DocketNumber: Case No.: 8:18-cv-731-EAK-SPF
Citation Numbers: 343 F. Supp. 3d 1209
Judges: Kovachevich
Filed Date: 10/26/2018
Status: Precedential
Modified Date: 7/25/2022
THIS CAUSE is currently before the Court on Defendant Deitsch and Wright, P.A.'s Motion for Judgment on the Pleadings ("Motion ") (Doc. 21) and Plaintiff Desseri McCray's response in opposition to the same ("Response ") (Doc. 23). The Motion is GRANTED IN PART AND DENIED IN PART .
I. Background
On January 8, 2015, Plaintiff incurred a debt for personal medical services provided to Plaintiff by Excel Medical Imaging, P.L. (Doc. 1, at ¶ 20); (Doc. 1-1). Defendant is a third-party debt collector with which Excel Medical Imaging, P.L. placed Plaintiff's account for collection. (Doc. 1 at ¶¶ 21-22); (Doc. 1-1). In connection with collecting on Plaintiff's debt, on October 26, 2017, Defendant sent Plaintiff a collection notice ("First Collection Notice "). Id. at ¶ 23; (Doc. 1-1). This collection notice was Defendant's first communication to Plaintiff with respect to the debt. (Doc. 1, at ¶ 25). The notice explained that Plaintiff's debt with Excel Medical Imaging, P.L. in the amount of $1,743.75 had been referred to Defendant for collections. (Doc. 1-1). The notice further explained that Defendant had been "authorized to use any means at [its] disposal, within the limits of the law, necessary to collect the full balance." Id. The notice requested that Plaintiff contact Defendant via telephone to make payment, which Defendant explained could be made by credit card, check, or *1212money order. Id. The notice advised that "if [Defendant] did not receive payment promptly [it would] be forced to take additional action to [collect the debt]." Id. The notice further advised:
This is an attempt to collect a debt and any information obtained will be used for that purpose. Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will; [sic] assume this debt is valid. If you do notify this office in writing within 30 days from receiving this notice, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request, in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.
Id. Because Plaintiff is disabled and on a fixed income, she was unable to remit payment of the debt. (Doc. 1, at ¶ 31).
Subsequently, on December 20, 2017, Defendant sent Plaintiff a second collection notice ("Second Collection Notice ").
Plaintiff commenced this putative class action by filing a two-count, civil complaint on March 27, 2018 pursuant to the Fair Debt Collection Practices Act ("FDCPA ") (the "Act "),
After an agreed upon extension of time, Defendant filed its answer and affirmative defenses to Plaintiff's complaint on May 23, 2018, denying the bulk of Plaintiff's allegations and raising one affirmative defense to liability. See generally (Doc. 13). Defendant then filed its Motion on June 27, 2018. See generally (Doc. 21). Through its Motion, Defendant contends that it is entitled to judgment as a matter of law because neither of its Collection Notices violated Section 1692g(b) or 1692e(10). See generally (Doc. 21). Specifically, Defendant argues that nothing in the First Collection Notice overshadowed the required statutory disclosures regarding Plaintiff's right to dispute the debt within thirty days in violation of Section 1692g(b).
Plaintiff filed her Response on July 11, 2018. See generally (Doc. 23). In opposition, Plaintiff argues that that the language in Defendant's First Collection Notice "demanding immediate payment and threatening legal action overshadowed the [required statutory disclosures]."
Defendant's Motion is fully briefed and ripe for decision. Upon careful consideration of the parties' briefings, and as more fully set forth below, Defendant's Motion is due to be granted in part and denied in part.
II. Legal Standard
"After the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). Judgment on the pleadings is appropriate when there are no material facts in dispute, and judgment may be rendered by considering the substance of the pleadings and any judicially noticed facts." Hawthorne v. Mac Adjustment, Inc.,
III. Discussion
"Congress enacted the FDCPA to (a) stop debt collectors from using abusive debt collection practices, (b) insure that debt collectors who refrain from such practices are not competitively disadvantaged, and (c) promote consistent state action to protect consumers from such practices." Newman v. Ormond,
Among other things, "[t]he [FDCPA] prohibits debt collector[s] from making false or misleading representations and from engaging in various abusive and unfair practices."
*1214Heintz v. Jenkins,
[w]ithin five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing:
(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.
15 U.S.C.A. § 1692g(a)(1)-(5). It is a violation of Section 1692g for a debt collector to undertake any collection activities or communication during the 30-day period that "overshadow [or are] inconsistent with the disclosure of the consumer's right to dispute the debt or request the name and address of the original creditor." 15 U.S.C. § 1692g(b). Furthermore, it is a violation of Section 1692e for a debt collector to "use any false representation or deceptive means to collect or attempt to collect any debt[.]" 15 U.S.C. § 1692e(10). Plaintiff alleges that Defendant's Collection Notices violated both provisions.
In the Eleventh Circuit, whether a collection notice violates 15 U.S.C. § 1692g(b) or § 1692e(10) is determined objectively from the perspective of the "least sophisticated consumer." Jeter v. Credit Bureau, Inc.,
To establish a claim under the FDCPA, the plaintiff must show "(1) the *1215plaintiff has been the object of collection activity arising from consumer debt, (2) the defendant is a debt collector as defined by the FDCPA, and (3) the defendant has engaged in an act or omission prohibited by the FDCPA." Gesten v. Phelan Hallinan, PLC,
A. Plaintiff's 1692g(b) Claim
Plaintiff alleges that Defendant violated Section 1692g(b) by "overshadowing" Plaintiff's right to dispute the debt via its threat of additional action and demand for immediate payment in its First Collection Notice. Notably, the Eleventh Circuit has not yet addressed FDCPA violations under Section 1692g(b), and therefore, has not yet defined what communications would "overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt." 15 U.S.C.A. § 1692g(b) ). However, this case is on all fours with Yunker v. AllianceOne Receivables Mgmt., Inc., No. 0:10-cv-61796-UU,
Your account has been reported past due, and has now been placed with AllianceOne for immediate collection efforts. It is important to contact us as soon as possible. If remitting payment, please include the payment stub below and be sure your account number appears on your check or money order. All contacts and payments are to be made through this office to ensure proper posting and credit reporting.
Where the debt is $50.00 or more, it is our practice to place information regarding the debt with the appropriate credit-reporting agencies.
For your added convenience and immediate credit, you may pay your account at any Western Union location. Please call for details.
You may be eligible for a time payment program. Please contact us for details.
For your convenience you can now make your debit card or credit card payment towards your AllianceOne account online at: http://www.pavaoi.com or by calling our 24 hour automated phone system at the number above.
Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice that you dispute this debt or any portion thereof, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.
This communication is from a debt collector. This is an attempt to collect a *1216debt, and any information obtained will be used for that purpose.
Id. at *1-2.
The plaintiff sued, alleging, inter alia , that the collection notice's "accentuation of immediacy in its demands overshadowed the [notice's] required disclosure under § 1692g that [the plaintiff] had a 30-day period to contest the debt's validity." Yunker v. Allianceone Receivables Mgmt., Inc.,
Upon review, United States District Judge Ursula Ungaro explained that the issue of whether the language and format employed by the defendant was inconsistent with or overshadowed the required disclosures was "a close call." Id.; Yunker,
In Defendant's favor, the letter that Plaintiff received was printed on a single page and included all of the required disclosures in the same font as Defendant used to make its most emphatic statements. However, the letter also stated inconsistently with the requirement that the debt collector provide a thirty day period to contest the debt that Plaintiff was subject to "immediate collection efforts" and that she should contact Defendant "as soon as possible." The letter also stated that "Where the debt is $50.00 or more, it is our practice to place information regarding the debt with the appropriate credit-reporting agencies," suggesting that Defendant would immediately report the debt without regard to the thirty day dispute period. On balance, these inconsistent statements are sufficient to establish a violation of 15 U.S. C. § 1692g as a matter of law .
Yunker,
Judge Ungaro is not the only district judge to decide the issue this way. Indeed, several other district courts around the country have ruled likewise. See, e.g., Vaughn v. CSC Credit Services, Inc., No. 93-cv-4151,
*1217Meselsohn v. Lerman,
The Court is persuaded by Judge Ungaro's decision in Yunker and by the other district court decisions cited above. Here, Defendant's First Collection Notice indicated that Plaintiff could (if not should) "resolve [the] matter immediately " by contacting Defendant to make payment. (Doc. 1-1) (emphasis added). Additionally, the notice advised of (if not threatened) "additional action" if Defendant did not "receive payment promptly ."
Conversely, however, having no cause to look outside the four corners of the pleadings to decide that Defendant's First Collection Notice violated Section 1692g(b), it appears that it is, in fact, Plaintiff who is entitled to judgment as a matter of law on her Section 1692g(b) claim. But Plaintiff has not so moved. Accordingly, the Court will direct Defendant to show cause, as detailed infra, why judgment should not be entered in Plaintiff's favor on her Section 1692g(b) claim.
B. Plaintiff's 1692e(10) Claims
Plaintiff alleges that Defendant violated Section 1692e(10) in two distinct respects. The Court will address each sub-claim independently.
1. Plaintiff's Verification Period Violation claim
Plaintiff alleges that Defendant's Second Collection Notice is misleading or may confuse the least sophisticated consumer as to his or her rights by stating that Plaintiff had an additional thirty-day period in which she could dispute the debt. (Doc. 1, at ¶¶ 80-85). The Court disagrees. As explained, supra, under 15 U.S.C. § 1692e(10), "[a] debt collector may not use any false representation or deceptive means to collect any debt[.]" Plaintiff argues Defendant's Collection Notices violate this section because the Second Collection Notice misrepresents the thirty-day time period to dispute the debt (i.e. , that it gave Plaintiff the false impression that she had more than thirty days to dispute the debt). (Doc. 23, at 9-15). Several district courts, both in this circuit and others, have rejected this same contention and granted judgment as a matter of law in favor of the defendant debt collector. See, e.g., Gesten v. Phelan Hallinan, PLC,
*1218Bridges v. Performant Recovery, Inc., No. 5:15-cv-38-CAR,
The Court has considered each of Plaintiff's arguments in opposition and is unpersuaded. Defendant's Second Collection Notice is not false or deceptive. Greig,
2. Plaintiffs False Sense of Urgency claim
Plaintiff further alleges that Defendant threatened legal action that it did not intend to take when it sent Plaintiff the First Collection Notice, "thereby conveying to Plaintiff a false sense of urgency" in violation of Section 1692e(10). (Doc. 1, at ¶¶ 86-90). This, Plaintiff alleges, is evidenced by the fact that Defendant did not take subsequent legal action when Plaintiff failed to remit payment after expiration of the thirty-day period, but merely sent Plaintiff the Second Collection Notice.
" Section 1692e was enacted against a backdrop of cases in which courts held that communications designed to create a false sense of urgency were deceptive." Peter v. GC Services L.P.,
IV. Conclusion
Accordingly, it is
ORDERED that Defendant's Motion for Judgment on the Pleadings (Doc. 21) is GRANTED IN PART AND DENIED IN PART as follows:
1. Defendant's Motion is DENIED as to Count I of Plaintiffs complaint. Additionally, Defendant is ordered to SHOW CAUSE , in writing on or before November 9, 2018 , why judgment should not be entered in Plaintiff's favor on her Section 1692g(b) claim.
2. Defendant's Motion is GRANTED as to Count II of Plaintiffs complaint to the extent that Plaintiff's Verification Period Violation claim is DISMISSED WITH PREJUDICE .
3. Defendant's Motion is DENIED as to Count II of Plaintiff's complaint to the extent that Plaintiff's False Sense of Urgency claim should be put to a jury.
DONE and ORDERED in Chambers, in Tampa, Florida this 26th day of October, 2018.
The facts in this section are taken from Plaintiff's complaint and the accompanying exhibits and are accepted as true for purposes of deciding the Motion.
The Court will refer to the both the First Collection Notice and the Second Collection Notice, collectively, as the "Collection Notices."
The defendant appealed the district court's grant of summary judgment in favor of the plaintiff on her Section 1692g(b) claim. However, the Eleventh Circuit dismissed the defendant's appeal as moot for reasons not relevant to the Court's decision, here. The Court cites to the Eleventh Circuit's opinion merely for the relevant background information it provides.