Foti v. NCO Financial

[David A. Szwak]

Foti v. NCO Financial Systems, Inc.
424 F.Supp.2d 643
S.D.N.Y.,2006.
Mar 25, 2006
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There also is ample authority that explicit demands for immediate payment can violate § 1692g. See, e.g., Russell, 74 F.3d at 33 (finding that second notice overshadowed where the notice 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 NOW DEMANDED. WHAT WILL YOUR ANSWER BE?") (bold emphasis omitted); Barrientos, 76 F.Supp.2d at 512, 514-15 (finding overshadowing where second notice provided: "Although notices and demands have been made upon you for payment of this liability due our client as shown [in the caption] above, we have no record of receipt of payment from you. We have been authorized by our client to take any lawful action we deem necessary to collect this debt. Please make payment today so we can put this matter to rest."); Swift v. Maximus, Inc., No. 04 Civ. 216, 2004 WL 1576618, at *4 (E.D.N.Y. July 15, 2004) ("The letter's demand for payment takes on a quality of 'immediateness.' Coupled with the demand for immediate payment, the letter threatens adverse consequences."). That said, the courts have not always found language demanding immediate payment to cross the line. See, e.g., Durkin, 406 F.3d at 417 ("[T]he simple act of demanding payment in a collection letter during the validation period does not automatically create an unacceptable level of confusion so as to entitle the plaintiffs to summary judgment."); Gervais v. Riddle & Assocs., 363 F.Supp.2d 345, 353 (D.Conn.2005) ("[A] collection letter's demand for immediate payment does not, standing alone, violate the FDCPA.") (citing Morgan v. Credit Adjustment Bd., Inc., 999 F.Supp. 803 (E.D.Va.1998)); Vasquez v. Gertler & Gertler, Ltd., 987 F.Supp. 652,
657 (N.D.Ill.1997) (holding that request for payment without "further delay" did not "demand[ ] payment within a shorter period than 30 days").