Kuhne v. Cohen & Slamowitz, LLP

08-1669-cv
Kuhne v. Cohen & Slamowitz, LLP
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 _______________
4
5 August Term, 2008
6
7 (Argued: May 19, 2009 Decided: August 27, 2009)
8
9 Docket No. 08-1669-cv
10
11 _______________
12
13 PAUL KUHNE,
14
15 Plaintiff-Appellant,
16
17 —v.—
18
19 COHEN & SLAMOWITZ, LLP, MIDLAND FUNDING NCC-2 CORP .,
20
21 Defendants-Appellees.
22
23
24 _______________
25
26 Before:
27
28 STRAUB, HALL, and LIVINGSTON , Circuit Judges.
29
30 _______________
31
32 On appeal from a judgment of the United States District Court for the Southern District of
33 New York (Harold Baer, Jr., Judge), granting summary judgment in favor of defendants and
34 dismissing plaintiff’s complaint in its entirety. Plaintiff Paul Kuhne alleges that defendant
35 Midland Funding NCC-2 Corporation is a “debt collection agency” under New York City
36 Administrative Code § 20-489(a) and is thus required under § 20-490 to be licensed by the New
37 York City Department of Consumer Affairs in order to engage in debt collection activities in the
38 City of New York. He alleges that because NCC-2 did not have such a license, defendants
39 violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., and New York General
1
1 Business Law § 349 when defendant Cohen & Slamowitz, LLP filed a lawsuit against him on
2 behalf of NCC-2 seeking to collect from him defaulted consumer debt that NCC-2 had purchased
3 from his original creditor. The parties do not dispute that NCC-2 engages in the business of
4 purchasing defaulted consumer debt and authorizes third party debt collection agencies to engage
5 in debt collection activities to collect that debt, including the filing of lawsuits in NCC-2’s name
6 in the event that their initial efforts are unsuccessful. The issue is whether, under these
7 circumstances, NCC-2 is a debt collection agency under N.Y.C. Admin. Code § 20-489(a).
8 Because (1) the Appellate Divisions of New York State Supreme Court and the New York Court
9 of Appeals have not addressed this question, (2) the lower courts are not in agreement on the
10 issue, (3) the text of the statute fails to provide an unmistakable answer, and (4) a recent
11 amendment of N.Y.C. Admin. Code § 20-489(a) complicates our determination of the legislative
12 intent, we respectfully believe that the New York Court of Appeals should have the first
13 opportunity to determine the issue. If the New York Court of Appeals answers this question in
14 the affirmative, then we respectfully request that it also address whether defendants violated New
15 York General Business Law § 349 by virtue of NCC-2’s status as the named plaintiff in the debt
16 collection suit against Kuhne.
17 _______________
18
19 BRIAN L. BROMBERG , Bromberg Law Office, P.C., New York, NY, for Plaintiff-Appellant.
20
21 THOMAS A. LEGHORN , Wilson, Elser, Moskowitz, Edelman & Dicker LLP (Jay A. Wechsler, on
22 the brief), White Plains, NY, for Defendants-Appellees.
23
24 CAROLYN E. COFFEY , MFY Legal Services, Inc. (Andrew Goldberg, Anamaria Segura, on the
25 brief; Jeanette Zelhof, of counsel), New York, NY for MFY Legal Services, Inc. as amicus curiae
26 in support of Plaintiff-Appellant.
27 _______________
28
29 STRAUB, Circuit Judge:
30
31 Plaintiff Paul Kuhne appeals from a judgment of the United States District Court for the
32 Southern District of New York (Harold Baer, Jr., Judge), entered on March 6, 2008, granting
33 summary judgment in favor of defendants and dismissing Kuhne’s complaint in its entirety.
34 Kuhne alleges that defendant Midland Funding NCC-2 Corp. (“NCC-2”) is a “debt collection
35 agency” under New York City Administrative Code (“N.Y.C. Admin. Code” or “Code”) § 20-
36 489(a) and is thus required under § 20-490 to be licensed by the New York City Department of
2
1 Consumer Affairs (“DCA”) in order to engage in debt collection activities in the City of New
2 York. He alleges that because NCC-2 did not have such a license, defendants violated the Fair
3 Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and New York General
4 Business Law (“N.Y. GEN . BUS. LAW ”) § 349 when defendant Cohen & Slamowitz, LLP
5 (“C&S”) filed a lawsuit against him on behalf of NCC-2 seeking to collect from him defaulted
6 consumer debt that NCC-2 had purchased from his original creditor.
7 Until recently, section 20-489(a) of the Code defined “debt collection agency” as “a
8 person engaged in business the principal purpose of which is to regularly collect or attempt to
9 collect debts owed or due or asserted to be owed or due to another.” N.Y.C. Admin. Code § 20-
10 489(a).1 Section 20-490, in turn, makes it “unlawful for any person to act as a debt collection
11 agency without first having obtained a license” from the DCA. Id. § 20-490. The parties do not
12 dispute that NCC-2 engages in the business of purchasing defaulted consumer debt and
13 authorizes third party debt collection agencies to engage in debt collection activities to collect
14 that debt, including the filing of lawsuits in NCC-2’s name in the event that their initial efforts
15 are unsuccessful. The issue on appeal is whether, under these circumstances, NCC-2 is a debt
16 collection agency under the pre-amendment version of N.Y.C. Admin. Code § 20-489(a).
17 The Appellate Divisions of New York State Supreme Court and the New York Court of
18 Appeals have not addressed this question, and we do not believe the text of the statute provides
1
While this appeal was pending, the City Council of the City of New York amended
certain provisions of the N.Y.C. Admin. Code relating to debt collection, including section 20-
489(a). Unless otherwise indicated, all citations to the Code refer to the version in effect at the
time of the alleged wrongdoing.
3
1 an unmistakable answer. While the weight of the authority in New York appears to support
2 defendants’ position that NCC-2 is not a debt collection agency, Kuhne’s position is not without
3 support. Moreover, as noted, the City Council recently enacted legislation that amends N.Y.C.
4 Admin. Code § 20-489(a), which became effective July 16, 2009, to unambiguously include
5 entities such as NCC-2 within the definition of debt collection agency. See N.Y.C. Local Law
6 No. 15 (2009) (Council Int. No. 660-A).2 The legislative history of Local Law No. 15 states that
7 it is a clarification of the law, thereby implying that the pre-amendment version of § 20-489(a)
8 treats entities such as NCC-2 as debt collection agencies. Under these circumstances, we
9 respectfully believe that the New York Court of Appeals should have the opportunity to
10 determine whether the pre-amendment version of § 20-489(a) includes within its definition of
11 “debt collection agency” entities such as NCC-2. If the New York Court of Appeals accepts this
12 certification and answers this question in the affirmative, then we respectfully request that it also
13 address whether defendants violated N.Y. GEN . BUS. LAW § 349 by virtue of NCC-2’s status as
14 the named plaintiff in the debt collection suit against Kuhne.
15 BACKGROUND
16 The following facts are undisputed. NCC-2 is a Delaware corporation and is indirectly
17 owned by Encore Capital Group, Inc. (“Encore”), also a Delaware corporation. NCC-2 is in the
18 business of purchasing defaulted debt. It has no employees and is not licensed as a debt
19 collection agency by the DCA.
2
Local Law No. 15 is available at
http://www.nyc.gov/html/dca/downloads/pdf/law09015.pdf.
4
1 NCC-2 is indirectly owned by and has a servicing agreement with Midland Credit
2 Management, Inc. (“MCM”) pursuant to which MCM engages in collection activities on behalf
3 of NCC-2. MCM is also owned by Encore, but, unlike NCC-2, is duly licensed by the DCA as a
4 debt collection agency. MCM initially attempts to collect a debt by contacting the debtor by
5 telephone and letter, and, in the event that these efforts fail, it forwards the debt to a local, debt
6 collection law firm for suit in the name of the debt owner.
7 Kuhne is an individual residing in New York County, New York. Sometime in the late
8 1990s, he defaulted on a Citibank/Associates credit card. Years later, Kuhne received a letter
9 dated June 8, 2005 from MCM indicating that NCC-2 “recently purchased” his account and that
10 MCM, “a debt collection company, is the servicer of this obligation.”
11 NCC-2 never had contact with Kuhne; all contact with him was initially made by MCM.
12 MCM sent Kuhne several letters attempting to collect the debt, the first of which was its June 8,
13 2005 letter mentioned above. It offered Kuhne a 50% discount off of his current balance if he
14 sent payment to MCM by July 23, 2005. On August 4, 2005, MCM sent a second letter, this
15 time offering Kuhne an interest free payment schedule. It sent similar letters on September 21,
16 2005, November 1, 2005 and January 6, 2006. MCM was unsuccessful in collecting the debt.
17 Kuhne does not allege that defendants or MCM violated the FDCPA or N.Y. GEN . BUS. LAW §
18 349 by sending any of these letters.
19 MCM then retained C&S, a debt collection law firm in New York, to pursue collection
20 activities against Kuhne on behalf of NCC-2. C&S is and has been at all relevant times licensed
21 by the DCA as a debt collection agency. In June 2006, C&S filed suit on behalf of NCC-2 in the
5
1 Civil Court of the City of New York. NCC-2 was the only named plaintiff in this action. Shortly
2 thereafter, C&S served Kuhne with the necessary summons. C&S also sent him several letters
3 indicating, inter alia, that it was willing to settle the matter “without appearing in court.” On
4 February 20, 2007, NCC-2 and Kuhne stipulated to a discontinuance with prejudice.3
5 A few days after the discontinuance, on February 23, 2007, Kuhne commenced this
6 action. He filed an amended complaint on May 15, 2007, alleging that NCC-2, “acting together
7 with Encore and MCM, directed [C&S] to collect the alleged consumer debt by telephone and
8 mail, and by filing litigation in the New York City Civil Courts.” Am. Compl. ¶ 22. He further
9 alleges that “[b]ecause [NCC-2] is not licensed as a debt collector by the [DCA], it is not
10 permitted to bring suit” in the City of New York and that C&S “knew or should have known”
11 this fact. Id. ¶¶ 39-40. Kuhne claims that defendants thereby violated the FDCPA and N.Y. GEN
12 BUS. LAW § 349.4 He alleges that, as a result of these violations, he “hired an attorney to defend
3
The record does not reveal whether Kuhne and NCC-2 entered into a settlement
agreement.
4
Specifically, Kuhne alleges that defendants violated 15 U.S.C. § 1692e(5), (9) and (10)
“by falsely, deceptively, and misleadingly representing that NCC-2 was authorized to collect
debts by the DCA.” Brief for Plaintiff-Appellant at 23. Those provisions prohibit a debt
collector from using “any false, deceptive, or misleading representation or means in connection
with the collection of any debt,” 15 U.S.C. § 1692e, including a “threat to take any action that
cannot legally be taken or that is not intended to be taken,” id. § 1692e(5), “[t]he use or
distribution of any written communication which . . . creates a false impression as to its . . .
authorization . . . ,” id. § 1692e(9), and “[t]he use of any false representation or deceptive means
to collect or attempt to collect any debt or to obtain information concerning a consumer,” id. §
1692e(10). Kuhne also alleges that defendants violated 15 U.S.C. § 1692f, which prohibits
“[t]he collection of any amount . . . unless such amount is . . . permitted by law.” Id. §
1692(f)(1). Finally, he alleges that defendants violated N.Y. GEN . BUS. LAW § 349, which
prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in
the furnishing of any service in this state.” N.Y. GEN . BUS. LAW § 349.
6
1 NCC-2’s suit and incurred $1,000 in legal fees.” Brief for Plaintiff-Appellant at 7. He further
2 alleges that “[h]e also suffered from symptoms of emotional distress and had to take time off
3 from work to go to court to meet with his attorney.” Id.
4 In January 2008, the parties filed with the District Court competing motions for summary
5 judgment. On March 5, 2008, the District Court agreed with defendants and held that NCC-2 is
6 not a debt collection agency. Kuhne v. Cohen & Slamowitz, LLP, No. 07 Civ. 1364(HB), 2008
7 WL 608607 (S.D.N.Y. Mar. 5, 2008). It noted that “Kuhne’s claim that [d]efendants violated the
8 FDCPA and [N.Y. GEN . BUS. LAW § 349] rests entirely on his assertion that the New York City
9 debt licensing statute required NCC-2 to be licensed before it could sue to collect a debt.” Id. at
10 *2. The District Court examined the legislative purpose of New York City’s licensing
11 requirement, New York state case law interpreting § 20-489(a) and a letter from DCA’s General
12 Counsel opining that entities such as NCC-2 are not debt collection agencies under the Code. Id.
13 at *2-6. It concluded that “[i]n light of the legislative intent, the case law, the administrative
14 interpretation embodied in the [DCA] letter and Encore’s corporate structure, the mere
15 commencement of a lawsuit in the name of a holding company with no employees does not
16 mandate application of the New York City licensing regime.” Id. at *6. It emphasized that “[t]o
17 require NCC-2 to be licensed, when it had no direct contact with the consumer, would run afoul
18 of the purpose of the New York City licensing statute and the FDCPA, which are aimed at
19 preventing abusive collection practices.” Id. The District Court entered judgment in favor of
20 defendants shortly thereafter. Kuhne timely filed a notice of appeal.
21 On appeal, Kuhne challenges the District Court’s legal determination that NCC-2 is not a
7
1 debt collection agency as defined under the pre-amendment version of N.Y.C. Admin. Code §
2 20-489(a). On April 9, 2009, MFY Legal Services, Inc. (“MFY”)—a not-for-profit organization
3 that provides legal counseling and representation to New York residents who are contacted or
4 sued by debt collectors—filed a motion to appear as amicus curiae in support of Kuhne. Along
5 with its motion, MFY filed a letter dated March 30, 2009, pursuant to Rule 28(j) of the Federal
6 Rules of Appellate Procedure. The letter informed this Court of a local law passed by the New
7 York City Council and signed into law on March 18, 2009 by the Mayor, which amends, inter
8 alia, N.Y.C. Admin. Code § 20-489(a). It provides, in relevant part, that a debt collection agency
9 “shall also include a buyer of delinquent debt who seeks to collect such debt either directly or
10 through the services of another by, including but not limited to, initiating or using legal processes
11 or other means to collect or attempt to collect such debt.” N.Y.C. Local Law No. 15 (2009)
12 (Council Int. No. 660-A). There is no dispute that entities such as NCC-2 fall within the scope of
13 Local Law No. 15’s definition of a “debt collection agency.” The amendment became effective
14 120 days after its enactment, see id. § 6, i.e., on July 16, 2009.
15 As discussed more fully infra, the passage of Local Law No. 15 and its legislative history
16 are relevant to the proper interpretation of the pre-amendment version of N.Y.C. Admin. Code §
17 20-489(a). Accordingly, we ordered the parties to file letter briefs addressing the amendment’s
18 import on their respective positions. We also granted MFY’s motion to appear as amicus curiae
19 and to participate in oral argument. We now consider their arguments.
20
21
8
1 DISCUSSION
2 I. N.Y.C. Admin. Code § 20-489(a)
3 The threshold question on appeal is whether NCC-2 is a “debt collection agency” as
4 defined under the pre-amendment version of N.Y.C. Admin. Code § 20-489(a) and is thus
5 required to have a license under § 20-490 to engage in debt collection activities in New York
6 City. This is an issue of statutory interpretation. “Our cardinal function in interpreting a New
7 York statute is to ascertain and give effect to the intent of the legislature.” Tom Rice Buick-
8 Pontiac v. Gen. Motors Corp., 551 F.3d 149, 154 (2d Cir. 2008) (citing Abrams v. Ford Motor
9 Co., 74 N.Y.2d 495, 500, 548 N.E.2d 906, 908 (1989); N.Y. STAT . LAW § 92). “‘As the clearest
10 indicator of legislative intent is the statutory text, the starting point in any case of interpretation
11 must always be the language itself, giving effect to the plain meaning thereof.’” Id. at 154-55
12 (quoting Majewski v. Broadalbin-Perth Cent. Sch. Dist., 91 N.Y.2d 577, 583, 696 N.E.2d 978,
13 980 (1998)). We therefore begin, as we must, with the text of the statute in effect at the time of
14 the alleged conduct, which provides in relevant part as follows:
15 “Debt collection agency” shall mean a person engaged in business
16 the principal purpose of which is to regularly collect or attempt to
17 collect debts owed or due or asserted to be owed or due to another.
18 The term does not include: . . . (7) any person collecting or
19 attempting to collect any debt owed or due or asserted to be owed
20 or due another to the extent such activity . . . (ii) concerns a debt
21 which was originated by such person; (iii) concerns a debt which
22 was not in default at the time it was obtained by such person as a
23 secured party in a commercial credit transaction involving the
24 creditor . . . .
25
26 N.Y.C. Admin. Code § 20-489(a).
27 Defendants contend that under this provision, NCC-2 is not a debt collection agency
9
1 because it does not “collect or attempt to collect debts.” They emphasize that NCC-2 never once
2 had contact with Kuhne, and MCM and C&S, both licensed debt collection agencies, engaged in
3 all collection efforts on its behalf. Only after MCM’s and C&S’s collection efforts failed did
4 C&S file the debt collection action against Kuhne on NCC-2’s behalf. Defendants emphasize
5 that NCC-2 was the named plaintiff simply because it was the owner of the debt.
6 Defendants’ position seems to comport with the statute’s declaration of its legislative
7 purpose. Section 20-488 of N.Y.C. Admin. Code provides:
8 The council hereby finds the presence of consumer related
9 problems with respect to the practices of debt collection agencies
10 whose sole concern is the collection of debts owed to their clients.
11 While the majority of those engaged in this business are honest and
12 ethical in their dealings, there is a minority of unscrupulous
13 collection agencies in operation that practice abusive tactics such
14 as threatening delinquent debtors, or calling such people at
15 outrageous times of the night. These actions constitute tactics
16 which would shock the conscience of ordinary people. Due to the
17 sensitive nature of the information used in the course of such
18 agency’s [sic] everyday business, and the vulnerable position
19 consumers find themselves in when dealing with these agencies, it
20 is incumbent upon this council to protect the interests, reputations
21 and fiscal well-being of the citizens of this city against those
22 agencies who would abuse their privilege of operation. It is herein
23 declared that the city should license debt collection agencies.
24
25 N.Y.C. Admin. Code § 20-488. Thus, the purpose of the statute is to prevent debt collectors
26 from using unscrupulous collection tactics against the public. Because NCC-2 had no dealings
27 with Kuhne, other than as the named plaintiff in the debt collection action, and hires licensed
28 debt collection agencies to perform debt collection activities, it does not seem to serve the
29 statute’s purpose to require NCC-2 to be licensed as well.
30 Although there is no Appellate Division or New York Court of Appeals decision on
10
1 point, there is an opinion letter from DCA’s General Counsel dated March 7, 2007 and a decision
2 by the First Department Appellate Term from 2008 favoring this position. The General
3 Counsel’s letter states that “[a] debt buyer that merely purchases or acquires defaulted debt but
4 does not engage in collection activities itself does not require a license from the Department.”
5 Letter from Marla Tepper, General Counsel of the DCA, to Dennis Malen, Malen & Assocs.,
6 P.C. (March 7, 2007) (“Tepper Letter”), available at J.A. 663-64. Because the DCA is the
7 agency in charge of issuing the licenses, see N.Y.C. Admin. Code §§ 20-102, -491 to -93, a letter
8 from its General Counsel interpreting the meaning of a “debt collection agency” may be entitled
9 to respect at least to the extent that its interpretations have the power to persuade. Cf.
10 Christensen v. Harris County, 529 U.S. 576, 587 (2000) (discussing federal administrative law
11 precedent). The Tepper Letter provides in relevant part:
12 The Department of Consumer Affairs issues this letter in
13 response to an inquiry from the Consumer Credit Association of
14 Metropolitan New York, a local trade group, as to whether “debt
15 buyers” that do not themselves engage in collection activities must
16 be licensed by the Department. “Debt buyer” is a term commonly
17 used to describe a purchaser or assignee of defaulted debt.
18
19 In addressing this question, the Department first confirms
20 its position that a purchaser or assignee of defaulted debt whose
21 principal purpose is the collection of that debt, whether for itself or
22 others, is a “debt collection agency” under New York City
23 Administrative Code § 20-489(a). Debt buyers that engage in debt
24 collection activities must therefore be licensed by the Department
25 in order to collect debts in New York City [citing N.Y.C. Admin.
26 Code § 20-490].
27
28 A debt buyer that merely purchases or acquires defaulted
29 debt but does not engage in collection activities itself does not
30 require a license from the Department. . . . In enacting [§ 20-489],
31 the City Council sought to curb abusive practices of debt collection
11
1 agencies by requiring licensing of those entities dealing directly
2 with the consumer public in the collection of debts. Thus, under
3 the Administrative Code, a “debt collection agency” is an entity
4 engaged in actively collecting or attempting to collect debts.
5
6 J.A. 663-64 (emphasis added and citations omitted).
7 Thereafter, the Appellate Term of the Supreme Court for the First Department came to
8 the same conclusion. See MRC Receivables Corp. v. Morales, 21 Misc. 3d 133(A), 873
9 N.Y.S.2d 513 (Table), 2008 WL 4754065 (full text) (N.Y. App. Term 1st Dep’t 2008) (“MRC
10 II”). The trial court had held in that case that “[t]here was no showing by the defendant that the
11 plaintiff . . . engaged in collection activities sufficient to require plaintiff to obtain a license from
12 the New York City Department of Consumer Affairs.” MRC Receivables Corp. v. Morales, No.
13 64334/06 (N.Y. Civ. Ct. May 7, 2007), available at J.A. 668-69. In affirming the trial court, the
14 Appellate Term relied on the Tepper Letter. It wrote:
15 Defendant’s evidentiary submissions were insufficient to
16 demonstrate that plaintiff, as the purchaser of the underlying debt,
17 is a debt collection agency within the meaning of Administrative
18 Code § 20-489(a), and thus subject to the licensing requirements of
19 Administrative Code § 20-490. The record does not conclusively
20 establish that plaintiff’s “principal purpose . . . is to regularly
21 collect or attempt to collect debts owed or due or asserted to be
22 owed or due to another”. There was no showing that plaintiff
23 regularly and actively engages in collection activities.
24
25 MRC II, 21 Misc. 3d 133(A), 873 N.Y.S.2d 513, 2008 WL 4754065, at *1 (citation omitted).
26 Kuhne counters, however, that NCC-2 purchases debt for the sole purpose of attempting
27 to collect it, and the mere fact that it hires another entity to undertake the collection efforts does
28 not absolve it of its obligations under the N.Y.C. Admin. Code. He cites several lower court
29 decisions in support of this proposition. Most of the authority offered by Kuhne is, in our
12
1 opinion, inapposite.5 However, he does cite Rushmore Recoveries, XI, LLC v. Morningstar,
2 Index No.: 19884-06 (N.Y. Civ. Ct. July 17, 2007), available at J.A. 665-67, in which the
3 supposed debt collection agency purchased consumer debt and then immediately “forwarded [it]
4 to its attorneys for collection activity.” Id. at 2; J.A. 666. The court held that the principal
5 purpose of the company’s business, therefore, was debt collection. The plaintiff moved for
6 renewal and reargument in light of the Tepper Letter. The court affirmed its prior ruling, writing
5
Three of the five New York state cases cited by Kuhne address the question of whether
an entity that actively collects debt due to itself qualifies as a debt collection agency under § 20-
489(a). This issue has been litigated on several occasions because § 20-489(a) provides that a
“‘[d]ebt collection agency’ shall mean a person engaged in business the principal purpose of
which is to regularly collect or attempt to collect debts owed or due or asserted to be owed or due
to another.” N.Y.C. Admin. Code § 20-489(a) (emphasis added). See Dep’t of Consumer
Affairs v. Asset Acceptance, LLC, Violation No. PL1044927 (City of N.Y. Dep’t of Consumer
Affairs July 24, 2006), aff’d, Appeal Determination, Violation No. PL1044927 (Feb. 23, 2007),
available at J.A. 648-62; Centurion Capital Corp. v. Druce, 14 Misc. 3d 564, 567-68, 828
N.Y.S.2d 851, 853-54 (N.Y. Civ. Ct. 2006) (concluding that “the New York City statute, like the
federal statute, should be interpreted to define debt collection agencies as entities which collect
defaulted debt, whether or not the debt they collect is due to themselves or others”); PRA III,
LLC v. MacDowell, 15 Misc. 3d 1135(A), 841 N.Y.S.2d 822 (Table), 2007 WL 1429026 (full
text), at *1 (N.Y. Civ. Ct. 2007) (“Entities such as plaintiff which purchase defaulted debt and
collect the debt for themselves are debt collectors. . . . The fact that it has purchased the debt does
not change the requirement that it be licensed[;] only the originator of the debt is excluded from
the statute.” (citing Centurion Capital Corp., 14 Misc. 3d 564, 828 N.Y.S.2d 851)). Kuhne also
cites Great Seneca Financial Corp. v. Dowd, Index No.: 012627/05 (N.Y. Civ. Ct. Jan. 24,
2008), available at Plaintiff-Appellant Addendum to Appellant’s Brief, in which the court
concluded that Great Seneca, a purchaser of defaulted debt, was a debt collector, but only after
ordering it to produce evidence that it did not engage in debt collection activities and it failed to
do so. Kuhne’s citation to Palisades Acquisition XVI, LLC v. Morningstar, Index No. 55981/07
(N.Y. Civ. Ct. Apr. 15, 2008), available at Plaintiff-Appellant Letter dated July 19, 2008, is also
unhelpful. Although this decision states that an entity that makes money by purchasing defaulted
consumer debt and then trying to get the debt collected is a debt collection agency, it is unclear
whether the entity in that case actively attempted to collect the debt itself, or contracted with a
third party to do so; in any event, the court appears to have simply relied on Centurion, which is
inapposite.
13
1 “Plaintiff has presented no evidence that this court’s prior decision was erroneous due to an
2 opinion letter of the DCA. Such letter is not sufficient to override, erode, or clarify a decision of
3 a court of law.” Rushmore Recoveries XI, LLC v. Morningstar, Index No.: 19884/06, at 2 (N.Y.
4 Civ. Ct. Nov. 9, 2007). Rushmore Recoveries is not easily distinguishable from this case. Thus,
5 while the weight of the authority in New York, albeit from lower courts, appears to be in
6 defendants’ favor, Kuhne’s position is not without support.
7 During the pendency of this appeal, moreover, the City Council passed legislation
8 amending N.Y.C. Admin. Code § 20-489(a) and thereby complicated the determination of
9 whether entities such as NCC-2 fall within the pre-amendment definition of debt collection
10 agency. See N.Y.C. Local Law No. 15 (2009) (Council Int. No. 660-A). The amendment was
11 passed by the City Council on March 11, 2009 and signed into law by the Mayor on March 18,
12 2009. Id. It became effective 120 days “after it [was] enacted into law,” id. § 6, i.e., July 16,
13 2009. It provides in relevant part:
14 “Debt collection agency” shall mean a person engaged in business
15 the principal purpose of which is to regularly collect or attempt to
16 collect debts owed or due or asserted to be owed or due to another
17 and shall also include a buyer of delinquent debt who seeks to
18 collect such debt either directly or through the services of another
19 by, including but not limited to, initiating or using legal processes
20 or other means to collect or attempt to collect such debt.
21
22 Id. § 1.
23 The text and legislative history of this amendment make clear that its definition of debt
24 collection agency includes those entities, like NCC-2, that have made the argument that they are
25 not subject to the licensing requirements because they themselves do not engage directly in the
14
1 collection activities. The Committee Report states in pertinent part:
2 Although both companies contracted by creditors to collect debts
3 on their behalf and third-party buyers of defaulted debt are
4 considered under the Code to be debt collection agencies and as
5 such must be licensed, there has been some confusion regarding
6 the licensing requirements for debt-buyers who hire law firms to
7 initiate litigation against debtors. In these situations, some debt-
8 buyers have claimed they are not required to be licensed since they
9 are not “directly” engaging in collection activities but rather hiring
10 others to collect the debt on their behalf. . . . [This bill] would
11 amend the definition of ‘debt collection agency’ to include debt-
12 buyers who use third party agencies or attorneys to collect such
13 debt from a debtor. By clarifying the definition of debt collection
14 agency, the bill seeks to address debt buyer arguments, noted
15 above, that once they contract collection of the debt to another
16 party they are engaged in “passive” collection and as such are not
17 required to be licensed as a debt collection agency by DCA.
18
19 COMM . ON CONSUMER AFFAIRS, COMM . REPORT OF THE GOVERNMENTAL AFFAIRS DIV ., A
20 LOCAL LAW TO AMEND THE ADMINISTRATIVE CODE OF THE CITY OF NEW YORK, IN RELATION TO
21 BUYERS OF CONSUMER DEBT , Local Law No. 15, at 7-8 (2009) (emphasis added).
22 Kuhne and defendants each argue that this change in law supports their respective
23 positions. Kuhne argues that “[t]he Committee Report evidences the legislature’s intent to
24 clarify, not alter, existing law,” Letter Brief for Plaintiff-Appellant at 4, thereby implying that the
25 intent of the pre-amendment version was likewise to treat entities such as NCC-2 as debt
26 collection agencies. Defendants argue that “[h]ad Appellant’s interpretation been correct, there
27 would have been no need for the New York City Council to pass this legislation.” Letter Brief
28 for Defendants-Appellees at 2.
29 Under New York law, courts may look to a subsequent amendment of a law in order to
30 discern the meaning of the pre-amendment version. The general rule has long been codified in
15
1 N.Y. STAT . LAW § 193(a), which provides, “The Legislature, by enacting an amendment of a
2 statute changing the language thereof, is deemed to have intended a material change in the law.”
3 Id.; see also id., cmt. (“A material change in the phraseology of an act is generally regarded as a
4 legislative construction that the law so amended did not originally embrace the amended
5 provisions, especially if it follows soon after controversies have arisen concerning the
6 interpretation of the original statute.”). “It might occasionally happen, of course, that the
7 Legislature in attempting to amend a statute would, by the use of inapt terms, really effectuate no
8 change; but a construction which imputes such an inoffensive folly to the lawmaking body is to
9 be avoided.” Id. “Although generally, a statutory amendment is presumed to have been intended
10 to change the law, the legislative history may indicate that the amendment was intended instead
11 as a clarification.” 1A Norman J. Singer, STATUTES AND STATUTORY CONSTRUCTION § 22:30, at
12 366 (6th ed. 2002).
13 The issue of whether an amendment’s purpose is to clarify or to adopt a substantive
14 change often arises when determining whether the amended law should be applied retroactively.
15 In this context, New York courts “have found it relevant when the legislative history reveals that
16 the purpose of new legislation is to clarify what the law was always meant to say and do.”
17 Majewski v. Broadalbin-Perth Cent. Sch. Dist., 91 N.Y.2d 577, 585, 696 N.E.2d 978, 981
18 (1998). Kuhne argues that this is precisely what the Committee Report does. He contends that
19 by characterizing the amendment as a clarification, the Committee Report necessarily implies
20 that the unamended version of § 20-489(a) applies to entities such as NCC-2. But, the New York
21 Court of Appeals has warned that “labeling the legislation as ‘remedial’ in this regard is not
16
1 dispositive in light of other indicators of legislative intent.” Id. at 585, 696 N.E.2d at 981; see
2 also id. at 586, 696 N.E.2d at 981-82 (“Although these averments ‘may be accorded some weight
3 in the absence of more definitive manifestations of legislative purpose’, such indicators of
4 legislative intent must be cautiously used.” (citation omitted)); Town of Cortlandt v. N.Y. State
5 Bd. of Real Prop. Servs., 830 N.Y.S.2d 189, 192, 36 A.D.3d 823, 826 (2d Dep’t 2007). We
6 believe it most prudent to pass no further on these issues of statutory interpretation, as we
7 respectfully conclude that certification is the most appropriate path to decide this case.
8 II. Certification
9 Although the parties did not request certification, we are empowered to seek certification
10 nostra sponte.6 City of N.Y. v. Smokes-Spirits.com, Inc., 541 F.3d 425, 457 (2d Cir. 2008) (citing
11 2d Cir. R. § 0.27)). At the outset, we note that there is no Appellate Division or New York Court
12 of Appeals decision on point. See, e.g., City of N.Y. v. Beretta U.S.A. Corp., 524 F.3d 384, 407
13 (2d Cir. 2008) (Katzmann, J., dissenting) (noting that the use of certification for an unsettled area
14 of state law is “[i]n keeping with our preference that states define the meaning of their own laws
15 in the first instance”). Given that the existing case law on this issue has come exclusively from
16 two lower state courts, “we conclude that we have insufficient guidance from the courts of New
17 York confidently to decide” this issue. N.Y. Univ. v. First Fin. Ins. Co., 322 F.3d 750, 757 (2d
6
We note that at oral argument when this panel broached the prospect of certification to
the New York Court of Appeals, the parties provided no objection, citing only the inconvenience
of the added cost in further litigating this appeal. Moreover, defendants appear to suggest in their
brief that resolution by the New York Court of Appeals would be appropriate. See Brief for
Defendants-Appellees at 24 (noting the unresolved state law question and commenting that this
case may be “before the wrong court”).
17
1 Cir. 2003).
2 This problem is compounded because we believe that the legislative history surrounding
3 Local Law No. 15 injects a certain ambiguity in the pre-amendment version of § 20-489(a) that
4 may well be resolved with reference to the public policy goals underlying the City of New York’s
5 debt collection laws. See Sealed v. Sealed, 332 F.3d 51, 59 (2d Cir. 2003) (“Where a question of
6 statutory interpretation implicates the weighing of policy concerns, principles of comity and
7 federalism strongly support certification.” (citing Cweklinsky v. Mobil Chem. Co., 297 F.3d 154,
8 160 (2d Cir. 2002))). There can be no doubt that the City of New York has a compelling interest
9 in protecting consumers from unscrupulous debt collectors, and thus the statutory scheme at issue
10 here implicates significant issues of local public policy. See Brief for Plaintiff-Appellant at 22
11 (citing “[t]he recent explosion of massive debt-buying operations [that] ha[ve] led to heightened
12 interest on the part of the DCA and the State Assembly, leading to public hearings”); cf. Sealed,
13 332 F.3d at 59 (citing Israel v. State Farm Mut. Auto. Ins. Co., 239 F.3d 127, 135 (2d Cir.
14 2000)). Obviously, this issue has the attention of the City Council in light of its recent legislation
15 amending N.Y.C. Admin. Code § 20-489(a).
16 It is also worth noting that, under New York law, unlike the law of this Circuit, “it is
17 appropriate to examine the legislative history [of a statute] even though the language of [the
18 statute] is clear.” Riley v. County of Broome, 95 N.Y.2d 455, 463, 742 N.E.2d 98, 102 (2000);
19 contra Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 423 (2d Cir. 2005) (“If the meaning
20 is plain, we inquire no further. Only if we discern ambiguity do we resort first to canons of
21 statutory construction, and, if the meaning remains ambiguous, to legislative history.” (citations
18
1 omitted)). Because we believe that “[a] state court is bound to have a better idea of the elasticity
2 of the state’s statutes than a federal court,” Majors v. Abell, 317 F.3d 719, 724 (7th Cir. 2003),
3 we leave this task to the New York Court of Appeals, cf. Sealed, 332 F.3d at 59.
4 Furthermore, as explained supra, interpretation of the pre-amendment version of § 20-
5 489(a) depends in part on whether the recent amendment is a mere clarification of the law or a
6 substantive change. The answer to this question also affects the determination of whether the
7 amendment should apply retroactively.7 As noted, in determining whether a statute should be
8 given retroactive effect, the New York Court of Appeals has “found it relevant when the
9 legislative history reveals that the purpose of new legislation is to clarify what the law was
10 always meant to say and do.” Id. at 585, 696 N.E.2d at 981; accord In re Gleason (Michael Vee,
11 Ltd.), 96 N.Y.2d 117, 122, 749 N.E.2d 724, 726 (2001). The issue of the recent amendment’s
12 retroactivity, though not raised by any of the parties, poses yet another unsettled question of law,
13 which is likely to arise again in the future. This consideration further militates in favor of
14 certification of the related question that is now before us. Cf. Golden v. Winjohn Taxi Corp., 311
15 F.3d 513, 524 (2d Cir. 2002).
16 Under these circumstances, certification to the New York Court of Appeals is the most
17 prudent path.
18
7
The fact that the statute did not become effective until 120 days after its enactment, i.e.,
on July 16, 2009, is not dispositive of whether it applies retroactively. See Majewski, 91 N.Y.2d
at 583, 696 N.E.2d at 980 (“[T]he date that legislation is to take effect is a separate question from
whether the statute should apply to claims and rights then in existence.”).
19
1 CONCLUSION
2 For the foregoing reasons, we respectfully certify to the New York Court of Appeals the
3 following two questions:
4 (1) Whether NCC-2 is a “debt collection agency” under the pre-amendment version of
5 New York City Administrative Code § 20-489(a).
6 (2) If the answer to question (1) is yes, whether NCC-2 violated New York
7 General Business Law § 349 under the circumstances presented in this case.
8 In formulating these two questions, as we have here, we do not mean to limit the Court of
9 Appeals’s response. The certified questions may be deemed expanded to cover any further
10 pertinent question of New York law that the Court of Appeals finds appropriate to answer in
11 connection with these issues, including whether the amended version of § 20-489(a) applies
12 retroactively. This panel retains jurisdiction so that we may dispose of the appeal following the
13 New York Court of Appeals’s decision.8
14 It is hereby ORDERED that the Clerk of this Court transmit to the Clerk of the New York
15 Court of Appeals a Certificate, as set forth below, together with a copy of this opinion and a
16 complete record of the case, including a complete set of briefs and appendices filed in this Court
17 by the parties and amicus, all correspondence submitted pursuant to Rule 28(j) of the Federal
18 Rules of Appellate Procedure in connection with this appeal and the parties’ letter briefs entered
8
The question whether NCC-2 is a debt collection agency under N.Y.C. Admin. Code §
20-489(a) directly impacts two outstanding issues presented in this appeal. Thus, we reserve
decision on: (1) whether defendants violated the FDCPA; and (2) whether the licensing scheme
imposed by N.Y.C. Admin. Code §§ 20-488 to 90 violates the Commerce Clause of the United
States Constitution.
20
1 on the 17th and 24th of April 2009. The parties shall bear equally any costs or fees imposed by
2 the New York Court of Appeals.
3 CERTIFICATE
4 The foregoing is hereby certified to the New York Court of Appeals, pursuant to 2d Cir.
5 R. § 0.27 and N.Y. Comp. Codes. R. & Regs. tit. 22, 500.27, as ordered by the United States
6 Court of Appeals for the Second Circuit.
21