|Gervais v. Riddle & Associates
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|Author:||admin [ Tue Jul 25, 2006 5:30 am ]|
|Post subject:||Gervais v. Riddle & Associates|
Gervais v. Riddle & Associates, P.C.
363 F.Supp.2d 345
Mar 31, 2005
This court's review of Morgan, however, reveals that a collection letter's demand for immediate payment does not, standing alone, violate the FDCPA. In fact, the court in Morgan concluded that Defendant's statement to Plaintiffs that, "To stop further action, pay your account in full to this office," was both misleading and false because "[g]iven such contradictory and ambiguous language, an unsophisticated debtor could be easily confused about the response time and the consequences of failure to pay the debt, and therefore forego the protections afforded by the statute."
The Second Circuit reasoned similarly in Savino v. Computer Credit, Inc., 164 F.3d 81, 86 (2d Cir.1998), where the defendant, a debt collection agency, sent Plaintiff a letter stating that "This notice will serve to inform you that your overdue balance with North Shore Hospital has been referred to Computer Credit, Inc. The hospital insists on immediate payment or a valid reason for your failure to make payment." Id. at 84. Below the body of the letter, Defendant advised Plaintiff, "PLEASE SEE IMPORTANT NOTICE ON BACK." Id. The back of the notice set forth the validation information required by section 1692g. Id. In deciding that defendant's payment notice violated the FDCPA, the court explained that the least sophisticated consumer would be uncertain as to her rights when reading the language on the front of the letter in conjunction with the validation notice on the back of the letter. The Second Circuit also provided an example of language that it believed would have rendered the collection letter in compliance with section 1692g:
Although we have requested that you make immediate payment or provide a valid reason for nonpayment, you still have the right to make a written request, within thirty days of your receipt of this notice, for more information about the debt. Your rights are described on the reverse side of this notice.
Our demand for immediate payment does not eliminate your right to dispute this debt within thirty days of receipt of *354 this notice. If you choose to do so, we are required by law to cease our collection efforts until we have mailed that information to you. Your rights are described on the reverse side of this notice.
Id. In its view, "the inclusion of this or similar language would effectively inform a consumer as to his or her rights under the FDCPA without imposing an undue burden on a debt collector's legitimate efforts to obtain the prompt payment of debts." Id. Defendant's demand for payment, therefore, is not, standing alone, sufficient to establish a violation of section 1692g. Thus, the critical question for this Court's consideration is whether a genuine issue of fact exists that the collection letter in this case contained language that overshadowed or contradicted the language informing the debtor of his rights under section 1692g, thereby rendering the "least sophisticated consumer" uncertain as to her rights under the FDCPA.
In Russell v. Equifax, 74 F.3d 30 (2d Cir.1996), the United States Court of Appeals was presented with a case factually similar to this case. There, defendant's collection letter to Plaintiff was captioned "IMMEDIATE COLLECTION NOTICE" and stated in relevant part:
Your account, as indicated below, has been placed with out company for immediate collection. It is out practice to post unpaid collections in the amount of $25 or more to individual credit records. If you do not dispute this claim (see reverse side) and wish to pay it within the next 10 days, we will not post this collection to your file.....
See important information on reverse side.
The back of the notice provided the information required by Â§ 1692g(a) of the Act:
Unless you notify us within 30 days after receiving this notice that you dispute the validity of the debt, or any portion thereof, we shall assume this debt is valid. If you notify us in writing within 30 days after receiving this notice: (1) that this debt or any portion thereof, is disputed, or (2) that you request the name and address of the original creditor, we will obtain verification of this debt, a copy of any judgment (if a judgment is involved), or the name and address of the original creditor if different from the current creditor, and mail a copy and/or provide the name of the creditor to you.
Equifax sent a second notice dated March 17, 1992 to Russell. It was captioned "CONTACT THIS OFFICE AT ONCE" and stated:
Further delay on your part could be costly. At this point only your action will determine future handling. We urge your cooperation for your own sake. Payment in full within 5 days is not demanded. What will your answer be?
The Second Circuit concluded that the collection letters presented Plaintiff with different and contradictory statements, which the FDCPA was designed to prevent. The court explained that the least sophisticated consumer could reasonably have believed, notwithstanding the appropriate validation notice, that if she did not pay Defendant within ten days, her credit score would be adversely and permanently affected. Consequently, the collection letters' validation notice was "contradicted and overshadowed by the warning on the front that the collection would be posted to Russell's file unless she chose not to dispute it and paid it within the next 10 days." Id. at 34.
In this case, as in Russell. Defendant provided the Plaintiff with the validation notice required under section 1692g. In *355 addition, however, Defendant's collection letter presented Plaintiff with the opportunity to satisfy its outstanding debt at a fifty-percent discount of $4,057.96 if he submitted a prompt payment-within thirty days of the date of the letter. Plaintiff, however, under section 1692g, was entitled to thirty days from the receipt of the collection letter to dispute the validity of the debt or any part of it. Here, as in Russell, the least sophisticated consumer could reasonably have believed, notwithstanding the appropriate validation notice, that if he did not pay Defendant within thirty days from the receipt of the letter, he will have foregone his opportunity to satisfy the purported debt at a fifty-percent discount. Because the deadline for submitting the discounted payment-within thirty days of the date of Defendant's letter--would have expired before the thirty days provided for disputing the validity of the debt, Defendant's collection letter "contradicted and overshadowed" the validation notice by presenting Plaintiff with mutually exclusive opportunities--either save $4,057.96 by submitting payment in the same amount within thirty days from the receipt of this letter or exercise your statutory right to contest the validity of the debt and pass upon this fleeting opportunity. Accordingly, this Court finds that Defendant's notice violated section 1692g as a matter of law and grants summary judgment in Plaintiff's favor on this issue.
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