to disclose that the debt was time-barred, and the letter
is not otherwise false, deceptive or misleading. (See EOS’s Brief, at 9).
First, we observe that the statute of limitations’ expiration does not
invalidate a debt, but just makes it legally unenforceable. See Huertas, 641
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F.3d at 32.11 As long as the debt collector does not initiate or threaten legal
action on a time-barred debt, it is permitted to seek voluntary repayment
without advising that the statute of limitations has run. See id.; see also
Tatis, 882 F.3d at 430 (The Third Circuit does not “impose any specific
mandates on the language debt collectors must use such as requiring them to
explicitly disclose that the statute of limitations has run.”). Instantly, EOS did
not threaten litigation on a time-barred, legally unenforceable debt but,
instead, sought Matteo’s voluntary repayment. Therefore, it was not obligated
to advise her about the statute of limitations.12
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11 Some states, namely Mississippi, North Carolina and Wisconsin, in their
implementing statutes, have found that collection contacts on time-barred
debt violate the FDCPA. See Miss. Code Ann. § 15-1-3(1); N.C. Gen. Stat.
§ 58-70-115(4) (applies only to debts owned by debt buyers); Wis. Stat.
§ 893.05.
12 Not raised in this action is whether the notice is deficient because it does
not disclose that partial payment may result in “restarting the statute of
limitations.” It is well settled that a partial payment made or authorized by a
debtor tolls the statute of limitations. Citicorp North America, Inc. v.
Thornton, 707 A.2d 536, 538 (Pa. Super. 1998) (citing cases). “Partial
payment stops the running of the statute because it is an acknowledgment of
the debt as an existing obligation…” Id. at 538. The partial payment serves
to “restart” the statute of limitations. Id. “There can be no more clear and
unequivocal acknowledgement of debt than actual payment[.]” Huntingdon
Finance Corp. v. Newtown Artesian Water Co., 659 A.2d 1052, 1054 (Pa.
Super. 1995). However, for the doctrine to apply, there can be “no
uncertainty either in the acknowledgement or in the identification of the debt;
and the acknowledgement must be ‘plainly referable’ to the very debt upon
which the action is based[.]” Id.- 12 -
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However, Matteo urges us to find that EOS’s offer is tantamount to a
settlement offer that suggests the resolution of litigation. Reading the letter
as a whole, this is an unreasonable interpretation. It is undisputed that the
dunning letter does not expressly say, “settle” and carry the resulting
inference of litigation. See Tatis, 882 F.3d at 429-30. Nor does the letter
encourage Matteo to “take advantage” of the offer to “resolve” the debt by
remitting a specific amount or create any sense of urgency by including a
deadline for doing so. Holzman, 920 F.3d at 1264, 1272.13 The letter merely
suggests that Matteo call EOS, at which time options can be discussed.
Moreover, even if it did expressly or implicitly contain an offer to settle,
this, standing alone, would not render the letter false, deceptive or misleading
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13 Matteo also relies on Manuel v. Merchants & Prof’l Bureau, Inc., 956
F.3d 822 (5th Cir. 2020), for the proposition that a technically accurate
collection letter can mislead if it fails to disclose that a debt is time-barred,
even where no settlement was offered. However, Manuel reached its decision
only after considering the subject letter when “read as a whole.” Manuel,
956 F.3d at 831. The letters contained language that included “Important
Warning;” “You have only one more opportunity to stop all collection efforts;”
“This is a very special offer. Please take advantage of this now;” “Our client
has authorized the elimination of this element of your credit history but we
need to receive your complete payment immediately!”; and “Urgent!” Id.
Importantly, the court noted that because “the letters in question were
misleading for more than their mere silence as to the age and the time-barred
nature of the debt, we leave for another day whether such silence on its own
is misleading as a matter of law.” Id. at 824. Manuel is not persuasive
because this case is factually distinguishable where it contained no such
urgent language. As a legal matter, Manuel is consistent with Tatas in that
it viewed the letter’s language in its totality to reach its decision and made no
finding as to whether mere silence regarding the statute of limitations is
misleading as a matter of law.
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because there is nothing improper about a settlement offer. See Tatis, 882
F.3d at 430. Instead, the proper question is not whether the letter offers to
settle the debt, but whether, when reading the letter as a whole, it would
“deceive or mislead the least-sophisticated debtor into believing that she has
a legal obligation to pay the time-barred debt.” Id. (citations omitted). We
discern no such reasonable interpretation.
The brief letter advises Matteo that she has a past-due debt from
Verizon that EOS, as a debt collector, is attempting to collect. It offers to help
her find a way to pay. As noted by the trial court, the phrases, “willingness
to work with you” and “discuss other options” cannot reasonably be read to
imply a threat of litigation. We agree with the trial court’s finding that there
is no reasonable argument that the letter could deceive or mislead even the
least sophisticated debtor into believing she had a legal obligation to pay the
time-barred debt or that EOS was threatening litigation should she fail to do
so.14 See Tatis, 882 F.3d at 427 (least sophisticated debtor standard protects
“the gullible as well as the shrewd, but it nevertheless preserves a quotient of
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14 Relatedly, Matteo urges this Court to hold, as a matter of law, that “all
attempts to collect a time-barred debt without disclosing [that it is time-
barred] are misleading pursuant to the FCEUA [and FDCPA].” (Matteo’s Brief,
at 19) (emphasis omitted). We decline to do so, particularly where the Third
Circuit has expressly stated that a debt collector can seek voluntary
repayment without advising about the statute of limitations. See Tatis, 882
F.3d at 430.
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reasonableness and presumes a basic level of understanding and willingness
to read with care.”).15
B.
Matteo claims that the trial court erred in finding that she failed to set
forth an ascertainable loss to support her claim as required by the UTPCPL
because she is seeking damages through the FDCPA, which does not require
such loss.16 She argues that the FCEUA is a bifurcated statute, which relies
on state law for creditors and federal law for debt collectors, thereby making
the FDCPA applicable for enforcement, not the UTPCPL.
While we agree with Matteo that a“reference to a statute in another
statute includes the entire statute, we disagree with her application of this
maxim because her argument completely ignores the express language of the
FCEUPA’s enforcement provision. We acknowledge that pursuant to the
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15 Matteo maintains that the court erred in deciding this issue because whether
the letter is false, deceptive and misleading generally is a question of fact for
the jury. (See Matteo’s Brief, at 17-19). However, her argument
acknowledges that “dismissal at the pleading stage is [] appropriate when the
letter would not mislead a significant faction of the population,” and then
repeats her arguments about why the letter is misleading. (Id. at 17) (citing
McMahon, 744 F.3d 1020). As stated above, there is no reasonable
argument that the letter could be interpreted as false, deceptive or misleading
to the least sophisticated debtor. Therefore, the trial court properly found
that the letter was not false, deceptive or misleading as a matter of law.
16This issue is moot based on our conclusion that Matteo failed to establish
that the letter was false, deceptive or misleading under the FDCPA. However,
we briefly address the issue for the sake of full review.
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FCEUPA a violation of the FDCPA constitutes an unfair or deceptive debt
collection act or practice under FCEUA. See 73 P.S. § 2270.4(a). However,
the FCEUA does not have its own private cause of action. Instead, pursuant
to the enforcement and penalties provision of Section 2270.5 of the FCEUA,
“If 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
[UTPCPL].” 73 P.S. § 2270.5(a) (emphases added). In other words, if a
debt collector violates the FDCPA, it is an unfair or deceptive debt collection
act under the FCEUA, which is a violation of the UTPCPL.
The inclusion of a violation of the FCEUA as also being a violation
of the UTPCPL, evinces a clear intent by our Legislature that
FCEUA claims be treated in the same manner as other
private action claims under the UTPCPL. … As a private action
under Section 201–9.2 of the UTPCPL, FCEUA claims therefore
must plead that a plaintiff suffered an ascertainable loss[17]
as a result of a defendant’s prohibited action.
Kern v. Lehigh Valley Hospital, Inc., 108 A.3d 1281, 1290 (Pa. Super.
2015) (citation omitted; some emphases added);18 see also Kaymark v.
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17Pursuant to the UTPCPL, “[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 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 31 of this act, may bring a private action to
recover [] damages ….” 73 P.S. § 201-9.2 (emphasis added).
18 Matteo argues that Kern is inapplicable because, in that case, the defendant
was a creditor, not a debt collector, and she seeks to draw a distinction in the
manner of enforcement applicable to a creditor (state) versus a debt collector
(federal). However, as set forth above, only the enforcement section of the
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Bank of America, N.A., 783 F.3d 168, 182 (3d Cir. 2015), abrogated on
other grounds, Obduskey v. McCarthy & Holthus LLP, 139 S.Ct. 1029
(2019) (“The FCEUA … does not provide its own private cause of action;
rather, it is enforced through the remedial provision of the UTPCPL[;]
… claims therefore must plead that a plaintiff suffered an ascertainable loss as
a result of a defendant’s prohibited action.”) (citation omitted; some emphasis
added); 73 P.S. § 201-9.2(a).
Matteo attempts to avoid this clear mandate by claiming that she is
seeking damages through the FDCPA and, therefore, she need not
demonstrate any ascertainable loss. This argument is not persuasive. Matteo
only raised one claim in her amended complaint, and it was for a violation of
the FCEUA. (See Amended Complaint, at Count I). Moreover, even if she
had included a count for violation of the FDCPA, it would have failed where
the subject letter was not false, deceptive or misleading. For all of these
reasons, this issue lacks merit.19
Order affirmed.
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FCEUA requires an individual to proceed under the UTPCPL and expressly
includes actions against both creditors and debt collectors. See 73 P.S.
§ 2270.5(a).
19Matteo sets forth an additional section for her argument that a plaintiff is
not required to plead reliance and ascertainable damage to recover under the
FDCPA. (See Matteo’s Brief, at 30-31). This is repetitive and irrelevant since,
as stated above, her only claim was under the FCEUPA. (See Amended
Complaint, at 6).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2023
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