Maguire v. Citicorp Retail Services, Inc.

• Decision Date: 01 July 1998
• Docket Number: Docket No. 97-7755
• Citation: 147 F.3d 232
• Parties: Karen MAGUIRE, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. CITICORP RETAIL SERVICES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 232

147 F.3d 232

Karen MAGUIRE, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. CITICORP RETAIL SERVICES, INC., Defendant-Appellee.

Docket No. 97-7755.

United States Court of Appeals Second Circuit.

Argued Feb. 6, 1998.

Decided July 1, 1998.

Daniel A. Edelman (Rick D. Young, Edelman & Combs, Chicago, IL, Joanne S. Faulkner, New Haven, CT on the brief), for Plaintiff-Appellant.

Christopher R. Lipsett (Kara M. Stein, Wilmer, Cutler & Pickering, Washington, DC, Jonathan B. Orleans, Zeldes, Needle & Cooper, Bridgeport, CT on the brief), for Defendant-Appellee.

Before: WALKER, LEVAL, Circuit Judges, WEINSTEIN, District Judge ^*.

JOHN M. WALKER, Jr. Circuit Judge:

Plaintiff-appellant Karen Maguire appeals from a judgment of the United States District Court for the District of Connecticut (Alan H. Nevas, District Judge ) granting defendant Citicorp Retail Service's ("Citicorp") motion for summary judgment and dismissing Maguire's complaint alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), and the Connecticut Unfair Trade Practices Act, Conn. Gen.Stat. § 42-110a et seq. ("CUTPA"), and denying plaintiff's motion for partial summary judgment on the issue of liability.

BACKGROUND

The following facts are undisputed. Citicorp operates a private credit card program for "Bradlees," a chain of retail stores. Under Customers receive monthly statements of their accounts from Citicorp. The front of the statement bears Bradlees' address and logo and gives information about the account including the date and description of transactions and the account balance. The statement also directs customers to make checks payable to Bradlees. The back of the statement contains a summary of billing rights and directs customers with questions about their bill or in need of information about a transaction to write to the Bradlees address located on the front of the bill. The back of the statement also contains information about special rules for credit card purchases and finance charge and other payment information. Included on the back is a statement that "Citicorp Retail Services, Inc., Creditor, and its affiliates, successors, or assigns keep records on your purchases, prepare bills, collect payments and handle billing disputes for us." Finally, the billing statement directs customers to send inquiries to Bradlees and to notify Bradlees of any change of address by writing to them at P.O. Box 2050 Huntington Station, NY.

this credit card program, Bradlees' customers purchase goods on their Bradlees credit cards; Citicorp then acquires the customers' obligations to pay and bears the credit risk in the event that customers do not pay their accounts.

Maguire, a Bradlees credit card holder, fell behind in payment on her Bradlees account. She received a series of "dunning" letters from Citicorp, including one letter from M.I. Moir, Citicorp's outside attorney, written on behalf of "Citicorp Retail Services, Inc.," demanding that she pay the overdue amount on her Bradlees account.

Subsequently, Maguire received the letter from Debtor Assistance dated October 18, 1994 that is the sole focus of this appeal. The letter stated the following:

DEBTOR ASSISTANCE

AGENCY CONTROL UNIT

245 OLD COUNTRY ROAD

MELVILLE, N.Y. 11747

KAREN C. MAGUIRE

213 EXCHANGE STREET

NEW HAVEN, CT 06513

Re: Bradlees Acct. No.: 187061108713

Dear KAREN C. MAGUIRE

Are you aware that your Bradlees account has recently charged off? Having a charged off account means:

1. Account will be reported as a charge off delinquent account and will remain on your personal credit report for seven years.

2. Finance charges have been stopped.

3. Account will be reported to a collection agency if payment is not received within thirty days.

The Debtor Assistance unit of CRS would like to offer you the opportunity to set up manageable payment arrangements on your balance of $ 1,132.51.

1. You may pay 80% of your balance in one payment of $906.01 by 11/4/94 which would consider your account settled.

2. Make monthly payment arrangements of $113.25 by the 4th of the month beginning in November.

I am sure you will be interested in taking this opportunity to set up arrangements today. Contact us at (516) 673-2416 between the hours of 8a.m.-5p.m. Monday thru Thursday if you have any questions.

Please understand, if payment is not received within thirty days, this offer will be withdrawn. We look forward to working with you.

We have enclosed a self addressed envelope for your convenience.

Sincerely,

Jackie Davis, Debtor Assistance Agent

Debtor Assistance is a unit of Citicorp responsible for accounts which have become so delinquent that they have been written off for financial disclosure purposes but have not been assigned to an outside collection agency for contingent fee collection. If an individual's account balance is $25 or greater and there is no notification of fraud, bankruptcy, settlement, full payment or death, Citicorp's computer system will generate the Debtor Maguire did not take up the offer in the Debtor Assistance letter. Instead, she defaulted on her account and ultimately filed for bankruptcy. After emerging from bankruptcy proceedings, Maguire filed the instant action in the district court claiming that the Debtor Assistance letter violates the FDCPA and the CUTPA. On January 6, 1997 Maguire filed a motion for partial summary judgment on the issue of liability under the FDCPA and the CUTPA; Citicorp cross-moved for summary judgment.

Assistance form letter that was received by Maguire. Citicorp bears all costs of transmitting these form letters, including printing and postage. The phone number included in the letter is issued to Citicorp and Citicorp pays all bills in connection with that number.

The district court denied plaintiff's motion for partial summary judgment, granted Citicorp's motion for summary judgment, and dismissed the complaint. See Maguire v. Citicorp Retail Servs., No. 3:95CV2113 (AHN), 1997 WL 280540 (D.Conn. May 19, 1997). The district court held that Citicorp had not brought itself within the ambit of the FDCPA and that Maguire had failed to demonstrate any injury as required to state a claim under the CUTPA. This appeal followed.

DISCUSSION

We review a district court's grant of summary judgment de novo, Citizens Bank of Clearwater v. Hunt, 927 F.2d 707, 710 (2d Cir.1991), construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We will affirm a district court's decision to grant summary judgment if the record indicates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). This court will not try issues of fact, but will only determine whether there are issues to be tried. See Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 55 (2d Cir.1987).

I. Fair Debt Collection Practices Act

The FDCPA prohibits "debt collector[s]" from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. A "debt collector" is defined as "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6).

As a general matter, creditors are not subject to the FDCPA. However, a creditor becomes subject to the FDCPA if the creditor "in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts." 15 U.S.C. § 1692a(6). A creditor uses a name other than its own when it uses a name that implies that a third party is involved in collecting its debts, "pretends to be someone else" or "uses a pseudonym or alias." Villarreal v. Snow, 1996 WL 473386 at * 3 (N.D.Ill. Aug.19, 1996). Although a creditor need not use its full business name or its name of incorporation to avoid FDCPA coverage, it should use the "name under which it usually transacts business, or a commonly-used acronym," Federal Trade Commission Statements of General Policy or Interpretation Staff Commentary On the Fair Debt Collection Practices Act, 53 Fed.Reg. 50097, 50107 (1988), or any name that it has used from the inception of the credit relation, see Dickenson v. Townside T.V. & Appliance, Inc., 770 F.Supp. 1122, 1128 (S.D.W.Va.1990).

Similarly, a creditor's in-house collection division, such as Citicorp's Debtor Assistance, is not considered a debt collector "so long as [it uses] the creditor's true business name when collecting." S.Rep. No. 95-382 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1698. An in-house collection unit will be exempt from the provisions of the FDCPA if it collects its own debts in the true name of the creditor or a name under which it has consistently done business. See Kempf v. Famous Barr Co., 676 F.Supp. 937, 938 (E.D.Mo.1988).

Maguire concedes that Citicorp is a creditor, but argues that Citicorp is nonetheless subject to liability under the FDCPA as a debt collector because Citicorp used the name Debtor Assistance, a "name other than its own," when collecting its debt. We agree and we reverse the district court's grant of summary judgment for defendant and remand the case for further proceedings.

The district court concluded that because Debtor Assistance is, in fact, a unit of Citicorp, it was not using an alias, or a name other than its own, and was not liable under the FDCPA. See Maguire, 1997 WL 280540, at * 5. The district court further held that Citicorp was not attempting to collect its own debt under a...